1.1
The following conditions apply to all business relations between HS GmbH and the customer. The deciding version at the time of the conclusion of the contract in each case is the version which is valid on the HS GmbH Homepage.
1.2
Amendments and additions to these provisions or deviating commitments are all expressly required to be confirmed by HS GmbH in written.
1.3
Our terms and conditions shall prevail over any general terms and conditions of business or purchase of the customer, even if we do not expressly object to contradictory conditions.
2.1
Our offers are non-committal and non-binding. Our offers are always made in writing and are binding for the period stated therein unless an explicitly different agreement has been made in writing.
2.2
By placing an order, the customer declares his contract acceptance is binding. Should an obvious calculation error arise during the offer, we will point it out to the customer and solve this mistake by mutual agreement. We are entitled to reject the order – after examining the customer’s creditworthiness, for example – or (new customers) negotiate an advanced payment.
2.3
The contract is only concluded when we have sent a written declaration of acceptance to the customer in the form of an order confirmation (can also be done by fax or e-mail).
3.1
The performance, delivery periods and the delivery date are categorically agreed upon in the declaration of acceptance (order confirmation). The delivery period starts with the receipt of our order confirmation, but not before receiving any information which the customer might have to provide. If the customer does not fully fulfill his contractual obligations, such as the agreed opening of a letter of credit, or the provision of a guarantee of payment or a letter of comfort in particular, as well as other technical and commercial conditions and details which need to be procured beforehand, the progress of the delivery will be delayed until the customer does. This shall not affect our right to demand compensation from the customer for the expenses caused by this delay.
3.2
Partial deliveries by us are permissible. Each partial delivery is basically an independent business transaction.
3.3
If the customer does not accept the product delivered according to the contract at the agreed place and / or at the agreed time and/or if the delay is not caused by us, we can demand either immediate fulfilment of the payment or withdraw from the contract. The customer’s default in acceptance shall have the consequences pursuant to section 14.
3.4
Claims against us for damages and lost profits due to non-timely delivery as well as any consequential damages are excluded.
3.5
In the case of supply contracts on demand, unless otherwise agreed, we shall be obliged to notify in written at least 3 months before the agreed delivery date.
4.1
“Ex Works” has in principle been agreed upon as the place of fulfilment for our delivery (INCOTERMS 2010). The date of the transfer of risk defined in the INCOTERMS 2010 shall apply, regardless of any performance obligations which we may have to carry out, such as Installation support etc.
4.2
If the customer wishes for an acceptance review, this has to be made expressly clear to us in writing at the conclusion of the contract. Unless otherwise agreed upon, the acceptance review shall be carried out at the place of manufacture (6863 Egg, Austria) or at a location to be determined by us during our normal business hours. The general practice for the acceptance review is deciding.
4.3
The products developed, manufactured and sold by HS GmbH are sent by default either in individual packages (set articles or small quantities) or in industrial packages (large orders, special customer projects, etc.).
The HS GmbH reserves the right to change or optimize the packaging method with regard to ecology and economy and also in the customer’s interest at any time without prior notice.
5.1
The purchase price is considered net without any deductions in accordance with our order confirmation from the factory plus transport costs or tariffs and insurance if required unless otherwise agreed upon in the order confirmation.
5.2
If the customer is living outside of Austria, he is obliged to comply with the European Unions’ regulations on import sales tax. This includes, in particular, the disclosure of the VAT identification number and the EORI number to us, if available, without any special request.
5.3
Should contract-related costs (such as wages, material and/or energy costs) change significantly after the conclusion of the contract and these changes were not foreseeable, we will notify the customer without delay and negotiate a price adjustment. We are entitled to demand reimbursement for all additional justifiable expenses which we have to make in the fulfillment of this order and which are not included in the payments received so far (purchase price). Claims against the customer (see point 3.4) are not affected by this.
6.1
6863 Egg, Austria shall be considered the place of fulfillment for payments made to us.
6.2
The invoices are due 14 days after receiving them, net without deduction unless otherwise agreed upon.
6.3
Payments shall be considered to have been made on the date on which we can dispose of them in the agreed currency.
6.4
We reserve the right to also make claims for other damages which have been caused by the customer and have been incurred by us. The customer is obligated to reimburse all expenditures and costs involved by these claim recoveries, in particular, reminders, bill collection, collection costs and information costs and the costs of the lawyers hired by us and other costs necessary for the purpose of proper legal prosecution.
6.5
Payments will be charged to the oldest outstanding debt if no explicit dedication is made. For individual claims payments themselves will first be charged against costs, then against interest rates.
6.6
Failure to comply with the agreed-upon terms of payment and/or occurrence of circumstances giving rise to doubts about the customer’s solvency means we are entitled to demand immediate paid, to withdraw from all pending delivery contracts as well as to claim damages due to non-fulfilment.
This shall not affect our right, regardless of the customer’s fault, to demand compensation for damages and/or replacement of all costs incurred in connection with contract expenditures already incurred.
6.7
No obligations towards the customer on our part can arise from exercising these rights, in particular, no claims for damages. Furthermore, the customer is not entitled to set off any possible counterclaims against the agreed purchase price. The customer is not entitled to withhold payment.
7.1
If the supply of purchased parts and components is contractually agreed upon by the customer, the customer shall be liable for the appropriate timely, qualitative and quantitatively delivery to us. All purchased parts or components supplied by the customer are not subject to warranty or guaranteed by HS GmbH (see points 11, 12 and 13). If the parts or components are not delivered in time before the contractually agreed upon delivery date, the delivery date shifts and we are not liable for the consequences arising from the delay (see point 3.1). The customer is informed of this in a timely manner.
7.2
HS GmbH does not accept any liability for damages to purchased parts or components of products supplied by the customer due to force majeure (see point 10).
8.1
The products sold remain our property until full payment and all our additional requirements, in particular interest and costs, have been fulfilled.
8.2
As long as our proprietary rights to the products exists, the customer is obligated to store them properly and insure them against loss and depreciation, fire and theft, storage and water damage transfer them in our favor at his expense. The resale, pledge or security transfer of the delivered goods as a whole or in part is subject to our written consent.
9.1
The customer unconditionally recognizes our patent, brand, copyright and design rights for our products.
9.2
Documents provided by us may neither be reproduced nor made accessible to third parties without our approval. They can be recalled at any time without giving any reasons.
9.3
If the customer becomes aware that these rights (clause 9.1) are being infringed upon by a third party, he is obligated to inform us without undue delay with all details and grant us all reasonable support in asserting our rights.
9.4
If a product is manufactured by us on the basis of the customer’s design specifications, drawings, models or other specifications and/or we are called upon by third parties due to possible infringements of patent, trademark, copyrights and design rights, the customer is obligated to indemnify us and keep us harmless and to give us every help in defending us from these the claims.
10.1
Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a subsequent reasonable start-up period or to withdraw from the contract fully or in part. No liability on our part against the customer, in particular claims for damages against us, can arise from this.
10.2
Force majeure is, for example, strike, lock-out, mobilization, war, blockade, exports and imports ban, raw material and fuel shortages, fire, traffic locks, disturbances of the operations or transportation as well as other circumstances which make handling the business substantially more difficult or impossible. This is independent of whether they happen to us, our suppliers or their subcontractors, within the customer’s premises or elsewhere. Non-delivery or non-timely delivery from our suppliers are also considered force majeure, provided that the cause is due to reasons beyond our control.
11.1
The warranty period/guarantee period starts on the date of the passage of the risk (point 4.1) and is valid for a period of 2 years unless something else is expressly agreed upon. The warranty or guarantee of 2 years applies exclusively to products developed, manufactured and sold by HS GmbH. Parts or components (electrical, electronic or mechanical parts or components) which are provided by the customer are expressly excluded from the warranty /guarantee.
11.2
Warranty/guarantee only applies to the expressly described functional properties of our products or to those which are commonly assumed.
11.3
Warranty and/or guarantee claims shall become invalid in any case by with repairs or any other manipulation of the product by our customer.
11.4
If a product is manufactured on the basis of design specifications, drawings, models or components of the customer, our liability does not extend on the correctness of the construction, but only on the execution according to the information provided by the customer. In such a warranty claim the customer has to keep us fully harmless.
11.5
The warranty shall be governed exclusively by the provisions of clauses 11 and 12. In particular legal transactions falling under § 924 ABGB (presumption of defectiveness) shall not apply to claims which fall under these General terms and conditions. The customer bears the burden of proof for all claims, in particular for the defect itself, for the time of the discovery of the defect and for the punctuality of the complaint.
In case of a defect (setup and/or installation, consequential costs due to damages e.g. to furniture, etc.), no charges or obligations are assumed by HS GmbH.
12.1
The products delivered by us are to be checked by the customer for defects immediately upon delivery (delivery see point 4.1) and possible defects must be reported without delay and in detail. The notification of a defect must be made in writing (also by fax or by e-mail). Defects, which are only shown later, are to be reported in the same way immediately after their discovery.
12.2
The customer shall bear the responsibility for the proper installation, in particular with regard to the intended use, taking into consideration the USER MANUAL installation instructions provided by HS GmbH (including safety instructions, installation instructions, programming instructions and operating instructions).
12.3
In case of rectifiable defects, we are entitled to repair, improve, supplement the defect, replace the defective products / product parts at our discretion. Any further claims against us, in particular rights for conversion, damages and/or replacements, as well as for the loss of profits and claims from possible consequential damages are excluded.
12.4
In the event of irremediable defects, we are entitled to offer the exchange of the defective products or a reverse transaction with a credit note at our discretion. Any further claims against us, damage claims or claims for possible consequential damages are excluded.
13.1
We are only liable for damages to the products provided by the customer, which were made directly during the performance and which were caused by gross negligence or intent. All other claims by the customer, especially for any further compensation claims for damages, including possible damages due to deficiency or loss of profit, are excluded.
13.2
In the case of claims for damages for any reason whatsoever, we shall only be liable in accordance with the following agreements:
13.3
The reversal of the burden of proof according to Art. § 1298 ABGB is expressly excluded. The statute of limitations for damage claims against us shall be reduced to 6 (six) months.
13.4
The customer waives the contestation of the contract in case of error, insofar as this was not caused by gross negligence or intent.
13.5
In the event of a breach of the obligations imposed on the customer under these General terms and conditions, the customer shall be obligated to keep us entirely harmless (including possible attorney and legal costs).
13.6
If the customer has paid compensation to a third party with regard to a product delivered by us as a result of the provisions of the product liability law (PHG), any recourse claims against us are excluded in any case.
13.7
Any further claims against us are excluded, insofar as this is not compelled by law.
14.1
If a later delivery date than the specified delivery date is requested by the customer after the order has been issued, we are entitled to invoice all costs incurred by this change (including any price increases resulting from the price increase in raw material and the cost of labour). A change in the delivery date must be confirmed by us in writing.
14.2
If the customer wishes to postpone the delivery date by more than 3 months from the specified delivery date, the customer is simultaneously obligated to pay an additional 10% of the invoice value to us in advance.
14.3
In the case of postponement of the delivery date, we are entitled to store the materials and/or products produced on our premises at the customer’s risk and expense. We can also make use of a freight forwarder or warehouse keeper. All costs incurred by the postponement and storage of the goods will be invoiced to the customer per month in advance.
15.1
We are liable within the scope of the Product Liability Act (PHG) for injuries to persons injury and damage to property, in particular for those suffered by a consumer.
15.2
The customer who purchased the products from us has obligated himself to inform himself completely about the assembly, operation, commissioning and safety instructions of our products. For this purpose, HS GmbH provides a detailed USER MANUAL in which all necessary information and explanations can be found. HS GmbH also offers telephone support and, in case of a contractual agreement, on-site support.
16.1
We are entitled to withdraw from the contract if
(b) there are any concerns about the customer’s solvency, who, at our request, does not provide advance payment or provides an adequate security before delivery (see section 6.6);
16.2
The withdrawal may also be explained with regard to a still open part of the contracted delivery and performance for the above reasons.
16.3
In case, we withdraw from the contract as a result of the customer’s failure of acceptance, we shall be entitled to claim a lump sum in damages amounting to 25% of the agreed net invoice value. We expressly reserve the right to assert an actual higher amount.
16.4
If insolvency proceedings are to be opened on the assets of a contracting party or a request for the commencement of insolvency proceedings should be rejected for lack of sufficient assets, the other contracting party shall be entitled to withdraw from the contract without setting an extension.
16.5
Without prejudice to our damage claims, in the case of a withdrawal from the contract, already rendered services or partially rendered services must be settled and made payable. This shall also apply insofar as the delivery and service has not yet been accepted by the customer and/or has already been provided by us through preliminary work. As an alternative, we have the right to demand the return of objects already delivered.
16.6
A cancellation shall be excluded in any event, if production has already begun at the time the written notification has been received, or if components have already been manufactured or ordered for this order.
17.1
The contracting parties are obligated to keep the knowledge gained from the business relations absolutely confidential from third parties.
17.2
Each customer shall also use all documentation (including samples, models, and data, as well as documents) and knowledge obtained from the business relationship only for the jointly pursued purposes, and will keep them secret from third parties with the same diligence as he would his own documents and knowledge if we label them confidential or have an obvious interest in keeping them a secret.
17.3
Your business contact details (such as name, position, business email address, business phone number, department, user ID) and your business function for the following purposes:
Unser Datenschutzbeauftragte ist: Günther Sutterlüty, s@hsgroup.at +43 664
17 22 900, CEO der HS GmbH
18.1
The substantive Austrian laws apply exclusively to the contract as well as to these general terms and conditions of business and delivery.
18.2
For all conflicts arising from the contract or the general terms and conditions or in connection with the contract or the general terms and conditions the competent court of jurisdiction is located in 6863 Egg, Austria.
19.1
In case, individual provisions of the contract or these general conditions of business and delivery become in whole or in part void, invalid or unenforceable, the validity and enforceability of all remaining provisions shall remain unaffected. The void, invalid or unenforceable provision is, as far as legally permissible, considered to be replaced by the effective and enforceable provision which comes closest to the pursued economic purpose, measure, time, place and scope of the void, invalid or unenforceable provision. The same applies to the filling of any gaps in this contract.
19.2
In the event that contracts or the general terms and conditions of business or delivery or project conditions are drafted by us in a language other than German, the German terms and conditions shall, in any case, come before the other conditions.
19.3
Excluded from this are contracts in English. Here our General Conditions of Business and Delivery in English apply.
Version: 09. January 2017
HS GmbH,
Melisau 1255
6863 Egg Austria
