General Terms and Conditions of VWMs GmbH
1.1 These General Terms and Conditions (GTC, GT&C) of VWMs GmbH (Company registration number: FN 460077i) apply to all sales and, if applicable, as conditions of purchase for all purchases of the company, unless otherwise agreed in writing. They thus form an integral part of any offer or transaction. They apply to any order or delivery, and for any subsequent transactions as agreed, unless objected to in writing in advance by the customer. Deviating conditions of the contract partner are – except by written permission of VWMs – not part of the contract. These GTC are a translation of the original and binding German version.
1.2 These conditions apply to all products and services of VWMs, thus to hardware and software products, reorders, spare parts, accessories, services, examinations, projects, reports, the execution of repairs to products delivered or parts thereof.
2 Offers, orders
2.1 The offers of VWMs are subject to change.
2.2. A contract or the acceptance of an order exists exclusively with a written confirmation of VWMs. Oral agreements which are not explicitly confirmed in writing by VWMs are not binding. This also applies to the waiver of the need for written agreements and in particular to all agreements with agents and employees as well as statements in terms of properties such as quality, performance and durability of the products of VWMs.
2.3. Requests for changes by customers, additions to an order or special instructions apply only after written confirmation by VWMs and are restricted to that single order as agreed.
3 Prices, delivery
3.1 All prices are, unless otherwise agreed in writing, excludling VAT. and excluding shipment. If no delivery details are agreed, prices are ex works including plain packaging; Additional costs for special packaging, transport, insurance and the delivery related charges, customs duties and taxes shall be borne by the customer.
3.2 Shipping is at the customer’s risk. With the release of VWMs regarding the availability of the goods at the handing over of the delivery, the obligation of VWMs is considered to be fulfilled and the risk has passed to the customer. If acceptance is agreed before the delivery of the product(s), the date for meeting the deadline is when VWMs declares readiness. In case the customer wishes to witness final inspection and/or have a handover, a handover protocol has to be filled out.
3.3 In case that changes to products in design or specifications are introduced between order and delivery, VWMs is entitled but not obliged to deliver the ordered products with the newly introduced changes.
3.4 Delivery times are given by the estimated delivery circumstances and are subject to unforeseen circumstances of any kind. They start only after clarification of all technical issues and all obligations the customer side. Any regulatory approvals or third party consents for the construction of facilities shall be obtained by the customer in advance. In case that circumstances which VWMs cannot control (even if they happen to VWMs or its suppliers) lead to a delay in the agreed delivery date, the delivery time will be extended. VWMs will inform the customer about such a case immediately. If the impeding circumstances are still around ten weeks after the expiry of the agreed delivery time, both parties have the right to withdraw from the contract. Further claims against VWMs because of a delay in delivery are excluded. Costs that have been accrued on the part of VWMs by then shall be reimbursed by the customer.
3.5 In the case of a delay in delivery caused by VWMs- where VWMs’s suppliers are not being considered – the customer is entitled to demand in writing a reasonable extension, which must be at least 30 working days. After the unsuccessful expiration, the customer may cancel the contract within 20 working days. If the customer proves that he has incurred a damage due to the late delivery, a lump-sum compensation for the delay is agreed as follows: for each full week 1.0% of the value of the delayed delivery, but in total a maximum of 15% of the delivery value. However, VWMs is not liable for small negligence. Further claims from the title of delayed delivery are excluded insofar as legally possible.
3.6 A delay in product or service acceptance by the customer shall entitle VWMs regardless of the previously made payment agreement to send an invoice to the customer over the full contract amount.
4 Payment terms, set-off of payments
4.1 Unless otherwise agreed, payments shall be made within 30 days net from the date of the invoice. VWMs is entitled to invoice 50% of the total sum at receipt of the order confirmation and the other 50% of the order after acceptance of the delivery. Discount deduction is not allowed and will be requested back. Payments shall be made in the currency of the offer, any bank charges will be borne by the purchaser. Cash payments are not possible, there are no natural rebates granted.
4.2 The customer is not allowed to set off payments or other benefits to which he is entitled against VWMs against his own invoices from VWMs.
4.3 VWMs may refuse to fulfil the contract if the customer in spite of a reasonable extension does not meet his payment obligations.
5 Retention of goods ownership
5.1 All goods, until full payment of all incurred charges and invoices from the purchase of goods or services, remain the property of VWMs. This includes all liabilities of the customer, especially the full payment of the purchase price and any already accrued default interest, dunning and collection costs. The retention of title (goods ownership) also extends to the result of processing, combining or mixing products, for example, investment in water management, in which a VWMs product for controlling or monitoring is used. If the reserved goods, however, are processed with other products which are not the property of the customer to a new product, VWMs shall acquire co-ownership of this new product depending on the value of the goods.
5.2 Should the goods be accessed by third parties, VWMs has to be informed immediately thereof by a registered letter. The customer must also reimburse all costs and expenses that VWMs incurs from the intervention of third parties, also with regard to extrajudicial measures. The customer has a duty during the period of retention to keep the goods in good condition and insured accordingly if necessary.
5.3 The goods may be resold prior to payment only with the written consent of VWMs; other dispositions such as collateral assignment, pledge, etc. are not permitted.
5.4 In the case of resale of the reserved property by the customer, all deals are considered to be closed on behalf of and for VWMs. The customer agrees to make an appropriate entry in his books and to communicate through a note on his invoices.
5.5 If the customer, regardless of the reasons, does not meet his payment obligations, the seller, VWMs, may exercise its retention of title immediately.
6.1 VWMs warrants its products to be free from defects in materials and labor. Also, VWMs warrants that the specification is according to the offer or offer confirmation; Defects that lead to an insignificant deterioration of the product are not covered by the warranty. VWMs also guarantees that all services are provided in an expert and professional way. Any further warranty or guarantee of fitness, a particular purpose or a specific application of the Goods is expressedly excluded, unless it has been agreed in writing. Patterns, weights, dimensions, sketches, etc., are to be regarded as approximate. Pictures and catalogs are not binding.
6.2 The warranty period is 12 months for new products and 6 months for repairs and spare parts, which are made or supplied after the expiry of the warranty period.
6.3 In cases of incomplete or incorrect delivery, and any other defects in the goods, the buyer has to inform the seller immediately, but at the latest with a maximum of 5 working days after receipt at VWMs incoming letter; there is a common acceptance of the products, the complaint must be declared as part of the decrease and recorded in writing. If a notification of defects comes in too late, all warranties and forms of compensation – as far as legally possible – are excluded.
6.4 If there is a warranty defect, the parts that have the defect are either repaired or replaced, at VWM’s discretion; In this case, VWMs is entitled – at its choice – to improve the product locally or have it sent to its facilites at the expense of the customer. No right for rescission or price reduction is earned, unless VWMs is not able to correct the deficiency within 30 business days. Any further claims are excluded in any case. The provisions of §§ 933a (the third paragraph) and §§ 933b ABGB (Civil Code) are excluded.
6.5 The warranty obligation of the seller applies only to those defects which occur during normal and proper use. The warranty also expires if the customer ignores the operating manuals or operating instructions, makes changes or repairs to the goods himself or by third parties, as well as when the customer fails to comply with a given appropriate commitment, in particular fails to make agreed payments, for which reason whatsoever. VWMs does not guarantee beyond warranty for defects caused by customer-supplied material, for an improper installation site or damages that are caused by lightning, power surges, chemical influences and Force Majeure.
6.6 For products which are explicitly sold as prototypes (both equipment and consumables) VWMs does not provide any warranty or guarantee. This is explicitly agreed. Customers who obtain prototypes by VWMs will receive a very favourable price and are therefore obliged to provide feedback about the performance to VWMs.
7 Compensation and product liability
7.1 The liability of VWMs arising out of or in connection with the delivery of goods or the provision of other services is – as far as legally possible – basically limited to the typical contractual damages, damages for intentional or grossly negligent conduct; liability for damages caused by slight negligence is- as far as legally possible – excluded. Excluded is also – if legally permissible – compensation for consequential damages, losses or other indirect damage and loss of profit.
7.2 The claimed monetary amount under these conditions is limited – as far as legally admissibile – to the amount of the net invoice of the relevant goods or services (i.e. not total invoice amount, provided that several items were included, and not beyond).
7.3 If the customer has paid compensation to a third party under the provisions of the product liability law, a recourse against the seller – except for intent and gross negligence – is excluded.
7.4 As far as VWMs, by mandatory provisions of the product liability law, hast o pay compensation to a third party because of a failure of a product in which the goods supplied by VWMs are only part of the product, the responsibility in case of recourse to provide evidence that the error of the total product is caused or contributed to by a defect of VWMs product is with the customer.
8 Installation and Training
8.1 VWMs is responsible for installing and commissioning of products solely on the basis of a written agreement or accepted order, in which the extent of the support services provided in connection with the installation are specified, such as training, support, installation and tests, or consulting.
8.2 The customer is obliged to pay VWMs for each installation technician or other employee in this regard for expenses incurred on the basis of hourly rates of VWMs for technicians and a premium for any overtime and resulting from the technician‘s travel and luggage shipping costs (based on actual expenditures or according to official rates for mileage, daily allowance and night allowance).
8.3 The customer is obliged, in a timely manner and at his own expense and risk, to take precautions to ensure the necessary support for the installation and / or commissioning workforce, the necessary preparatory work, equipment, materials, supplies and tools, suitable, plus lockable facilities for the proper custody of the the installation and/or commissioning materials and equipment of all kinds provided by VWMs; The customer is obliged to carry out all structural or other measures, which are necessary for the timely execution of the installation and/or commissioning, including the testing of the products under real conditions.
8.4 The installation is complete when the product has sucessfully passed the installation and testing process of VWMs. In case that the installation is delayed by more than 15 business days for reasons out of VWMs’s responsibilty, the product is deemed to have been accepted on the 16th working day.
8.5 VWMs will carry out customer training, provided that this has been agreed in writing; prices for on-site training are exclusive of costs for transport and accommodation of VWMs employees, which shall be borne by the customer.
9 Operation and maintenance
9.1 The use of the products is subject to the manuals published by VWMs, and the buyer is responsible to obtain these manuals from VWMs in the required number. If the instruction manual is not supplied, the customer has to inform VWMs immediately. Failure to comply with these instructions will also invalidate the warranty or damage claims by the customer.
9.2 If the customer has ordered, with a written agreement, a maintenance package, VWMs will maintain the products in accordance with the applicable package ordered. It is stated that in the maintenance packages, the travel and subsistence expenses for on-site services are not included.
10 Licenses, intellectual property rights
10.1 VWMs, upon the purchase of software (individually or integrated into products), grants its customer a worldwide, non-exclusive and non-transferable license (without the right to grant sublicenses) to use the software in connection with the hardware supplied by VWMs in accordance with any documentation provided by VWMs. The customer agrees not to modify the software, not to imitate it, not to copy it and not to provide it in a network with multiple users.
10.2 The customer acknowledges that all rights to the purchased item, especially patent rights and copyrights owned by VWMs are or have been licensed by VWMs. This also applies to any changes in the products, even if they were ordered and paid for by the customer.
10.3 The customer is obliged to inform VWMs about any violation of the rights of the object of purchase, in particular patent rights, by a third party, as soon at such a violation comes to this attention. However, the defense of these rights, and thereby the payment of judicial and extrajudicial costs is the sole responsibility of VWMs.
10.4 If the purchased item has been manufactured by VWMs on the basis of designs, drawings, models or other specifications of the customer, the customer assumes the liability that VWMs does not violate any rights of third parties. The customer will, in such a case that VWMs infringes and third party rights in this context, indemnify and hold harmless in respect of legal proceedings and claims/liabilities.
10.5 With all documents by VWMs such as plans, sketches and other technical documents such as as samples, catalogues, brochures and illustrations, among others VWMs, retains all ownership and copyright. The customer must not make them available to third parties unless agreed upon in writing by VWMs before.
10.6 Reverse engineering, own developments/improvements: The customer purchases or leases VWMs equipment for measurement purposes. He is in no way entitled to inspect the unit on structure and function for reverse engineering, to modify or develop it further. VWMs will perform desired development work for the customer as an order.
10.7 Use of data and surrendering of products: Direct and indirect competitors of VWMs may not receive results, data, devices or components for a fee or free of charge. Otherwise, VWMs will claim compensation for damage.
10.8 The customer must not, under any circumstances, bring VWMs or its technology into disrepute, otherwise he becomes liable for compensation payments.
11 General provisions
11.1 VWMs is entitled to cite the name of the customer as a reference or as a reference project and publish it on the homepage of VWMs and other marketing materials. VWMs is also entitled to store personal data of the customer for own purposes and use. VWMs will neither sell nor pass on the data to third parties for their use.
11.2 The failure of a party to exercise a right under these rules, shall not constitute a waiver of this clause/right.
11.3 If any provision of these terms and conditions is wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. Each invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.
11.4 All transactions concluded with VWMs are subject to Austrian law excluding the UN sales law and the conflict of law rules of private international law.
11.5 Any disputes, conflicts or claims, that are arising out of or in connection with a contract entered into under these conditions, its violation, termination or nullity shall at the discretion of the plaintiff be finally settled (i) at the competent court for the registered office of the defendant or (ii) at the competent court in Vienna.