I. General provisions
- Our deliveries, services or deliverables and offers shall be provided exclusively based on our General Terms and Conditions; this also applies to all future business relationships, unless explicitly agreed otherwise. These Terms and Conditions shall be deemed to have been accepted by the Buyer no later than upon taking delivery of the delivery item / services. The Buyer’s deviating provisions or confirmations of the Buyer, referring to its terms and conditions or purchasing terms, are hereby rejected and these shall become contents of the contract only if they were expressly agreed in writing.
- Amendments to our Terms and Conditions shall be valid only if we confirm this in writing.
- All agreements including any ancillary agreements, commitments or representations, briefings or other declarations by our employees/representatives/vicarious agents shall be legally binding only if they are confirmed in writing by us. Compliance with the requirement of the written form may be waived by us only in writing.The requirement of the written form shall also be met if documents are sent by telefax to the respective other party to the contract. The authentic contract language also to be used in the event of questions of interpretation shall be German.
- AQUAFIDES GmbH may generally assume that employees of the Buyer are entitled to place orders in the name of the Buyer, to make legally or contractually binding statements on behalf of the Buyer and to deliver goods for processing or to collect them.
- The application of sections 9 and 10 of the Austrian E-Commerce-Law (ECG, E-Commerce-Gesetz) shall be excluded.
- Any avoidance of the contract on the grounds of error shall be excluded.
- AQUAFIDES GmbH enters into Agreements exclusively with other entrepreneurs or regional or local authorities (B2B transactions).
- AQUAFIDES GmbH shall be bound by an offer for three months, unless a different binding period was agreed.
- Cost estimates, offers, drawings and other enclosed documents and associated with this, the concept of AQUAFIDES GmbH’s facilities/systems and process technologies, are the property of AQUAFIDES GmbH as well as its suppliers and are subject to statutory copyrights. They may neither be handed out nor disclosed to unauthorized third parties, in whole or in part, without our express consent in writing. The currently applicable statutory provisions shall apply to this. As a precaution, we also draw attention to the fact that parts of our facilities/systems are protected by Austrian and foreign patents The Buyer is obliged to take appropriate measures which prevent unauthorized third parties from accessing such data. In the event of a breach of this obligation, the Buyer shall be liable to AQUAFIDES GmbH for any damage resulting therefrom.
III. Formation of the contract
- The purchase order shall be deemed to have been accepted only when it is confirmed in writing by AQUAFIDES GmbH.
- The briefing by our employees of the in-house staff and field sales force will be done according to the best of our knowledge and in accordance with generally recognized state-of-the-art technology. It shall be geared to normal operating circumstances. Should the operational conditions, e.g. water circumstances, change in the time between our offer and the rollout, the Buyer is obliged to notify this to us in writing immediately.
- In the case of electronically concluded contracts the following shall apply:
The content of the contract will be stored by AQUAFIDES GmbH for internal purposes only. It is not possible to make the contract content available again to the Buyer after conclusion of the contract. The Buyer is obliged to store or keep the contract text himself.
IV. Scope of delivery
- The scope of delivery shall be determined by our order confirmation in writing.
- Any supplements, amendments, etc. to the order shall require confirmation in writing by AQUAFIDES GmbH.
V. Period for delivery
- The period for delivery, which is set out in the order confirmation, shall commence on the date of sending our order confirmation, but not before all technical and commercial details have been completely clarified.
- The period for delivery shall be deemed to have been observed if up until its expiry the delivery item has left our works or readiness for shipment has been notified to the Buyer.
- Our observance of the period for delivery shall be under the condition that the Buyer has fulfilled his contractual obligations.
- The period for delivery shall be extended appropriately in the event of measures in connection with labour disputes, in particular strikes and lock-outs, as well as upon the occurrence of unforeseeable obstacles such as e.g. mobilisation, war, riots etc., and namely also if they occur during a delay in delivery. This shall also apply even if such circumstances affect our suppliers. An appropriate time extension shall also be provided if official or Buyer’s information otherwise required for the execution of the delivery is not received in good time. The same shall apply in the event of a subsequent change to the purchase order.
- The Buyer must immediately call up goods reported as being ready for shipment; failing this, we are entitled to store the goods at Buyer’s expense and risk. The risk of an incidental loss or an incidental deterioration shall be transferred to Buyer at the time when the readiness for shipment was notified to it.
- Should the Buyer default on acceptance of the delivery, AQUAFIDES GmbH shall, after setting and unsuccessful expiry of a reasonable period of grace, be entitled to dispose of the delivery item elsewhere and to deliver to the Buyer within an appropriately extended time period. This shall not have any influence on the fulfilment and due date of Buyer’s agreed payment obligations.
- In the event of delay in delivery or default of delivery, the Buyer shall, after expiry of the period for delivery extended in accordance with Article V.4 above or after the agreed period for delivery was exceeded, be entitled to withdraw from the Agreement in respect of the not-yet-fulfilled part and this only after setting an appropriate grace period
VI. Prices, Payments
- Unless otherwise agreed, prices are quoted net of statutory value-added tax, ex-works, excluding packaging, insurance and loading.
- The goods shall be packaged as required according to commercial practice at our discretion and at the Buyer’s expense.
- Unless otherwise agreed in writing, our invoices shall be due immediately and payable without any deductions free of charge to the AQUAFIDES GmbH payment agent.
- For completed parts of the work to be produced or for specifically acquired or delivered materials and components, AQUAFIDES GmbH may request appropriate part payments by issuing partial invoices.
- The acceptance of bills of exchange shall require a separate agreement, whereby interest and costs of discounting must be borne by Buyer in any case. The invoices shall only be deemed to be paid upon the final credit to our bank account.
- For the event that Buyer fails to meet the deadline for payment, or that the Buyer defaults on acceptance of delivery or that partial payments had been agreed and even only one partial payment was not made in good time (Terminsverlust), default interest under section 456 Austrian Commercial Code (UGB, Unternehmensgesetzbuch) shall be deemed to have been agreed. In the event of payment default, Buyer shall be required, in addition to the aforementioned default interest, to indemnify AQUAFIDES GmbH for all judicial and extrajudicial enforcement and recovery costs incurred, including costs set forth in section 1333 of the Austrian Civil Code (ABGB). Incoming payments shall, regardless of the Buyer’s assignment, firstly be credited against costs, then against already accrued interest and lastly against outstanding capital, and namely firstly against the currently earliest due date.
- The Buyer shall not be entitled to any rights of set-off and retention, unless its counterclaims have been recognised as undisputed and acknowledged in writing by AQUAFIDES GmbH or recognised by declaratory judgment in a court of law.
- The Buyer shall not be entitled to withhold any payments of due amounts on the grounds of purported warranty claims or other claims, including but not limited to liability coverage retentions (Haftrücklass) or retentions to secure against excess payments (Deckungsrücklass).
- In the event that AQUAFIDES GmbH is still entitled to outstanding claims against the Buyer from past contractual relationships, AQUAFIDES GmbH shall have the right to apply incoming payments in accordance with the provisions of section 1416 of the Austrian Civil Code (ABGB), even if Buyer’ payment was made for a different purpose.
- Any cash discount or other discounts granted shall be granted only under the condition that all older claims due have already been fully paid.
VII. Transfer of risk and taking delivery
- The risk shall be transferred to Buyer upon sending goods ex-works, even if freight-paid delivery was agreed. If the shipment is delayed as a result of circumstances falling within Buyer’s sphere of responsibility, the risk shall be transferred to Buyer as from the date of the readiness for shipment.
- The transport route and manner shall be specified by AQUAFIDES GmbH.
- Delivered goods must be taken receipt of by the Buyer, even if they display insignificant defects, notwithstanding the rights under paragraph IX. Buyer must call forward and accept the goods within 14 (fourteen) days after the receipt of the notification of readiness for shipment.
- If defect-free work is not accepted by the Buyer in due time, AQUAFIDES GmbH may engage a court-certified expert to determine the contractual production at the Buyer’s expense. The Buyer is obliged to permit the inspection of the work by the expert appraiser. If the Buyer refuses the inspection, contractual production shall be deemed to have taken place. In the case of contractual production, the Buyer must bear the expert’s costs.
VIII. Retention of ownership
- AQUAFIDES GmbH reserves exclusive ownership of delivered goods and spare parts up until the settlement of the Buyer’s entire financial obligations (purchase price, compensation for work, dunning charges, etc.). AQUAFIDES GmbH shall be entitled to affix marks/labels indicating this reservation of ownership at the Buyer’s expense. The removal of such a mark/label is not permitted and shall cause the entire outstanding receivable to immediately fall due and payable.
- The Buyer may neither pledge the delivery item nor assign it as security. The Buyer must notify us of pledges, as well as confiscations or other disposals through third parties, without undue delay, so that we can assert our right of segregation. Should the Buyer fail to meet this obligation, it shall be liable for any damages incurred by AQUAFIDES GmbH.
- The Buyer hereby assigns to us all receivables from further customers or against a third party that accrue to it from the resales, and namely regardless whether the goods are resold without or after processing. It is obliged to make note of the assignment in its books.
- The Buyer is prohibited from entering into agreements with its customer that could exclude or impair our rights in any way. The Buyer remains authorised to collect the receivables assigned to us even after the assignment. However, this shall not affect our authority to collect the receivables by ourselves, as long as the Buyer does not meet its payment obligations as per order. AQUAFIDES GmbH may request that the Buyer discloses to us the assigned amount receivable and its debtor, provides all information required for collection, hands out the corresponding supporting documents and notifies assignment to the debtor.
- If the goods delivered subject to reservation of ownership are resold with other goods that do not belong to us, the Buyer’s amount receivable from its customer shall be deemed to have been assigned in the amount of the delivery price agreed between us and the Buyer (including turnover tax, interest and debt collection costs).
- If the value of the securities provided to AQUAFIDES GmbH exceeds the amount of AQUAFIDES GmbH’s receivables, AQUAFIDES GmbH inasmuch may release the security at its own choice, upon the Buyer’s request.
- During the period of valid reservation of ownership, the Buyer must treat the goods carefully and carry out or have another party carry out required preventive maintenance and inspection work professionally at its own expense.
- In addition, the Buyer must ensure appropriate insurance of the items subject to reservation of ownership against all conceivable risks and restrict the transferability of insurance policies for the benefit of AQUAFIDES GmbH at its own expense.
IX. Liability and defects
- AQUAFIDES GmbH warrants for the period of one year after the time of the delivery/service provision that the delivery item/service provision is free from production or material defects and that a quality workmanship has been provided and that the properties that have been warranted in writing exist. The Buyer must check the goods/service provision directly after acceptance (sections 377, 378 UGB) and notify defects to us in writing without undue delay, but no later than within one week after the delivery/service provision. Otherwise, all warranty claims or other claims shall forfeit. Identifiable defects and transport damage must be documented and notified in writing to the commissioned transport company and AQUAFIDES GmbH immediately upon delivery. Any notices of defects must always be filed in writing and specified. In the event of failure to comply with the duty to give notice of defects, claims for warranty, for damages concerning the defect as well as due to an error on the absence of defects may no longer be asserted. Warranty claims must be asserted in court within 12 (twelve) months as from delivery. The Buyer is obliged to produce evidence of the existence of the defect at the time of the delivery; the presumption rule under section 924 Austrian Civil Code (ABGB) shall be excluded.
The warranty does not include damage and defects not falling within our sphere of responsibility, in particular through improper storage, assembly, operation or preventive maintenance, unauthorised change to the delivery item, other disturbances caused by the Buyer or force majeure and wear and tear. The use or installation of non-original components/spare parts or such not permitted by AQUAFIDES GmbH as well as the preventive maintenance of facilities/systems/parts of facilities/systems through companies not authorised by AQUAFIDES GmbH, shall exclude any warranty and all other claims, unless the Buyer provides documentary evidence that the defect has not been caused by this. If the Buyer is a consumer as defined by section 1 Austrian Consumer Protection Act (KSchG, Konsumentenschutzgesetz), the liability for defects shall be subject to the statutory provisions.
- For UVC lamps, notwithstanding the present terms, our special General Guarantee Terms and Conditions for AQUAFIDES GmbH UVC lamps shall apply.
- The fulfilment of warranty claims shall be free of charge at our choice through rectification of defects or substitute delivery or performance. If the subsequent rectification or delivery or substitute performance is unsuccessful after the Buyer has set a reasonable grace period, the Buyer may request, at its choice, reduction of the price or rescission of the contract. AQUAFIDES GmbH shall be liable only for the breach of material contractual obligations. Any compensation for consequential damages due to defects or loss of profits shall be excluded in any case. We assume no liability for damages incurred by the Buyer, unless this is attributable to intentional or grossly negligent conduct falling within our sphere of responsibility. The Buyer waives avoidance of a concluded legal transaction on whatever legal grounds.
- Minor technical changes as well as minor deviations from drawings, catalogues, price lists, illustrations, circulars, prospectuses etc. that do not impair the serviceability of the goods shall not entitle the Buyer to make complaints.
- Delivered instructions for use, in particular AQUAFIDES GmbH’s preventive maintenance regulations and operating instructions must always be observed and in case of doubt Buyer must obtain AQUAFIDES GmbH’s advisory opinion. AQUAFIDES GmbH shall not be liable for defects and damage that result from a failure to comply with such notices/instructions or failure to obtain the advisory opinion; equally, AQUAFIDES GmbH shall not be liable for unauthorized changes to the item of purchase.
X. Product liability
- The right of recourse under section 12 Austrian Product Liability Act (PHG, Produkthaftungsgesetz) is hereby expressly excluded. Should the Buyer therefore receive claims from a third party under the PHG, it shall not thereby incur any recourse claim against AQUAFIDES GmbH.
- The Buyer is obliged to inform those persons whom it enables to take the item of purchase into use or operation or to whom it resells this item completely about all operating instructions, safety/security regulations and warnings and to impose this obligation on its customers.
- If the Buyer fails to meet its duties under Article X.2., it undertakes to indemnify AQUAFIDES GmbH and hold it harmless
XI. Right to withdraw (impossibility, contract adaptation)
- If unforeseen events as defined by Article V. occur, which significantly alter the economic significance or the content of the delivery or service or have a significant impact on our operation, the content of the contract must be adapted appropriately.
- In the event of Buyer’s imminent financial collapse, (e.g. application for opening insolvency proceedings, opening of composition proceedings, insolvency, default of payment) we may likewise withdraw from the contract with immediate effect.
XII. Insolvency or bankruptcy of Buyer
- In the event of insolvency or bankruptcy proceedings being initiated in regard to Buyer’s assets, AQUAFIDES GmbH may, at its sole discretion and irrespective of any other arrangements entered into (e.g., order confirmation, payment conditions), choose to make the fulfilment of AQUAFIDES GmbH’s obligation to deliver conditional on an advance payment or a provision of a security for the agreed upon purchase price.
- Any requested security shall be provided by means of cash or an abstract bank guarantee. When demanded, such advance payment or security shall be provided within eight (8) days; otherwise, Buyer shall be in default and AQUAFIDES GmbH shall, without granting any further grace period, be entitled to withdraw from the Agreement. The costs relating to such advance payment or provision of security shall be borne by the Buyer.
XIII. Order cancellation
Should the Buyer declare its withdrawal from the contract for a reason that does not entitle it to withdraw from the contract by law, AQUAFIDES GmbH shall be entitled, at its sole discretion, either to insist on fulfilment or request a cancellation fee in the amount of 25 % of the agreed price. AQUAFIDES GmbH reserves the right to assert any damages beyond that.
XIV. Data privacy, confidentiality
- Buyer hereby expressly authorises AQUAFIDES GmbH to use, store and automatically process Buyer’s personal data in order to perform AQUAFIDES GmbH’s obligations under the Agreement.
- AQUAFIDES GmbH undertakes to comply with the provisions of Section 6 of the Austrian Data Protection Act 2000 (Datenschutzgesetz 2000) and to ensure that AQUAFIDES GmbH’s employees and agents will accordingly comply with aforementioned provisions. Both Parties agree to keep the content of the Agreement and all internal information and data of the other Party that a Party receives in connection with the cooperation between the Parties confidential and not to disclose them to third parties. This obligation shall survive the termination of the contractual relationship.
- Any publication of work results by a Party to the Agreement that go beyond the mere fact of the placement of an order and the related basic information, such as company name and address etc., requires the demonstrable express consent of the other Party.
- Above that the provisions of AQUAFIDES GmbH’s Privacy Statement published at www.aquafides.at are applicable.
XV. Validity, place of performance, place of jurisdiction, arbitration clause
- If individual provisions of this Agreement are or become ineffective, the remainder of the remaining contractual provisions shall remain in force. The ineffective provision shall be replaced with a valid provision that best corresponds to the wording, intention and purpose of the Agreement.
- The Parties hereby agree the exclusive application of Austrian substantive and procedural law, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of the conflict-of-law rules of international private law. The place of performance shall explicitly be defined as AQUAFIDES GmbH’s registered office. The Parties hereby agree, in accordance with section 104 of the Austrian Law on Court Jurisdiction (JN, Jurisdiktionsnorm), that the venue and jurisdiction for any disputes concerning the existence or non-existence of a contractual relationship and for all disputes arising from or in connection with such contractual relationship shall be that of the court having material and geographical jurisdiction in respect of the registered office of AQUAFIDES GmbH. AQUAFIDES GmbH may, however, choose to sue the Buyer also at the Buyer’s general place of jurisdiction.
- At AQUAFIDES GmbH’s choice, AQUAFIDES GmbH may also decide that all disputes arising out of contracts and the legal transactions based on such contracts or referring to the breach, rescission or nullity of such transactions or contracts shall, in accordance with the Arbitration and Conciliation Order of the International Court of Arbitration of the Austrian Federal Economic Chamber in Vienna (Vienna Rules), be ruled upon with final effect by one or more Arbitrators appointed according to the said rules. The arbitration proceedings shall be subject to the exclusive application of Austrian substantive and procedural law, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods and of the conflict-of-law rules of international private law. The language to be used in the arbitration proceedings shall be German.
XVI. Authentic contractual language
The authentic contractual language shall exclusively be German. Only the present German language version shall be used for purposes of interpretation. Any translations of the present Terms and Conditions into other languages shall not be valid, even if executed by the Parties.