General Terms and Conditions (GTC)

1. Validity

1.1 These General Terms and Conditions (GTC for short) shall apply between FKM Schleifsystemtechnik GmbH (FKM or us for short) and natural persons and legal entities (customer or purchaser for short) for the present legal transaction and, in relation to entrepreneurial customers, also for all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-​up orders.

1.2 The current version of our General Terms and Conditions, available on our homepage (www​.fkm​-tec​.at), shall apply to entrepreneurial customers at the time of conclusion of the contract and shall also have been transmitted to the customer.

1.3 We contract exclusively on the basis of our GTC.

1.4 Terms and conditions of the customer or changes or additions to our GTC require our express written consent to be valid.

1.5 The customer’s terms and conditions shall not be recognized even if we do not expressly object to them after receipt.

2. offer/​conclusion of contract

2.1 Our offers are non-binding.

2.2 Promises, assurances and guarantees on our part or agreements in connection with the conclusion of the contract that deviate from these GTC shall only become binding vis-​à-​vis entrepreneurial customers upon our written confirmation.

2.3 If our order confirmation contains extensions, restrictions or other changes to the order, the customer shall be deemed to have given his consent unless he objects without undue delay, at the latest, however, within 3 working days after receipt of the order confirmation.

2.4 Unless expressly designated by us as binding, documents such as illustrations, drawings and dimensions are only approximately binding.

2.5 We reserve title and copyright to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The Purchaser must obtain our express written consent before passing them on to third parties.

2.6 Information about our products and services given in catalogs, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material) which is not attributable to us shall be provided by the customer — if the customer bases its decision to place an order on such information — to us. In this case, we may comment on their accuracy. If the customer violates this obligation, such information shall not be binding unless it has been expressly declared in writing to be part of the contract vis-​à-​vis entrepreneurial customers.

2.7 Cost estimates are prepared without guarantee and are — unless otherwise expressly agreed by us in writing in advance — subject to payment. Consumers will be informed of the cost obligation before the cost estimate is prepared. If an order is placed with all services included in the cost estimate, the fee for the cost estimate will be credited to the present invoice.

3. prices

3.1 Price quotations shall in principle not be understood as lump-​sum prices.

3.2 Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging, which shall be invoiced separately.

3.3 For services ordered by the customer which are not covered by the original order, the customer shall be entitled to an appropriate charge.

3.4 Prices are quoted exclusive of the applicable statutory value added tax and ex warehouse. Packaging, transport. Loading and shipping costs as well as customs duties and insurance shall be borne by the entrepreneurial customer. These costs shall only be charged to consumers as customers if this has been negotiated in an individual contract. We are only obliged to take back packaging if this has been expressly agreed.

3.5 The customer shall be responsible for the proper and environmentally compatible disposal of used materials. If we are separately commissioned to do so, the customer shall additionally pay for this to the extent agreed for this purpose, in the absence of a fee agreement.

3.6 We are entitled of our own accord, as well as obligated at the request of the customer, to adjust the contractually agreed fees if changes in the amount of at least 3% occur with regard to
(a) wage costs by law, regulation, collective agreement, company agreements or
(b) other cost factors necessary for the provision of services such as material costs due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. have occurred since the conclusion of the contract. The adjustment shall be made to the extent that the actual manufacturing costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided that we are not in default.

3.7 The remuneration for continuing obligations shall be agreed as value-​assured according to the CPI 2015 and an adjustment of the remuneration shall be made as a result. The month in which the contract was concluded shall be taken as the starting point.

3.8 In the event of a change in costs, the fees for consumers as customers shall be adjusted in accordance with Section 3.5, and in the case of continuing obligations in accordance with Section 3.6, only in the event of individual contractual negotiations, if the service is to be provided within two months of the conclusion of the contract.

4. Goods provided

4.1 If equipment or other materials are provided by the customer, we shall be entitled to charge the customer a surcharge of 10% of the value of the equipment or material provided.

4.2 Such equipment and other materials provided by the customer are not subject to warranty.

4.3 The quality and operational readiness of provided equipment is the responsibility of the customer.

5. Payment

5.1 If the order is for the construction of new masts, one third of the payment shall be due upon conclusion of the contract, one third upon commencement of performance and the remainder upon completion of performance.

5.2 In the case of services provided by us which are not covered by item 5.1 (new construction of machines), such as refurbishing, service, repair or other services, the following shall apply: Unless otherwise stated in the order confirmation, the purchase price for spare parts, repairs and services shall be due for payment immediately, for all other deliveries within 30 days net (without deduction) from the date of invoice. The statutory rules concerning the consequences of default in payment shall apply.

5.3 The right to deduct a discount shall require an express written agreement vis-​à-​vis entrepreneurial customers.

5.4 Payment dedications made by the customer on remittance slips shall not be binding on us.

5.5 In accordance with § 456 of the Austrian Commercial Code (UGB), we shall be entitled to charge 9.2% points above the base interest rate to entrepreneurs as customers in the event of a delay in payment for which we are responsible. Towards consumers we charge an interest rate of 4%.

5.6 We reserve the right to claim further damages for default, however, vis-​à-​vis consumers as customers only if this is negotiated in detail.

5.7 If the entrepreneurial customer is in default of payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend the fulfillment of our obligations under this contract until the customer has fulfilled them.

5.8 We shall then also be entitled to declare due all claims for services already rendered from the current business relationship with the customer. This shall only apply to consumers as customers in the event that an overdue service has been due for at least six weeks and we have unsuccessfully reminded the customer under threat of this consequence, setting a grace period of at least two weeks.

5.9 The customer shall only be entitled to a right of set-​off insofar as counterclaims have been established by a court or recognized by us. Consumers as customers shall also be entitled to a right of set-​off insofar as counterclaims are legally related to the customer’s payment obligation, as well as in the event of insolvency of our company.

5.10. In the event that the payment deadline is exceeded, any allowances granted (discounts, deductions, etc.) shall be forfeited and added to the invoice.

5.11. In the event of a delay in payment for which the customer is responsible, the customer undertakes to pay reminder charges of € 100 per reminder, insofar as this is in reasonable proportion to the claim pursued.

5.12. The transmission of invoices by fax or e‑mail instead of by post is permissible.

6. credit assessment

6.1 The customer declares his express consent that his data may be transmitted to the state-​preferred creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870(KSV) as well as equivalent creditor protection associations in the country of the customer’s registered office exclusively for the purpose of creditor protection.

7. Cooperation obligations of the customer

7.1 Our obligation to perform the service shall commence at the earliest as soon as the customer has created all structural, technical and legal prerequisites for performance, which were described in the contract or in information provided to the customer prior to the conclusion of the contract or which the customer should have known due to relevant expertise or experience.

7.2 If the customer does not comply with this obligation to cooperate, our performance shall not be defective — exclusively with regard to the performance not fully given as a result of incorrect customer information.

7.3 Should this be necessary for the delivery or the use/​operation of a machine, the customer shall, at his own expense, arrange for any necessary approvals from third parties as well as notifications and approvals from authorities. We shall point these out within the framework of the conclusion of the contract, unless the customer has waived this or the entrepreneurial customer had to have such knowledge due to training or experience.

7.4 The energy and water quantities required for the performance of the service, including the trial operation, shall be provided by the customer at its own expense.
at the customer’s expense.

7.5 Order-​related details of the necessary information can be requested from us.

7.6 The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.

8. performance

8.1 We shall only be obliged to take into account subsequent requests for changes and extensions by the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.

8.2 Minor changes to our performance which are objectively justified and reasonable for the entrepreneurial customer shall be deemed to have been approved in advance.

8.3 If, for whatever reason, the order is amended or supplemented after it has been placed, the delivery/​service period shall be extended by a reasonable period of time.

8.4 If, after conclusion of the contract, the customer requests performance within a shorter period of time, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/​or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall be increased appropriately in proportion to the necessary additional expenditure.

8.5 Objectively justified partial deliveries and services are permissible and can be invoiced separately.

9. performance periods and deadlines

9.1 In the event of force majeure, strike, war, riot or other unforeseeable delays on the part of our suppliers for which we are not responsible or other comparable events beyond our control, deadlines and dates shall be postponed for the period of time during which the event in question lasts. This shall not affect the customer’s right to withdraw from the contract in the event of delays that make it unreasonable to commit to the contract.

9.2 The start of the delivery period stated by us shall be subject to the clarification of all technical issues.

9.3 If the start of the performance or the performance is delayed or interrupted due to circumstances attributable to the customer, in particular due to the violation of the cooperation obligations of these GTC, performance periods shall be extended accordingly and agreed completion dates shall be postponed accordingly.

9.4 We shall be entitled to charge a storage fee for the resulting necessary storage of materials and equipment and the like in our company as set forth in item 13.2 of these GTC, however, at least 5% of the invoice amount per commenced month of the delay in performance, whereby the customer’s obligation to pay as well as its obligation to accept shall remain unaffected.

9.5 Delivery and completion dates shall only be binding vis-​à-​vis entrepreneurial customers if their observance has been promised in writing.

9.6 Compliance with our delivery obligation shall further be conditional upon the timely and proper fulfillment of the customer’s obligations, in particular any obligations to cooperate pursuant to Section 7 of these GTC. We reserve the right to plead non-​performance of the contract.

9.7 If the requirements of clause 9.5 of these GTC are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

9.8 In the event of a delay in the performance of the contract by us, we shall be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the intentional or grossly negligent breach of a material contractual obligation. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. In other respects, we shall be liable in the event of a delay in delivery within the framework of a lump-​sum compensation for delay amounting to a maximum of 5% of the value of the delivery. (For more details on liability, see item 18 of these GTC).

10. Transfer of risk

10.1 For the transfer of risk when sending the goods to the consumer applies § 7b KSchG.

10.2 The risk shall pass to the entrepreneurial customer as soon as we hold the object of purchase, the material or the work ready for collection in the factory or warehouse, deliver it ourselves or hand it over to a carrier.

10.3 The entrepreneurial customer shall take out appropriate insurance against this risk. We undertake to take out transport insurance at the written request of the customer and at the customer’s expense. The customer shall approve any mode of shipment customary in the trade.

11. Default of acceptance

11.1 If the customer is in default of acceptance for more than 2 weeks (refusal of acceptance, default in advance performance or otherwise) and if the customer, despite having been granted a reasonable grace period, has failed to remedy the circumstances attributable to it which delay or prevent the performance of the service, we shall be entitled to otherwise dispose of the equipment, machines and materials specified for the performance of the service, provided that, in the event of the continuation of the performance of the service, we procure such equipment, machines and materials within a period which is reasonable in view of the respective circumstances.

11.2 In the event of default in acceptance by the customer, we shall also be entitled to store the goods on our premises if we insist on performance of the contract, for which we shall be entitled to a storage fee of € 20 per square meter of required storage space per day.

11.3 This shall not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.

11.4 In the event of a justified withdrawal from the contract, we shall be entitled to demand from the entrepreneurial customer liquidated damages in the amount of 50% of the order value plus VAT without providing evidence of the actual damage. The obligation to pay damages by an entrepreneurial customer is independent of fault.

11.5 The assertion of a higher damage is permissible. Towards consumers this right exists only if it is negotiated in individual cases.

12. Retention of title

12.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until full payment has been made.

12.2 A resale shall only be permissible if we have been notified of such resale in good time in advance, stating the name and address of the purchaser, and if we consent to the sale. In the event of our consent, the purchase price claim of the entrepreneurial customer shall already now be deemed assigned to us.

12.3 Until full payment of the remuneration or purchase price, the customer shall note this assignment in his books and on his invoices and draw his debtors’ attention to it. Upon request, he shall provide the Contractor with all documents and information necessary for the assertion of the assigned claims and receivables.

12.4 If the customer is in default of payment, we shall be entitled to demand the return of the reserved goods after setting a reasonable grace period. We may only exercise this right vis-​à-​vis consumers as customers if at least one outstanding payment of the consumer has been due for at least six weeks and we have unsuccessfully sent a reminder threatening this legal consequence and setting a grace period of at least two weeks.

12.5 The customer shall notify us without delay prior to the opening of bankruptcy proceedings against his assets or the seizure of our reserved goods.

12.6 The customer declares his express consent that we may enter the location of the reserved goods in order to assert our reservation of title.

12.7 The customer shall bear any costs necessary and reasonable for the appropriate prosecution.

12.8 The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.

12.9 We shall be entitled to dispose of the returned goods subject to retention of title freely and at the best possible price vis-​à-​vis entrepreneurial customers.

13. proprietary rights of third parties

13.1 If the customer contributes intellectual creations or documents and if third party property rights are asserted with regard to such creations, we shall be entitled to stop the production of the delivery item at the customer’s risk until the third party rights have been clarified and to claim compensation for the necessary and appropriate costs incurred by us, unless the unjustified nature of the claims is obvious.

13.2 The customer shall indemnify and hold us harmless in this respect.

13.3 We shall be entitled to demand reasonable advance payments from entrepreneurial customers for any legal costs.

13.4 For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer shall be exclusively responsible for ensuring that the manufacture of these delivery items does not infringe the property rights of third parties.

13.5 If property rights of third parties are nevertheless asserted, we shall be entitled to stop the production of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the unjustified nature of the claims is obvious.

13.6 We may also claim compensation from the customer for necessary and useful costs incurred by us.

14. our intellectual property

14.1 Plans, sketches, cost estimates and other documents provided by us or created by our contribution shall remain our intellectual property.

14.2 The use of such documents outside the intended use, in particular the passing on, duplication, publication and making available, including copying even of extracts, shall require our express consent.

14.3 The customer further undertakes to maintain secrecy vis-​à-​vis third parties with regard to any knowledge acquired by him as a result of the business relationship.

14.4 If, in the course of initiating, concluding and processing the contract, we have handed over to the Customer items which were not owed in connection with the performance of the service (e.g. tools, equipment belonging to FKM, etc.), these must be returned to us within 14 days. If the customer does not comply with a corresponding request in due time, we are entitled to demand liquidated damages in the amount of € 1,000 from the customer without providing evidence of the actual damage. The obligation to pay damages is independent of fault in the case of an entrepreneur.

15. Warranty/​Remedy of Defects

15.1 The provisions on the statutory warranty shall apply. The warranty period for our services towards entrepreneurial customers is one year from handover.

15.2 In the absence of any agreement to the contrary (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken over the service in his power of disposal or has refused to take over the service without giving reasons.

15.3 If a joint handover is planned and the Customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on that date.

15.4 Remedies of a defect claimed by the Customer shall not constitute an acknowledgement of such defect claimed by the Customer.

15.5 The entrepreneurial customer shall grant us at least two attempts to remedy the defect.

15.6 If the customer’s allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in determining that the goods are free of defects or in rectifying the defects.

15.7 The entrepreneurial customer must always prove that the defect was already present at the time of handover.

15.8 In order to remedy defects, the customer shall make the plant or equipment accessible to us without culpable delay and grant us the opportunity to have it inspected by us or by experts appointed by us.

15.9 Defects in the delivery item which the entrepreneurial customer has discovered or should have discovered by examination in the ordinary course of business after delivery must be reported to us in writing without delay, at the latest 5 days after handover. Hidden defects must also be reported within this reasonable period after discovery.

15.10. Any use or processing of the defective object of performance that threatens further damage or makes it difficult or impossible to determine the cause shall be discontinued by the customer without delay, unless this is unreasonable.

15.11. If a notice of defect is not made in due time, the goods shall be deemed approved.

15.12. If the customer’s allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in determining that the goods are free of defects or in remedying the defect.

15.13. Any use or processing of the defective delivery item that threatens further damage or makes it difficult or impossible to remedy the cause shall be discontinued by the customer without delay, unless this is unreasonable.

15.14. We may avert a claim for redhibitory action by improvement or reasonable price reduction, unless the defect is substantial and irremediable.

15.15. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications provided by the customer, we shall only warrant the execution in accordance with the conditions.

15.16. The circumstance that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on deviating actual conditions from the information available to us at the time of the performance of the service because the customer does not comply with his obligations to cooperate.

15.17. The defective delivery or samples thereof shall be returned to us by the entrepreneurial customer — if economically justifiable.

15.18. The costs of returning the defective item to us shall be borne in full by the entrepreneurial customer.

15.19. The customer shall be obliged to enable us to determine the defect without delay.

15.20. The warranty shall be excluded if the customer’s technical equipment, such as supply lines, cabling, etc., is not in a technically perfect and operational condition or is not compatible with the delivered items, insofar as this circumstance is causal for the defect.

16. liability

16.1 Due to breach of contractual or pre-​contractual obligations, in particular due to impossibility, delay, etc., we shall be liable for financial losses only in cases of intent or gross negligence.

16.2 Liability towards entrepreneurial customers shall be limited to the maximum liability amount of any liability insurance concluded by us.

16.3 This limitation shall also apply with regard to damage to an item which we have accepted for processing. However, this shall only apply to consumers if this has been negotiated in an individual contract.

16.4 Claims for damages of entrepreneurial customers shall be asserted in court within two years, otherwise they shall be forfeited.

16.5 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage caused by them to the customer without reference to a contract on their part with the customer.

16.6 Our liability is excluded for damage caused by improper handling or storage, overloading, failure to follow operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, insofar as this event was causal for the damage. Likewise, the exclusion of liability exists for omission of necessary maintenance, unless we have contractually assumed the duty of maintenance.

16.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through a damage insurance policy of its own or concluded in its favor (e.g. liability insurance, hull insurance, transport, fire, business interruption and others), the customer shall be obligated to claim the insurance benefit and our liability shall be limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium).

16.8 Those product characteristics shall be owed which can be expected by the customer with regard to the approval regulations, operating instructions and other product-​related instructions and notes (esp. also inspection and maintenance) of us, third party manufacturers or importers, taking into account the customer’s knowledge and experience. The customer as reseller shall take out sufficient insurance for product liability claims and indemnify and hold us harmless with regard to recourse claims.

17 Severability Clause

17.1 Should individual parts of these GTC be or become invalid, this shall not affect the validity of the remaining parts.

17.2 FKM undertakes, as does the entrepreneurial customer, to jointly agree on a substitute provision that comes as close as possible to the economic result of the invalid condition.

18. General

18.1 Austrian law shall apply to the exclusion of the international conflict of laws rules.

18.2 The UN Convention on Contracts for the International Sale of Goods is excluded.

18.3 Unless otherwise expressly agreed in writing, the place of performance shall be our production site in 4483 Hartelsberg.

18.4 The place of jurisdiction for all disputes arising from these General Terms and Conditions as well as from any contractual relationship between us and the entrepreneurial customer shall be the court having local jurisdiction for our registered office (4110 Mauthausen). The place of jurisdiction for consumers shall be the place of jurisdiction provided by law.

18.5 The customer shall notify us immediately in writing of any changes to his name, company, address, legal form or other relevant information.

Status: 01.06.2019