General terms and conditions
The supply of "contractual goods" as well as the rendering of "services" by KWB Kraft und Wärme aus Biomasse GmbH ("KWB") to contractual partners or third parties takes place based on the "General Terms and Conditions" set forth in the present document. "Contractual goods" refer to all physical items, connections, technical units and combinations of physical items as well as software. "Services" are services rendered such as assembly and maintenance services.
KWB enters contracts exclusively under its own General Terms and Conditions. Conflicting regulations, particularly general terms and conditions or purchase conditions of contractual partners are only applicable if KWB has explicitly and in writing acknowledged these conflicting general terms and conditions or purchase conditions. KWB shall in this respect not be obligated to explicitly object to the general terms and conditions of contractual partners, even if these general terms and conditions are set forth as valid as an explicit condition for the conclusion of the business transaction.
Any amendment to these General Terms and Conditions must be made in writing. A lack of response by KWB shall explicitly not
be considered as agreement, e.g. with respect to modification requests by the contractual partner.
In the event of a direct conflict between the provisions of these General Terms and Conditions with more detailed written agreements of KWB (e.g. customer service provisions, maintenance agreements, order confirmations), the respective provisions of the more detailed written agreement shall take priority. The validity of the other provisions of these General Terms and Conditions remain unaffected thereby.
2. Proposals/Order confirmation/Written form requirement
Our proposals are non-binding. Documents such as diagrams, sketches, drawings, cost schedules, etc. shall only become binding if agreed in writing. Contract conclusions shall only take effect through a written order confirmation from KWB or on delivery of the contractual goods and/or the rendering of services. In the latter two cases, the invoice shall be taken to be the order confirmation.
Scope and content of the contractual relationship shall be determined by KWB's written order confirmation or, if lacking, by the actual delivery and service scope. Verbal modifications or supplementary agreements shall not be binding for KWB.
3. Official permits
The contractual partner is exclusively responsible for obtaining all official permits such as import and export licenses and foreign currency permits that are required for the delivery of contractual goods and/or the rendering of services. The contractual partner must provide the aforementioned permits in due time, otherwise the contractual partner shall bear all negative consequences and KWB shall be entitled to withdraw from the contract. In such an event, the contractual partner shall compensate KWB for the damage resulting from such an omission, including lost profits, regardless of KWB's exercise of its right to withdraw.
4. Plans and documents/System software/Installation rules
All catalogues, brochures, diagrams, drawings, manuals and control and adjustment programmes etc. are protected as intangible property and shall always remain the intellectual property of KWB. Any use, reproduction, distribution, publication, processing and/or other transfer to third parties shall be subject to prior written authorization from KWB.
When operating the contractual goods, the installation, operating and other technical regulations and instructions from KWB must be strictly observed and adhered to. The contractual partner is obligated and must provide proof that the customer has been informed about these rules and instructions, and must obtain the customer's confirmation of receipt of the aforementioned documents in cases where commissioning of the contractual goods is not carried out by KWB. The contractual partner shall be responsible for any negative consequences that result from non-compliance with such regulations.
4.3. An acceptance test of contractual goods shall be subject to a separate written agreement.
5. Delivery and service period/Transportation/Insurance
Deadlines for delivery of contractual goods and/or the rendering of services are non-binding for KWB and shall come into force until an agreement has been reached with respect to all order details. Delays caused by KWB shall not entitle the contractual partner to assert any claims, irrespective of the legal reason.
KWB shall be entitled to deliver parts of the contractual goods or to render parts of services. Even if no separate agreement is made, KWB shall be entitled to demand partial payments and deposits at any time and to retain or delay deliveries or services if the contractual partner is in default - even with just one of its obligations and/or duties or payments due.
All transportation of contractual goods shall take place at the expense and at the risk of the contractual partner. Freight costs will not be paid in advance. Unless agreed in writing, shipping shall be undertaken by a shipping company/freight carrier selected by KWB, while the latter shall, in this case, not obligated to determine or select the most cost-effective shipping method.
The contractual goods shall be insured only if ordered separately in writing by the contractual partner and only at the contractual partner's expense.
The transfer of risk shall takes place during the transfer of the contractual goods to the shipping company/freight carrier. The contractual partner expressly agrees that third parties hired by KWB, in particular KWB's sales partners, may receive the contractual goods for the contractual partner.
6. Force Majeur
Should KWB not be able to carry out a delivery or render a service due to force majeur, KWB shall notify the contractual partner of such event as quickly as possible. In this case, KWB shall be entitled to withdraw partially or fully from the contract and shall not be obligated to pay damages to the contractual partner. In any case, both contractual parties' obligations shall rest for the duration of the force majeure event.
All KWB prices are net ex works (excl. statutory fees and taxes) including packaging costs, but without transportation costs, unless expressly agreed in writing.
In the absence of any deviating written agreement, KWB's respective hourly rates apply for the provision of services such as installation, maintenance and/or repair work as well as training.
In the following cases, the contractual partner shall bear all costs:
a) Commissioning of contractual goods;
b) Modifications of the delivery and/or service scope regardless of the reason, which are caused by the contractual partner and/or the contractual partner's customer, or for technical reasons:
c) Contract terminations/cancellations/annulments;
d) Delay of the service and/or delivery for reasons, for which the contractual partner and/or the contractual partner's customer are responsible, e.g., failure to meet obligations and/or duties or at their wish;
e) Assertion of the retention of title or enforcement of proprietary rights by KWB.
In the absence of a written agreement with respect of a date of payment, all KWB claims shall be due immediately on receipt of invoice or delivery of the contractual goods and/or rendering of services without trade credit or any other deductions. KWB shall be entitled to request prepayment before carrying out the delivery of contractual goods or rendering of services.
In the event of default, KWB shall be entitled to first charge the payments made by the contractual partner to the settlement of required reasonable collection costs as far as they are required for the adequate assertion of legal rights and default interests. Payments may also be used by KWB to settle older open accounts without consideration to an opposing allocation by the contractual partner. Conflicting notes, on the payment statements, for example, shall be null and void.
Should the contractual partner be in default with respect to a contractual obligation and/or duty, e.g., payments and/or receipt of contractual goods, the risk of an accidental destruction or deterioration of the contractual goods shall pass over to the contractual partner and KWB, at its discretion, may insist on the fulfilment of the contract and/or exercise one or several of the following rights:
- Assertion of retention of title and/or
- Delay in the fulfilment of obligations until payment of delayed payments or
other services and/or
- Reasonable extension of the delivery period by KWB and/or
- Immediate payment of the entire as of yet unpaid purchase price and/or
- Charging of default interest in the amount of 12% p.m. and/or
- Withdrawal from the contract after an extension period of two weeks has expired.
These rights may also be exercised analogously by KWB immediately upon the initiation of insolvency proceedings with respect to the assets of the contractual partner or a rejection of an initiation of such proceedings due to a lack of cost-covering assets.
Should KWB withdraw from the contract and/or asserts its retention of title, the contractual partner shall be obliged to immediately return all already delivered and unpaid contractual goods at the contractual partner's own expense and risk and to provide compensation for any incurred impairment as well as compensate KWB for any other incurred expenses. The contractual partner shall be obliged to pay KWB a reasonable usage fee for the utilisation of the contractual goods until their actual return.
In the event of a payment plan agreement, even a partial default on an instalment shall automatically render the entire payment plan void.
9. Retention of title
KWB shall retain the unrestricted title to the contractual goods until full payment of the respective purchase price and of ancillary costs incurred in connection with a potential default has been effected. KWB shall be entitled but not obliged to indicate its ownership on the exterior of the contractual goods. This indicator of title must not be removed by the contractual partner.
The assertion of the retention of title does not require withdrawal and shall in itself not be considered a withdrawal from the contract. It shall not release the contractual partner from its contractual obligations, particularly with respect to the payment of open invoices. As part of the retention of title in favour of KWB, sale to a third party, processing, pledging, mortgaging or any other disposal of the contractual goods before full payment of the purchase price shall be deemed illegal. The contractual partner shall immediately notify KWB of any change in the factual or legal status of the contractual goods subject to title retention, e.g., of levies of execution or a degradation of the contractual goods.
Until full payment of the respective purchase price, the contractual partner shall be obligated to ensure the safety of the contractual goods subject to title retention and to protect KWB's property rights. In particular, the contractual partner shall be obliged to protect the contractual goods subject to title retention against fire, theft and damage by third parties at the contractual partner's own cost up to a reasonable amount and shall be liable to KWB with respect to loss or damage of said contractual goods. The contractual partner shall be obliged to keep the contractual goods in good order for the duration of the title retention.
Should KWB assert its retention of title, the contractual partner shall be obligated to immediately hand over the contractual goods that are subject to the title retention. In the event of a default or insolvency of the contractual partner, KWB shall be entitled to recover the contractual goods that are subject to retention of title without the contractual partner being entitled to any claims in this respect, e.g., with respect to trespassing, as long as the recovery is not related to any physical damage on third party property, or KWB shall be entitled to demand an immediate return at the contractual partner's expense and risk.
If, despite the agreed retention of title, the contractual goods are nevertheless sold to a third party, the contractual partner herewith assigns by way of security to KWB all claims arising therefrom against said third party up to the amount of any existing liability and warrants to immediately undertake all necessary steps for the assignment, e.g., entry in the books, particularly of current invoice lists, notification of the debtor, etc.
Should the contractual partner be a legal person, the contractual partner's corporate body shall be personally liable - both as jointly and severally - to KWB for the compliance with the obligations of this Section 9 by the contractual partner.
10. Requirement to make a complaint
The contractual partner is obligated to check the contractual goods or services immediately upon receipt or performance for possible defects and completeness and to lodge a complaint in the event of any defect either immediately or if the defect is not immediately recognisable at the latest within a week of receipt and to specify precisely the said defect in writing, excluding other claims. This provision shall also apply to hidden defects as soon as they are recognised. The lodging of a complaint regarding a defect shall not entitle the contractual partner to a partial or full withholding of payments.
If the contractual goods are commissioned by KWB or authorised third parties, the contractual partner shall specify any defects in writing in the log during commissioning. Otherwise the contractual goods shall be considered accepted without any defects.
KWB shall fulfil any existing warranty obligations only when the contractual partner has fulfilled all its contractual obligations and/or duties. Prerequisite for the existence of all warranty and guarantee claims of the contractual partner is that the contractual goods were put into operation by KWB or its authorised third parties. A warranty/liability for activities of other third parties, e.g., unauthorized installers or electricians shall be excluded.
The warranty period shall be two years. It shall not be extended or suspended by improvements or attempts to achieve improvements. Improvements outside of the warranty period shall have no legal or factual meaning. In the event of a partial delivery of contractual goods and/or the partial rendering of services, the warranty period shall commence on execution/rendering of the respective delivery/service.
KWB shall be entitled to inspect an asserted defect. KWB may either itself remove defects or commission third parties to remove the defect and may also request to be sent defective goods or parts of these for improvement purposes as well as improve them on-site. KWB shall generally be entitled to determine the execution of the fulfilment of the warranty. If the contractual partner is notified by a customer about a defect in contractual goods that have already been delivered, further processing shall be immediately coordinated with KWB. In the absence of a separate written agreement, KWB shall not assume any costs or expenses of the contractual partner and/or other third parties with respect to their activities regarding the identification of the defect and/or its removal.
Any change and/or modification of the contractual goods or in the operation of the contractual goods not expressly authorised by KWB in writing, or their operation in conjunction with other devices or accessories the compatibility of which has not been expressly confirmed by KWB, any inappropriate operation/use (e.g. the use of fuels and/or water not in accordance with standards which do not correspond to VDI 2035 or ÖNORM H 5195-1; inappropriate and / or excessive use) shall result in exclusion from the warranty. Any liability or warranty for compatibility of the contractual goods with other products, systems, plants or parts, as well as the suitability thereof for a specific use shall be excluded unless otherwise expressly permitted in writing.
A warranty based on § 922 (1), second half sentence Austrian General Civil Code (ABGB) (description, sample), and § 922 (2) ABGB is excluded.
In the event of a existing maintenance agreement, in which the right to contract termination has been waived for three (3) years, the warranty period shall be extended to three (3) years in total after handover, with the exception of the heat exchanger. In the event of an orderly installation of a return flow boost, the warranty period for a heat exchanger shall extend to a period of eight (8) years in total after handover, independent of the conclusion of a maintenance agreement.
If contractual goods are manufactured by KWB based on construction details, drawings or models of the contractual partner, KWB shall not be obligated to verify the accuracy or technical feasibility of these specifications and/or technical data. KWB's liability and warranty in such a case shall only encompass contractual goods manufactured in accordance with the provided data.
When taking on repair orders or when performing work on used plants or systems of other manufacturers, KWB shall not accept any liability and/or shall not extend any warranty for these systems.
KWB shall be liable for any other damage except for damage to life, body and health only within the scope of mandatory law; thus, according to current legislation, only in the case willful intent and gross negligence. If the contractual partner asserts any claims for damages against KWB, the contractual partner shall also bear the burden of proof.
KWB shall only liable for the costs of a defect removal taken on by the contractual partner itself, if this defect removal was authorised in writing by KWB and is to blame for the defect.
Any claims for compensation by the contractual partner shall be limited to the simple net value of the goods or the net compensation for the effected contractual goods. A liability for lost profit, particularly by the contractual partner, and also generally for subsequent damages and pure economic loss, are excluded in any case.
Any recourse claims against KWB, e.g., based on the Product Liability Act shall be excluded.
Offsetting against counter claims, e.g., claims for damages, and/or the retention by the contractual partner, for whatever reason, shall be illegal.
Any cession and/or any transfer of claims by the contractual partner shall require prior written consent by KWB. 13.
KWB shall be entitled to store personal data relating to the contractual partner and to use it at its discretion.
The contractual partner undertakes to keep confidential any information that it receives during the execution of this contract and shall not disclose it to any third parties.
14. Jurisdiction/Place of fulfilment
Any disputes from any contracts concluded with the contractual partner, including the issue of their validity and their prior and subsequent effects, shall be exclusively decided by the competent court at the location of KWB's registered office, at to KWB's discretion, or also by the competent court in the jurisdiction the contractual partner's registered office, branch or an asset.
14.2 Regardless of the delivery and/or service location, it is agreed that the seat of the registered office of KWB shall be the place of fulfilment.
15. Choice of law/Severability/Waiver of avoidance
All contracts and business relationships between KWB and the contractual partner shall be exclusively subject to Austrian law, with the exclusion of the UN Sales Convention and any conflict of laws provisions.
Should any provisions of these General Terms and Conditions be or become legally invalid or unenforceable, the validity of the remaining provisions shall not be affected and the contract shall retain its legally valid. Any unenforceable or invalid provisions shall be reduced to a legally valid level (reduction of invalid provisions to preserve validity) or be replaced by such valid and enforceable provisions that are most consistent with the originally intended purpose.
The contractual partner waives, as far as permitted by mandatory law, to appeal contracts concluded with KWB for the purpose of a modification and/or cancellation and/or to assert that they were not concluded in a legally valid manner and/or are null and void.
© KWB, valid as at January 2010, misprints and printing errors excepted!