General terms and conditions

1. Area of application

1.1. The supply of "contractual goods" as well as the rendering of "services" by KWB Energiesysteme GmbH ("KWB") to contractual partners takes place based on the "General Terms and Conditions" set forth in the present document. "Contractual goods" are all physical items, connections, technical units and combinations of physical items and software. "Services" are services provided, e.g. installation and maintenance services.

1.2. KWB enters contracts exclusively under its own General Terms and Conditions. Conflicting regulations are only applicable if KWB has explicitly acknowledged them beforehand in writing. KWB is thereby not be obliged to explicitly object to the deviating 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 is explicitly not to be considered an agreement, e.g. with respect to modification requests by the contractual partner.

1.3. 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, special terms and conditions, special terms of use), the respective provisions of the more detailed written agreement take priority. The validity of the other provisions of these General Terms and Conditions remain unaffected thereby.

2. Proposals/order confirmation/written form requirement

2.1. Our proposals are non-binding. Documents such as diagrams, sketches, drawings, cost schedules, etc. shall only become binding if agreed in writing. Contract conclusions will 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 is also the order confirmation.

2.2. Scope and content of the contractual relationship are determined by KWB’s written order confirmation. Verbal modifications or supplementary agreements are not 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 bears all negative consequences and KWB is entitled to withdraw from the contract. In such a case, the contractual partner must compensate KWB for the damage resulting from such an omission, including lost profits, regardless of KWB's exercise of its right to withdraw.

4. Diagrams and documents/system software/installation rules

4.1. All catalogues, brochures, illustrations, drawings, manuals and control and regulation programs etc. are protected under intellectual property law and will always remain the intellectual property of KWB. Any use, reproduction, distribution, publication, processing and/or other transfer to third parties requires KWB's prior written consent.

4.2. When operating the contractual goods, the installation, operating and other technical instructions and information from KWB must be strictly observed and complied with. The contractual partner undertakes and must provide proof that any third parties have been informed about these rules and instructions, and must obtain confirmation of receipt of the aforementioned documents. The contractual partner is responsible for any negative consequences that result from non-compliance with such regulations. Any KWB liability in this respect is excluded.

4.3. Any acceptance test of contractual goods that is required shall be subject to a separate written agreement.

5. Delivery and service period/transportation/insurance  

5.1. Deadlines for delivery of contractual goods and/or the rendering of services will not take effect until an agreement has been reached with respect to all order details. The specified delivery times are to be understood as approximate values, unless they were specifically agreed to in writing. Any liability for any damage and/or lost profits because delivery deadlines were missed shall be excluded in the event of minor negligence.

5.2. Even if no separate agreement is concluded, KWB is entitled to demand partial payments and deposits and to retain or delay deliveries or services if the contractual partner is in default – even with regard to just one of its obligations and/or duties or payments due.

5.3. All transport of contractual goods takes place at the expense of the contractual partner. Freight costs will not be paid in advance. Unless agreed to in writing, shipping is carried out by a shipping company/freight carrier selected by KWB, while KWB in this case is not obliged to determine or select the most cost-effective shipping method; transport will be carried out in an appropriate and customary manner.   

5.4. The contractual goods shall be insured only if ordered separately in writing by the contractual partner and only at the contractual partner's expense.

6. Delivery and installation of photovoltaic systems

6.1. If the delivery of contractual goods and the provision of services relates to the delivery and installation of photovoltaic systems ("PV systems") by KWB at the contractual partner's site, KWB enters into a contract with particular (but not exclusive) regard of the following provisions, while the remaining provisions of these General Terms and Conditions remain unaffected.

6.2. As long as the subject of the contract relates to the delivery and installation of PV systems and/or any associated hardware, the contractual partner must ensure prior to installation that the structural properties of the relevant building are suitable and that the building, on which the PV system and/or associated hardware is to be mounted, meets the required structural properties and compatibility criteria for proper installation. 

6.3. The contractual partner is responsible for all of the measures required to ensure the proper installation and commissioning, and also guarantees that the building, especially the roof or relevant installation location is free of asbestos or comparable hazardous materials. The contractual partner must also implement all of the measures and provisions necessary and beneficial for ensuring the unhindered and rapid provision of services by KWB.

6.4. KWB is not obliged to check the accuracy of supplied documents (diagrams, drawings, construction details, technical descriptions, official permits, etc.), or check the suitability or compatibility of the provided materials or existing roof structures for the contracted services.

6.5. It is the responsibility of the contractual partner to disclose in full all information regarding checks completed on the structural properties relating to the feasibility of implementing the contracted services. The contractual partner shall guarantee the accuracy, suitability and compatibility of all provided documents/materials. 

6.6. Before placing the order, the contractual partner must provide KWB with correct and complete details about the position and condition of the installation location for the planned PV system. The contractual partner must warn KWB immediately if circumstances arise that could restrict the proper installation and/or function of the PV system. KWB is not obliged to complete specific checks or measurements, and is also not obliged to check, warn or notify about circumstances or conditions of a technical or actual nature that are not governed by the agreed contract and scope of delivery. KWB shall not be liable for negative consequences resulting from the apparent or concealed unsuitability of documents, data, material or incorrect instructions provided by the contractual party.

6.7. The contractual partner is obliged to obtain any required permits or other approvals by third parties, and complete all of the relevant declarations to authorities at its own expense. The contractual partner is responsible for any funding applications, and any grants that are approved by the funding body shall not be processed by KWB. The processing of grants is not part of the scope of supply unless expressly agreed to in writing in the quotation provided by KWB. KWB shall not be liable for not having fully informed the contractual party about all possible or even obvious funding options. No claims relating to the amount or reason can thus be derived.

6.8. The contractual partner must, at its own expense, secure against theft any photovoltaic systems delivered by us that cannot be mounted immediately. Any risk of damage or theft of photovoltaic systems delivered by us is transferred to the customer upon delivery.

6.9. As long as our contractual obligation is limited to the delivery of photovoltaic systems in the context of a purchase contract, a warranty period of 2 years from the delivery date applies.

7. Force majeure

If KWB is not able to carry out a delivery or render a service due to force majeure, KWB will notify the contractual partner of such an event as soon as possible. In this case, KWB shall be entitled to withdraw partially or fully from the contract and shall not be obliged to pay damages to the contractual partner. For the duration of the force majeure event, the fulfilment of obligations is suspended for both contractual partners. Cases of force majeure include all events that are beyond the control of KWB and the contractual partner, and that do not occur because of a default or negligence of the contractual partners particularly (but not exclusively) including administrative prohibition orders due to pandemics, accidents, fire, damage or other accidents, natural disasters including (but not exclusively) floods, earthquakes and hurricanes; wars, hostile acts (regardless of whether war has been declared or not), invasion by foreign troops, restrictions implemented by a de jure or de facto government that have an immediate impact on the delivery of contractual goods; rebellions, revolutions, uprisings, sabotage or military or other seizures of power or civil wars, riots, unrest or insurgence; ionising radiation, contamination caused by radioactivity from the combustion of nuclear fuels or nuclear waste, radioactive, toxic, explosive or other hazardous properties from an explosive nuclear power station or other components.

8. Prices/costs

8.1. Unless specified otherwise, all KWB prices are net ex works (excluding statutory fees and taxes, such as customs duties), including packaging costs, but without transport costs, unless expressly agreed to in writing.

8.2. 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. 

8.3. In the following cases, the contractual partner bears all costs: 
a) Commissioning of contractual goods, except when agreed otherwise;
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 stemming from the purview of the contractual partner and/or which were caused by the contractual partner;
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 the request of the contractual partner;
e) Assertion of the retention of title or enforcement of proprietary rights by KWB.

9. Payments

9.1. In the absence of a written agreement with respect of a date of payment, all KWB claims are due immediately upon receipt of invoice without discounts or any other deductions. In individual cases, KWB is entitled to deliver the contractual goods or render the contractual services only with prepayment.

9.2. In the event of default, KWB is 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, will be null and void.

9.3. 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 accidental destruction or deterioration of the contractual goods passes 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 statutory default interest as of the due date and/or
• Withdrawal from the contract after a grace period of 14 days has expired. 

These rights may also be exercised correspondingly 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.

9.4. Should KWB withdraw from the contract with good cause and/or assert 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.

9.5. In the event of a payment plan agreement, the entire outstanding debt shall be due immediately (payment plan void) if KWB has already provided its services and payments for these services by the contractual party have been due for at least 6 weeks and KWB has, without any success, reminded the contractual party about the threat of voiding the payment plan and set a grace period of at least two weeks.

10. Retention of title

10.1. KWB retains 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 is entitled, but not obliged, to indicate its ownership on the exterior of the contractual goods. This label must not be removed by the contractual partner.

10.2. The assertion of the retention of title does not require withdrawal and shall in itself not be considered a withdrawal from the contract. It does not release the contractual partner from its contractual obligations, particularly with respect to the payment of outstanding invoices. The provision of the contractual goods will take place step by step against payment of the remainder of the purchase price.

10.3. As part of the retention of title in favour of KWB, a sale to a third party, processing, pledging, mortgaging or any other disposal of the contractual goods before full payment of the purchase price including ancillary costs is impermissible. 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.

10.4. 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 the property rights of KWB. The contractual partner shall in particular 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.

10.5. 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 expense and risk of the contractual partner.

10.6. If, despite the agreed retention of title, the contractual goods are nevertheless sold to a third party, the contractual partner hereby 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, while indemnifying KWB and holding it harmless, and to immediately undertake all necessary steps for the assignment, e.g. notification of the debtor, etc.

10.7. Should the contractual partner be a legal person, its corporate body is liable personally as well as jointly and severally to KWB for compliance with the obligations of Section 9 set out in this document by the contractual partner.

11. Liability/warranty

11.1. KWB shall render warranty obligations in the context of and in compliance with applicable law (§§ 922 ff of the Austrian General Civil Code (ABGB)), while the contractual party in consumer contracts (§ 1 of the Consumer Protection Act (KSchG)) has unrestricted access to claim the legally prescribed legal remedy. In compliance with legal requirements, the warranty obligation for moveable goods is 2 years and that for immovable goods is 3 years. Improvements completed after expiration of the warranty period have no legal meaning and are provided merely without prejudice and for goodwill reasons.

11.2. In compliance with legal requirements (§ 932 ABGB), the consumer can initially choose between improvement or replacement; as long as improvement or replacement is not impossible or does not involve a disproportionately great expense for KWB when compared to other remedial action. KWB shall implement the improvement or replacement, in compliance with legal requirements (§ 8 KSchG), at the site where the item was delivered. If KWB transported or shipped the item to a site in Austria as agreed in the contract, then this site shall be deemed to be the handover location. In compliance with § 8 paragraph 1 clause 2 KSchG, KWB shall also implement the improvement or replacement at the location where the item is usually located (location in Austria that is not surprising to KWB and if it is infeasible for the contractual party to transport the type of item to KWB). KWB can request that the consumer ships the item if this feasible (§ 8 paragraph 2 KSchG).

11.3. Any change and/or modification of the contractual goods or operation of the contractual goods not expressly authorised by KWB in writing, or their operation in conjunction with other devices or accessories whose compatibility has not been expressly confirmed by KWB in writing, or any inappropriate operation/use (e.g. the use of fuels and/or water not in accordance with standards which do not correspond to the ÖNORM H 5195-1, ÖNORM H 5195-2 standards or the VDI 2035 guideline; inappropriate and/or excessive use) will result in exclusion from the warranty. Any liability or warranty for compatibility of the contractual goods with other products, systems, plants or parts of these, as well as their suitability for a specific use is to be excluded unless expressly permitted in writing.

11.4. In the event that a maintenance agreement is concluded, in which the right to contract termination has been waived for three (3) years, the warranty period for the delivered contractual goods is extended to three (3) years in total after handover, with the exception of the heat exchanger. From the maintenance agreement itself, warranty rights arise in compliance with the legal requirements. In the event of an orderly installation of a return flow boost before initial commissioning, the warranty period for the heat exchanger extends to a period of eight 8 years in total after handover, independent of the conclusion of a maintenance agreement.

11.5. If contractual goods are manufactured by KWB based on construction details, drawings or models of the contractual partner, KWB is not obligated to verify the accuracy or technical feasibility of these specifications and/or technical data. KWB's liability and warranty in such a case only encompasses contractual goods manufactured in accordance with the provided data.

11.6. When taking on repair orders or when performing work on used plants or systems of other manufacturers, KWB does not accept any liability and/or does not extend any warranty for these systems, and is only liable for the proper performance of the commissioned work carried out by KWB.

11.7. KWB shall be liable for personal injuries in the event of minor negligence and for property damage in the event of gross negligence and intent. Property damage in the event of minor negligence is thus excluded.

12. Offsetting/assignment

12.1. Offsetting against counter claims by the contractual partner is impermissible, except in the case of the company’s insolvency, or for counter claims that are legally related to the obligations of the contractual partner or that have been determined in a court of law and have been acknowledged by the company.

12.2. Any cession and/or any transfer of claims by the contractual partner requires prior written consent by KWB.

13. Data protection

KWB undertakes to comply with all data protection-related provisions, in particular Regulation (EU) 2016/679 (General Data Protection Regulation/GDPR) and refers to the respectively current Privacy Policy.

14. Jurisdiction/place of fulfilment/choice of law

14.1. The jurisdiction for any disputes from any contracts concluded with the contractual partner, including the issue of their validity and their prior and subsequent effects, are exclusively specified by the legal requirements of the Austrian Law on Court Jurisdiction (JN) and KSchG.

14.2. The location of KWB’s registered office is agreed as the place of fulfilment.

14.3. All contracts and business relationships between KWB and the contractual partner are exclusively subject to material Austrian law, under the exclusion of the UN Sales Convention and any conflict of laws provisions. However, the consumer is entitled to the jurisdiction of the state that is the habitual place of residence of the consumer, which in accordance with the provisions of the law of that country cannot be derogated from by agreement.

© KWB, in effect as of April 2024, misprints and printing errors excepted!