General Terms and Conditions of Business, Delivery and Payment of Fermatop GmbH
These terms and conditions of business apply for relevant legal transactions concluded between FERMATOP GmbH (hereinafter also referred to as the “Contractor”) and natural and legal persons (hereinafter referred to as the “customer” or the “Principal”) as well as for all future transactions even if (particularly with regard to future supplementary or follow-up orders) they are not explicitly referred to in an individual case. The version of our GTC current upon the conclusion of the contract applies. The current version of these GTC can be retrieved and viewed at any time at www.fermatop.com. We enter into contracts exclusively on the basis of our GTC.
Terms and conditions of business of the customer or amendments / additions to our GTC require our explicit written consent in order to be effective. Differing terms and conditions shall only be effective if we have agreed to them in writing or duly signed, and shall be effective exclusively for the respective legal transaction and not for follow-up transactions. Terms and conditions of business of the customer will therefore not be recognised even if we do not explicitly object to them after receiving them.
The conclusion of the contract
The offers prepared by FERMATOP GmbH are subject to confirmation and non-binding. All orders and arrangements shall only be legally binding if they are in writing and duly signed, and shall only be binding to the extent specified in the order confirmation. The same applies for subsequent contractual amendments.
The preparation of a quotation shall not oblige the Contractor to accept an order to perform the services specified in the quotation. In any event, quotations are subject to confirmation and non-binding.
The offer documents must be treated confidentially by the customer and must not be passed on to third parties. They are owned under copyright by FERMATOP GmbH and must be immediately returned to us at our request. Plans, sketches, quotations and other documents provided by us or created due to our contribution shall remain our intellectual property. The use of such documents beyond the intended purpose, particularly passing them on, reproducing or publishing them or making them available, including the copying of excerpts, shall require our explicit consent. The customer also undertakes to keep the information it receives in connection with the business relationship confidential with respect to third parties.
For performances ordered by the customer which are not covered by the original order, we shall be entitled to appropriate remuneration. In the event of contractual amendments requested by the Principal, the Principal shall therefore be separately invoiced at cost for the expenses incurred as a result.
The prices stated in the quotation are current prices as of date of the quotation. As a rule, price information should not be understood as flat-rate prices. For performances ordered by the customer which are not covered by the original order, we shall be entitled to appropriate remuneration. The prices specified in FERMATOP GmbH’s order are non-binding net prices ex the Stegersbach warehouse and are subject to the addition of statutory VAT. Upon the acceptance of the goods, the costs and risks of transportation shall transfer to the Principal.
The Principal also undertakes to pay all payable fees, public charges, taxes, freight costs and customs duties which are not specified in the offer, as well as any increases related to the ordered delivery. Furthermore, the Contractor has the right to adjust the contractually agreed fees in the event of changes in wage costs post-dating the conclusion of the contract due to laws, regulations, collective bargaining agreements or works agreements, or other cost factors necessary for the rendering of the performance (such as material costs) due to recommendations of the Joint Committees or changes in the national/global market prices for raw materials, changes of relevant exchange rates, etc. The adjustment shall be carried out in line with the change in the actual manufacturing costs upon the conclusion of the contract relative to those prevailing at the time when the performances are actually rendered.
The Principal must pay the invoices issued by the Contractor within 14 days from the invoice date, without deductions, into an account to be specified by the Contractor. The invoice shall only be deemed to have been settled once the Contractor can dispose without losses of all the contractually agreed payments (total amount) in its account. The Principal shall not have the right to set off with counterclaims. For that reason, it is also not permitted to retain due payments on the basis of purported counterclaims. In the event of a delay in making payment, interest for delay in the amount of 9.2% over the general base interest rate shall be charged. More far-reaching claims for compensation for losses remain unaffected by this.
Furthermore, if the payment deadline is exceeded, any granted discounts, reductions, etc. shall be forfeit and added to the invoice.
If the Principal delays in making payment in connection with other existing contractual relationships with the Contractor, the Contractor shall have the right to cease the fulfilment of its obligations under this order until the Principal has fulfilled the payment obligations relating to the other order.
Our obligation to render our performance shall begin, at the earliest, once the customer has fulfilled all the construction, technical and legal requirements for the work, as described in the contract or in the information issued to the customer before the conclusion of the contract or which the customer should know based on relevant expertise or experience. The delivery and performance deadlines specified in the offer are approximations and will only be complied with if the ordered goods have been paid for in full.
If the beginning of the rendering of the performance has been delayed or interrupted due to circumstances attributable to the customer, particularly due to a breach of cooperation obligations, the performance deadlines will be extended accordingly and agreed completion dates will be postponed accordingly, without the Contractor being deemed to have defaulted as a result.
The customer must, at its own expense, procure the necessary approvals from third parties as well as arrange registrations and obtain approvals from authorities.
If a delay in rendering the performance occurs that lies within the sphere of the Principal, the Principal shall have to pay all the resulting costs. The Contractor reserves the right to delivery delays due to events of force majeure, legal or economic impossibility or the like, and any liability of the Contractor on that basis is excluded. Time limits and deadlines shall be postponed in the event of force majeure, strikes, unforeseeable delays by our suppliers for which we are not responsible or other comparable events that do not lie within our sphere of influence, until the end of the period for which the event in question continues. Furthermore, the Contractor has the right, if compelling reasons exist for doing so, particularly persistent events of force majeure or legal or commercial impossibility, to entirely or partially cancel the order and invoice the Principal for the expenses incurred up to that point.
Objectively justified minor changes to the rendering of our performance which are reasonable for the customer are deemed to be approved in advance.
The risk for materials and equipment delivered by us and stored or installed at the place of performance shall be borne by the customer.
In the event of default of acceptance by the customer, we shall have the right to rescind the contract after a reasonable additional time limit has expired. The right to assert claims for compensation remains unaffected by this.
Compensation for losses
In any event, our liability for compensation for losses or on other legal bases is limited to wilful misconduct or gross negligence. Compensation for consequential losses, purely financial losses, lost profits, interest losses or losses stemming from third-party claims against the Principal is excluded.
Claims for compensation for losses of customers being companies must be asserted through the courts within six months from the date when the losses and injuring party are identified, otherwise they shall expire.
If the customer can claim insurance benefits, the Contractor’s liability shall in any event be limited to the disadvantages suffered by the Principal as a result of claiming the insurance benefits, for example the increase in the insurance premiums.
The warranty period for goods delivered by us and paid for in full amounts to two years from handover. If a warranty defect exists, the contractor must in any event be given the opportunity to rectify it within a reasonable time limit. Only if the elimination of the defect is impossible or involves disproportionately high expenses will the Principal be able to demand a price reduction or replacement of the goods. The choice in this respect shall not be made by the Principal. In any event, wearing parts and consumables are excluded from the warranty.
So as to be able to successfully assert its warranty claims, the Principal undertakes to report any defects to the Contractor in writing immediately after delivery, otherwise any warranty claims shall be forfeit.
Any further-reaching claims under warranty, for compensation for losses, due to financial losses or the like are explicitly excluded as far as this is legally possible.
The Contractor’s liability is, in particular, excluded for damage and existing defects that arise due to improper handling, installation or storage, excessive strain, failure to comply with operating and installation requirements, incorrect installation, commissioning or maintenance by the customer or by third parties not authorised by us or natural wear and tear. The exclusion of liability also applies where necessary maintenance is omitted.
Deliveries and services shall be deemed to have been accepted no later than 14 days after the completion of these if the contract partners do not explicitly demand an acceptance report.
We shall not be liable for events of force majeure. If we are impeded in the fulfilment of our obligations due to the occurrence of unforeseen circumstances that we are unable to avert despite exercising reasonable care in view of the circumstances of the case in question, for example strikes, fire, natural disasters, orders of governmental authorities, operational disruptions such as shortages of energy or raw materials, we shall be released from those obligations.
If the customer’s defect claims are unjustified, the customer must compensate us for the expenses we incur for the purpose of establishing that there are no defects or eliminating the defects.
Retention of ownership
Until payment has been made in full of all receivables together with all further liabilities (e.g. interest, costs), we shall retain the ownership title to the goods delivered by us. The Principal undertakes already now to take all necessary steps/sign all necessary documents to enable the retention of title to be entered into any registers.
If the customer sells goods that are subject to retention of title to a third party, the retention of ownership shall extend further. However, until the purchase price has been paid in full it is not permitted to either pledge the goods to a third party or assign them to a third party as security or otherwise encumber them in favour of a third party. For the event that the goods are processed or combined with other goods that do not belong to us, the Principal already now assigns to us its ownership title to the new state of the item in the amount of the value of the goods subject to retention of title.
If, in the event of a delay in making payment, payment is not made immediately after a reminder is issued, the goods subject to retention of title must be promptly surrendered to the Contractor and the Contractor shall have the right to rescind the contract. Any costs related to taking the goods back shall be borne by the customer.
In the event of a breach of these provisions on retention of ownership, the Principal shall bear the resulting costs.
Governing law and place of jurisdiction
The parties agree that the place of jurisdiction is the materially and locally competent court for the registered office of FERMATOP GmbH. All legal relationships between the Principal and the Contractor are subject to the laws of the Republic of Austria, to the exclusion of the conflict of law rules under the Austrian Act on International Private Law (IPR-Gesetz) and the UN Convention on Contracts for the International Sale of Goods.
We store your address and the order-related data (name, first name, street, house number, postal code, city, e-mail address and telephone / fax number) for the processing and execution of your order. Of course, we commit ourselves to a comprehensive protection of your personal data in accordance with the provisions of the Data Privacy Act. In addition, we assure you that you will not disclose your personal data to third parties, but only use them with our logistics and processing service providers and for our own marketing purposes.
Should parts of these terms and conditions become ineffective, the effectiveness of the other parts of the contract shall not be affected. The ineffective or unenforceable provision shall be replaced with an effective provision which comes closest to the economic content of the ineffective or unenforceable provision.