General Terms and Conditions of WTW electronic G.m.b.H.
Status: December 2017
The following General Terms and Conditions (GTC) apply as an agreed part of the contract to all contracts concluded between WTW electronic GmbH (hereinafter referred to as WTW) and its customers and clients (hereinafter referred to as customers), unless deviations from them are made by separate written agreement. Terms and conditions of business of contractual partners which contradict the following GTC, even only in part, shall not become part of the contract unless this has been expressly agreed in writing. Insofar as no regulation is found in a separate agreement or in the following General Terms and Conditions, the dispositive law shall apply exclusively. Deviations from dispositive law in the terms and conditions of business of contractual partners are not accepted unless these have been expressly agreed in writing.
1. Offers and contract conclusion
1.1 Enquiries and offers
All offers of WTW are always subject to change and non-binding. WTW offers are to be understood – unless they contain an explicit declaration that an acceptance can be effected by the customer – as mere invitations to submit an offer by the customer. A basic condition for the acceptability of an offer by WTW is furthermore in all cases that it is made in writing (email or fax are sufficient). Furthermore, WTW reserves the right to terminate contracts by written declaration within 7 days after conclusion of the contract. Such a termination of the contract by WTW does not entitle the customer to assert claims for compensation of any kind whatsoever.
The acceptance of offers by WTW is exclusively made in writing (email or fax are sufficient). Declarations by WTW which are not made by the management are never binding if they entail a commitment of more than € 100,000,-.
1.3 Cost estimates
Repair cost estimates prepared at the request of the customer are against payment and oblige the customer to pay an appropriate fee, as well as to reimburse the expenses incurred to WTW. Components or systems without a warranty claim will be repaired by WTW at the customer’s expense. A flat fee of EUR 100,00 will be charged for the cost estimate. The work involved in the repair will be charged at an hourly rate of EUR 65,00 (excl. VAT and excluding materials). Unless expressly stated otherwise in such cost estimates, they are non-binding and without guarantee.
In case of doubt, the agreed prices are exclusive of the statutory value added tax. Unless otherwise expressly agreed in writing, all prices offered by WTW are based on the clause “EXW” (Incoterms 2000) at the place indicated by WTW. Any overtime to be performed by WTW, as well as the costs of packaging, are not included in the price.
2. Rescission of contracts
Both the rescission and the amendment of contracts due to error by the customer are excluded. The contestation or amendment of contracts by the customer on the grounds of a reduction by more than half is excluded.
3. Contract amendments
Any changes to the contracts concluded between WTW and the customer, including this written form requirement, must be made in writing (email or fax are sufficient) and, if the resulting additional obligation for WTW would exceed the value of € 50,000, the signature of the management is required. Spoken ancillary agreements are invalid.
4. Retention of title/assignment of claims
WTW expressly reserves the right of ownership of the contracted goods until the complete fulfilment of the payment by the customer. With the acceptance of the deliveries and services offered by WTW by the customer, the customer agrees to this retention of title in any case. Until revoked, the customer is authorised to resell the goods delivered by WTW in the ordinary course of business, unless they are in default of payment towards WTW. The customer already now assigns to WTW the claims against their contractual partners to which they are entitled from the sale of reserved goods, including all ancillary claims. The customer is obliged to immediately note the assignment of these claims to WTW in their business books, stating the amount, legal ground, debtor, assignee and date of the assignment and to inform WTW thereof. Upon request by WTW, the customer shall provide evidence of this note. The customer may not dispose of such assigned claims as long as WTW still has outstanding claims against them for whatever legal reason. If the purchaser of the reserved goods insists on a prohibition of assignment, the customer may only conclude a contract if they are expressly authorised to do so by WTW. If the reserved goods are sold against cash payment, the customer is obliged to keep the collected cash separately from their own and third party cash and to inform WTW about this in writing, as well as to make a corresponding note in the business books. As far as a reservation of title in favour of WTW exists according to the above provisions, the customer must furthermore inform their purchaser in writing that the goods are the property of WTW and that the purchaser is not entitled to resell the goods. The customer must sufficiently insure all goods for which a reservation of title exists in favour of WTW, observing the diligence of a prudent businessman, and already now assigns to WTW any claims resulting from damage to these goods. If WTW has justifiably withdrawn from the contract for whatever reason, WTW is entitled to immediately take possession of the goods subject to retention of title, wherever they are located. For this purpose, the customer must allow WTW to enter their premises and not prevent WTW from taking away the goods.
5. Contract fulfilment and default
5.1 Place of performance
Unless otherwise expressly agreed, performance by WTW is “EXW” at the place specified by WTW (Incoterms 2000).
5.2 Time period
Unless another time period has been expressly agreed in writing between WTW and the customer, WTW will fulfil the contract within three months from the date of the conclusion of the contract. If the fulfilment is through provision at the place indicated by WTW, the customer must arrange for the collection at the time indicated by WTW, otherwise default of acceptance occurs. WTW shall notify the customer of such a pick-up date at least three days in advance. If WTW has announced the provision of the contracted goods without stating a date, a collection must be arranged by the customer within seven days, otherwise default of acceptance applies. If the contracted goods are shipped following a written agreement between WTW and the customer, the customer bears the risk for the shipment. In this case, the delivery is considered to be effected as soon as the contracted goods have left the warehouse of WTW.
5.3 Due date of payment
Unless otherwise agreed in writing, the purchase price or the other due amount owed is due as soon as the customer can take over the goods provided by WTW for the first time. If a shipment by WTW has been agreed upon in writing according to clause 5.2, the due date occurs with the handover to the carrier.
5.4 Default interest
In case the customer does not meet their payment obligation in due time, WTW is entitled to claim default interest amounting to 0.05% per calendar day from the first day of default. If the customer is entitled to a claim against WTW for whatever legal reason resulting from the contractual relationship, interest on arrears amounting to 4% per year is agreed for this claim.
5.5 Delivery delay
If it becomes foreseeable for WTW that the performance will not be possible at the agreed time, WTW can inform the customer thereof. In this case the customer is also obliged to accept the fulfilment within a reasonable period of grace fixed by WTW without the customer being entitled to claim any damages or costs. If WTW does not fulfil the contract even after this reasonable period of grace, the customer is entitled to withdraw from the contract and to claim damages according to the limitations of liability provided for in these GTC.
5.6 Consequences of default of acceptance
If the customer does not accept the delivery or service duly offered by WTW according to the provisions of these GTC on the agreed date, WTW is entitled to withdraw from the contract immediately without granting a grace period or to adhere to the contract and to store the contracted goods at the risk and expense of the customer. Failure to take over the contracted goods in due time shall in any case cause the risk to pass to the customer. In case of default of acceptance, the customer must compensate WTW for all damages of any kind.
5.7 Consequences of payment arrears
If the customer does not meet their payment obligation on time, WTW is entitled to withdraw from the contract immediately after setting a 14-day grace period. In case WTW becomes aware that the financial situation of the customer has deteriorated considerably, that insolvency proceedings have been opened against the customer or that such proceedings have been dismissed due to lack of assets, WTW is entitled to withdraw from the contract without granting a grace period. If further deliveries or services by WTW have been agreed and the customer has outstanding liabilities towards WTW, WTW has no further obligation to deliver/service for the duration of the delay in payment.
5.8 Transfer of fulfilment
WTW is entitled to transfer its contractual obligations towards the customer in whole or in part to third parties.
6. Warranty and liability
6.1 Notice of defects
In case of defects of the goods or services delivered by WTW, the customer must give notice of these defects immediately in writing, specifying the defect exactly, otherwise all warranty claims and claims for damages will be lost.
In case of defects of the delivered goods or services, WTW has the right to choose between repair or replacement within a reasonable period of at least 14 days fixed by WTW. The customer can only assert further rights if WTW neither repairs nor replaces the goods within the fixed period of time. The costs of repair or exchange will be borne by WTW, however, the customer undertakes to send the goods, as far as this is reasonable, to a place indicated by WTW for the purpose of repair or exchange, to retrieve them at the place of repair or exchange or to have them collected, and to bear the costs for this. The deadline for repair or exchange starts only with the receipt of the goods at the place of repair or exchange specified by WTW. If after inspection by WTW it turns out that the goods were free of defects, the customer must reimburse WTW for all costs incurred in connection with the inspection. Only if WTW does not comply with the justified request by the customer to repair or exchange the goods in due time can the customer demand a price reduction or cancellation of the contract. However, the customer may only demand cancellation of the contract if the defect is not minor, and even then only to the extent of the defective parts, while maintaining the remainder of the contract.
6.3 Limitation of liability
WTW is liable for damages only if intent or gross negligence can be proven. The burden of proof for a fault on behalf of WTW is on the customer, to the exclusion of § 1298 ABGB (General Civil Code). Any further liability of WTW than for the damage to the object itself, such as in particular for indirect damages, damages from claims by third parties against the customer, consequential damages, damages caused by delay, loss of profit and for dismantling and installation costs, travel expenses, transport costs or troubleshooting costs, is excluded in any case.
6.4 Sequence of warranty and compensation
Initially, the customer can only assert warranty claims. The customer shall only be entitled to damages in accordance with the limitations of liability set out in these General Terms and Conditions and only in the event that the warranty fails.
6.5 Statute of limitations for damages and warranty
The statute of limitations for all warranty and damage claims shall commence on the date specified in section 5.2. This applies equally to partial deliveries. The warranty period is 12 months from this date. Any claims for damages shall in any case have a statute of limitations of 18 months from this date, irrespective of the date when the customer became or could have become aware of the damage and the damaging party.
6.6 Product liability
In case WTW is held liable by third parties for product liability, the customer is obliged to indemnify and hold WTW harmless if the claim results from a product defect caused by the customer, in particular due to improper handling, storage or transport.
The customer undertakes to ensure the appropriate disposal of all waste and used oils arising in connection with the goods taken over and to assume the costs for this. WTW is not obliged to take back leftover waste in connection with the delivered goods.
The customer must arrange for the removal of all packaging used, conclude an ARA service contract and bear the costs for this. If the customer violates their obligations relating to this clause of the business conditions, the customer is obliged to compensate WTW for all costs arising from this and to indemnify and hold WTW completely harmless. The costs of the release by the customer are already included in the agreed prices.
8. Confidentiality obligation
The customer is obliged to treat all information, documents or data received from WTW, and those which become known to them within the scope of the business relationship, strictly confidential and to take appropriate care that this data is neither communicated nor otherwise made accessible to third parties. In particular, the customer shall set up their computer systems according to the state of the art in such a way that access to WTW data stored by the customer is not possible for third parties. The same applies to the electronic and other forms of communication used by the customer. The customer is only entitled to use the information, documents and data known to them to the extent absolutely necessary for the fulfilment of their contractual obligations. Should the customer violate any of the above obligations, they shall fully indemnify WTW for any damages or disadvantages, whatever they may be.
8.2 Scope of the obligation to maintain secrecy
The customer is obliged to transfer this secrecy agreement to their employees as well as to third companies involved in the provision of services.
8.3 Disclosure by the contracting partner
The customer is not entitled to disclose the business relationship between them and WTW to third parties in any form whatsoever without the written consent of WTW. WTW, on the other hand, is entitled at any time to disclose the business relationship with the customer to third parties, also publicly, in any form whatsoever, and to use the company name and the company logo of the customer for this purpose.
8.4 Continued validity of secrecy
This obligation to maintain secrecy on the part of the customer shall not end with the completion of the transaction but shall continue to exist thereafter for an unlimited period of time.
9. Electronic communication
The customer expressly agrees to WTW contacting them by means of electronic communication in line with § 107 TKG (Telecommunications Act) for whatever purpose.
10. Partial invalidity
Should individual provisions of these GTC be legally invalid, the remaining provisions shall remain valid. The customer agrees that in this case WTW will determine a legally valid, economically and legally equivalent regulation.
11. Applicable law and place of jurisdiction
Austrian substantive law shall apply without exception, expressly excluding the rules of private international law and the UN Convention on Contracts for the International Sale of Goods. For all disputes arising from the contractual relationship or in connection therewith, it is agreed that the responsible court in Graz shall have jurisdiction.