I. General
(1) Validity
These General Terms and Conditions of Purchase (in the following referred to as “GTP”) form the basis for all purchases and the associated business transactions of Gasyco GmbH (in the following referred to as “Gasyco”). The GTP form an integral part of all contracts, agreements, offers and other legal declarations concluded by Gasyco with business partners (in the following referred to as “Business Partners”) in purchasing. By entering a business transaction with Gasyco in writing, in person or in any other way, the Business Partner agrees to the validity of the GTPs of Gasyco. The GTPs shall be binding for all present and future business transactions with Gasyco, even if no explicit reference is made to them.
(2) Subsidiary validity of the GTC
Gasyco's General Terms and Conditions of Business also apply in a subsidiary capacity to all purchasing activities, unless the GTPs contain more specific provisions.
(3) Contradictions
Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless explicitly agreed in writing by Gasyco.
II. Offer, Contract Closing
(1) Offers
Unless otherwise agreed or specified by Gasyco, offers made by the business partner shall be binding for at least three months.
(2) Orders
Orders from Gasyco are only legally binding if they are made in writing and signed by the company. The written form shall also be deemed to have been fulfilled if the order is placed by e-mail or fax.
(3) Free of charge
The preparation of offers submitted to Gasyco is free of charge, regardless of the preparatory work required.
(4) Indivisible overall performance
Indivisible total services are agreed.
(5) Right of withdrawal
Gasyco has the right to withdraw from the contract without giving reasons against payment of a cancellation fee (Reugeld, § 909 ABGB) of 10 % of the price excluding VAT. However, if the actual damage incurred is less, only this amount shall be reimbursed. Other termination and cancellation rights of Gasyco shall remain unaffected.
III. Confidentiality, Data Privacy
(1) Non-disclosure
The business partner hereby irrevocably undertakes to maintain secrecy with regard to all business and trade secrets made accessible or made available to him by Gasyco or otherwise made known to him in connection with or as a result of a business relationship or contact with Gasyco, and not to make them available to third parties in any way whatsoever without the consent of Gasyco. Furthermore, the business partner undertakes to use information only on a “need to know” basis and only within the scope of the contract concluded. This non-disclosure agreement shall remain in force for three years after termination of the business relationship or for three years after Gasyco has requested a quotation.
(2) Reference data
Advertising and publications about orders from Gasyco, as well as the inclusion of Gasyco in the business partner's reference list, require the prior written consent of Gasyco.
(3) Data handling
The business partner guarantees compliance with all data protection regulations. Data will not be processed by the business partner for longer than absolutely necessary.
(4) Prohibition of passing on
Without the consent of Gasyco no part or the whole order may be given to a third party.
IV. Supplementary Work
(1) Qualification, documentation, training
The business partner uses only carefully selected and well-trained employees. The business partner shall provide Gasyco with documentation (e.g. manual, handbook) that is complete and can be copied for operation. Gasyco shall be entitled to copy and use the documentation for the contractual use.
(2) Transport costs and transport risk
The business partner shall bear the costs and risk of the transport until delivery behind the first lockable door at Gasyco's premises or at the agreed place of delivery. The risk of loss or damage is only transferred to Gasyco upon handover. The business partner must take out transport insurance for the goods and pack them properly. Damage caused by improper packaging prior to acceptance by Gasyco shall be borne by the business partner.
(3) Declaration of discharge
If the business partner participates in a nationwide system of packaging disposal in Austria, the following legally binding declaration is to be included in the offer, but also in each delivery bill and invoice: “The packaging of all goods listed is exempted from obligations via the license number ...”. Gasyco will not accept additional fees or costs, such as deposits or disposal costs. If the business partner fails to make such a declaration of dispensation, he shall collect or take back the packaging material; if the business partner fails to comply with this obligation, Gasyco shall be entitled to have the disposal carried out by third parties at the risk and expense of the business partner.
V. Prices
(1) Fixed price
All services provided by the business partner are remunerated at fixed prices, excluding value added tax. The agreed fixed prices shall include all services necessary for the proper performance of the contract, in particular any installation and documentation costs, the costs for an initial instruction, any license fees, packaging, transport, insurance and unloading costs, public fees and charges, as well as any social security benefits and expenses.
(2) Unloading
The prices apply free place of installation or use or place of delivery unloaded.
(3) Order number
All documents relating to the order, in particular invoices, shall quote Gasyco's order number, failing which Gasyco shall be entitled to retain them without processing and, in case of doubt, they shall be deemed not to have been received by Gasyco.
(4) Cash discount
Gasyco shall be entitled to a discount of 3% for payment within 14 days of receipt of the invoice. Gasyco will not make any advance payments. In the absence of any explicit agreement to the contrary, the payment period shall be 30 days from receipt of the invoice or the document otherwise triggering the payment period. If acceptance of the deliveries and services has been agreed, the business partner shall be entitled to issue an invoice after successful acceptance, in the case of pure delivery transactions after complete delivery.
VI. Place of Delivery, Acceptance
(1) Place of delivery, risk of loss
The place of performance for the deliveries and/or services shall be the place specified by Gasyco (in particular in the order) or at the registered office of Gasyco. Unless otherwise agreed, the costs and risk of transporting goods shall be borne by the business partner.
(2) Default by the business partner
If it is apparent to the business partner that he will be in default with the delivery and/or service, the business partner shall notify Gasyco immediately of the impending default and its probable duration. Such notification shall not constitute a release from the obligation under Section VI. (4).
(3) Acceptance
Gasyco will carry out an acceptance test after training, delivery, installation or successful completion of all necessary installation tests, as well as after the written notification of readiness for acceptance by the business partner and when the complete documentation is available. An acceptance date shall be fixed within four weeks of the notification of completion by the business partner, unless otherwise agreed in the contract. The operational use of the goods before the formal acceptance test has been carried out shall in no case replace the formal acceptance test and shall not constitute a conclusive acceptance declaration. After successful completion of the acceptance test and its confirmation by Gasyco in the form of a written acceptance declaration signed by the company, the goods are deemed to have been accepted (acceptance).
(4) Price reduction in case of default
If the business partner is in default, Gasyco shall be entitled to charge a price reduction of 0.5% for each commenced day of the delay in delivery, of the total order value exclusive of VAT, up to a maximum of 10% of the total order value exclusive of VAT. This shall also apply if the business partner provides a partial delivery and/or service after the agreed delivery and/or service date and this is accepted by Gasyco.
VII. Warranty
(1) Warranty remedies
In the event of a warranty, Gasyco shall be entitled to determine the type of warranty (improvement, replacement, price reduction or conversion).
(2) Exclusion of § 377 UGB
§ 377 UGB is not applicable.
(3) Spare parts, repairs
The business partner undertakes to keep suitable spare parts in stock and to carry out repairs for a period of ten years from the date of acceptance.
(4) Disclaimer of liability
Exclusions of liability as well as limitations of liability of the business partner, especially from the title warranty or compensation, are not accepted.
VIII. Termination, Withdrawal from the Contract
(1) Continuing obligations
In case of continuing obligations, Gasyco may terminate the contract with effect from the end of the month by giving 30 days' notice, and the business partner may terminate the contract with effect from the end of the month by giving 90 days' notice.
(2) Waiver of termination
Any waiver of termination by Gasyco requires the explicit written confirmation of a managing director of Gasyco, otherwise this is not effectively agreed.
(3) Extraordinary termination
Gasyco may terminate a contract without notice at any time for good cause. Important reasons are in particular those listed under point VIII. (4), or if the business partner dies, is liquidated in the case of a legal entity, or an application for the opening of insolvency proceedings against its assets is rejected due to lack of assets to cover costs, unless mandatory provisions of the Austrian Insolvency Code (IO) preclude this.
(4) Withdrawal from the contract
Gasyco shall be entitled to withdraw from the contract if there is good cause to do so, in particular
- if the business partner violates official regulations or the provisions of the GTP;
- if the business partner has entered into agreements with other companies that are disadvantageous to Gasyco, contrary to common decency or contrary to the principle of competition
- if the business partner has directly or indirectly promised or given advantages to employees of Gasyco who are involved in the conclusion or execution of the contract or has threatened or inflicted disadvantages.
Gasyco shall be entitled to rescind the contract, either in respect of the entire unfulfilled contract or only in respect of individual parts thereof, for any of the reasons set out in Section VIII (3) and Section VIII (4).
(5) Substitute performance
Gasyco shall have the right, if the reasons entitling it to withdraw from the contract exist, after a single written request to the business partner to do so and after setting a period of grace of 14 days (from the date of posting) to the business partner, but immediately in the event of imminent danger, without further notice, to carry out substitute performance at the risk and cost of the business partner. All costs and damages resulting from a substitute performance shall be borne by the business partner. Gasyco may set off such amounts against the claims of the business partner.
IX. Limitation/Preclusion of Claim
Unless a shorter period of limitation or preclusion applies by law or contract, all claims against Gasyco shall be forfeited if they have not been asserted in court within one year of the rightful claimant becoming aware of the damage and injuring party or of the event giving rise to the claim or if they have not been explicitly acknowledged by Gasyco in writing.
X. Set-off
Set-off against claims of Gasyco with counterclaims of any kind is excluded.
XI. Final Provision, Law, Place of Jurisdiction
(1) Change of the GTP
Gasyco reserves the right to amend the AEB at any time for future business. The GPCs in force at the time the contract is concluded shall apply.
(2) Severability clause
Should one or more provisions of these GTP be or become (legally) invalid or unenforceable, the remaining provisions of these GTP shall remain unaffected. In such a case, any comparable provision of the Gasyco GTC shall apply. If there is no applicable provision there, the contracting parties undertake to agree on a provision that comes as close as possible to the economic content of the invalid or unenforceable provision.
(3) Place of performance and jurisdiction
The place of performance for all obligations under the contracts concluded with Gasyco shall be 1140 Vienna. If no mandatory place of jurisdiction exists, the exclusive jurisdiction for all disputes arising out of or in connection with the business relationship between the business partner and Gasyco shall be the court having jurisdiction for 1140 Vienna, Austria (§ 104 JN).
(4) Applicable law
Austrian law shall apply exclusively (also where the business partner is located abroad), excluding the conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
(5) Written form
Changes or additions to a contract must be made in writing. This shall also apply to the change of the written form requirement.