General Terms and Conditions
BHS Technologies GmbH, Langer Weg 11, 6020 Innsbruck
VERSION AS OF: MARCH 2020
1. SCOPE OF APPLICATION
1.1. All deliveries, services and offers of BHS Technologies GmbH, Langer Weg 11, 6020 Innsbruck (“BHS”) are made exclusively on the basis of these General Terms and Conditions (“GTC”). These GTC shall therefore also apply to all future business relations between BHS and the buyer/purchaser (“Contracting Partner”). At the latest with the acceptance of the product or service (hereinafter also referred to jointly as “Contractual Object”), these GTC shall be deemed accepted.
1.2. The contracting parties agree that the General Terms and Conditions or other terms and conditions of the contracting party shall not apply. This shall also apply if the contracting partner refers to his terms and conditions of business or purchase by means of counter-confirmations or in any other way.
1.3. Deviations from the GTC shall only be effective if expressly confirmed in writing by BHS.
2. OFFER AND CONTRACT
2.1. Offers and cost estimates from BHS are subject to change.
2.2. The buyer is bound to his order for 6 (six) weeks.
2.3. Declarations of acceptance (order confirmations) and all orders require written confirmation by BHS in order to be legally valid. The same applies to supplements, amendments or ancillary agreements. A contract shall therefore only be deemed concluded without exception if BHS transmits a written order confirmation.
2.4. Drawings, illustrations, dimensions, weights or other performance data and descriptions are only binding if this has been expressly agreed in writing. This also applies in particular to the labelling of the Contractual Object. The same shall apply for other particular characteristics or if the Contractual Object is meant to be suitable for a certain intended purpose.
2.5. Public statements made by third parties, in particular in advertising, regarding the quality of the Contractual Object shall not be deemed to be part of the contract unless expressly agreed otherwise in writing.
2.6. All offer documents and project documents as well as drawings and plant layouts may not be reproduced or made accessible to third parties without the consent of BHS. They can be reclaimed at any time and must be returned to BHS immediately if the order is placed elsewhere.
2.7. Subsequent changes of and additions to the contract must be confirmed in writing to be valid.
2.8. In the event that the contracting partner wishes a graphic to be affixed to the Contractual Object, the contracting partner shall announce this at the time the order is placed, unless otherwise agreed. For this purpose, the contracting partner shall provide BHS with an electronic file, both as a vector file and in pdf format.
3.1. The prices are without engagement.
3.2. All orders will only be accepted on the basis of the prices valid at the time of the order. The prices are based on the raw material costs, wage costs and other manufacturing costs at the time of the order. BHS is entitled to unilaterally adjust prices if there are changes in raw material costs, wage costs or other manufacturing costs and there is at least a period of 4 (four) months between the date of conclusion of the contract and the date of delivery
3.3. The prices are deemed exclusive of VAT for deliveries ex works of BHS (EXW Langer Weg 11, 6020 Innsbruck, INCOTERMS ® 2020). If BHS provides the Contractual Object at another location for collection by the contracting partner or arranges for its provision, this location shall be deemed the place of collection and deliveries shall be made EXW “place of collection” [address of the place of collection announced by BHS] INCOTERMS ® 2020).
3.4. In the case of deliveries within the European Union (“EU”), the contracting partner must inform BHS of its VAT identification number before carrying out the turnover. Furthermore, the buyer is obliged to provide corresponding proof of intra-community delivery upon request by BHS Technologies GmbH within 30 (thirty) days of delivery at the latest or immediately upon request by BHS (confirmation of arrival (Gelangensbestätigung)). In the case of deliveries and services to countries outside the EU, the contracting partner of BHS must provide the proof of export required for tax purposes. If the contracting partner fails to provide the necessary proof and information, BHS reserves the right to invoice its deliveries and services plus the statutory value added tax.
3.5. Any fees, taxes or other charges incurred in connection with the collection shall be borne by the contracting partner. This shall apply irrespective of the fact that BHS shall perform assembly.
3.6. In the case of repair orders, the services recognized as expedient by BHS or by a BHS Distribution Partner shall be rendered and charged on the basis of the expenses incurred, unless it is a matter of fulfilling warranty claims. This also applies to services and additional services whose expediency only becomes apparent during the execution of the order, whereby no special notification to the contracting partner is required therefore.
3.7. The expenses for the preparation of repair quotations or for appraisals shall be borne by the contracting partner and shall be invoiced to him (separately).
4. DELIVERY/HANDOVER OF THE CONTRACTUAL OBJECT
4.1. The delivery times stated in the offers are subject to change for BHS. Delivery times are indicated to the best of our knowledge, but are not binding unless expressly stated otherwise.
4.2. Binding delivery dates or deadlines require an express written agreement (namely the following notice: “Binding Delivery Date”). The delivery dates shall in any case refer to completion at the BHS plant. Even in the case of a binding determination of delivery times, a delivery time of two weeks before or after the stated delivery time shall be deemed to be still on time and the contracting partner may not derive any claims therefrom.
4.3. BHS shall not be responsible for delays in delivery and performance due to force majeure, delays in delivery and performance on the part of BHS’s upstream suppliers and sub-suppliers and due to events which make delivery more difficult or impossible for BHS – including in particular strikes, lockouts, official orders etc., even if they occur at BHS’s upstream suppliers or its sub-suppliers – even in the case of bindingly agreed deadlines and dates.
4.4. BHS is entitled to carry out and invoice partial or advance deliveries.
4.5. BHS shall inform the contracting partner about the completion of the Contractual Object and shall inform the contracting partner of the earliest possible installation date – if the contracting parties have agreed on the installation of the Contractual Object by BHS. The contracting partner is then obliged to agree an assembly date with BHS. If the contracting parties have agreed to collect the Contract Product – and if they thus have not agreed on an assembly by BHS – BHS will inform the contracting party of the earliest possible collection date.
4.6. The contracting partner is obliged to take over and accept the Contractual Object. Acceptance shall be deemed to be delayed if the contracting party – in the event that an assembly date has been agreed – does not have the Contractual Object assembled by BHS on the agreed assembly date, does not cooperate in the assembly as agreed or – in the event that no assembly date has been agreed for reasons attributable to the contracting party – does not agree an assembly date within the aforementioned period (default of acceptance). Claims due to defectiveness of the Contractual Object are not affected by this contractual point. The obligation to take over therefore exists irrespective of the defectiveness of the Contractual Object. However, there shall be no obligation to accept if the defectiveness of the Contractual Object constitutes a material breach of contract or if, due to the nature of the Contractual Object, there is a risk of material damage or personal injury. The costs incurred due to a delayed acceptance shall be borne without exception by the contracting partner.
4.7. In addition to the RoboticScope including accessories, the Contractual Object also includes a CoC confirmation as well as operating instructions and – if the contracting parties have expressly agreed to this – the assembly of the contract product.
4.8. If the contracting partner has objected to the Contractual Object, he shall be obliged, at BHS’s request, to return it to BHS for the purpose of checking the delivery condition; however, the contracting partner shall only be entitled to return the Contractual Object after obtaining BHS’s express written consent and after agreeing on a date.
4.9. Insofar as BHS is obliged to make advance payment under a contract, BHS shall be entitled to refuse delivery if, after conclusion of the contract, circumstances become known which call into question the performance/solvency of the contracting partner, in particular if the customer credit insurer cancels or substantially reduces the credit limit for the contracting partner or if the credit limit has been reached, and BHS’s claim for payment is thereby endangered. The right to refuse performance does not apply if the counter-performance is effected or security is provided for it.
4.10. Unless otherwise agreed (e.g. in a framework distribution agreement), official approvals and any approvals by third parties required for the execution of the Contractual Object shall be obtained exclusively by the contracting party and the costs shall be borne by the contracting party.
4.11. If a contractual penalty for default in delivery was agreed between the contracting parties upon conclusion of the contract, this shall be paid in accordance with the following provision, whereby a deviation from this provision in individual points shall not affect its application in other respects: Any default in performance demonstrably caused by BHS alone shall entitle the contracting partner to claim for each completed week of delay a contractual penalty of no more than ½ %, but no more than a total of 5 %, of the value of that part of the total delivery in question which cannot be used as a result of late delivery of an essential part, provided that the contracting partner has suffered damage in this amount. Further claims arising out of the title of default are excluded.
5. TRANSFER OF RISK
5.1. Unless the contracting parties expressly agree otherwise, the goods shall be delivered in accordance with EXW Langer Weg 11, 6020 Innsbruck, INCOTERMS® 2020. Any organisation of the transport and/or commissioning of carriers and/or forwarding agents by BHS does not change this. Irrespective of this EXW-clause, according to which the risk is transferred with the provision of the Contractual Object, the risk is transferred to the contracting partner at the latest when the contracting partner is in default of acceptance (see point 4.6.).
5.2. The risks of accidental loss of the Contractual Object and/or damage to the Contractual Object by third parties shall therefore be borne by the contracting party as of the transfer of risk (see point 5.1.).
5.3. Insofar as BHS provides support during the collection of the Contractual Object, the contracting party shall be exclusively liable for all damages arising therefrom. In addition, the contracting partner undertakes to indemnify BHS against any claims by third parties arising therefrom.
6.1. Any acceptance of cheques or bills of exchange shall only be made on account of payment. All interest and charges related therewith (such as collection and discount charges) shall be borne by the contracting partner.
6.2. The contracting partner is not entitled to withhold or offset payments due to warranty claims or other counterclaims.
6.3. If the contracting partner is in default with an agreed payment or other service from this or other legal transactions, BHS may, without prejudice to its other rights
(i) postpone the fulfilment of its own obligations until this payment or other service has been effected and claim a reasonable extension of the delivery period,
(ii) declare all outstanding claims from this or other legal transactions due and payable and demand default interest for these amounts from the respective due date in the amount of 9.2% per annum above the base interest rate;
(iii) in the event of qualified insolvency, i.e. after default in payment occurring twice, other legal transactions may only be fulfilled against cash in advance. In any case, BHS is entitled to charge pre-litigation costs, in particular reminder fees and lawyer’s fees.
6.4. Any discounts or bonuses granted shall be conditional upon full payment being made in due time.
6.5. The contracting partner shall be obliged to pay the purchase price within 30 (thirty) days of invoicing, but at the latest before handing over the Contractual Object, so that the purchase price has already been received by BHS at the time of handing over the object of the purchase.
7. RESERVATION OF TITLE
7.1. BHS reserves the right to property regarding the delivered Contractual Object until the invoice amounts plus interest and costs have been paid in full (reservation of title).
7.2. If the statutory provisions of the country to which the goods subject to reservation of title are delivered provide for special conditions for the effective establishment of a reservation of title (e.g. entry in a register), the contracting partner shall take the appropriate precautions for the effective establishment of the reservation of title and provide BHS with appropriate proof of the entry.
7.3. If the statutory provisions of the country to which the goods subject to reservation of title are delivered do not provide for reservation of title, but instead provide for similar rights, BHS may exercise all rights of this kind. The contracting partner will support BHS to the best of its ability.
7.4. The contracting partner hereby assigns to BHS his claim from a resale of goods subject to reservation of title as security for the purchase price claim. In the event of resale with deferment of the purchase price, the contracting partner is only entitled to dispose of the goods subject to reservation of title under the condition that he informs his customer of the assignment by way of security at the same time as the resale or if he notes the assignment in his business books. Upon request, the contracting partner shall notify BHS of the assigned claim together with its debtor and provide all information and documents required for the collection of the claim and notify the third-party debtor of the assignment.
7.5. In the event of access by third parties to the goods subject to reservation of title, the contracting partner shall draw attention to the ownership of BHS and inform BHS immediately.
7.6. In the event of breach of contract by the contracting partner, in particular default in payment, BHS shall be entitled to take back the goods subject to reservation of title or, if applicable, to demand assignment of the contracting partner’s claims for surrender against third parties.
7.7. Taking back or seizing the goods subject to reservation of title by BHS does not constitute a withdrawal from the contract.
8. USE OF THE CONTRACTUAL OBJECT
8.1. Any performance commitments made by BHS with regard to the Contractual Object shall only apply if the Contractual Object is used by trained persons with relevant practical experience.
8.2. If registration and/or other (public) approval, such as an import licence, health registration and the like, is/are required for the use of the contract products in the Contract Territory, the contracting partner undertakes to ensure that the corresponding registrations/authorisations/approvals are granted and maintained.
8.3. The contracting partner undertakes to comply with the provisions of the user manual (“Instructions for Use”) provided by BHS for the Contractual Object in the respective current version and in particular to fulfil the maintenance obligations provided therein.
9. WARRANTY AND ASSUMPTION OF RESPONSIBILITY FOR DEFECTS
9.1. Upon compliance with the agreed terms of payment, BHS is obliged, in accordance with the following provisions, to remedy any defect, existing at the time of handover, which impairs the functionality and which is due to a defect in the design, material or workmanship.
9.2. No warranty claims can be derived from information in catalogues, brochures, advertising material and written or oral statements that have not been included in the contract.
9.3. Unless special warranty periods have been agreed for individual delivery items, the warranty period shall be 12 (twelve) months. The warranty period begins with the collection of the Contractual Object by the contracting partner or with the commissioning of the Contractual Object by the contracting partner.
9.4. For improved or replaced parts, the warranty period begins anew, but ends – as far as legally permissible – in any case 3 (three) months after expiry of the original warranty period.
9.5. The warranty claim presupposes that the contracting partner has immediately notified (reprimanded) the defects that have occurred in writing within 7 (seven) days at the latest and that the notification is received by BHS. The contracting partner must prove the existence of the defect within a reasonable period of time, in particular by making the documents or data available to BHS. In the event of a defect subject to warranty pursuant to point 9.1, BHS shall, at its choice, repair the defective goods or defective part at the place of the contracting party or another place or have it sent to itself or to the distributor for the purpose of repair or have the price reduced accordingly.
9.6. Warranty claims exist under the other conditions only for defects which are present at the time of collection by the contracting partner. This is to be proved by the contracting party. A presumption of defectiveness within the meaning of sec. 924 of the Austrian Civil Code (ABGB) is excluded. Liability for normal wear and tear is excluded in any case. By signing the handover protocol, the contracting partner confirms that there are no defects with regard to defects which were recognisable at that time or which the contracting partner should have recognised.
9.7. BHS shall bear the costs incurred in connection with remedying the defect exclusively for the repair, installation and removal of necessary spare parts and for spare parts; all other costs (such as in particular costs for the provision of personnel of the contracting partner as well as costs for transport, travel and transit time) shall be borne exclusively by the contracting partner. For warranty work on the contracting party’s premises, the necessary assistants, lifting equipment, scaffolding and small materials etc. shall be provided free of charge. Replaced parts become the property of BHS.
9.8. If a Contractual Object is manufactured by BHS on the basis of design data, drawings, models or other specifications of the contracting partner, the liability of BHS shall only extend to the conditional execution.
9.9. Excluded from the warranty are such defects which are caused by non-compliance with the application requirements and conditions of use, commissioning and use by persons not professionally trained, overloading of the parts beyond the performance specified by the contracting partner, negligent or incorrect handling and use of unsuitable operating materials or spare parts (in particular installation and use of non-original spare parts); this also applies to defects which are attributable to material provided by the contracting partner. BHS is also not liable for damage caused by actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not cover the replacement of parts subject to natural wear and tear. BHS accepts no liability for the sale of used goods.
9.10. The warranty shall expire immediately if, without the written consent of BHS, the contracting partner itself or a third party not expressly authorised by BHS makes modifications or repairs to the delivered items.
9.11. Claims according to sec. 933b of the Austrian Civil Code (ABGB) shall in any case become statute-barred upon expiry of the period stated in point 9.3.
9.12. The provisions 9.1 to 9.11 shall also apply mutatis mutandis to any liability for defects on other legal grounds.
10. WITHDRAWAL FROM THE CONTRACT
10.1. Irrespective of its other rights, BHS is entitled to withdraw from the contract,
(i) if the execution of the delivery or the commencement or continuation of the service is impossible for reasons for which the contracting partner is responsible or is further delayed despite the setting of a reasonable grace period,
(ii) if doubts regarding the solvency of the contracting partner have arisen and the contracting partner, at the request of BHS, neither makes advance payment nor provides suitable security prior to delivery,
(iii) if the extension of the delivery period due to the circumstances specified in point 4.3. totals more than half of the originally agreed delivery period, but at least 6 (six) months;
10.2. Withdrawal may also be declared with regard to an outstanding part of the delivery or service for the above reasons.
10.3. If insolvency proceedings are opened against the assets of the contracting partner or an application for insolvency proceedings is rejected due to insufficient assets, BHS is entitled to withdraw from the contract without setting a grace period. If this right of withdrawal is exercised, withdrawal becomes effective immediately with the decision that the company will not be continued. If the company is continued, a withdrawal only becomes effective 6 months after the opening of insolvency proceedings or after rejection of the application for the opening of insolvency proceedings due to lack of assets. In any event, the contract shall be dissolved with immediate effect if the insolvency law to which the contracting partner is subject does not conflict therewith or if the dissolution of the contract is indispensable to avert serious economic disadvantages for BHS.
10.4. Irrespective of BHS’s claims for damages including pre-litigation costs, services already rendered or partial services shall – in the event of withdrawal – be invoiced and paid in accordance with the contract. This shall also apply if the delivery or service has not yet been accepted by the contracting partner as well as for preparatory actions performed by BHS. Instead of this, BHS shall also be entitled to demand the return of items already delivered. For the avoidance of doubt it shall be clarified that the down payment made by the contracting party shall become forfeited in case of withdrawal from the contract by BHS and shall be permanently retained by BHS irrespective of the withdrawal from the contract.
10.5. Other consequences of withdrawal are excluded.
10.6. The assertion of claims due to laesio enormis, error and frustration of purpose by the contracting partner (Wegfall der Geschäftsgrundlage) is excluded.
11. COMPENSATION FOR DAMAGES
11.1. BHS shall only be liable for damages outside the scope of the Product Liability Act (Produkthaftungsgesetz) in the event of intent or gross negligence. This shall, however, not apply in case of personal damages.
11.2. The liability of BHS in cases of gross negligence is limited to half of the net order value per case of damage.
11.3. The liability of BHS for slight negligence as well as the compensation of consequential damages, pure financial losses, indirect damages, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, loss of profit, unrealized savings, loss of interest and damages from claims of third parties against the contracting partner are – as far as legally permissible – excluded.
11.4. In the event of non-compliance with any conditions for use or commissioning of the Contractual Object by persons who have not received relevant professional training or non-compliance with any official approval conditions, any compensation for damages shall be excluded.
11.5. The provisions of this point 11 shall conclusively apply to all claims of the contracting partner against BHS, regardless of the legal basis and title, and shall also apply to all employees, subcontractors and sub-suppliers of BHS.
12. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT
12.1. If the Contractual Object is manufactured by BHS on the basis of design data, drawings, models or other specifications of the contracting partner, the contracting partner shall indemnify and hold the same harmless in the event of any infringement of industrial property rights.
12.2. Execution documents such as plans, sketches, drawings and plant layouts and other technical documents as well as samples, catalogues, brochures, illustrations and the like shall always remain the intellectual property of BHS and shall be subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc.
13. SEVERABILITY CLAUSE
If individual provisions of the contract or these provisions should be ineffective, the effectiveness of the remaining provisions shall not be affected thereof. The invalid provision shall be replaced by a valid one that comes as close as possible to the intended purpose.
14. PLACE OF JURISDICTION AND APPLICABLE LAW
14.1. For the decision of all disputes arising from the contract – including those concerning its existence or non-existence – the competent court at BHS’s registered office shall have exclusive jurisdiction ratione materiae. BHS is also entitled to sue at the place of general jurisdiction of the contracting partner.
14.2. If the contracting partner has its registered office outside the European Union, the following shall apply in deviation from the preceding paragraph: All disputes or claims arising out of or in connection with this Agrement, including disputes concerning its validity, breach, dissolution or invalidity, shall be finally settled in accordance with the Rules of Arbitration of the International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules) by three arbitrators appointed in accordance with these Rules. The language of the proceedings shall be German. Alternatively, BHS is also entitled to sue contracting partners who have their registered office outside the EU before the court competent ratione materiae for the registered office of BHS or at the general place of jurisdiction of the contracting partner.
14.3. The contract is subject to Austrian law to the exclusion of the conflict of laws rules. The application of the UNCITRAL United Nations Convention on Contracts for the International Sale of Goods is excluded.