General terms and conditions (GTC) of Sulzer GmbH
These General Terms and Conditions apply to all legal transactions (in particular contracts for work and labour and contracts for work and materials) and to all deliveries and services of Sulzer GmbH, even if no specific reference is made to them.
For consumer transactions within the meaning of § 1 of the Consumer Protection Act ("KSchG"), this GTC apply with the deviations regulated for consumer transactions.
Deviating general terms and conditions of the customer apply only with the explicit consent of Sulzer GmbH.
These GTC shall also apply if used as the basis for an initial order and if they were not explicitly used as the basis for a further business relationship or, in the case of recurring services and orders on call, for the subsequent order.
The GTC are available on the business premises of Sulzer GmbH and can be viewed at www.sulzer-gmbh.comwhere they are available for viewing and download.
2. Offers, cost estimates, contract conclusion
The offers of Sulzer GmbH are non-binding and subject to change.
Commitments, assurances and guarantees of Sulzer GmbH or agreements deviating from these GTC in connection with the conclusion of the contract only become binding for business customers upon a written confirmation by Sulzer GmbH.
Sulzer GmbH does not guarantee the accuracy of its cost estimates.
If the underlying cost estimate is exceeded by more than 15% during the execution of a contract for work or a contract for work and materials, Sulzer GmbH is obligated to inform the customer accordingly. In this case, the customer can resign from the contract in written form within three days of notification, at which he must reimburse Sulzer GmbH for the expenses which have already incurred and the pro rata remuneration for the work performed to the notification date. If the contractual partner does not resign from the contract, the exceedance shall be deemed to have been approved by the customer.
A contract only comes into existence upon written order confirmation or delivery by Sulzer GmbH.
The content of the order confirmation must be checked by the customer. The customer is obligated to notify Sulzer GmbH immediately in written form of any deviations from the message he has sent. Otherwise, the legal transaction shall come into existence with the content confirmed by Sulzer GmbH.
3. Price
Prices are not to be understood as all-inclusive prices.
For services ordered by the customer which are not covered by the original order, the customer shall be entitled to reasonable remuneration in the absence of an agreement on remuneration for work.
Prices quoted are subject to the applicable statutory VAT and, unless otherwise agreed, ex warehouse. Packaging, transportation, loading and shipping costs as well as customs duties and insurance shall be borne by the business customer. These costs will only be charged to consumers as customers if this has been negotiated in individual contracts. Sulzer GmbH is only obliged to take back packaging if this has been agreed explicitly.
4. Terms of payment and default interests
Unless otherwise agreed, Sulzer GmbH's invoices are due for payment without deduction and free of charges upon receipt of the invoice.
Sulzer GmbH is entitled to demand a comission of 40% of the order amount for orders with a value of EUR 1,000.00 or more. This is to be paid within 8 days of receipt of the order confirmation. Should the customer fail to make the down payment on time, Sulzer GmbH shall have no obligation to deliver or perform.
All claims of Sulzer GmbH become due immediately after the customer falls behind with the fulfilment of an obligation towards Sulzer GmbH. The same applies in the event of suspension of payment. In such cases, Sulzer GmbH is also entitled to resign from the contract immediately.
Sulzer GmbH is entitled to demand interest of 9.2% above the base interest rate from business customers in accordance with § 456 UGB (Austrian Commercial Code) in the event of late payment. Sulzer GmbH can plead any further damages separately. The statutory interest rate of 4% shall be charged to consumers.
Sulzer GmbH is entitled to claim dunning, collection and legal costs, as fas as they are necessary for appropriate legal prosecution. This includes a lump sum of EUR 40.00 for business transactions, irrespective of any additional collection costs (as defined in § 1333 Para. 2 ABGB).
Incoming payments are first credited against dunning and collection costs as well as the costs of legal or judicial collection, then against the accrued default interest and finally against the outstanding capital.
In the event of late payment, Sulzer GmbH is entitled to make further deliveries or services dependent on advance payments or the provision of security. In such cases, it is entitled to demand compensation for non-fulfilment or to withdraw from the contract without prejudice to any claims for compensation.
The customer is not entitled to offset alleged counterclaims against claims of Sulzer GmbH or to refuse payment, even if they are based on notices of defects, unless they have been legally established by a court of law. The prohibition of set-off and the exclusion of the right of retention do not apply to consumer transactions.
5. Reservation of ownership
The goods delivered by Sulzer GmbH remain its property until the goods have been fully paid, including any ancillary costs, and until the customer has completely fulfilled his obligations arising from this contract (reservation of ownership).
The customer must store the goods delivered by Sulzer GmbH appropriately until the transfer of ownership. The customer shall bear the entire risk for the goods which are subject to reservation of ownership, in particular the risk of destruction, loss or deterioration.
In the case of resale of the goods subject to reservation of ownership, the contractual partner hereby assigns to Sulzer GmbH, without any further declaration of assignment or notification being required, the claims arising from the resale of the goods subject to retention of title against his customer for the settlement of all claims including ancillary claims up to the value of the goods delivered. The same regulation applies analogously in the case of processing, combining or blending of the delivered goods.
In this case, Sulzer GmbH shall acquire co-ownership of the items produced by the processing in the ratio of the delivery value of its goods to the newly produced items.
If the goods delivered by Sulzer GmbH or the items produced therefrom through processing or treatment become essential components of the property of a third party, so that the third party becomes the owner of the goods delivered by Sulzer GmbH through the inseparable connection with the property, the contractual partner hereby assigns all claims against the third party to Sulzer GmbH,
including all ancillary rights, to Sulzer GmbH in the amount of the value of the goods delivered and installed by Sulzer GmbH.
In the case of default, the customer must, at the request of Sulzer GmbH, inform his debtors of the fact of the assignment, provide the information required to assert the assigned claim and hand over the documents required for this purpose.
The contractual partner is not authorised to mortgage goods which are subject to Sulzer GmbH's reservation of ownership or to transfer them as a security. In the case of seizure or other claims by third parties, the customer is obliged to assert the right of ownership of Sulzer GmbH, to inform Sulzer GmbH immediately and to take all necessary steps to protect the interests of Sulzer GmbH.
In the case of delivery of goods on current account, the reservation of ownership serves to secure the outstanding balance claim.
6. Customer duties regarding cooperation
The duty of Sulzer GmbH to provide services begins at the earliest when
- all technical details have been clarified,
- the customer has met technical and legal requirements (which Sulzer GmbH will gladly provide on request),
- Sulzer GmbH has received agreed advance payments or security deposits,
- the customer fulfils his contractual duties of advance performance and cooperation, in particular those listed below:
In the case of assembly work to be carried out by Sulzer GmbH, the customer is obliged to ensure that work can begin immediately after the arrival of the assembly personnel.
The customer hast to arrange necessary third-party authorisations as well as notifications and approvals by authorities at his own expense.
The resources required for the performance of the service, including trial operation (e.g. energy, water quantities, etc.) have to be provided by the customer at the customer's expense.
The customer is liable for ensuring that the necessary structural, technical and legal requirements for the work to be produced or the object of purchase are met, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer should have known on the basis of relevant expertise or experience.
The customer is also liable for ensuring that the technical installations, such as supply lines, cabling, networks and others, are in a technically flawless and in operational condition and are compatible with the works or purchased items to be produced by Sulzer GmbH.
Sulzer GmbH is authorised, but not obliged, to inspect these systems for a separate fee.
In particular, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data without being asked before the start of the installation work.
Order-related details of the necessary information can be requested from Sulzer GmbH.
The customer shall bear sole responsibility for the design and functionality of parts provided. Sulzer GmbH shall not be obliged to inspect any documents, information or instructions provided by the customer - beyond the creation of a technical construction dossier and the certification of compliance with the Machinery Directive - with regard to the delivery item, and any liability of Sulzer GmbH in this respect is excluded. The obligation to issue the certificate can be contractually transferred to the customer who places the delivery item on the market.
In order for the devices and systems to function properly, it is essential that the instructions in the operating manual are followed and that regular maintenance is carried out by a specialised company, that the system and devices are kept clean and regularly subjected to professional cleaning.
7. Performance execution
Sulzer GmbH is only obliged to consider subsequent requests for changes and extensions by the customer if these are necessary for technical reasons in order to fulfil the purpose of the contract.
Minor changes to the performance of services by Sulzer GmbH that are reasonable and objectively justified for the entrepreneurial customer shall be deemed to have been approved in advance.
If, for whatever reason, the order is changed or supplemented after it has been placed, the delivery/performance period shall be extended by a reasonable period.
If the customer wishes the service to be performed within a shorter period of time after conclusion of the contract, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall increase appropriately in relation to the necessary additional expenditure.
Partial deliveries and services that are objectively justified (e.g. system size, construction progress, etc.) are permitted and can be invoiced separately.
If delivery on call has been agreed, the object of performance/purchase shall be deemed to have been called off no later than six months after the order has been placed, unless explicitly agreed otherwise in written form.
8. Delivery and performance deadlines
Delivery/service deadlines and dates are only binding for business customers if they have been specified in written form.
Deadlines and dates shall be postponed in the event of force majeure (epidemics, pandemics, etc.), strike, unforeseeable delays or delays not caused by Sulzer GmbH by its suppliers (also due to e.g. global material shortages, global shortage of skilled labour, etc.) or other comparable events beyond the control of Sulzer GmbH by the period during which the corresponding event lasts. This does not affect the customer's right to withdraw from the contract in the event of delays that make it unreasonable to be bound to the contract.
If the start of the performance of the service or the performance is delayed or interrupted by circumstances attributable to the customer, in particular due to a breach of the duty to co-operate in accordance with point 6, the performance periods shall be extended accordingly and the completion dates postponed accordingly.
In the event of cancellation of the contract due to default, the customer must set a reasonable grace period by registered letter, simultaneously threatening to cancel the contract.
9. Transfer of risk
The risk is transferred to the entrepreneurial customer as soon as Sulzer GmbH holds the object of purchase, the material or the work ready for collection from the factory or warehouse, delivers it itself or hands it over to a carrier.
The entrepreneurial customer shall insure himself against this risk accordingly. Sulzer GmbH will take out transport insurance at the customer's written request and expense. The customer authorises any customary mode of dispatch.
§ 7b KSchG applies to the transfer of risk when the goods are sent to the consumer.
10. Default of acceptance
If the customer is in default of acceptance for more than 24 hours (refusal of acceptance, default in advance performance or otherwise, no call-off within a reasonable time in the case of an order on call), and if the customer has not provided for the elimination of the circumstances attributable to him which delay or prevent the performance of the service, Sulzer GmbH may otherwise dispose of the equipment and materials specified for the performance of the service while the contract is still valid, provided that, in the event of the continuation of the performance of the service, it procures these within a period of time appropriate to the respective circumstances.
In the case of default of acceptance by the customer, Sulzer GmbH is also entitled to store the goods on its premises if it insists on fulfilment of the contract, for which it is entitled to a reasonable storage fee.
The enforcement of higher damages is permitted.
11. Intellectual property
Delivery items and related implementation documents, plans, sketches, procedures, cost estimates and other documents as well as software provided by Sulzer GmbH or created by its contribution remain intellectual property of Sulzer GmbH.
Their use, in particular their forwarding, reproduction, publication and allocation, including copying of extracts, as well as their imitation, processing or exploitation, requires the explicit written consent of Sulzer GmbH.
Furthermore, the customer is obligated to maintain confidentiality towards third parties with regard to the knowledge gained from the business relationship.
12. Warranty
The statutory warranty provisions apply with the condition that the warranty period for business customers is one year from delivery, the existence of a defect must be proven by the business customer and the application of §§ 924 and 933b ABGB is excluded.
In order to remove defects, the customer must make the system or the equipment accessible without culpable delay and has to allow Sulzer GmbH the opportunity to inspect it itself or through an expert appointed by Sulzer GmbH.
If objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, Sulzer GmbH only has to provide a warranty for the execution in accordance with the conditions.
The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on deviating actual circumstances from the information available to Sulzer GmbH at the time of performance because the customer does not fulfil his obligations to cooperate in accordance with point 6.
Also, it does not constitute a defect if the customer's technical equipment such as supply lines, cabling, networks, etc. are not in perfect technical condition or are not compatible with the delivered items.
The entrepreneurial customer must inspect deliveries and services of Sulzer GmbH immediately after acceptance and give written notice of recognisable defects, shortfalls or incorrect deliveries immediately, but at the latest within one week of acceptance of the deliveries and services, and of hidden defects immediately, but at the latest within one week of their discovery. The complaint must be sufficiently justified and supported by evidence.
The warranty for business transactions expires if the customer or a third party not authorised by Sulzer GmbH has made changes or repairs to the goods.
13. Liability
Unless this is contrary to mandatory law and unless otherwise stipulated in these GTC, Sulzer GmbH is only liable for compensation for damages caused by gross negligence or wilful misconduct. In the case of gross negligence, liability is limited to the value of the contract, but not more than the amount covered by Sulzer GmbH's public liability insurance. These limitations of liability do not apply to compensation for personal injury or to consumer transactions.
Sulzer GmbH is not liable for indirect damage, loss of profit, loss of interest, failure to realise savings, consequential damage and financial loss and damage arising from third-party claims or for damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage.
14. Data protection
Sulzer GmbH is obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (DSGVO) and any other statutory confidentiality obligations.
Sulzer GmbH processes personal data required for the purpose of contract fulfilment. The detailed data protection information (data protection notice) in accordance with Art 13 ff DSGVO can be found on the Sulzer GmbH homepage at:https://www.sulzer-gmbh.com/datenschutz
15. General
Austrian law is applicable to the exclusion of its conflict with reference standards.
The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
The place of fulfilment is the registered office of Sulzer GmbH in 3451 Streithofen.
The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between Sulzer GmbH and an entrepreneurial customer is the court with local jurisdiction for the registered office of Sulzer GmbH.