General Terms and Conditions and Warranty
GENERAL TERMS AND CONDITIONS
General Terms and Conditions of OVUM Heiztechnik hereinafter referred to as "Company", as at: 01.07.2020
1. GENERAL / SCOPE OF APPLICATION
The following General Terms and Conditions (hereinafter referred to as "Terms"), as amended from time to time, shall apply to all offers, deliveries and other services, in particular also to customer service and repair work (hereinafter referred to collectively as "Services") of the Company vis-à-vis third parties (hereinafter referred to as "Customers"). The Company concludes contracts for services with its Buyers - even without reference in individual cases - exclusively on the basis of these Terms and Conditions, unless otherwise agreed in writing. By concluding a contract on the basis of these Terms and Conditions, the Customer expressly acknowledges the validity of these Terms and Conditions also for all future contract conclusions.
Agreements or undertakings deviating from or supplementing these terms and conditions may only be agreed in writing and only for the respective individual case. This also applies if the written form is deviated from. Oral declarations, in particular also by representatives and other employees of the Company, shall only become legally binding if they are confirmed in writing by the Company or by an authorised representative. The customer acknowledges that persons attributable to the company are not entitled to make declarations that deviate from these conditions or other declarations of the company without written authorisation.
The application of the customer's general terms and conditions of whatever kind is excluded, even if they do not contradict these terms and conditions or if they have not been expressly contradicted, unless they have been expressly accepted by the Company in writing. Acts of performance or silence on the part of the Company shall not lead to the acceptance of the general terms and conditions of the customer. Such general terms and conditions of the customer shall not bind the Company even if the Company does not object to them when confirming the order or if the customer has made submission to these terms and conditions an express condition.
(4) For consumers within the meaning of the Consumer Protection Act, the Terms and Conditions shall only apply insofar as they do not contradict mandatory law.
2. PLACE OF PERFORMANCE, PLACE OF JURISDICTION AND CHOICE OF LAW
The place of performance for all obligations to be fulfilled by the Company and its customers shall be A-6322 Kirchbichl.
(2) All contracts concluded between the Company and a customer and all claims arising from the legally effective existence or non-existence of these contracts shall be governed by Austrian substantive law to the exclusion of the provisions of Austrian private international law and the UN Convention on Contracts for the International Sale of Goods (UNCITRAL).
The exclusive place of jurisdiction for all legal disputes arising from a contract concluded or to be concluded between the Company and its Customer on the basis of these Terms and Conditions shall be the court having subject-matter jurisdiction for the registered office of the Company; the Company may also take legal action against the Customer at any other legally permissible domestic or foreign place of jurisdiction.
The Company reserves the right to correct errors, spelling mistakes and miscalculations, and thus in particular to make subsequent charges. The customer shall also be liable if the Company invoices its services to a third party at its request.
3. CONCLUSION OF CONTRACT, PRICING AND TERMS OF PAYMENT
Offers made by the Company are subject to change and are in any case limited to 30 (thirty) days; they may therefore be amended or revoked by the Company even after the Purchaser has submitted a statement in this respect.
All information in brochures, circulars, catalogues, advertisements, price lists, etc. is also non-binding. Offers from customers require acceptance by the company by means of a written declaration in order to be valid. Technical changes, changes in colour, changes in form or deviations from specifications of any kind are to be accepted by the customer without any claim to a change in price, provided that they do not run counter to the intended use.
Contracts between the Company and its customers shall apply irrespective of the granting of any official permits. The obtaining of such approvals is
- unless otherwise agreed in writing - shall be a matter for the buyer. If the Company obtains such approvals on behalf of the Customer, it may charge an additional reasonable fee. Should amendments to the original order be necessary in order to obtain a permit, the corresponding amendments shall be deemed to have been agreed.
(4) Unless otherwise stated in writing, all charges quoted by the Company are exclusive of VAT and are ex the Company's warehouse; they do not include costs of transport, assembly or erection.
5. assembly prices, even if they are agreed as fixed prices, do not include those costs which arise due to delays or additional services being required as a result of circumstances for which the customer or persons attributable to the customer are responsible. All costs arising from this shall be borne by the customer.
(6) Should the Company be required to dispose of dismantled or removed parts due to legal obligations or official instructions, the Customer shall bear the additional disposal costs incurred even if this has not been expressly agreed.
If the wage costs change due to collective agreement regulations in the industry or internal company agreements as well as other costs relevant for the calculation or costs necessary for the provision of services (material, energy, external work, financing, etc.), the Company shall be entitled to adjust the prices accordingly, even after conclusion of the contract. In the event of changes in exchange rates or currency fluctuations, the Company shall be entitled to adjust the prices in such a way that the original value ratio of performance and consideration is maintained.
(8) If an order is accepted by the Company without a prior offer or if services are performed which were not expressly included in the order, the Company shall be entitled to demand the fee for such services which corresponds to its currently valid price list or the fee normally charged.
(9) The Company shall issue an order confirmation for orders concluded on the basis of the offer of a customer. Any errors or inconsistencies with the offer of the customer shall be notified by the customer immediately after receipt of the order confirmation - at the latest, however, within 5 (five) working days of receipt; otherwise the content of the order confirmation shall be deemed to have been approved by the customer. In the case of short-term forward orders, a complaint must be made immediately.
(10) Discounts of any kind, including cash discounts, granted in individual cases shall not constitute a claim for the same to be granted in the future.
The prices quoted are exclusive of value added tax and are shown in euros. In the event of settlement, the statutory turnover tax shall be added to these prices. Deviating terms of payment require a separate written agreement. Bills of exchange and cheques shall only be accepted on account of payment, whereby all related charges, taxes and other levies shall be borne by the customer.
Payments shall be made by bank transfer to the Company's bank account indicated on the invoice. The Company may, at its discretion, set off payments - irrespective of their dedication - against oﬀen claims.
The customer may not set off his claims against claims of the company.
14 The customer shall not be entitled to any rights of retention or lien on the Company's performance, unless mandatory statutory provisions provide otherwise.
(15) In the event of non-payment of a due claim by the customer, all other claims shall be due immediately even without an express due date; the same shall apply in the event of a significant deterioration in the financial circumstances of the customer or in the event of enforcement measures against its assets.
Default in payment shall occur automatically without separate declaration. The interest on arrears shall amount to 12% p.a. - without prejudice to other rights and without the precondition of fault on the part of the customer; a higher damage is to be set.
(17) In the event of default, the Customer shall be obliged to reimburse all reminder and collection costs incurred by the Company, including the costs of a lawyer or collection agency as well as court fees, insofar as these are necessary for appropriate legal prosecution.
4. BUSINESS AND TECHNICAL DOCUMENTS, SALES AIDS, COPYRIGHTS
All business and technical documents originating from the Company, including all drafts and visualisations as well as all sales aids, remain its property and the Company expressly reserves the copyright to these documents. Any distribution and exploitation of these documents as well as the use of sales aids for tendering purposes requires the written consent of the Company. Sales aids may only be used to market the Company's products. The Company shall be free to demand the return of such documents or sales aids at any time without stating reasons and at the expense of the customer.
(2) Insofar as copyrights have arisen in the Work, the Company shall be entitled to them. The right to use the work for advertising purposes shall be transferred to the customer. The transfer of the right of use shall be subject to the condition precedent of the full payment of the remuneration for the service by the customer. No special remuneration shall be charged for the right of use in the event of sole use by the customer. Any transfer of the right of use to third parties shall require the written consent of the Company.
5. RESERVATION OF OWNERSHIP
(1) Until full and unconditional payment of all claims of the Company, including all claims to interest and costs, as well as until complete fulfilment of all other present and future financial obligations of the Customer towards the Company, delivered goods shall remain the unrestricted property of the Company. The customer shall take all actions necessary to establish and maintain the Company's ownership and, upon the Company's request, shall provide the Company without delay with a list of all goods subject to retention of title still in its possession.
2. a sale of the goods subject to retention of title in the ordinary course of business and with appropriate notification to the respective customer is generally permissible. The customer is obliged to notify the company immediately of any resale of goods that have not yet been paid for. In the event of the resale of the goods subject to retention of title, the customer irrevocably assigns all claims arising from the resale to the Company for satisfaction on account of payment already upon conclusion of the contract and shall immediately take all actions necessary for the effective assignment (e.g.: notification of its contractual partner); all costs and duties incurred in this connection shall be borne by the customer.
In the event of seizure or other claims on the delivered goods subject to retention of title, the customer shall be obliged to notify the Company at its own expense and to safeguard its property. In the event of non-payment of a due claim, cessation of payments, execution on goods subject to retention of title or its insolvency proceedings, the customer shall immediately return all goods subject to retention of title to the Company; the taking back of the same shall not be equivalent to a withdrawal from the contract without a written declaration to the contrary. If the goods subject to retention of title are segregated from the Company, the Company may store them at the expense and risk of the customer.
6. DELIVERIES, SERVICES, TRANSFER OF RISK, ACCEPTANCE AND DELAY
(1) The risk for (partial) performance shall in each case pass to the Customer when the goods leave the Company's warehouse or the warehouse of the third party commissioned by the Company with performance; if collection of the goods from the Company has been agreed, the risk shall already pass to the Customer when the goods are made available at the Company's warehouse in due time.
A delivery date or a delivery period shall only be binding if the binding force was agreed in writing when the contract was concluded. The delivery date or delivery period shall be deemed to have been complied with if the Company notifies the Customer that the delivery item is ready for dispatch or - if no such notification is made - if the delivery item has been dispatched by the Company.
In the absence of a special order from the customer, dispatch shall be effected by the mode of dispatch deemed most favourable by the Company without any guarantee. Shipments to the Company shall be made at the expense and risk of the sender. Damage visible from the outside or shortages of delivered goods are to be ascertained in writing by the consignee on acceptance, otherwise the Company shall lose its rights; acceptance cannot therefore be refused. Damage in transit must be reported by the recipient to the Company, the carrier and the respective forwarding agent without delay, but at the latest within 2 (two) working days.
(4) In the event of non-availability of an agreed product, the Company shall be entitled to fulfil its obligation by supplying a comparable product - even if not necessarily identical in design and surface finish - and the Customer shall accept such a product.
(5) The Company shall be entitled to perform partial services and to issue partial invoices therefor.
If performance is delayed due to a circumstance for which the Company is not responsible, the time of performance shall be extended appropriately, even without separate declarations, without the Company being responsible for legal consequences of any kind whatsoever; this shall apply even if the Company is already in default with other obligations. In the event of unreasonable impediment to the performance of the service, the Company shall be entitled to withdraw from the contract to the exclusion of claims for damages.
In the event of a delay for which the Company is responsible, the Customer may demand performance or declare its withdrawal after the expiry of a period of at least three months set in writing - with reference to the legal consequences. In such a case, claims for compensation on the part of the customer shall be excluded - insofar as this is legally permissible.
(8) The Company may in any case - without triggering consequences of default for itself - make its performance dependent on the fulfilment of all other contractual obligations as well as on the timely payment of other due claims, in particular purchase price claims from services already rendered. If a creditworthiness check carried out after conclusion of the contract shows a negative result with regard to the customer, the Company may in any case make the performance dependent on the complete advance payment or handing over of a suitable bank guarantee on first request in the original, without being in default on its part.
(9) To the extent legally permissible, claims for damages are excluded - in any case, however, in the event of slight negligence due to a delay on the part of the Company.
(10) In the event of impossibility of performance, all contractual obligations shall lapse. If the impossibility - but also a delay in delivery or performance - is due to non-performance or delayed performance by a supplier of the company, the customer shall not be entitled to claim damages.
If the buyer is in default of acceptance, the Company shall be entitled, at its discretion, either to withdraw from the contract, to make a covering sale, to insist on performance or to store or keep the goods for a reasonable period of time. In the event of storage or warehousing, the Company shall be entitled to charge the resulting additional expenses separately. If the Buyer withdraws from the contract - for whatever legal reason - the Company shall be entitled, irrespective of the claim to fulfilment of the contract, to charge the Buyer a 25% cancellation fee, which shall be due within 14 (fourteen) days after invoicing, or to claim damages.
7. RIGHT OF WITHDRAWAL IN CASE OF APPLICABILITY OF THE CONSUMER PROTECTION ACT
In the event of the right of withdrawal pursuant to Section 3 of the Consumer Protection Act, the Company reserves the right to wait until the withdrawal period has expired before handing over the goods or commencing performance of the service.
The warranty period shall be 24 (twenty-four) months from the transfer of risk, unless a longer limitation period is mandatory by law. In the event of a warranty claim, the Company shall have no further claim for damages or other compensation of any kind.
The warranty period begins with the transfer of risk. If joint acceptance of the goods has been agreed, the warranty period shall begin with the acceptance of the goods. However, if the joint acceptance does not take place no later than 5 (five) days after the transfer of risk, the warranty period shall already begin with the transfer of risk.
Defects or the absence of parts shall be notified to the Company in writing within 5 (five) working days, with immediate cessation of any use; otherwise the goods shall be deemed to have been accepted unconditionally and free of defects. This period shall apply in the case of obvious defects from the beginning of the warranty period and in the case of hidden defects from the discovery of the defects.
4. the company legally notified of a defect may fulfil its warranty obligation at its discretion as follows:
4.1 Addendum of what is missing;
4.2 Rectification of the goods on the spot;
4.3 Request to return the defective goods or defective parts and remedy at the Company's premises or at another place designated by the Company;
4.4 Replacement of the defective goods;
4.5 Replacement of the defective parts of the goods.
5. further obligations do not apply to the company within the scope of the warranty - as far as legally permissible; this concerns in particular the assumption of transport, assembly and all ancillary assembly costs.
The Company shall give at least 8 (eight) working days' notice of the supplement, the rectification or the replacement. If the customer - without having objected to the appointment beforehand - is not present at the appointment for reasons for which he is responsible or if he has made these measures more difficult or impossible by acting on his own authority, this shall be deemed to be a waiver of the warranty claims.
7 The Company's warranty shall be excluded if the customer has not complied with the Company's instructions or any operating conditions during installation, assembly or use of the goods, if the defect has been caused by the customer or by third parties or if these persons have carried out manipulations or repairs to the goods or to the works.
The warranty shall furthermore only apply to defects that occur under normal use in compliance with the respective operating conditions. Wear parts only have a service life corresponding to the respective state of the art, so that any warranty period is limited by them in any case.
(9) In the absence of a separate agreement and to the extent permitted by law, the Company shall not assume any warranty for modifications or conversions of old goods or goods not used in the Company's operations or for the delivery of used goods.
10. colour changes or colour deviations of the end product do not justify a warranty claim; in the case of rework or repair work, colour fastness is not part of the agreed quality and cannot usually be expected.
(11) In the event of disputes about the existence or scope of warranty claims, the Company shall be entitled to have the goods or the work inspected by an expert or a court-certified expert who shall be binding on both parties to the contract. If it turns out that the alleged warranty claim of the Buyer does not exist, the Buyer shall bear the costs of the expert.
Damage caused by external influences such as overvoltage, contamination, corrosion, force majeure and natural forces is excluded from any warranty.
9. COMPENSATION FOR DAMAGES AND PRODUCT LIABILITY
In the event of damages, the company shall in any case only be liable for intent and gross negligence. Liability for slight negligence is excluded; likewise, compensation for consequential and pecuniary damages, loss of interest as well as damages from third party claims against the customer are excluded.
2. in the event of gross negligence, liability shall be limited to a maximum of EUR 100,000.00 per case of damage.
3. in the event of non-compliance with any conditions for installation, commissioning and use by the customer, any compensation for damages shall be excluded.
(4) In the event of a resale, the customer is furthermore obliged to transfer this agreement and the obligations arising therefrom to his customer and to inform him of the proper use of the goods.
Within the scope of application of the Product Liability Act, the Company as well as its suppliers and subcontractors shall not be liable for property damage suffered by an entrepreneur within the meaning of this Act. The customer is obliged to pass on this exclusion.
10. OTHER OBLIGATIONS OF THE BUYER
The Buyer shall keep its employees and customers informed of all information and instructions provided by the Company as well as of legal regulations and official orders. The Buyer shall keep all relevant documents, certificates and evidence for at least 10 (ten) years after the goods have been placed on the market or passed on and shall surrender them upon request.
11. DATA PROCESSING
In the course of the EDP, all data of the customers relevant for the business relations shall be stored under consideration of the Data Protection Act. The Company is entitled to store, process and pass on this data to third parties.
(2) The customer is obliged to notify the company of changes in its legal form, ownership structure, company representation and address as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification of the change of address is omitted, declarations shall be deemed to have been received even if they were sent to the last address notified.
12. OTHER PROVISIONS
(1) If, for whatever reason, individual provisions of these terms and conditions or of individual contracts concluded are or become invalid or if there is a loophole, the remaining provisions shall remain in force. In this case, the invalid provision shall be replaced or the gap filled by a valid provision that comes as close as possible to the invalid provision in economic terms.
(2) The Company may at any time transfer its rights and obligations in whole or in part to a third party; a transfer by the purchaser shall only be permitted with the consent of the Company.
3. the legal remedy of annulment of the contract due to shortening by more than half is excluded.
Ovum Heiztechnik GmbH provides a warranty to the responsible specialist company for the products listed in the price list. Extended warranty periods are indicated by corresponding markings on the products.
1. warranty period
The warranty period shall be 24 (twenty-four) months from the transfer of risk, unless a longer limitation period is mandatory by law. In the event of a warranty claim, the Company shall not be entitled to any further claims for damages or other compensation.
of whatever kind.
The warranty period shall commence with the transfer of risk. If joint acceptance of the goods has been agreed, the warranty period shall begin with the acceptance of the goods. However, if the joint acceptance does not take place no later than 5 (five) days after the transfer of risk, the warranty period shall already begin with the transfer of risk.
2. scope of warranty
The warranty extends to the flawless material quality and workmanship corresponding to the purpose and the flawless function of the devices at the time of delivery. We reserve the right to make changes to the construction/colour deviations/software and/or design that do not affect the functionality or value of the delivery item and do not entitle the customer to make a complaint. In the event of necessary warranty work, the required spare parts shall be provided free of charge for a period of 2 years from commissioning and the labour costs and travel expenses shall be taken into account in accordance with point 8.
Excluded from the warranty are wearing parts such as: magnesium protective anode, filter inserts, seals, fuses, accumulators and batteries and the like, as well as leaks at detachable screw connections and resulting further damage.
In the absence of a separate agreement and to the extent permitted by law, the Company shall not assume any warranty for alterations or conversions of old goods or goods not used in the Company's operations or for the delivery of used goods.
3. the warranty
Does not extend to damage that has occurred, regardless of the causes of its occurrence, by:
- Force majeure such as lightning, fire, storm, hail, frost, etc.
- Assembly or operating errors, negligence, malice or inappropriate use
- Poor heating water quality or drinking water quality, corrosion
- Frost and corrosion damage in systems (e.g. groundwater, monobloc) without safety heat exchanger set
The Company's warranty shall be excluded if the customer has not complied with the Company's instructions or any operating conditions when setting up, assembling or using the goods, if the defect has been caused by the customer or by third parties or if such persons have tampered with or repaired the goods or the works.
4. obligation to notify
Defects or missing parts are to be reported to the Company in writing within 5 (five) working days, with immediate cessation of any use.
otherwise the goods shall be deemed to have been accepted unconditionally and free of defects. This period shall apply from the beginning of the warranty period in the case of obvious defects and from the discovery of the defects in the case of hidden defects.
5. fulfilment of warranty
The company legally notified of a defect may fulfil its warranty obligation at its discretion as follows:
4.1 Addendum of what is missing;
4.2 Rectification of the goods on the spot;
4.3 Requesting the return of the defective goods or defective parts and rectification at the Company's premises or at another place designated by the Company;
4.4 Replacement of the defective goods;
4.5 Replacement of the defective parts of the goods.
The Company shall not be subject to any further obligations within the scope of the warranty - insofar as this is legally permissible; this shall apply in particular to the assumption of transport, assembly and all ancillary assembly costs.
The Company shall give at least 5 (five) working days' notice of the supplement, the rectification or the replacement. If the customer - without having objected to the appointment beforehand - is not present at the appointment for reasons for which he is responsible or if he has made these measures more difficult or impossible by acting on his own authority, this shall be deemed to be a waiver of the warranty claims.
6. general conditions
Warranty is only granted if the units have been properly installed by a commercially licensed specialist company, taking into account the installation instructions and installation notes, the statutory provisions and relevant standards, and have been commissioned by an authorised OVUM partner company (feedback to OVUM with commissioning report signed by the customer) and the prescribed maintenance has been carried out. Any warranty claim expires in the event of third-party intervention in the delivered units. Warranty repairs may only be carried out by persons authorised by us in compliance with the procedures specified by us.
Replaced parts become our property. Spare parts will in any case be invoiced on delivery and credited in the event of a warranty claim when the defective parts are returned.
The warranty period shall not be extended or renewed by the provision of services. The statutory warranty period of 2 years shall apply to replaced parts from the date of installation.
Warranty claims are only valid if the regular maintenance work such as leak and function tests of the refrigerant circuits, cleaning of the coil and plate exchanger as well as inspection of the protective anode (time intervals depending on the water quality, but at least every 2 years) are carried out by the authorised customer service. In the case of heat pumps, an inspection is required after the first year and then every 2 years. Commissioning must take place no later than 1 year after delivery, otherwise
the statutory warranty obligations apply from the date of delivery plus 1 year. Claims for damages due to a warranty case are excluded. No further costs (e.g. fault detection, etc.) will be assumed, but only the corresponding repair costs for the device.
7. special conditions
In the event of disputes about the existence or scope of warranty claims, the Company shall be entitled to have the goods or the work inspected by an expert or a court-certified expert who shall be binding on both parties to the contract. If it turns out that the alleged warranty claim of the customer does not exist, the customer shall bear the costs of the expert.
8. additional conditions
Labour costs and travel expenses are only covered for the actual repair, but not for troubleshooting. In the case of a total discount or a service discount, these costs are already covered by the discount granted and will not be reimbursed. Installation times for warranty work are capped depending on the product. A maximum hourly rate of net 45€/60min is agreed for warranty work.
OVUM Heiztechnik GmbH
Tel: +43 5332 81238 0
Managing Director: Dipl.-Ing. (FH) Martin Fischbacher