General Terms and Conditions of HSR Heutrocknung SR GmbH
- SCOPE OF APPLICATION
1.1. Contract basis. These General Terms and Conditions („Terms“) apply only to transactions with entrepreneurs. HSR concludes its contracts and provides its services exclusively on the basis of its written quotes and on the basis of written price lists and product descriptions, as valid from time to time, which form part of a quote, and on the basis of these Terms. From the conclusion of the first contract, the price lists, product descriptions and Terms, as amended from time to time, apply automatically also to all other contracts that are concluded between HSR and the relevant customer, even if those price lists, product descriptions and Terms are not explicitly incorporated by reference in these contracts.
1.2 Future changes. Future changes of HSR‘s price lists, product descriptions and Terms will be notified to the customer in writing and shall be deemed to have been agreed, unless the customer objects to changes within two weeks.
1.3 Supplementary agreements. All supplementary agreements of any kind that are reached both prior to the conclusion and also throughout the term of a contract are valid only if made in writing. This applies also to any waiver of the written form requirement.
1.4 Contract components of the customer. Even if HSR is aware of specifications of the customer, these are applicable only if HSR accepts these. Even if HSR is aware of legal texts of the customer, these will be applicable only if HSR accepts these by way of an additional note which expressly refers to and covers a legal text (such as „Terms and Conditions accepted“). Otherwise, HSR expressly objects to the inclusion of the customer‘s legal texts. The fact that HSR has simply accepted the customer‘s specifications therefore does not mean that HSR has accepted the customer‘s legal texts, even if those specifications should include these legal texts (and contain language such as „Our General Terms and Conditions shall apply“).
1.5. Inconsistencies. In case of any inconsistency between the quote, price lists and product descriptions, if any, and HSR‘s Terms, these shall apply in the above order. An individual quote will hence prevail over all other elements of a contract. In case of any inconsistency between HSR‘s elements of a contract and the customer‘s elements of a contract, all contract elements of HSR shall prevail.
1.6. Invalidity. Should any term of the contract be invalid or unenforceable, such invalid term shall be replaced by a valid term that closest reflects the economic meaning and purpose of the invalid term.
- CONCLUSION OF A CONTRACT
2.1. HSR‘s offers. A contract is concluded on the basis of an offer which HSR makes to the customer. HSR‘s offers are subject to change and non-binding in nature. Should the customer place an order, the customer shall be bound by that order two weeks after it was received by HSR.
2.2 Offer by customer. Should the customer, by way of exception, award an unsolicited contract to HSR without HSR having previously made an offer or by way of a form, for instance those in catalogues or web shops, the customer shall be bound by its order two weeks after it was received by HSR.
2.3. Acceptance of an order by HSR. A contract is therefore concluded only once HSR has accepted the customer‘s order. As a matter of principle, HSR shall accept orders in writing, for example by issuing an acknowledgment of order, unless HSR‘s actions on behalf of the customer and on the basis of the order signify to the customer that HSR accepts the customer‘s order. HSR shall not be deemed to have accepted an order simply by acknowledging the receipt of an order, for instance a confirmation of receipt of a web shop.
2.4 Term of a contract. Contracts concluded for an indefinite time can be terminated with six months‘ notice at the end of the year after the expiration of their minimum term.
- SCOPE OF SERVICES, ORDER PROCESSING
AND CUSTOMER‘S DUTY TO COOPERATE
3.1 Place of performance. Place of performance shall be HSR‘S registered office.
3.2. Scope of services. HSR supplies technical systems or components and occasionally offers corresponding services. The scope of the services to be provided is defined in HSR‘s written service specifications. Unless customization was agreed by way of exception, the features and functions of these systems or components are defined in the respective product descriptions and user manuals.
3.3. Professional and skilled services. Unless the written specifications provide otherwise, HSR owes professional and skilled services according to generally recognized rules of technology. Within the framework of the written specifications, HSR has a degree of freedom in connection with the performance of services, provided that there are several possibilities of providing a service in a professional manner.
3.4. Interchangeable services. If and when compatible with the objectives of an order, HSR may deviate from the specifications and replace services with other equivalent services.
3.5. Third-party services. HSR may perform the services itself or rely on qualified third parties to perform a service (third-party services).
3.6. Agreed third-party services. If the provision of a service by a third party was agreed with the customer (agreed third-party service), HSR may commission such third-party service in its own name or in the customer‘s name and for its own account or for the customer‘s account. Contractors providing agreed third-party services shall not be HSR‘s vicarious agents. HSR shall therefore be liable only for culpa in eligendo. Whenever HSR and the customer have not agreed on special specifications or special legal texts to govern agreed third-party services, the third party‘s specifications shall apply if the third party was commissioned on behalf of HSR, and the third party‘s specifications and legal texts shall apply also to the customer, if the third party was commissioned on behalf of the customer. Should the duration of agreed third-party services, pursuant to an agreement, exceed the term of the contract between HSR and the customer, the customer shall accede to the contract after the expiry of the contract concluded between HSR and the customer if the third-party services were commissioned on behalf and for the account of HSR. For the avoidance of doubt, this applies also if the contract is terminated for good cause.
3.7. Divisible services. HSR may make partial deliveries ofservices which are divisible.
3.8. Forfeiture. The customer is obliged to timely collect all services ordered from HSR or made available to HSR for processing. If services are not collected in due time, HSR may charge storage costs and dispose of the services after three months and bill the costs of disposal to the customer.
3.9. Inevitable or unforeseeable events. In case of inevitable or unforeseeable events – including but not limited to the customer‘s default in the fulfilment of its obligations and any delays with HSR or its contractors which are unforeseeable for HSR – deadlines will be extended or target dates postponed for as long as such inevitable and unforeseeable event prevails, including the time it takes to take the necessary organizational measures in such a case. HSR shall notify the customer thereof in writing.
3.10. Customer‘s duty to cooperate. The customer shall promptly provide any information in writing and make available all services to HSR which HSR requires to provide its services. Whenever the requirement for the customer to provide information or services becomes evident only while HSR provides its services, the customer shall promptly forward any such information. The customer shall independently verify the fitness, accuracy and lawfulness of any information and services provided by him. The customer shall be liable for any damage caused by any omission of, delay in or insufficiency of cooperation by the customer, including but not limited to any extra efforts thereby incurred by HSR. If HSR is unable to execute the services as agreed due to any omission of, delay in or insufficiency of cooperation by the customer, HSR, notwithstanding other rights, may interrupt the execution of the service and may instead provide other services for other customers and continue the execution of the services for the customer hereunder not until after the completion of these services, provided that the customer has fulfilled his cooperation duties until then. If HSR is held liable by third parties due to an infringement of laws in connection with information or services provided by the customer, the customer shall also hold harmless and indemnify HSR for and against such claim and support HSR in the defence of third-party claims.
3.11. HSR‘s verification obligations. HSR is only liable that the services created by HSR are not per se unlawful. However, HSR is not obliged to subject services created by HSR to legal examination as to whether they infringe third-party rights or violate laws due to the customer‘s intended use of these services. It shall be the customer‘s responsibility to perform these legal examinations particularly in terms of administrative law, criminal law, competition law, trademark law, design rights, copyrights, personal rights and data privacy laws or to retain a qualified legal expert to perform these examinations. Whenever HSR points out to the customer, before the customer awards a contract or when new order details become known during a contract, that it is necessary to subject the services to additional legal examination also in respect of other rights or other risks, the customer shall be liable to carry out such legal examination in respect of other rights or to take these risks in the event that HSR was subject to information and verification obligations. HSR shall thus be deemed to have properly provided the service as agreed.
3.12. Rights to services. As a matter of general principle, all rights to the agreed services are due to HSR or its licensors. The customer has the right to use the services in the agreed scope after he has paid the agreed compensation in its entirety. In the event that no scope was agreed, it shall comprise the non-exclusive right to utilize the services for its own use in Austria, without the right to sublicense or transfer the services to third parties. The customer shall comply with any license terms applicable to services or works of third parties, which form part of HSR‘s services and works.
3.13. Right to end product. The customer may only use the service in the agreed form as an end product, but is not entitled to receive the basics, work materials, interim results, etc which are necessary to create the services. Unless otherwise agreed, HSR is not obliged to store such basics, work materials, interim results etc. once the work has been completed.
3.14. Delivery time. The time for the delivery of catalogue items is up to 12 months and up to 24 months for customized systems.
3.15. Reference. On all services HSR has created for the customer, HSR may refer to HSR and to another author, if any, and HSR may include information such as the customer‘s name and logo, the product description, project illustrations and the like in its own promotional materials in order to refer to or indicate the business relationship with the customer, subject to written revocation at any time.
- SPECIAL PROVISIONS FOR SPECIAL
CATEGORIES OF SERVICES
4.1. Planning, installation, commissioning, operation. HSR does not prepare conceptual designs, permit application designs, executive planning or detailed planning and does not operate plants. It is the sole responsibility of the customer or the responsibility of specialist firms retained by the customer to procure conceptual designs, permit application designs, executive planning or detailed planning, to adjust the system to the customer‘s operating requirements and processes and to select the systems and components which are necessary therefor. HSR is then only liable for the correct selection of the HSR systems and HSR components and their compatibility with the facility planned and installed by the customer, provided that the customer has made available to HSR, before HSR submits an offer, the necessary data, including but not limited to at least a drawing and measurements of the plant, the type and volume of materials to be processed, the feed frequency, the processing time available, dimensioning of connections and thresholds which may have to be complied with, before HSR selects the HSR systems and HSR components. HSR will make an installation drawing only to roughly sketch the possible arrangement of the plant and of the systems and components supplied by HSR in the framework set by the contractor, and this drawing does not represent a conceptual design, a permit application design, executive planning or detailed planning. HSR‘s activities in connection with examining and releasing the planning or design of the customer or of the specialist firms retained by the customer include only the fundamental arrangement of the plant and the fundamental functionality of the components supplied by HSR, but does not include any other features such as optimization in terms of operation, energy, flow or drying. Specific conceptual designs, permit application designs, execution planning and detailed planning are therefore the sole responsibility of the customer or of the specialist firms retained by the customer. The systems and components supplied by HSR must therefore be installed, connected, commissioned and operated according to the operating instructions by the customer or by specialist firms. Any cooperation on the part of HSR is only intended to support the customer and does not include any inspection or acceptance of the customer‘s system or the installation or connection of systems supplied by HSR.
4.2. Specific forms of use. Dehydrators, ventilators and other components of the HSR systems were designed for drying hay and similar organic materials without aggressive substances. HSR does not accept any guarantee or other liability for any damage caused by drying materials which contain aggressive substances such as animal manure and waste.
4.3. Maintenance. Whenever HSR services include maintenance or similar work, HSR does not owe the customer any specific response time.
5.1. Prices. All prices are quoted in Euros, plus shipping charges, statutory value-added tax and other customs duties,
import taxes and other statutory taxes and duties, ex HSR‘s business domicile or branch office.
5.2. Exchange of used equipment. Whenever HSR exchanges used machines of the customer, it accepts these only in
lieu of payment. The customer guarantees and warrants to HSR that the information provided by him is correct. Whenever HSR is held liable by third parties due to an infringement in connection with information provided by the customer, the customer shall also hold harmless and indemnify HSR and support HSR in connection with the defence of third-party claims.
5.3. Cost estimates. HSR‘s cost estimates are non-binding. When, after HSR has made a non-binding cost estimate, actual costs are expected to be more than 15% higher than costs budgeted in writing, HSR must inform the customer in writing of the higher costs. The customer shall be deemed to have approved the cost overrun if he does not object in writing within one week from that notice and does not simultaneously disclose a less expensive alternative in writing. No special notice is necessary in case of cost overruns of less than 15%, which the customer is deemed to approve in advance.
5.4. Additional services. All services provided by HSR which are not expressly covered by the agreed compensation will be charged separately.
5.5. Cost advance. HSR is entitled to request the customer to advance costs in order to cover its own expenditure.
5.6. Partial services. HSR is entitled to bill partial services.
5.7. Unjustified withdrawal. If the customer withdraws from the contract in its entirety or from any part of the contract without HSR having acted with gross negligence or intent, HSR is nevertheless entitled to the agreed compensation. In this case, HSR must merely allow a deduction of expenses saved from not yet having purchased goods or third-party services. The same applies if HSR withdraws from the contract for a good cause within the customer‘s control.
5.8. Price adjustment. In case of contracts concluded for an indefinite time and contracts that are renewed automatically, HSR is entitled to reasonably adjust the price on an annual basis in consideration of factors such as inflation, Consumer Price Index, collective bargaining agreements that were concluded and similar external factors beyond HSR‘s control. HSR may also reasonably adjust the prices of individual services after conclusion of a contract if the cost of such services increases by more than 10% for reasons beyond HSR‘s control.
6.1. Payment date and payment. As a matter of principle, HSR‘s invoices are due on a net cash basis without any deduction from the invoice date, payable immediately after receipt of the invoice. If different terms of payment are agreed and if these conditions provide for a residual payment after commissioning, the customer must facilitate commissioning not later than within 10 weeks after delivery. If this is not the case, the residual payment shall be made even without commissioning 10 days after delivery at the latest.
6.2. Security. If a bank guarantee is provided as security, the customer shall provide an unconditional, irrevocable bank guarantee which is valid at least 16 weeks after the agreed delivery date.
6.3. Reservation of title. HSR retains title to the goods supplied until such time as the customer has paid the purchase price in its entirety, including all related costs and interest. In case of default, HSR may enforce its rights of reservation. In this case, the customer agrees that HSR may collect the goods. The enforcement by HSR of its reservation of title does not operate as withdrawal from the contract, unless HSR expressly gives notice of withdrawal. If the customer resells the goods, the customer assigns its claim toward the buyer to HSR for the purpose of security. HSR is entitled to notify the buyer of that assignment.
6.4. No set-off and no retention. The customer may not set off its own claims against HSR‘s claims, unless the customer‘s claim was acknowledged by HSR in writing or was established by a court. The customer shall not have a right of retention.
6.5. Late payment. In case of any delay in payment, the customer shall pay statutory interest applicable to entrepreneurs, but at least 9% per year. The customer shall pay all costs and expenses incurred in connection with the collection of a claim, including but not limited to collection charges and other necessary costs for appropriate legal pursuit of rights.
6.6. Continuing payment default. After HSR has unsuccessfully reminded the customer to pay and granted an at least seven-day grace period for payment, HSR may inform the customer that all services and partial services already provided, including those HSR has provided pursuant to other contracts concluded with the customer, are immediately due for payment and may temporarily discontinue the provision of yet unpaid services until such time as the customer has paid all outstanding compensations in their entirety. After a period of another week has elapsed without the customer having made payment, HSR may withdraw from all contracts and claim compensation for lost profit, in addition to compensation for services already provided. HSR may also discontinue services which the customer has already paid, provided that such discontinuation will generate savings for HSR. In this event, HSR may set off its savings against outstanding claims. Notwithstanding the above, HSR may certainly sue the customer also immediately after the expiry of the due date.
6.7. Payment by instalment. If and when HSR and the customer have agreed on payment by instalment, the entire compensation is due immediately even if the customer is in arrears with only one instalment.
- CONFIDENTIALITY & NO SOLICITATION
7.1. Confidentiality. The customer shall keep confidential and may not utilize for itself any confidential information on HSR, its projects and its customers. This confidentiality obligation survives also after termination of the contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 25,000 for every breach.
7.2. No solicitation. The customer may not solicit or entice away customers or employees of HSR. This obligation survives three years after termination of a contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 25,000 for every breach.
- DATA PROTECTION
9.1. Transfer of risk. The risk in connection with the shipment of the goods will always transfer to the customer as soon as HSR has handed the goods over to the transport company. Goods are always shipped uninsured, unless the customer has instructed HSR to procure insurance at the customer‘ s cost and expense.
9.2. Complaints. After HSR has delivered services or requested the customer to accept a partial service on an interim basis, the customer is required to accept („release“) the services delivered or to be accepted in writing or to give written notice of defects or damage within 14 days. In case of acceptance on an interim basis, HSR can continue its work not until after the customer has accepted / „released“ the services on an interim basis. The customer shall be deemed to have automatically accepted the services if he does not accept services in due time or uses services in live operation prior to acceptance. Hidden defects or damage arising not until after the expiry of 14 days, yet within time limits within which the customer may enforce guarantee, warranty and compensation claims, shall be reported by the customer also within 14 days after the customer has identified the defect or damage. The customer‘s complaint shall describe a defect or damage in detailed and understandable form. The customer is required to indicate the exact times and conditions under which a non-permanent defect or damage occurs. The customer shall allow HSR to take all measures which are necessary to investigate and rectify any defect or damage. Unless the customer makes a complaint in due time, the customer shall not be entitled to lodge warranty, guarantee and compensation claim.
9.3. Guarantee. HSR will grant a guarantee only in writing.
9.4. Guarantee period. The guarantee commences with the delivery of the goods. The guarantee for new HSR machines is two years, for other new machines and for used HSR machines designated „with new machine guarantee“ one year, for used HSR machines designated „with start-up guarantee“ six months, and for other used machines designated „with start-up guarantee“ three months. HSR does not grant any guarantee for other used machines.
9.5. Scope of guarantee. The guarantee covers corrective action to rectify defects asserted during the guarantee period, which existed already when the goods were delivered and are not due to external influence or regular wear and tear. The guarantee covers materials and work needed for corrective action; HSR may at its own election procure such work either itself or compensate local customary replacement costs. The guarantee does not cover consequential damage which exceeds actual corrective action. The guarantee for used machines „with start-up guarantee“ covers only defects which fundamentally prevent successful initial commissioning of a machine. In case of used machines „with start-up guarantee“, the guarantee does not cover statutory tests prescribed by law which the operator of the machine may be required to carry out, as well as the carrying out of minor servicing, maintenance and repair work which may be necessary in view of the age and condition of a machine.
9.6. Terms of guarantee. The fulfilment by the customer of all obligations prescribed by law or of the measures defined by HSR in the operating description, including but not limited to compliance with inspection and service intervals, the carrying out of inspection and servicing work by a licensed professional, and the correct assembly, operation, handling, maintenance and cleaning of components supplied by HSR by the customer are conditions for all contractual guarantees granted by HSR. Customer is required to document the fulfilment of these obligations and measures in the prescribed form, especially in the inspection log book and the operating manual. All contractual guarantees granted by HSR will terminate if the customer does not fulfil the terms of the guarantee. The guarantee shall forfeit, unless it is asserted by judicial process prior to the expiry of the guarantee period or not later than 6 months after the customer has become aware of a defect.
9.7. Warranty. The customer‘s right to warranty is limited to 6 months from delivery, and the right to assert recourse claims based on warranty to 12 months from delivery. The customer may not enforce any warranty for used goods. The customer is entitled at HSR‘s election to improvement or exchange of a service, in case of non-substantial defects, to a price reduction and, in case of substantial defects, also to cancellation of the contract.
9.8. Error, shortfall exceeding fifty percent. The customer may not challenge a contract on the grounds of error or shortfall exceeding fifty percent.
9.9. Compensation for damage. Except in case of personal injury, the customer cannot seek compensation for damage, unless HSR has acted with gross negligence or intent. Claims for compensation of damage shall forfeit six months after knowledge of the damage and the injuring party, and in any event three years after the incriminated action has taken place.
9.10. Burden of proof. The burden of proof cannot be shifted to HSR. Especially the presence of a defect at the time of delivery, the point in time when a defect was identified, the timeliness of a complaint, and the presence and level of fault must be proven by the customer.
9.11. Grace period. The customer may lodge claims due to non-fulfilment of the contract as agreed only if the customer has granted HSR a reasonable grace period of at least fourteen days in writing. This applies also if the contract is terminated for good cause.
- FINAL PROVISIONS
10.1. Applicable law. All legal relationships between the customer and HSR shall exclusively be governed by and construed in accordance with Austrian law, to the exclusion of international conflict of law rules. The UN Sales Convention shall not apply.
10.2. Jurisdiction. All disputes arising between HSR and the customer shall be referred to the Austrian court having subject-matter jurisdiction in Salzburg. HSR may also sue the customer at HSR‘s general venue and the customer‘s general venue.
GENERAL TERMS AND CONDITIONS (09/2017) of Heutrocknung SR GmbH– hereinafter referred to as „HSR“.