General Terms and Conditions of EnerCharge GmbH (short: EnerCharge)
1. Validity of Offers
Our offers have a maximum validity of 14 days after their issue date.
We hereby expressly declare that any offer will be subject to our own terms and conditions. Any orders with reference to the customer’s purchasing terms shall not constitute an acceptance of our offer, but instead shall represent a counter-offer, the acceptance of which we expressly reserve.
2. Delivery
All deliveries and services which are not expressly listed in our offer are not contained therein and in the quoted price. If the delivery/acceptance is delayed for reasons beyond our responsibility and control, the delivery/service shall be deemed as accepted at the latest 7 days after the original delivery/readiness date and additional costs for storage will be charged. Insignificant defects do not prevent delivery/acceptance. Acceptance takes place with delivery (date of delivery).
3. Pricing
The prices are fixed prices and are not subject to change until the validity of the offer expires. Exceptions are increases due to changes in legal or other official regulations. If individual prices are quoted, they shall only apply if the entire scope of the offer is ordered.
The prices do not include the assembly of the goods at the place of destination. Transportation costs: Unless otherwise agreed, all prices are ex works.
The prices offered do not include value added tax. This will be invoiced at the legally applicable rate and at the legally prescribed time.
4. Payment Terms and Default in Payment
We reserve title to the goods and services supplied by us until payment has been made in full. Passing them on to third parties is only permitted with our prior express consent. In the event of default of payment, we are entitled to charge interest on arrears at a rate of 10% p.a.
In case of an individually agreed contractual penalty, the following applies: A contractual penalty is only applicable in case of culpable delay. The maximum amount of the contractual penalty shall in any case be 5% of the order value (excluding VAT), even if several penalty reasons and/or dates have been agreed. The contractual penalty can only be deducted from the final invoice. The claim for a contractual penalty shall be asserted at the latest upon acceptance of the (partial) performance concerned. Any further compensation for damages is excluded.
5. Warranty
The warranty period is 12 months from the date of delivery or, if agreed, from the start-up date.However, all warranty claims shall expire at the latest 15 months after delivery or readiness for delivery, if the delivery is delayed or does not take place for reasons for which we are not responsible. In addition to the obligation to give notice of defects, any warranty claims are only justified, if the proper use of the goods is hindered by a defect and we are notified of the defect in writing immediately after its occurrence or discovery, but in any case within the warranty period. If the goods are tampered with without our prior consent, all warranty claims shall expire. We do not assume any warranty for defects or damage due to improper operation and/or maintenance as well as for wear parts. All warranty obligations are fulfilled in accordance with the prices offered by us. Under no circumstances will we assume any related costs for (dis)assembly, transport, etc. which are not included in our offer.
If we repair defects or replace defective parts, the warranty period for the affected part shall begin anew, but shall end no later than 6 months after the original warranty period expires.
6. Export Restrictions and Export Control
We ask for your understanding that the goods offered by us may be subject to internal export restrictions, irrespective of any official permits. We therefore reserve the right to revoke the offer or withdraw from the contract for this reason at any time.
In the event of a breach of the statutory export restrictions, you shall compensate us for any damage arising from the revocation or withdrawal and indemnify and hold us completely harmless against any claims by third parties. Should internal or official approval procedures have an effect on the prices and delivery times stated, we shall not accept any liability for price increases and delivery delays that may occur as a result.
7. Force Majeure, Suspension and Termination
We are released from the responsibility for a partial or complete non-fulfilment of our contractual obligations insofar as this non-fulfilment is a consequence of circumstances of force majeure. Cases of force majeure include, but are not limited to, warlike events, natural disasters (such as earthquakes, storms, hurricanes, tornadoes, etc.), fire, official interventions and prohibitions, delays in transport and customs clearance, transport damage, shortage of energy and raw materials, the rejection of a large or important workload, industrial disputes, pandemics, etc. Such circumstances shall also be considered as force majeure if they occur at the part of our suppliers. In any case, unforeseen, unavoidable events shall be deemed to be cases of force majeure. If such an event of force majeure occurs, the contractually agreed deadline for the fulfilment of these obligations shall be extended by the duration of the event of force majeure plus a reasonable period for resuming production. This shall also apply in the event that one of our subcontractors invokes a circumstance of force majeure. If a case of force majeure prevents the remaining execution of the contract in its essential parts and if the case of force majeure lasts longer than 3 months, both parties are entitled to withdraw from the contract. In this case, the deliveries and services provided up to that point shall be paid to us in full and we shall be released from the obligations entered into for the project.
We reserve the right to suspend or terminate the contract in the event that the customer substantially violates the provisions of this contract. This includes, but is not limited to, default of payment for a period exceeding 30 days, refusal of access to the company premises or any other material breach of contract or breach of good faith.
8. Health and Safety
The basis for our service provision is compliance with the relevant legal regulations and the provision of advanced processes, facilities and operating methods based on the development status of relevant scientific knowledge and whose functionality has been tested and proven. The client and the partners attributable to his sphere of responsibility must therefore, during the entire duration of our performance, ensure that there is no danger to our personnel or to the personnel of our subcontractors with regard to health and safety. Should the above-mentioned conditions not be met during the project execution for whatever reasons for which we are not responsible, we reserve the right to withdraw our staff and subcontractors from the respective place of performance (construction site, your plant, etc.). In such a case, we shall be released from all deadline obligations for the duration of the hindrance and shall be indemnified and held harmless.
9. General Exclusion of Delivery and Service, Additional Deliveries and Services
All deliveries and services which are not expressly listed in our offer are not included therein and in the quoted price. All additional deliveries and services which are not included in the offer will be invoiced according to actual occurrence and expenditure at the prices calculated or valid at that time.
10. General Liability
We do not accept any liability for any defect or consequential damage, also within the scope of the warranty, such as in particular loss of profit, loss of production etc., as well as indirect and consequential damage. In the case of slight negligence, our total liability is limited to the net total order value of the individual order; in the case of framework agreements, the total liability is limited to the respective net total annual turnover of the individual agreements concluded under this framework agreement. In case of gross negligence, liability is limited to twice the order value. This limitation of liability applies to all claims arising from the contract, regardless of the legal grounds and title.
11. Other Provisions
We expressly emphasize that the following general terms and conditions are valid as the business basis of our offer:
The General Terms of Delivery” issued by the Austrian Electrical and Electronics Industry Association (FEEI), in the latest version. The Software Terms and Conditions published by the Austrian Electrical and Electronics Industry Association (FEEI). in the latest valid version.
12. Miscellaneous
We would like to emphasise that the business relations are conducted under the provisions of the Client Liability Act.
The buyer of electrical and electronic equipment for commercial purposes who is based in Austria assumes the obligation to finance the collection and treatment of waste electrical and electronic equipment according to the Ordinance on Waste Electrical and Electronic Equipment in the event that he himself is a user of the electrical and electronic equipment. If the buyer is not the final user, he shall transfer the financing obligation in full to his customer by agreement and shall document this to the seller. The buyer, who is based in Austria, shall ensure that all information is made available to the seller in order to be able to fulfil the seller’s obligations as manufacturer/importer, in particular in accordance with §§ 11 and 24 of the Ordinance on Waste Electrical Equipment and the Waste Management Act. The buyer, who has their registered office in Austria, shall be liable to the seller for all damages and other financial disadvantages incurred by the seller through the buyer’s failure to fulfil or inadequate fulfilment of the financing obligation and other obligations in accordance with this point. The burden of proof for the fulfillment of this obligation is on the buyer.
If individual provisions of these terms and conditions are invalid, ineffective, illegal or unenforceable, this shall not affect the validity of the remaining provisions. In such a case, the invalid, ineffective, unlawful or unenforceable provision shall be replaced by a provision which comes closest to the economic purpose of this provision in a legally permissible manner (severability clause). Verbal collateral agreements do not exist.
13. Applicable Law and Jurisdiction
Austrian substantive law shall apply to any legal disputes arising from this contract. The application of UN purchase law is expressly excluded. The place of jurisdiction for all disputes is the court responsible for Kötschach-Mauthen.