General Terms and Conditions
1.1. These General Terms and Conditions of Business apply between us (ARTEMES GmbH) and natural persons and legal entities (customer) for the present legal transaction as well as for all future transactions, even if no express reference is made to them in individual cases, in particular for future supplementary or follow-up orders.
1.2. The version of our General Terms and Conditions current at the time of conclusion of the contract, available on our homepage (www.artemes.org), shall apply in each case.
1.3. We contract exclusively on the basis of our GTC.
1.4. Any terms and conditions of business of the customer or amendments or supplements to our GTC require our express written consent in order to be valid.
1.5. The customer's terms and conditions shall not be recognised even if we do not expressly object to them after receipt by us.
2. Offers, conclusion of contract
2.1. Our offers are non-binding.
2.2. Promises, assurances and guarantees on our part or agreements deviating from these GTC in connection with the conclusion of the contract shall only become binding upon our written confirmation.
2.3. Information about our products and services given in catalogues, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material) which is not attributable to us shall be presented to us by the customer - insofar as the customer bases its decision to place an order on such information. In this case, we may comment on their correctness. If the customer violates this obligation, such information shall not be binding unless it has been expressly declared in writing to be part of the contract.
2.4. Cost estimates are non-binding.
2.5. Cost estimates are subject to payment, but the nature and scope of the price and service can always be changed according to the individual wishes of the customer.
3.1. Price quotations are in principle not to be understood as a lump sum price.
3.2. For services ordered by the client which are not covered by the original order, the client shall be entitled to appropriate remuneration in the absence of an agreement on remuneration for work.
3.3. Prices are quoted exclusive of the applicable statutory value added tax and ex warehouse.Packaging, transport, loading and shipping costs as well as customs duties and insurance shall be borne by the customer.We are only obliged to take back packaging material if this has been expressly agreed. We reserve the right to make corrections at any time in the event of price changes on the part of the manufacturer or our supplier or fluctuations in the dollar exchange rate.
3.4. The customer shall arrange for the professional and environmentally sound disposal of old material.If we are commissioned to do this separately, the customer shall pay an additional appropriate fee to the extent agreed here, in the absence of a fee agreement.
3.5. We are entitled of our own accord, as well as obliged at the request of the customer, to adjust the contractually agreed fees if changes in the amount of at least 5% have occurred with regard to a) the wage costs by law, ordinance, collective agreement, company agreements or b) other cost factors necessary for the provision of services such as procurement costs of the materials used due to recommendations of the Joint Commissions or changes in the national or world market prices for raw materials, exchange rates, etc. since the conclusion of the contract. The adjustment shall be made to the extent that the actual manufacturing costs at the time of conclusion of the contract change compared to those at the time of the actual performance of the service, provided that we are not in default.
3.6. The fee for continuing obligations shall be agreed as value-assured according to the CPI 2005 and thus the fees shall be adjusted. The month in which the contract was concluded shall be taken as the starting point.
3.7. Costs for travel, daily and overnight allowances shall be charged separately. Travel time shall be considered as working time.
3.8. For software development orders, the following shall also apply: For library (standard) programmes, the list prices valid on the day of delivery shall apply. For all other services (organisational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is provided.
4. goods provided for project transactions
4.1. If equipment or other materials are provided by the customer, we are entitled to charge the customer 20% of the value of the equipment or material provided as a handling surcharge.
4.2. Equipment and other materials provided by the customer are not covered by the warranty. Artemes shall not be liable for any pre-existing damage to the equipment and other materials that affects any incorporated services provided by Artemes. If the provision of services by Artemes is delayed, point 9, in particular 9.3, 9.4 and 9.7, shall be expressly deemed to have been agreed.
5.1. One third of the remuneration shall be due upon conclusion of the contract and the remaining part shall be due upon our written notification of completion of the service.
5.2. The entitlement to a discount requires an express written agreement.
5.3. Payment dedications made by the customer on transfer vouchers are not binding for us.
5.4. If the customer defaults on payment under other contractual relationships with us, we shall be entitled to suspend performance of our obligations under this contract until the customer has fulfilled them.
5.5. We shall then also be entitled to call due all claims for services already rendered from the current business relationship with the customer.
5.6. If the payment deadline is exceeded, even if only with regard to a single partial performance, any remuneration granted (discounts, deductions, etc.) shall be forfeited and added to the invoice.
5.7. In the event of default in payment, the customer undertakes to reimburse us for the costs necessary and appropriate for collection (reminder costs, collection fees, lawyers' fees, etc.).
5.8. The customer shall only be entitled to set-off insofar as counterclaims have been established by a court or recognised by us.
5.9. If the customer does not object to the reason and the amount of the invoice within a period of three weeks from the date of the final invoice, the customer shall be deemed to have expressly accepted the invoice.
6. credit check
6.1. The customer declares his/her express consent that his/her data may be transmitted to the state-preferred creditor protection associations (AKV EUROPA Alpenländischer Kreditorenverband für Kreditschutz und Betriebswirtschaft, Creditreform Wirtschaftsauskunftei Kubicki KG and Kreditschutzverband von 1870 (KSV)) exclusively for the purpose of creditor protection.
7. Obligations of the client to cooperate
7.1. Our obligation to perform shall commence at the earliest as soon as
a) all technical details have been clarified,
b) the customer has fulfilled the technical and legal requirements (which we will be happy to provide on request),
c) we have received agreed down payments or securities, and
d) the customer has fulfilled his or her contractual obligations to perform and cooperate in advance, in particular also the sub-items mentioned below.
7.2. In the case of assembly work to be carried out by us, the customer is obliged to ensure that the work can be started immediately after the arrival of our assembly personnel.
7.3. The customer shall arrange for the necessary authorisations from third parties as well as notifications and authorisations from authorities at his own expense. These can be requested from us.
7.4. The energy and water quantities required for the performance of the service, including the trial operation, shall be provided by the customer at the customer's expense.
7.5. The customer shall provide us with lockable rooms that are not accessible to third parties for the stay of the workers as well as for the storage of tools and materials free of charge for the time of the performance of the service.
7.6. The customer shall be 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.
7.7. The customer shall also be liable for ensuring that the technical installations, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition and compatible with the works or objects of purchase to be produced by us.
7.8. We are entitled, but not obliged, to inspect these installations for a separate fee.
7.9. In particular, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations, escape routes, other obstacles of a structural nature, possible sources of danger as well as the necessary static information without being asked to do so before the start of the installation work.
7.10. Order-related details of the necessary information can be requested from us.
7.11. The customer shall bear sole responsibility for the construction and functionality of parts provided. There is no obligation to check any documents, information or instructions provided by the customer with regard to the delivery item - beyond the creation of a technical construction dossier and the certification of compliance with the Machinery Directive and any other applicable directives - and our liability 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.
7.12. The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.
7.13. Should the customer fail to meet his obligations, point 9, in particular 9.3, 9.4 and 9.7 shall be expressly deemed agreed.
8.1. Minor changes to our performance that are objectively justified and reasonable for the customer shall be deemed to have been approved in advance.
8.2. If, for whatever reason, the order is amended or supplemented after the order has been placed, the delivery/performance period shall be extended by a reasonable period of time.
8.3. If, after conclusion of the contract, the client wishes the service to be performed within a shorter period of time than originally defined, this shall constitute a change to the contract. Overtime may become necessary as a result and/or additional costs may be incurred due to the acceleration of the procurement of materials, as a result of which the remuneration shall be increased appropriately in relation to the necessary additional expenditure.
8.4. Partial deliveries and services that are objectively justified (e.g. plant size, construction progress, etc.) are permissible and can be invoiced separately.
8.5. If delivery on call has been agreed, the object of performance/purchase shall be deemed to have been called at the latest six months after the order.
9. delivery and service deadlines
9.1. Delivery/service deadlines and dates are only binding for us if they have been specified in writing. Any deviation from this formal requirement must also be in writing.
9.2. In the event of force majeure, strike, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control, deadlines and dates shall be postponed for the period of time during which the event in question lasts. The right of the customer to withdraw from the contract in the event of delays which make it unreasonable to be bound by the contract remains unaffected by this.
9.3. If the start of the performance of the service or the performance is delayed or interrupted due to circumstances attributable to the customer, in particular due to the breach of the duties to cooperate pursuant to item 7, performance deadlines shall be extended accordingly and completion dates shall be postponed accordingly.
9.4. We shall be entitled to charge 10% of the invoice amount for each commenced month of the delay in performance for the storage of materials and equipment and the like in our company that is necessary as a result, whereby the customer's obligation to pay and his obligation to accept shall remain unaffected by this.
9.5. In the event of withdrawal from the contract due to default, the customer must set a grace period by registered letter and at the same time threaten to withdraw from the contract.
9.6. Cancellations by the Client are only possible with the written consent of the Contractor. If the Contractor agrees to a cancellation, it shall be entitled to charge a cancellation fee in the amount of 30% of the order value of the overall project not yet invoiced, in addition to the services rendered and costs incurred.
9.7. For the period of delays in performance caused by the customer, a lump sum compensation is agreed. The customer is obliged to pay Artemes an amount of € 500.00 net per day of delay until the time when Artemes is able to provide the service. It is expressly agreed that the right to judicial mitigation is excluded.
10. Transfer of risk and shipment
10.1. The risk shall pass to the customer as soon as we hold the object of purchase/work ready for collection at the factory or warehouse, or hand it or the material and equipment over to a carrier or transporter. Shipment, loading and unloading as well as transport shall always be at the risk of the customer.
10.2. The customer approves any appropriate method of shipment. We undertake to take out transport insurance at the customer's written request and at the customer's expense.
10.3. We are entitled to collect the packaging and shipping costs as well as the cash on delivery fee from the customer if the customer is in arrears with a payment from the existing business relationship with us or if a credit limit agreed with us is exceeded.
10.4. The customer is responsible for the safety of the materials and equipment delivered by us and stored or assembled at the place of performance. Losses and damage shall be borne by him/her.
11. default of acceptance
11.1. If the customer is in default of acceptance for longer than 2 weeks (refusal of acceptance, default in advance performance or otherwise, no call-off within a reasonable time in the case of an order on call-off), and if the customer has not ensured the elimination of the circumstances for which he/she is responsible despite having been granted a reasonable period of grace, which delay or prevent the performance of the service, we may otherwise dispose of the equipment and materials specified for the performance of the service while the contract remains in force, provided that in the event of the continuation of the performance of the service we procure these within a period of time appropriate to the respective circumstances.
11.2. In the event of default in acceptance on the part of the customer, we shall be entitled to store the goods on our premises if we insist on performance of the contract, for which we shall be entitled to a storage fee in accordance with clause 9.4.
11.3. In the event of a justified withdrawal from the contract, we may charge the customer a lump-sum compensation amounting to 20% of the gross order value without proof of the actual damage. The customer is obliged to pay the invoiced amount to Artemes within a period of seven days. The customer expressly waives the objection of the right of judicial moderation.
11.4. The assertion of a higher damage is permissible.
12. reservation of proprietary rights
12.1. The goods delivered, assembled or otherwise handed over by us shall remain our property until payment has been made in full.
12.2. A resale is only permissible if we have been informed of this in good time beforehand, stating the name and exact address of the purchaser, and we consent to the sale. In the event of our consent, the purchase price claim shall be deemed assigned to us already now.
12.3. Until the remuneration or purchase price has been paid in full, the Client shall note this assignment in its books and on its invoices and draw the attention of its debtor(s) to it. Upon request, he/she shall provide the contractor with all documents and information necessary for the assertion of the assigned claims and entitlements.
12.4. The customer declares his/her express consent that we may enter the location of the goods subject to retention of title in order to assert our retention of title.
12.5. Necessary and reasonable costs for the appropriate prosecution shall be borne by the customer.
12.6. The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.7. We shall be entitled to dispose of the returned goods subject to retention of title on a discretionary basis and at the best possible price.
12.8. The object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with the rights of third parties until all our claims have been paid in full. In the event of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately.
13. property rights of third parties
13.1. For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer exclusively assumes the guarantee that the manufacture of these delivery items does not infringe the property rights of third parties.
13.2. If property rights of third parties are nevertheless asserted, we shall be entitled to cease production of the delivery items at the risk of the client until the rights of third parties have been clarified, unless the injustice of the claims is obvious.
13.3 We may also claim compensation from the customer for necessary and useful costs incurred by us.
13.4. We are entitled to demand reasonable advances on costs for any legal costs.
13.5 In the event of legal action against Artemes by a third party, the customer shall indemnify and hold Artemes harmless.
14. Our intellectual property
14.1. Delivery items and related execution documents, plans, sketches, cost estimates and other documents as well as software provided by us or created by our contribution shall remain our intellectual property.
14.2. Their use, in particular their passing on, duplication, publication and making available, including copying even of extracts, as well as their imitation, processing or exploitation requires our express written consent.
14.3. The customer further undertakes to maintain secrecy vis-à-vis third parties with regard to the knowledge he/she has acquired in the course of the business relationship.
14.4. In the event of a breach of this clause, the customer undertakes to pay liquidated damages in the amount of 30% of the gross order value, to the exclusion of the right of judicial mitigation.
14.5. Furthermore, the customer undertakes to remove any publications, copies, imitations, adaptations and exploitations made or, if necessary, to enforce their removal in court against third parties and to transfer any profit made to Artemes, presenting the business relations in this case. Artemes reserves the right to assert any further damages.
15. warranty (not for software development projects, these are regulated in 16)
15.1. The warranty period for our services is one year from handover.
15.2. In the absence of any agreement to the contrary (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken possession of the service or has refused to take possession without giving reasons. In the absence of a justified refusal to accept the service, the service shall be deemed to have been taken over by the customer on the day on which the customer is notified of its completion.
15.3. Remedies of a defect alleged by the customer do not constitute an acknowledgement of a defect.
15.4. The customer must always prove that the defect was already present at the time of handover.
15.5. Complaints and objections of any kind are to be notified in writing without delay (at the latest after 14 working days) at the registered office of our company, describing the defect as precisely as possible and stating the possible causes, otherwise the warranty claims will be forfeited. The goods or works complained about are to be handed over by the customer if this is feasible.
15.6. If the customer's allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in determining that the goods are free of defects or in rectifying the defects.
15.7 We are entitled to carry out or have carried out any examination we deem necessary, even if this renders the goods or workpieces unusable. In the event that this inspection shows that we are not responsible for any defects, the customer shall bear the costs of this inspection for a reasonable fee.
15.8. Transport and travel costs incurred in connection with the rectification of defects shall be borne by the customer. At our request, the customer shall provide the necessary labour, energy and premises free of charge and cooperate in accordance with point 7.
15.9. The customer must allow us at least two attempts to remedy the defect.
15.10. We may avert a claim for conversion by improvement or reasonable price reduction, provided that the defect is not substantial and remediable.
15.11. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions.
15.12. The circumstance that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on deviating actual circumstances from the information available to us at the time of the performance of the service because the customer does not comply with his duties to cooperate pursuant to item 7.
15.13. Similarly, it shall not constitute a defect if the customer's technical installations, such as supply lines, cabling, networks and the like, are not in a technically perfect and operational condition or are not compatible with the items delivered.
16. special provisions for software development projects
16.1. The development of individual organisational concepts and programmes shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practical test data as well as sufficient test facilities, which the client shall make available in a timely manner, during normal working hours and at its own expense. If the client is already working in real operation on the system provided for testing, the responsibility for securing the real data lies with the client.
16.2. The basis for the creation of individual programmes is the written performance specification which the contractor prepares against cost calculation on the basis of the documents and information made available to him or which the client provides. This performance specification must be checked by the client for correctness and completeness and marked with his/her approval. Requests for changes occurring at a later date may lead to separate agreements on dates and prices.
16.3. Individually created software or programme adaptations require a programme acceptance by the client for the respective programme package at the latest four weeks after delivery. This shall be confirmed in a protocol by the client (check for correctness and completeness on the basis of the service description accepted by the contractor by means of the test data provided under item 16.1). If the Client allows the period of four weeks to elapse without accepting the programme, the software supplied shall be deemed to have been accepted on the end date of the said period. If the client uses the software in live operation, the software shall be deemed to have been accepted in any case. Any defects that occur, i.e. deviations from the performance description agreed in writing, shall be reported to the Contractor by the Client with sufficient documentation. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required after the defects have been rectified. The client is not entitled to refuse acceptance of software due to immaterial defects.
16.4. When ordering library (standard) programmes, the client confirms with the order that he/she is aware of the scope of services of the ordered programmes.
16.5. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the contractor is obliged to notify the client of this immediately. If the client does not amend the service description or create the preconditions for execution to become possible, the contractor may refuse execution. If the impossibility of execution is the result of a failure on the part of the client or a subsequent change to the service description by the client, the contractor is entitled to withdraw from the contract. The costs and expenses incurred up to that point for the activities of the client/the contractor as well as any dismantling costs shall be reimbursed by the client/the contractor.
16.6. Notices of defects shall only be valid if they concern reproducible defects and if they are documented in writing within 4 weeks after delivery of the agreed service or, in the case of individual software, after acceptance of the programme in accordance with clause 16.3. In the case of warranty, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice of defect, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary to examine and remedy the defect. The presumption of defectiveness pursuant to § 924 ABGB shall be excluded.
16.7. Corrections and additions that prove necessary up to the handover of the agreed service due to organisational and programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor.
16.8. Assistance, misdiagnoses and the rectification of errors and faults for which the Client is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This shall also apply to the rectification of defects if programme changes, additions or other interventions have been made by the Client himself/herself or by third parties.
16.9. Ferner übernimmt der Auftragnehmer keine Gewähr für Fehler, Störungen oder Schäden, die auf unsachgemäße Bedienung, geänderter Betriebssystemkomponenten, Schnittstellen und Parameter, Verwendung ungeeigneter Organisationsmittel und Datenträger, soweit solche vorgeschrieben sind, anormale Betriebsbedingungen (insbesondere Abweichungen von den Installations- und Lagerbedingungen) sowie auf Transportschäden zurückzuführen sind.
16.10. Any warranty by the Contractor shall lapse for software that is subsequently modified by the Client's own software developers or third parties.
16.11. Insofar as the object of the order is the modification or supplementation of already existing programmes, the warranty refers to the modification or supplementation. The warranty for the original programme shall not be revived thereby.
17.1. Due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay etc., we shall only be liable for financial losses in cases of intent or gross negligence.
17.2. Liability is limited to the maximum liability amount of any liability insurance taken out by us.
17.3. This limitation also applies with regard to damage to an item that we have taken over for processing.
17.4. Claims for damages must be asserted in court within six months, otherwise they shall be forfeited.
17.5. The limitations or exclusions of liability also include claims against our employees, representatives and vicarious agents for damage caused to the customer by them without reference to a contract between them and the customer.
17.6. Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorised by us, or natural wear and tear, insofar as this event was causal for the damage. The exclusion of liability also applies to the omission of necessary maintenance.
17.7. If and to the extent that the customer can claim insurance benefits for damages for which we are liable through a damage insurance policy of its own or concluded for its benefit (e.g. liability insurance, hull insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability towards the customer shall be limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium).
17.8. Those product characteristics are owed which can be expected by the customer with regard to the approval regulations, operating instructions and other product-related instructions and information (in particular also inspection and maintenance) from us, third party manufacturers or importers, taking into account the customer's knowledge and experience. The customer as a reseller must take out sufficient insurance for product liability claims and indemnify and hold us harmless in respect of recourse claims.
18. severability clause
18.1. Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
18.2. The parties undertake at this point to agree on a substitute provision - based on the horizon of honest contracting parties - which comes as close as possible to the economic result of the invalid condition, taking into account the customary nature of the industry.
19.1. Austrian law applies.
19.2. The UN Sales Convention is excluded.
19.3. The place of performance is the registered office of the company (Eibiswald/Styria/Austria).
19.4. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the Contractor and the Client shall be the court with local jurisdiction for the Contractor's registered office.
19.5. The customer must notify us immediately in writing of any changes to the name, company, address, legal form or other relevant information.
Status 06/21, Version ARTEMES_AGB_AM99-006-00005