GENERAL TERMS AND CONDITIONS B2B
(as of September 2022)
1.1. These General Terms and Conditions B2B (hereinafter referred to as “GTC (B2B)”) apply to all contracts concluded by an entrepreneur (hereinafter referred to as “Contractual Partner”) with Baier Technik GmbH & Co KG, Pfongauer Straße 69, A-5202, Neumarkt am Wallersee, Commercial Register: FN 167528S (hereinafter referred to as “Baier Technik”). Baier Technik thus provides its contractual services to entrepreneurial contractual partners exclusively with the inclusion of the following General Terms and Conditions:
1.2. An entrepreneur is a natural or legal person for whom the legal transaction belongs to the operation of his own company.
1.3. Changes to these GTC shall be approved by the contractual partner, unless the latter objects (in writing) within 14 days of becoming aware of the change.
1.4. The validity of the contractual partner’s general terms and conditions is contradicted – subject to written consent to the contrary. Terms and conditions of the contractual partner will not be recognized even if Baier Technik does not expressly object after receipt.
2.Conclusion of contract
2.1. The contract is concluded by Baier Technik submitting a written offer. Baier Technik is bound to this written offer for four weeks. Declarations deviating from and/or additional declarations from the written offer are of no significance. Only the written offer is valid.
2.2. Contractually binding declarations of Baier Technik are made exclusively in writing.
2.3. The acceptance of the contract takes place by written confirmation by sending a letter of confirmation from the contractual partner.
2.4. The contract is concluded in German.
3.Contractual partner’s obligations to cooperate
The obligation to perform baier technology begins at the earliest as soon as the contractual partner has created all structural, technical and legal requirements for execution, which were described in the contract or in the information provided to the contractual partner before the conclusion of the contract or the contractual partner knew or had to know on the basis of relevant expertise or experience.
In particular, before the start of the performance of the service, the contractual partner must provide the necessary information about the location of concealed electricity, gas and water pipes or similar devices, escape routes, other obstacles of a structural nature, other possible sources of malfunction, sources of danger as well as the necessary static information and any planned changes in this regard without being asked. The contractual partner must inform himself with baier Technik regarding the details of the necessary information.
If the contractual partner does not comply with this obligation to cooperate, the performance of Baier Technik shall not be defective – exclusively with regard to the performance not fully given as a result of incorrect information provided by the contractual partner.
The contractual partner must independently arrange the necessary permits from third parties as well as notifications and approvals by authorities (e.g. registration of electricity purchase) at his own expense.
The energy and water quantities required for the performance including the test operation must be provided by the contractual partner at his expense. The contractual partner is also liable for ensuring that the technical systems, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition as well as compatible with the works or objects of purchase to be manufactured by Baier Technik. Baier Technik is entitled, but not obliged, to inspect these systems for a reasonable fee (including reasonable profit).
The contractual partner must – for the time of performance – provide Baier Technik with lockable rooms free of charge for the stay of the workers as well as for the storage of tools and materials.
Objectively justified minor changes to the performance of the service by Baier Technik that are reasonable for the contractual partner shall be deemed to have been approved in advance.
Subsequent change and extension requests of the contractual partner are – subject to a separate contractual agreement – only to be taken into account if these are necessary for technical reasons in order to achieve the purpose of the contract.
If, for whatever reason, the order is changed or supplemented after the order has been placed, baier Technik’s delivery/service period shall be extended by a reasonable period of time.
If the contractual partner wishes a service to be performed within a shorter period of time after conclusion of the contract, a written consent of Baier Technik is required for this. Resulting additional costs, e.g. overtime and/or additional costs resulting from the acceleration of material procurement, are to be reimbursed by the contractual partner.
If partial deliveries are objectively justified (e.g. plant size, construction progress, etc.), partial deliveries and services are permissible and may be invoiced separately.
5.Reference to limitation of the scope of services
In the context of assembly and repair work, damage (a) to already existing (pipe) pipes, equipment as a result of unrecognizable (in particular structural) conditions or material defects of the existing stock (b) may occur during chiseling work in unattached masonry. Such damages are only to be compensated by Baier Technik in the event of grossly culpable causation.
In the case of makeshift repairs, there is only a very limited durability that corresponds to the circumstances.
In the event of makeshift repairs, the contractual partner must immediately arrange for a professional repair.
6. Assumption of risk
The risk of accidental loss shall pass to the contractual partner as soon as Baier Technik keeps the object of purchase, the material or the work ready for collection in the factory or warehouse, delivers it itself or hands it over to a carrier.
The contractual partner undertakes to insure against this risk accordingly. At the written request of the contractual partner, Baier Technik shall take out transport insurance at the expense of the contractual partner.
The contractual partner agrees to any customary shipping method.
7.Performance deadlines and dates
If the start of the performance of the service or the execution by circumstances attributable to the contractual partner are delayed or interrupted, in particular due to the violation of the obligations to cooperate in accordance with point 3 of these GTC (B2B), performance periods will be extended accordingly and agreed completion dates will be postponed accordingly.
Baier Technik is entitled to charge 2% of the invoice amount for the necessary storage of materials and equipment and the like at Baier Technik for each month of delay in performance commenced, whereby this does not affect the contractual partner’s obligation to pay and his obligation to accept.
Deadlines and dates shall be postponed in the event of force majeure, strike, unforeseeable delay for which Baier Technik is not responsible, in particular in the event of delayed delivery by suppliers or other comparable events that are not within the sphere of influence of Baier Technik (e.g. bad weather; Natural phenomena; Epidemics [e.g. COVID-19]), this around the period for which the corresponding event lasts.
Delivery and completion dates promised by Baier Technik are only binding if compliance with them has been promised in writing.
8.Delay in the provision of services
If an event leads to a delay – through no fault of Baier Technik ‘ own – agreed performance periods shall be extended by the duration of this event.
In the event of culpable delay with main performance obligations by Baier Technik, the contractual partner has the right to withdraw from the contract – after setting a (reasonable at least 14-day) grace period. The grace period must be set in writing by registered letter, with simultaneous threat of withdrawal from the contract and a concrete description of the reason for withdrawal. Reasons for withdrawal not stated in the setting of a grace period cannot subsequently be used for a withdrawal. The delay with contractual ancillary obligations does not authorize the withdrawal from the contract. Baier Technik is entitled to compensation for the service provided until culpable delay. With regard to any damage caused by culpable delay, point 22 of these GTC (B2B) shall apply.
A delay in performance caused by the contractual partner shall be deemed to be in particular if
- the acceptance of the service by the contractual partner is refused,
- the contractual partner is in default with advance payments and/or obligations to cooperate.
In this case, the risk of accidental loss shall pass to the contractual partner.
The contractual partner must compensate Baier Technik for the damage caused by the delay (regardless of fault).
In the event of default, Baier Technik is entitled to store the goods required for the fulfilment of the contract and to charge a reasonable storage fee of at least EUR 250 per week.
If the contractual partner’s delay continues – despite a reasonable grace period – Baier Technik is entitled (in the case of an upright contract) to use materials and equipment elsewhere. After termination of the contractual partner’s delay, Baier Technik will procure the materials and equipment – within a reasonable period of time. Any resulting delays shall be borne by the contractual partner.
In the event of default, Baier Technik may withdraw from the contract (regardless of the fault of the contractual partner) by setting a reasonable grace period. In the event of withdrawal from the contract, the fee for all services previously provided by Baier Technik shall become due and Baier Technik shall be entitled – regardless of fault – to reimbursement of the interest in performance (less saved expenses). The assertion of a higher damage is permissible.
9. Retention of title
All goods of Baier Technik remain the property of Baier Technik until full payment has been made.
A resale is only permitted if Baier Technik has been informed in advance of the name and address of the buyer and agrees to a sale in writing. With the consent of Baier Technik, the purchase price claim of the contractual partner shall be deemed assigned to Baier Technik.
In the event of default in payment, Baier Technik is entitled – after setting a reasonable grace period – to demand the return of the reserved goods.
The contractual partner must inform Baier Technik immediately of the opening of bankruptcy over his assets or the seizure of the reserved goods.
Baier Technik is entitled to enter the location of the reserved goods in order to assert its retention of title as far as reasonable for the contractual partner; this after reasonable advance notice.
Necessary and reasonable costs for the appropriate legal prosecution shall be borne by the contractual partner.
The reserved goods may be sold by Baier Technik by private treaty.
Until full payment of all claims, the object of performance/purchase may not be pledged, assigned by way of security or otherwise encumbered with the rights of third parties. In the event of seizure or other claims, the contractual partner is obliged to point out the right of ownership of Baier Technik and to inform it immediately.
10.1. All prices provided by Baier Technik correspond to the price calculation at the time of the offer. The prices are in EURO and without VAT and ex warehouse. Packaging, transport. Loading and shipping costs as well as customs and insurance shall be borne by the contractual partner.
10.2. Unless otherwise agreed in the written offer, all baier Technik prices are directing prices.
10.3. Cost estimates of Baier Technik are non-binding and chargeable. The amount of time and material is only a non-binding estimate.
10.4. The contractual partner must arrange for the professional and environmentally sound disposal of old material. If Baier Technik is commissioned with disposal lines, there is a separate claim to reasonable remuneration (including reasonable profit).
10.5. Services provided by Baier Technik – in addition to the offer – are to be remunerated appropriately (including a reasonable profit).
10.6. If the contractual partner does not allow Baier Technik to deliver including parking at a maximum distance of 50 meters, Baier Technik shall be compensated for the additional expenses by a price surcharge of (at least) € 100 per kilometer or part thereof. There is also a surcharge of 250, – € per floor to be overcome, for which no usable lift is available for the transport of all contractual services.
10.7. In the event of changes of at least 2 % with regard to:
(a) wage costs by law, regulation, collective agreement, works agreement, or
(b) other cost factors necessary for the provision of services, such as material costs due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. since the submission of the offer, entitle Baier Technik to an aliquot adjustment of the contractually agreed remuneration to the extent that the actual production costs at the time of the Change the offercompared to those at the time of the actual provision of services.
10.8. In the case of continuing obligations, the remuneration shall be deemed to have been agreed in accordance with the CPI 2010 and the remuneration shall be adjusted on a quarterly basis. The starting point is the month in which the contract was concluded.
10.9. If the invoice is made after measurements, the following applies:
Arc-shaped cables are measured in the outer arc. Fittings and fixtures are measured in the pipe dimension, but charged separately. Interruptions up to a maximum of 1 meter are not taken into account.
An erroneous investigation alleged by the contractual partner must be asserted and proven by the contractual partner. The contractual partner must prove that Baier Technik is at fault for the faulty investigation.
The contractual partner must check a – from his point of view erroneous determination of the measurements within 14 days of knowledge of the determined measurements – and inform Baier Technik in writing within the same period. In the event of non-timely notification, the measure established shall be deemed to have been approved, irrespective of the knowledge of the defectiveness. If the contractual partner does not participate in an agreed joint determination of the measurements – despite timely notification – the 14-day period for written notification begins on the day of default.
11. Due date
One third of the remuneration is due upon conclusion of the contract, one third at the start of the service and the rest after completion of the service.
The right to a discount requires an express – written – agreement.
Payment dedications made by the contractual partner on transfer receipts are not binding for Baier Technik.
If devices or other materials are provided by the contractual partner, Baier Technik is entitled to charge the contractual partner a surcharge of 5% of the value of the equipment or material provided.
Materials provided by the contractual partner must be independently checked by the contractual partner for suitability and quality. Baier Technik does not guarantee the compatibility, suitability and quality of the materials provided by the contractual partner.
13.Default of payment
A delay in payment by the contractual partner shall be deemed to be culpable – unless proven otherwise by the contractual partner.
In the event of culpable default in payment, the statutory default interest between entrepreneurs shall be deemed to have been agreed. We reserve the right to assert further damage caused by default.
Baier Technik is entitled – in the event of default of payment by the contractual partner – to refuse to provide its own services, even in the event of default in payment in other contractual relationships between the contracting party and Baier Technik.
In the event of default, Baier Technik is entitled to make all claims for services already rendered due from the current business relationship with the contractual partner.
In the event of default in payment, remuneration granted by Baier Technik (discounts, discounts, etc.) shall be forfeited and added to the invoice.
In the event of default in payment, the contractual partner undertakes to reimburse Baier Technik for the costs necessary and appropriate for the collection (reminder costs, collection expenses, lawyer’s fees, etc.). In particular, in the event of culpable default in payment, the contractual partner undertakes to pay reminder fees of at least € 10.00 per reminder letter.
Baier Technik may withdraw from the contract if the delay in payment continues despite a written request (setting a reasonable grace period). In this case, the contractual partner is obliged to compensate for the interest in performance (less the expenses saved by the cancellation of the contract).
If a service can not be provided by Baier Technik due to force majeure, belatedly and/or only in modified form, the contractual partner cannot derive any claims (damages, withdrawal, etc.) from this.
If the contractual partner is no longer interested in further provision of services, the latter may withdraw from the contract, but Baier Technik must compensate Baier Technik for all associated disadvantages (interest in performance including lost profit, this with deduction of the expenses saved by the withdrawal [e.g. material costs]).
Force majeure is understood in particular to mean all restrictions related to the COVID-19 pandemic, both of a legal nature (e.g. entry bans, entry restrictions, etc.) and of a different nature (e.g. shortage of raw materials, lack of availability of employees).
15.Prohibition of set-off by the contractual partner
The set-off by the contractual partner is – subject to a judicial determination of the counterclaim and/or written acknowledgement by Baier Technik – inadmissible.
The contractual partner declares his express consent that his data may be transmitted exclusively for the purpose of creditor protection to the state-privileged creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870(KSV).
17.Property rights of third parties
If intellectual creations and/or documents are provided by the contractual partner, the contractual partner transfers all commercial rights – necessary for the fulfilment of the contract – and confirms that the fulfilment of the contract does not interfere with the property rights of third parties.
The contractual partner shall indemnify and hold Baier Technik harmless with regard to claims of third parties due to interference with property rights.
If property rights are asserted by third parties, Baier Technik is entitled to suspend the performance of the contract for the time being, until the final judicial clarification of the alleged claims. Any resulting additional costs/additional costs and/or damage to Baier Technik shall be borne by the contractual partner.
Baier Technik is entitled to reimbursement from the contractual partner for the necessary and useful costs incurred to date.
Baier Technik is entitled – in the event of a lawsuit – to demand a reasonable advance on costs for any legal costs.
18.Intellectual property of Baier Technik
All documents provided and/or prepared by Baier Technik (e.g. plans, sketches, cost estimates) remain the intellectual property of Baier Technik.
The use of such documents outside the intended use, in particular the passing on, duplication, publication and making available, including even partial copying, requires the express written consent of Baier Technik.
The contractual partner is obliged to maintain secrecy with regard to all information received in connection with the execution of the contract.
The obligation to maintain secrecy must be demonstrably transferred in writing to employees and third parties involved in the execution of the contract (e.g. subcontractors).
In the event of a breach of this obligation of confidentiality, the contractual partner is obliged to pay Baier Technik a contractual penalty of EUR 10,000.00, regardless of fault. This does not affect the assertion of actual damage and other judicial claims.
20.Involvement of third parties:
Baier Technik is entitled to involve third parties (e.g. subcontractors) in the execution of the contract. In this case, Baier Technik shall transfer all contractual obligations to the third party involved.
The contractual partner of Baier Technik is exclusively the contractual partner. If the contractual partner intends to involve third parties (e.g. for acceptance), this is dependent on the written consent of Baier Technik.
The contractual performance obligations of Baier Technik are conclusively regulated within the framework of these GTC (B2B) and in the written offer.
With the exception of contractual properties promised in writing, any warranty and error challenge is excluded.
In the absence of a deviating agreement (e.g. formal acceptance), the time of handover is the time of completion, at the latest when the contractual partner has taken over the service in his power of disposal or has refused to accept it without giving reasons.
The warranty period is 1 year.
If a joint handover is planned and the contractual partner remains away from the handover date communicated to him, the takeover shall be deemed to have taken place on this day.
Rectification of a defect claimed by the contractual partner does not constitute an acknowledgement of the defect claimed by the contractual partner – subject to an express written constitutive acknowledgement.
Baier Technik must be granted at least two attempts to remedy the defect in order to remedy the defect.
If the contractual partner’s claims of defects are unjustified, the contractual partner is obliged to reimburse Baier Technik for the expenses incurred for the determination of freedom from defects or troubleshooting.
The contractual partner must prove that any defect already existed at the time of handover.
Defects in the delivery item that the contractual partner has discovered or should have discovered by examination in the ordinary course of business after delivery must be reported to Baier Technik in writing immediately, at the latest within 14 days, after delivery. Hidden defects must be reported in writing within 3 days of discovery. The complaint must be duly substantiated and supported by evidence. If a notice of defects is not made in time, the goods shall be deemed to have been approved.
Any use or processing of the defective object of performance, which threatens further damage or makes it more difficult or prevents the collection of causes, must be stopped by the contractual partner immediately, unless this is unreasonable.
The defective delivery or samples thereof are to be returned to Baier Technik – if economically justifiable. Transport and travel costs incurred in connection with the rectification of defects shall be borne by the contractual partner.
The contractual partner is obliged to enable Baier Technik to immediately determine the defect.
The warranty is excluded if the technical systems of the contractual partner such as supply lines, cabling, etc. are not in technically perfect and operational condition or are not compatible with the delivered items, insofar as this circumstance is causal for the defect. The warranty obligation of Baier Technologies also ceases to apply if operating or maintenance instructions are not followed, and/or a connection is made to unassessed assembly constructions or cabling and power systems, unauthorized changes are made, parts are replaced or replaced that do not correspond to the original specifications or put excessive strain on the goods.
No defect shall be justified by the fact that the work is not fully suitable for the agreed use if this is based exclusively on deviating factual circumstances from the information available to us at the time of the provision of the service, because the contractual partner does not comply with his obligations to cooperate in accordance with point 3.
22.Liability of Baier Technik
The liability of Baier Technik is excluded for damage caused by improper handling or storage, overuse, non-compliance with operating and installation instructions, incorrect assembly, commissioning, maintenance, servicing by the contractual partner or third parties not authorized by Baier Technik, or natural wear and tear, provided that this event was causal for the damage. Likewise, there is the exclusion of liability for omission of necessary maintenance, unless Baier Technik has contractually assumed the obligation to maintain.
Baier Technik is not liable for indirect damages, lost profits, interest losses, omitted savings, consequential and financial losses and damages arising from claims of third parties.
The exclusion of liability also includes claims against employees, representatives and vicarious agents of Baier Technik due to damage that they inflict on the contractual partner – without reference to a contract on their part with the contractual partner.
Due to violation of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., Baier Technik is only liable for property damage and financial damage in cases of intent or gross negligence, this due to the technical peculiarities.
If and to the extent that the contractual partner can claim insurance benefits for damages for which Baier Technik is liable through his own or in his favoured non-life insurance (e.g. liability insurance, hull, transport, fire, business interruption and others), the contractual partner undertakes to make use of the insurance benefit and the liability of Baier Technik is limited to the disadvantages caused to the contractual partner by the Use of this insurance arises (e.g. higher insurance premium).
The exclusions and limitations of liability made in this point also apply with regard to damage to an item that Baier Technik has taken over for processing.
The contractual partner must prove that the damage is due to a fault of Baier Technik.
Claims for damages must be asserted in court within two years in the event of other forfeiture.
Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
Instead of the invalid clause, such a substitute provision shall be deemed to have been agreed which most closely corresponds to the invalid clause.
Austrian law shall be deemed to have been agreed, to the exclusion of the conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
Unless otherwise agreed in writing, the place of performance is the registered office of Baier Technik (Neumarkt am Wallersee).
The place of jurisdiction for all parties arising from the contractual relationship or future contracts between Baier Technik and the contractual partner is the court with material and local jurisdiction for Neumarkt am Wallersee.
Changes or additions to a contract must be made in writing. This also applies to the change of the written form requirement.