GENERAL TERMS AND CONDITIONS OF Hi-Systems Sicherheitstechnik GmbH
I. General Terms and Conditions:
- Application: The current version of our GTC, which is available on our website www.hi-systems.at under the 'GTC'S', shall apply on the date of the conclusion of the contract. Our contracts, deliveries and services are exclusively based on the following terms and conditions. Deviations from these, including supplements or ancillary agreements, shall only be binding on us if we confirm them in writing. Any terms and conditions of the buyer are hereby expressly and completely contradicted; this also applies if we no longer contradict a later contract document in which reference is made to other terms and conditions.
- Prices and terms of payment: The prices stated are those valid at the time of conclusion of the contract and, in case of doubt, are exclusive of value added tax. We are entitled to increase our prices if a change in the circumstances on which the calculation of the prices is based has occurred by the time of delivery. This shall apply in particular in the event of price fluctuations, wage increases or in cases of subsequent introduction or increase of taxes, customs duties, public charges, freight and other ancillary charges by which our delivery is directly or indirectly affected or made more expensive. In the absence of other agreements, all prices are ex our warehouse or factory, depending on the delivery.
Due to our cooperation with a credit insurance, the following conditions apply to first orders up to a total gross balance of 6.000,-- €: if the amount of the first order is up to 1.000,-- €, this amount is to be paid as advance payment. If the amount of the first order is more than 1.000,-- € 30 % are due as advance payment. Subsequent orders will be processed according to agreed payment conditions. If the total balance exceeds 6.000,-- € gross, we have to wait for a credit check of the buyer as well as its positive approval by our credit insurance before delivering the goods.
We accept bills of exchange only on the basis of express agreement and only on account of payment. Charges and fees shall be borne by the buyer. Payments by bank transfer shall be deemed effected on the day on which the amount is credited to our account. Credits from bills of exchange and checks shall be made less expenses subject to receipt with value date of the day on which we can dispose of the countervalue. In the event of delayed payment, we shall charge bank interest of at least 9.58% p.a. including value added tax and all incoming and lawyer's reminder charges. We are also entitled to charge compound interest. If these terms of payment are not complied with, in particular if we are denied access to ascertain our existing goods or information about third party sellers, or if we become aware of circumstances after conclusion of the contract which are likely to reduce the creditworthiness of the buyer, all our claims shall become due immediately and we shall be entitled to carry out all our deliveries, including those from other contracts, only against advance payment or to withdraw from the contract and to claim damages for non-performance. In the event of default in payment, the Buyer shall also be obliged, at our request, to provide us with security for all outstanding claims by assigning outstanding and collectible claims or by granting liens on other assets or in any other suitable manner. If installment payments are agreed, the entire outstanding amount shall become due immediately in the event of non-payment of even one installment. In the case of installment agreements, interest shall be paid from the falling principal. Payments received shall first be credited to costs (expenses), then to interest (incl. VAT) and then to the capital. Furthermore, we have the right to issue a binding declaration of dedication within 4 weeks after receipt of payment, otherwise payments will be credited against the oldest invoices. - Ownership: The goods delivered by us remain our unrestricted property until full payment of the invoice including interest on arrears and reminder charges. Treatment or processing of our goods is carried out under exclusion of the acquisition of ownership according to 415 ABGB for us, but without obligating us. If the unpaid goods or parts thereof are no longer available for any reason, other goods delivered by us and already paid for by the customer shall also become our property again. Our retention of title shall also extend to the item transformed by processing. If our goods are processed or combined (blended or joined) with other items not belonging to us, we shall acquire co-ownership of this new item in the ratio of the value of our goods to that of the other processed or combined item at the time of processing or combination. Our retention of title extends to the new item. If this new item is also no longer available, our retention of title shall also extend to all other goods and possessions of the debtor. The selection of the goods to which our reservation of title is transferred in this case shall be left exclusively to the company Hi-Systems Sicherheitstechnik GmbH. The Buyer shall be obliged to carefully store the goods subject to retention of title for us until payment of our claims. The Buyer may only sell our property in the ordinary course of business and as long as he is not in default. In doing so, he shall be obliged to agree retention of title with the third party purchaser and shall assign it to us already now. He shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security. We shall be entitled at any time to enter the premises of the purchaser in order to ascertain our goods subject to retention of title and to mark them. Claims against third parties arising from the resale of the goods subject to retention of title, whether raw, processed or combined, shall be assigned to us by the Buyer here and now with all ancillary agreements up to the amount of the purchase price claims to which we are entitled, including interest and costs, on account of payment, irrespective of whether the goods subject to retention of title are sold to one or more customers without or after processing or combination. At our request, the purchaser shall be obliged to notify his customer of the assignment without delay and to provide us with the information and documents required for collection. We shall be entitled at any time to notify the latter of the assignment of the claim. As long as the buyer meets his payment obligations to us, he is authorized until revoked to collect the claims assigned to us from the resale; on the other hand, he may not dispose of such claims by assignment or pledge, but must immediately forward the proceeds to us up to the amount of our purchase price claim. If the reserved goods are used by the buyer to fulfill a contract for work and services or a contract for work and materials, the above provisions shall apply mutatis mutandis. The buyer is obliged to inform us immediately of any seizure or other impairment of our ownership of the reserved goods by third parties. The right to assert the reservation of title to delivered goods shall remain unaffected, even if we should carry out execution against the goods subject to reservation of title. We shall be entitled to simultaneously demand performance of the contract and surrender on account of retention of title. We shall be entitled to take the goods subject to retention of title from the purchaser until full payment has been made and to sell them on the open market while maintaining the contract. In this case we shall set off the proceeds, less our expenses, against the purchase price claim. If a customer is insolvent, the manager or owner is liable, including interest on arrears and legal fees for all outstanding claims.
- Illegal export: Export by the buyer of goods not sold expressly for the purpose of export is prohibited. In the event of resale, the buyer is obliged to impose this obligation on his customer. In case of violation of this obligation, the buyer is obliged to pay us a penalty in the amount of 30% of the purchase price.
- Place of performance, jurisdiction and applicable law: The place of performance for all obligations of the buyer is Neulengbach. The place of jurisdiction for both parties to the contract for all business cases is Neulengbach, also for actions in bill of exchange and check proceedings. However, we are also entitled to file a suit at the general place of jurisdiction of the buyer. Austrian law shall apply to the present contract.
- The goods supplied by Hi-Systems Sicherheitstechnik GmbH only represent a form of preventive protection in that (assuming activation) an alarm is to be triggered in the event of intrusion into the respective monitored area.
However, the delivered goods cannot prevent a possible burglary, theft, robbery, etc.
II. Execution of the supplies:
- Delivery facility and delivery time: The choice of the facility or warehouse to be entrusted with the ordered goods is at our discretion, unless special agreements are made in this regard. We have no obligation to inform the buyer of the plant or warehouse chosen by us. The delivery period shall commence on the date of our written order confirmation. If there is no such confirmation, then with the day on which we accept the order. It is however suspended with the clarification of all details of the execution. Delivery times are always non-binding for us. They are conditioned by the delivery possibilities of our suppliers, for whose fault we are not responsible. However, we shall endeavor to meet promised deadlines as far as possible.
- An order shall be deemed accepted by the customer on our terms and conditions if no objection is raised in writing within 2 working days of dispatch of our order confirmation.
- Delivery or partial delivery shall be deemed to have taken place upon timely notification of readiness for dispatch. Goods ready for dispatch must be called off immediately, otherwise or in case of impossibility of dispatch we shall be entitled to invoice them as delivered ex warehouse or ex works and to store them at the buyer's expense and risk at our discretion. During the period of default in acceptance, the Buyer shall pay us a lump sum of 1% of the purchase price per month as compensation for the storage costs incurred without further proof. In addition, we shall be entitled to claim higher storage costs incurred. If the purchaser refuses to accept the delivery items after the expiry of a grace period set for him or declares that he does not wish to accept the goods, we shall be entitled to withdraw from the contract and to claim damages for non-performance. If the purchaser is in default with his obligations (e.g. procurement of documents, information, approvals, releases, provision of an advance payment), our delivery period shall be extended depending on the delivery possibilities of our upstream suppliers, but at least by the period of the purchaser's default. If we ourselves are in default, the purchaser must grant us a reasonable period of grace. After the expiry of this period, he may only withdraw from the contract if the goods have not been reported as ready for dispatch by the expiry of the period. Claims for damages due to non-performance or delayed performance are excluded, unless gross negligence on our part is proven. The buyer may not reject partial deliveries. The above provisions shall apply mutatis mutandis if fixed delivery dates or delivery periods have been agreed.
- Right of return: The right of return for purchased products is 14 days provided that the goods are returned complete, undamaged and in their original packaging. Cancellation is excluded when placing a special order.
- Events of force major: Events of force major as well as circumstances in general which make delivery impossible or uneconomical for us and our suppliers, or in any case substantially more difficult, e.g. cessation of operations, strike, lockout, import restrictions or similar official measures, mobilization, war, occupation by troops, disruption or blocking of the necessary routes, shortage of raw materials or goods shall entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period or to withdraw from the contract on account of the part not yet fulfilled.
- Dispatch: Dispatch route, means of transport and protection and packaging are left to our free choice under rejection of any liability. Special modes of transport and means requested by the buyer, we can charge separately. In case of return of wrong or too much ordered goods, a handling fee of 15% will be charged.
- Transfer of risk: The risk is transferred to the buyer when the goods are handed over to the forwarding agent or the person responsible for transport, even if we have agreed to deliver free to destination with our own or a third party's vehicle.
- Transport damage (loss/damage) must be reported to Hi-Systems Sicherheitstechnik GmbH immediately - at the latest within 3 days from the date of the delivery note. Upon signature on the proof of delivery, the goods shall be deemed to have been duly delivered.
- Warranty and compensation: If a material or manufacturing defect is proven, we will take back the defective goods and replace them with defect-free goods. However, we have the exclusive right to choose to fulfill warranty claims also by improvement or price reduction. The purchaser shall not be entitled to withdraw from the contract (redhibitory action). Our warranty obligation shall, however, extend at most to the scope of the warranty assumed by our suppliers for the individual delivery and only to the extent that they recognize the warranty claim. If the purchaser does not provide us with samples of the rejected material upon our request, the warranty claim shall lapse. In any case, such a claim shall become statute-barred one month after written rejection by us. In the case of 2nd choice material, used material and so-called occasional items, i.e. goods sold below the actual current price, the goods, whether accepted or not, shall be deemed to have been delivered and accepted in accordance with the conditions upon departure from the warehouse or factory. Any complaints regarding the quality and condition of such material are excluded. The buyer is obliged to inspect the goods immediately after their arrival in the most careful way, if necessary also with the help of an expert. Any defects must be reported by the buyer immediately upon receipt of the goods by registered letter. Defects which cannot be discovered during such an inspection must be notified immediately after their occurrence and any processing must be stopped immediately. However, even in the case of hidden defects, the warranty period shall end upon commencement of processing or machining, furthermore upon installation or relocation, but no later than three months after receipt of the goods. Claims for damages of any kind against us are excluded, unless we are proven to be grossly at fault. In any case, we shall only be liable for damages up to the amount invoiced for the goods. We are not liable for third parties or consequential damages, also not for pure financial losses, furthermore not for damages which are not acknowledged by the pre-supplier or covered by our liability insurance. If we provide ancillary services, e.g. provision of plans, tools, parts lists, specifications, the buyer is obliged to check these without delay. If the Buyer does not object to such documents within 8 days of receipt, they shall be deemed to have been approved. If documents of this kind do not originate from us, but from producers or from an expert or other third party, we shall not be liable for their fault, but only for fault in the selection of this third party (culpa in eligendo).
- Recourse: Waiver of recourse by the customer pursuant to § 933b ABGB. As a reseller, the customer shall receive a lump-sum specialist trade discount on all goods ordered and in return waives the rights to which he is entitled pursuant to § 933b ABGB (Austrian Civil Code), according to which he shall have a right of recourse against us in the case of warranties vis-à-vis consumers even after expiry of the warranty period.
- Warranty processing: In the event of warranty processing, an RMA form must be used, which can be requested from Hi-Systems Sicherheitstechnik GmbH under office@hi-systems.at.
- Any claims arising from warranty declarations or against individual manufacturers must be asserted by the customer exclusively against these manufacturers, since Hi-Systems Sicherheitstechnik GmbH only sells or circulates the goods of individual manufacturers as a dealer.
- Limitation of liability: Claims for damages of the customer, in particular due to delay, impossibility of performance, positive violation of claims, loss of profit, consequential harm caused by a defect, etc. are expressly excluded, unless there is intentional or grossly negligent action on the part of Hi-Systems Sicherheitstechnik GmbH.
The goods delivered by Hi-Systems Sicherheitstechnik GmbH merely represent a form of preventive protection in that (assuming activation) an alarm is to be triggered in the event of intrusion into the respective monitored area.
However, the supplied goods cannot prevent a possible burglary, theft, robbery, etc. - Copyrights: Insofar as software is included in the scope of delivery, it is provided to the purchaser solely for one-time resale, i.e. the purchaser may neither copy it nor provide it to others for use. A multiple right of use requires a special written agreement. In the event of a breach of this agreement, the purchaser shall be liable in full for the resulting damage.
- Product liability: Insofar as the provisions of the Product Liability Act are mandatory, they also form the basis of the present contract. The Buyer declares to be aware of all notices and warnings concerning the hazardous nature of the goods that have been published. They shall be considered as a warning by us. The buyer further undertakes to warn his buyers comprehensively and to impose the same warning obligation on them for the further contractual chain. Otherwise, the buyer shall indemnify and hold us harmless for any and all damages, based on any legal provisions whatsoever. The buyer waives recourse against us according to § 12 Product Liability Act. If the defect is caused by more than one party, the purchaser undertakes to claim first against the other parties responsible. If the buyer is an entrepreneur, claims for compensation for property damage are excluded. The Buyer undertakes to agree on this exclusion with his buyers as well and to impose the obligation to agree on further buyers, this with any other obligation to pay damages. The buyer undertakes to conclude an insurance contract in the sense of § 16 Product Liability Act and to claim this insurance before any recourse against us.
- Special orders: A return or cancellation of items that are not stock items is expressly excluded.
III. Other:
- Continuous contract: In the case of contracts with continuous delivery, call-offs and corresponding grade classification for approximately equal monthly quantities are to be issued to us. If call-offs or specifications are not made in good time, we shall be entitled, after setting a period of grace to no avail, to specify and deliver the goods ourselves or to withdraw from the part of the contract still in arrears or to claim damages for non-performance. (Cannot be held).
- Set-off and retention: The assertion of a right of retention in favor of the Buyer is expressly excluded, unless the Seller is a consumer within the meaning of the Consumer Protection Act. Set-off in favor of the Buyer is excluded. If the buyer is a consumer within the meaning of the Consumer Protection Act, the exclusion of set-off shall not apply to counterclaims that are legally related to the consumer's liability, have been established by a court or have been acknowledged by us in terms of reason and amount.
- Contracts for work and services and contracts for work and materials: All provisions of these Terms and Conditions shall also apply to contracts for work and services and contracts for work and materials.
