AGB
General Terms and Conditions
1. Validity
1.1 These General Terms and Conditions shall apply to all deliveries made by "calimax" Energietechnik GmbH to the buyer.
They shall also be valid for all future commercial transactions, even if no specific reference is made to these conditions of sale and delivery.
1.2 Any additional or modifying conditions, in particular the general terms and conditions of the buyer or any oral agreements, shall only be binding when they have been confirmed in writing by "calimax" Energietechnik GmbH.
2. Quotations
Quotations of „calimax“ Energietechnik GmbH are only binding if they include an acceptance deadline.
3. Items to be supplied
The order confirmation shall define the scope and specification of the delivery.
4. Technical details and documentation
4.1 Technical documents of "calimax" Energietechnik GmbH such as drawings, specifications and images – as well as any details on dimensions, specifications or weights – are for information purposes only and do not imply any contractual warranty.
"calimax" Energietechnik GmbH reserves the right to make any changes which result from technical advances in the field.
4.2 All technical documents remain the intellectual property of "calimax" Energietechnik GmbH and may only be used for the agreed purposes, or as authorized by "calimax" Energietechnik GmbH
The buyer must inform "calimax" Energietechnik GmbH of any requirements - local, legal or otherwise - which affect the shipment of the delivery, as well as of any safety regulations or permit requirements that must be complied with.
6. Price
6.1 The prices are, unless otherwise agreed, strictly net ex-works, and include standard packing. The buyer shall bear any further costs such as freight charges, insurance, export, transit, import or other permit fees as well as certificates. The buyer shall also bear all taxes, expenses, fees and duties.
6.2 If the cost of packaging, freight, insurance, taxes or other additional charges are included in the offer price or the delivery price, or are shown separately in the quotation or order confirmation, "calimax" Energietechnik GmbH reserves the right to adjust these prices in accordance with any changes in the relevant tariff.
7. Terms of payment
7.1 The buyer shall make payment to the issuing "calimax" Energietechnik GmbH. Payments are to be made net of any deductions (such as discounts, expenses, taxes and fees), and in accordance with the agreed conditions of payment.
7.2 The buyer shall only be entitled to set-off costs and the right of retention with respect to claims that are either undisputed or legally established. Payment is also to be made if non-essential items, which do thereby make it impossible to use the goods delivered, are missing.
7.3. “calimax” Energietechnik GmbH reserves the right to withdraw from the contract in the event of a worsening of the buyer’s credit rating.
7.4 If the buyer defaults on the payment, default interest of 10% above the basic interest rate of the Austrian National Bank shall apply.
8. Retention of title
8.1 "calimax" Energietechnik GmbH shall remain the owner of the goods supplied until the purchaser has made all payments in full.
8.2 The ownership of the goods supplied to the buyer shall remain with the "calimax" Energietechnik GmbH in the inner relationship until payment in full for all the goods has been received by the "calimax" Energietechnik GmbH. The rights of the buyer resulting from the disposal, together with all ancillary right, securities and retention of title, shall be transferred to "calimax" Energietechnik GmbH.
8.3 If the value of the retention goods together with the securities otherwise provided to “calimax“ Energietechnik GmbH exceeds the “calimax” Energietechnik GmbH’s claims against the buyer by more than 20 %, “calimax” Energietechnik GmbH is obliged to release the part of the retention goods whose value together with the securities otherwise provided exceeds “calimax” Energietechnik GmbH’s claims to this extent; however, it is only obliged to do this if this is requested by the buyer.
8.4 In the event of behaviour contrary to contract by the buyer, in particular delay of payment, "calimax" Energietechnik GmbH shall be entitled, after a reminder for overdue payment, to repossess the retention goods and the buyer shall be obliged to facilitate such repossession. In such a case, “calimax” Energietechnik GmbH is optionally also entitled to revoke the entire order or from the part of the order affected by the behaviour contrary to the terms of the contract. In such case, “calimax” Energietechnik GmbH is entitled to assert liquidated damages in the amount of 10 % of the contract price concerned, unless “calimax” Energietechnik GmbH furnishes documentary proof that greater damage has been incurred. Judicial discretion to mitigate the liquidated damages is expressly excluded.
9. Delivery
9.1 The delivery time shall commence as soon as the contract is concluded, all official formalities such as import permits and payment authorizations have been received by “calimax” Energietechnik GmbH, and agreement exists on the essential technical points. The delivery shall be considered as complied with if the delivery is ready for shipment on the agreed date.
a) if information required for the completion of the order is not submitted to "calimax" Energietechnik GmbH in time, or if it is subsequently altered by the buyer, thus delaying the delivery;
b) if force majeure prevents „calimax“ Energietechnik GmbH from completing delivery. Force majeure shall be considered as unforeseeable circumstances not falling within „calimax“ Energietechnik GmbH’s sphere of responsibility, which make the delivery unreasonably difficult or impossible for „calimax“ Energietechnik GmbH to carry out, such as delays in delivery or defective supplies from the intended upstream suppliers, labour disputes, official measures, shortage of raw materials or energy supplies, major interruptions of operations, for example through the destruction of the entire operation or key departments or through the breakdown of indispensible manufacturing plants, serious transport disruptions, e.g. through road blockades. If this situation lasts for more than six months, either party shall be entitled to withdraw from the agreement. Claims for damages by the buyer are excluded;
c) if the buyer is in arrears with the duties he has to perform or in the fulfilment of his contractual obligations, in particular if he does not comply with the payment conditions.
9.3 If „calimax“ Energietechnik GmbH overruns a reasonable delivery deadline, „calimax“ Energietechnik GmbH shall not be deemed to be in default until the buyer has set „calimax“ Energietechnik GmbH in writing a reasonable extension of time, which must be at least one month and this must also have fully expired. The buyer can then withdraw from the contract. Claims for damages from the buyer are excluded, except in cases of intent or gross negligence on the part of „calimax“ Energietechnik GmbH.
9.4 If the buyer fails to accept promptly shipments that are ready for despatch, „calimax“ Energietechnik GmbH shall be entitled to store the goods concerned at the Buyer’s cost and risk and to invoice as delivered.
9.5 Partial deliveries are permitted. „calimax“ Energietechnik GmbH can issue invoices for partial deliveries.
9.6 If "calimax" Energietechnik GmbH does not insist on contractual performance, liquidated damages amounting to 10 % of the contract price shall be paid by the buyer in the event of an annulment of the contract, unless "calimax" Energietechnik GmbH can prove more substantial damages. Judicial discretion to mitigate the liquidated damages is expressly excluded.
10. Packaging
If the goods are supplied with additional non-standard packaging, the extra packaging – which is not returnable – will be invoiced separately. The decision about additional or special packaging shall be solely incumbent on „calimax“ Energietechnik GmbH.
If the goods are to be delivered in Austria the ARA disposal charges will be paid by „calimax“ Energietechnik GmbH. The buyer shall pay any disposal costs for goods shipped outside Austria.
11. Transfer of risk
11.1 All risk transfers to the buyer as soon as the delivery leaves the „calimax“ Energietechnik GmbH factory, also when the shipment includes carriage, is subject to similar clauses or includes installation, or when the transportation is organized and managed by „calimax“ Energietechnik GmbH.
11.2 In the event of shipment being delayed due to causes that are not attributable to „calimax“ Energietechnik GmbH, all risk is transferred to the buyer with the informing of the readiness for despatch.
12. Transport and insurance
12.1 Shipping shall be at the buyer’s expense, unless otherwise agreed.
12.2 The buyer shall be responsible for insurance against damage of any kind. Even if the insurance has been arranged by „calimax“ Energietechnik GmbH, it shall be regarded as provided on behalf and for the account of as well as at the risk of the buyer.
12.3 „calimax“ Energietechnik GmbH shall be informed in good time of any special requests regarding shipping and insurance. Otherwise shipping will be carried out according to the estimation – but without accepting liability – of „calimax“ Energietechnik GmbH by the fastest and most cost-effective means possible.
In the event of post-paid deliveries, the handling of the shipment processing shall continue to be the responsibility of „calimax“ Energietechnik GmbH. The buyer shall be responsible for any extra costs resulting from this requirement.
12.4 In the event of the goods suffering loss or damage in transit the buyer must make a note to this effect on the delivery documentation and submit a written report to the carrier without delay.
The notification of even non-obvious transport damage and also concealed defects must take place verifiably and in writing without delay, however no later than within five days after the receipt of the goods, both to the carrier as well as to „calimax“ Energietechnik GmbH. If this duty to notify is violated, „calimax“ Energietechnik GmbH shall be released from all liabilities and obligations to pay compensation.
13. Checking and acceptance of delivery
13.1 „calimax“ Energietechnik GmbH carries out quality control inspections to the industry standards on the goods during manufacturing in the factory. If the buyer requires further inspections, these are to be agreed to in writing and paid for by the buyer.
13.2 The buyer shall check the delivery within a reasonable period of time and inform „calimax“ Energietechnik GmbH immediately in writing of any discrepancies, however, at the latest within five days. If not, the shipment shall be deemed to be accepted.
14. Warranty
14.1 „calimax“ Energietechnik GmbH undertakes, at the buyer’s written request, to deliver replacement goods for all parts of its delivery, apart from wear-and-tear parts (combustion chamber equipment, seals, grates, ignition elements), which verifiably become defective or unusable as a result of defective material. The parts replaced under a warranty shall become the property of „calimax“ Energietechnik GmbH. All documents necessary for clarifying the warranty, such as delivery notes or invoices to end customers must be presented at the request of „calimax“ Energietechnik GmbH.
14.2 „calimax“ Energietechnik GmbH also undertakes to assume the repair costs for the parts stated under Point 14.1 if the furnace is operated in Austria, Germany or Switzerland and a paved, cleared and safe access road exists. In addition, an explicit commissioning by „calimax“ Energietechnik GmbH shall be required. „calimax“ Energietechnik GmbH is in principle free to determine the company performing this service by itself. Work and services that arise on account of an installation not conforming to the specifications of „calimax Energietechnik GmbH or through a failure to observe agreed customer service dates must be borne by the buyer.
14.3 In the case of items manufactured according to specifications, drawings or models provided by the buyer, the warranty provided by „calimax“ Energietechnik GmbH shall be limited to the quality of the materials supplied and the workmanship applied to them. The legal duty to send warning notices regarding the details, drawings as well as any other information delivered by the buyer is expressly excluded.
14.4 The warranty does not cover damage caused by normal wear and tear, incorrect storage or maintenance, failure to observe the operating instructions, excess loads, the use of unsuitable consumables, improper use, unauthorized manipulation by the customer or third parties, the use of non-original spare parts, or resulting from reasons not attributable to „calimax“ Energietechnik GmbH.
In the case of major components from third parties, „calimax“ Energietechnik GmbH only accepts warranty liability insofar as it lies within the warranty liabilities of the corresponding subcontractor.
14.5 Warranty obligations and liability expire 24 months after receipt of the goods by the end user, and at the latest 30 months after despatch of the shipment from „calimax“ Energietechnik GmbH. For spare parts or furnaces required, „calimax“ Energietechnik GmbH shall assume a warranty of 6 months as of the departure of the goods at the „calimax“ workplace.
15. Liability (exclusion of any compensation for damages)
15.1 Claims for damages by the buyer for legal reasons, in particular liability in tort, manufacturer’s liability, incorrect advice, poor contractual performance, omission on completion of the contract, impossibility of performance, or slight negligence, are excluded.
This exemption from liability shall not apply to liability that is independent of fault, in particular missing warranted qualities, characteristics, and product defects covered by product liability legislation.
15.2 „calimax“ Energietechnik GmbH’s liability for pecuniary losses and material defects is expressly excluded, unless this exclusion is opposed by a legal liability obligation.
16. Place of Performance and Jurisdiction
16.1 It is agreed that Altach / Austria is the place of performance.
16.2 Exclusive court of jurisdiction shall be Feldkirch. However, „calimax“ Energietechnik GmbH shall be entitled to take legal action in the courts of the buyer’s registered place of business.
16.3 The contractual relationship shall be subject to Austrian law. The application of UN Sales Law shall be considered to be excluded.
„calimax“ Energietechnik GmbH, 6844 Altach/Austria / january 2011
