1. G E N E R A L A N D S C O P E
1.1 These General Terms andConditions ("GTC") shall apply to all services between The PowerCompany Energy Systems GmbH (hereinafter also referred to as "TPC" or"we") and the customer (also referred to as "you") - jointly also referred to as "contracting parties".
1.2 The services offered by TPC are generally contracts for work and services in return for payment for the planning of electrical installations and/or rental contracts under which the agreed materials are made available to the Customer for use for the agreed period in return for payment.
1.3 The following contractual and business terms and conditions shall apply to the legal relationship between the contracting parties in the following order:
a. the offer on which the respective individual contract is based;
b. these general terms and conditions.
1.4 Notwithstanding the above order, general terms and conditions other than those of TPC shall not apply unless TPChas expressly approved their application in writing. This shall also apply in the event that the customer bases the business transaction on his own GeneralTerms and Conditions.
1.5 Contracts are generally only concluded on the basis of these GTC. The version valid at the time of conclusion of the contract is decisive.
1.6 In the event of an ongoing business relationship, these GTC shall become an integral part of the contract even if no express reference is made to them in the individual contract.
1.7 The customer will be notified of any changes to the General Terms and Conditions (GTC) and these will be deemed to have been agreed if no objection is received within 14 days. The Customer will be expressly informed of the importance of silence in the respective notification of the change.
1.8 In the event of discrepancies between the German and English versions, questions of interpretation or other cases of doubt, the German version of these GTC shall apply.
2. SERVICES, DEADLINES AND DELAY
2.1 The following packages are offered by TPC as part of the provision of services:
a. Collection and return by the customer:TPC shall keep the items agreed in the quotation available at TPC's registered office, which shall be collected and returned by the Customer independently.
b. Delivery and collection by TPC: TPC shall deliver the items agreed upon in the quotation to the agreed upon location at the agreed upon time and subsequently collect them from there.
c. Delivery and collection by TPC including assembly and disassembly: TPC shall deliver the items agreed upon in the offer to the agreed upon location at the agreed upon time, assemble them in accordance with the agreement and dismantle them prior to collection.
d. Delivery and collection by TPC including assembly and disassembly as well as additional services: TPC shall deliver the items agreed in the quotation to the agreed location at the agreed time,assemble them in accordance with the agreement and dismantle them again prior to collection. In addition, TPC shall provide the individual additional services agreed in the quotation.
2.2 TPC shall be entitled to make partial deliveries by agreement with the customer.
2.3 The period for performance of services by TPC shall commence at the earliest upon receipt of all commercial and technical information. Subsequent requests for changes and/or additions shall extend this period appropriately.
2.4 The customer must accept minor overruns of performance deadlines without this causing the consequences of default.
2.5 In the event of a material delay in performance by TPC, the customer may continue to perform the contract or with draw from the contract by granting a reasonable grace period. If TPC has already performed partial services, the customer shall only be entitled to withdraw from the contract with regard to outstanding partial services.
3 COST ESTIMATES
3.1 Cost estimates are generally not binding. It should be noted that, unless otherwise agreed, TPC shall be entitled to invoice changes to orders or additional orders that are within the sphere of responsibility of the Customer at reasonable prices.
3.2 Cost estimates are always against payment. However, if the Customer places an order with us on the basis of a cost estimate and the cost of the cost estimate is less than 10 % of the total order value, TPC shall credit the Customer with the amount paid for the cost estimate.
4 PRICES AND PAYMENT CONDITIONS
4.1 In case of doubt, all prices are quoted in Euro and net, i.e. plus the respective statutory value added tax.
4.2 The price stated in the offer only covers the services described in the offer. Subsequent changes to services, the cause of which lies in the Customer's sphere (e.g. failure to provide advance services or incorrect information provided), will be invoiced additionally at reasonable prices.
4.3 The price stated in the offer only covers the services described in the offer. Subsequent changes to services, the cause of which lies in the Customer's sphere (e.g. failure to provide advance services or incorrect information provided), will be invoiced additionally at reasonable prices.
4.4 Discounts or other deductions are expressly excluded.
4.5 The customer shall not been titled to set off against claims of TPC.
4.6 TPC is entitled to withhold its services and in particular the rented items if payment is not made on time.
4.7 In the event of default of payment, 14% interest shall be payable. This claim also includes compound interest. In addition, the Customer shall be obliged to reimburse all reminder and collection charges incurred by TPC as a result of the default in payment.Irrespective of the assertion of any further claims, this shall in any case include EUR 40,- as compensation for collection costs pursuant to § 458 UGB.Furthermore, TPC shall be entitled to declare all outstanding claims due and/or demand the provision of security.
5 RIGHTS AND OBLIGATIONS OF THE CUSTOMER
5.1 Unless expressly agreed otherwise in writing, the customer undertakes to obtain all necessary permits of any kind whatsoever himself.
5.2 In the event that the Purchaser acts as a representative of a natural or legal person, this representative relationship must be disclosed at the time of the order, stating the full name and address of the Purchaser.
5.3 The Customer undertakes to be present at the agreed place of delivery at the agreed time of delivery by at least one person authorised to represent theCustomer in order to accept delivery by TPC and to confirm receipt of the individual rented items. Should the customer fail to do so, TPC reserves the right to terminate the contract prematurely (clause 6.1.b.), or to carry out the delivery and subsequently send the confirmation of receipt of the individual rented items to the customer, in which case this shall be deemed to have been approved by the customer. In the event that delivered rented items are not returned to TPC in accordance with this confirmation, for example due to shrinkage or damage, the items concerned shall be replaced at their current replacement value.
6 RIGHT OF WITHDRAWAL
6.1 TPC may terminate the contractual relationship prematurely for good cause and/or refuse to provide its own services. Such important reasons are above all:
a. if the customer fails to make prescribed part payments by the agreed date at the latest;
b. if the customer does not accept delivery and confirm receipt of the individual rented items in accordance with clause 5.3;
c. if the Customer makes significantly disadvantageous or damaging use of the rented items;
d. if the Customer's assets have been subject to unsuccessful execution or the Customer has suspended payments;
e. if the customer has moved his company or residence abroad;
f. if the customer seriously violates provisions of the contract concluded with him, and in particular the provisions of these General Terms and Conditions of Business.
6.2 In the event of justified premature termination of the contract (this also applies to the rental contract) or failure to provide services, the customer shall pay the agreed remuneration in full.
7 RETENTION OF TITLE
7.1 In the case of contracts of sale or contracts for work and services, TPC shall retain title to the goods or items delivered until the agreed remuneration has been paid in full. This shall also apply in the event that the goods or items have been installed, fitted or otherwise processed. In the event of default of payment, TPC shall be entitled to take back such goods or items without further notice after granting a 14-day grace period. In such a case, the customer shall bear the costs of the retrieval.
8.1 In case of justified defects, the warranty is limited to improvement or replacement. Several subsequent improvements and replacement deliveries are permissible. Claims for redhibitory action and price reduction are excluded. In the event of improvement or replacement, the period for asserting claims shall not begin to run again.
8.2 The warranty shall expire if the customer or a third party not approved by TPC makes unauthorized modifications or attempts to improve products supplied by TPC.
8.3 The existence of defects must beproven by the customer. § 924 ABGB is expressly waived.
9.1 The customer undertakes to fully indemnify and hold TPC harmless in the event of any violation of the provisions of this contract and in particular to reimburse TPC for costs of legal enforcement against third parties arising in connection with obligations arising from the contractual relationship. For this purpose, the customer shall also take out insurance in accordance with the offer.
9.2 Unless otherwise provided for in the respective individual contractual offer (see item 1.3), TPC shall be liable for compensation for damage culpably caused by TPC. TPC shall not be liable for slight negligence. In the event of gross negligence, liability shall be limited to the value of the agreed remuneration. Limitations of liability shall not apply to compensation for personal injury. In any case, claims for damages shall only cover the pure repair of damage. TPC shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, other consequential damage and damage resulting from claims of third parties.
9.3 The Customer shall provide evidence that any damage incurred by him is due to the fault of TPC. This shall apply to all forms of fault.
9.4 Claims for damages must be asserted in court at the latest within six months after knowledge of the damage and the injuring party, otherwise they will expire.
9.5 TPC shall not assume any liability for machine or material breakage.
9.6 In the case of contracts for work and services, TPC shall not be liable if the customer insists on a certain degree of implementation despite having fulfilled its warning obligations.
9.7 If complete disclosure of a possible representative is not made (see item 4.2 of these General Terms andConditions), even if the name given is incomplete, the customer shall be fully liable for all claims of TPC against the person represented by him.
9.8 In the event that TPC exercises its right to withdraw from the contract in accordance with clause 6.1 b of these General Terms and Conditions, a contractual penalty amounting to 50% of the remuneration owed under the contract shall be deemed agreed.
10 TRANSFERS OF USE
10.1 Insofar as the contracts concluded with TPC concern the rental of items thatTPC makes available to its customers, the following special provisions (10.1 -10.14) shall apply in addition.
10.2 The rental period begins at the time of the agreed collection of the rented items from TPC's warehouse or delivery and ends at the time of return.
10.3 The prices invoiced by TPC shall be calculated - depending on the agreement - on the basis of days, weeks or months and shall be payable for each time unit commenced. If the rented item is collected prematurely or returned late by the Customer, a usage fee shall be payable for the period between collection and the agreed commencement of the rental period and/or between the agreed end of the rental period and the actual return of the rented item toTPC's warehouse.
10.4 The rental fee only covers the use of the non-consumable materials(rental objects). Consumable materials are to be replaced separately. In particular, if generators are rented out, these are handed over to the customer with fully filled diesel fuel tanks and must be returned by the customer with fully filled diesel fuel tanks. If the diesel fuel tanks are not fully filled or other consumables are not returned in the quantity and quality in which they were handed over, these missing consumables and/or the missing diesel fuel must be replaced separately in accordance with the current price list of TPC.
10.5 TPC shall make the rented items available to the Customer in good and proper condition. Upon acceptance of the rented item, the Customer shall satisfy itself that it is in good condition and complete and shall notify TPC immediately of any defects, giving a precise description of the defect. If no such immediate and concrete complaint is made, the Rental Goods shall be deemed to have been irrefutably accepted and approved in good order.
10.6 In the event of timely notification of defects, TPC shall make an attempt at improvement or replacement as soon as possible. In such a case, rent reductions or exemptions in the sense of § 1096 ABGB (Austrian Civil Code) shall be contractually excluded.
10.7 The Customer shall treat the rented items provided to him with care and in a professional and proper manner and may only use the rented items for the agreed purpose and to the agreed extent. Unless expressly agreed otherwise in writing, prices for generators are rented either - for standby operation, which includes a maximum actual operating time of 2 hours per week, - for a maximum operating time of 60 hours per week or - for continuous operation. If one of these operating time values is exceeded, TPC will charge the rental fee for the next higher operating time category.
10.8 The customer is not entitled to change rented items, even if only their visual appearance. In particular, the Customer shall not be entitled to alter, cover or remove nameplates or other markings of TPC affixed to the rented items. Any alterations to the rented items are not permitted, in particular cutting or stripping cables or removing plugs or changing connections. Cables may only be used in the lengths supplied. The rented items must be returned in proper condition and, in the case of cables, in a rolled up condition. Any packaging supplied must also be returned undamaged.
10.9 The Customer undertakes to return to TPC all rented items accepted by him. This shall be based on the confirmation of acceptance of the individual rented items signed by theCustomer upon delivery by TPC or the confirmation of acceptance subsequently sent to the Customer (clause 5.3).
10.10 The Customer shall be liable for any damage to the Rental Goods that exceeds normal wear and tear, including accidental damage or accidental loss of the Rental Goods. This liability shall begin when the Rental Goods are taken over by the Customer and shall end when the Rental Goods are returned to TPC. Lost or damaged RentalGoods shall be replaced at the replacement value of a similar, new RentalGoods. If lamps have burnt out due to normal wear and tear, they shall be returned. Otherwise, their replacement price shall also be reimbursed. This shall also apply in the event of damage caused by pressure or over voltage.
10.11 Rental objects must be properly insured, in particular against damage and theft. The Customer shall be free to choose whether to take out insurance cover for the rented items or to have them insured by TPC itself.
10.12 The Customer shall be responsible for transporting the rented items from TPC's warehouse to the place of use. If TPC assumes responsibility for transport on the basis of an express written agreement, a corresponding separate fee shall be payable in accordance with TPC's current price lists or in accordance with the written agreement reached.
10.13 The customer shall protect the rented item against access by third parties and disclose TPC's ownership in any enforcement or insolvency proceedings and notify TPC immediately in writing. TPC shall be entitled to access the rented items at any time. The rented goods may only be transferred to third parties with the express written consent of TPC.
10.14 The customer shall bear the risk of a suitable installation site for the rented materials. This shall also apply if TPC is responsible for transport. In this case, the Customer shall be responsible for providing a freely accessible and sufficiently paved access road and a suitable installation site for the rented materials. Any responsibility on the part of TPC for this is expressly waived.
11.1 Both TPC and the Customer shall be obliged to comply with the provisions of the Data Protection Act (DSG), the Basic Data Protection Regulation (DSGVO)as well as any other statutory confidentiality obligations.
11.2 TPC processes the personal data required for the purpose of fulfilling the contract. More detailed information on this can be found in the DataProtection Declaration, available under XXX.
12 FINAL PROVISIONS
12.1 The contractual language is German.
12.2 Austrian law shall apply between TPC and the Customer to the exclusion of the referral norms of international private law (e.g. IPRG and ROM I-VO) and the UN Sales Convention.
12.3 Invoices are payable and actionable in Vienna. Disputes arising from orin connection with the contractual relationship shall be decided exclusively bythe competent court in Vienna.
12.4 The invalidity of a provision shall not affect the validity of the remaining provisions of these GTC. In place of the ineffective provision, whereby in case of doubt the ineffectiveness is to be assumed as closely as possible, a provision that comes as close as possible to the economic meaning of the ineffective provision shall be deemed agreed.
12.5 Contract amendments due to conclusive conduct on the part of TPC or its employees cannot be made. It is agreed that a written declaration of consent byTPC is required for this to be effective; this shall also apply to any waiver of this formal requirement.
12.6 TPC shall be entitled to send the Customer legally effective declarations at the address last known to TPC which shall be deemed to have been received by the Customer, unless TPC is aware of a new address of the Customer.
The assignment of individual rights and obligations under these GTC and the Contract shall only be permitted with the express written consent of TPC.
13.1 Invoices are delivered electronically in the form of a PDF file bye-mail. The current e-mail address, which can be used as delivery address for invoices, is requested to be provided at: firstname.lastname@example.org. Otherwise, delivery will be made to the last known address.
14.1 The Power Company Energy Systems GmbH
A-2384 Breitenfurt, Austria
Telefon: +43 2239 34777 0
Telefax: +43 2239 34777 50