Status 2/2021
1. validity
1.1. These terms and conditions shall apply between us (Farm-ING Smart Farm Equipment GmbH) and natural persons and legal entities for the present legal transaction as well as vis-à-vis entrepreneurial customers also for all future transactions, even if in individual cases, in particular for future supplementary or follow-up orders, no express reference is made thereto.
1.2. For business customers, the version of our General Terms and Conditions valid at the time of conclusion of the contract, available on our homepage (www.farm-ing.at), shall apply.
1.3. We contract exclusively on the basis of our GTC.
1.4 Any terms and conditions of business of the customer or any amendments or supplements to our GTC shall require our express consent – in writing vis-à-vis entrepreneurial customers – in order to be valid.
1.5. The customer’s terms and conditions shall not be recognized even if we do not expressly object to them after receipt by us.
2. offer / 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 vis-à-vis entrepreneurial customers upon our written confirmation.
2.3. In catalogs, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media(information material), information about our products and services that is not attributable to us must 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 can comment on their accuracy. 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 for business customers.
2.4 Cost estimates are not binding.
2.5. Cost estimates are subject to payment. Consumers will be advised of the obligation to pay before the estimate is prepared. If an order is placed for all the services included in the cost estimate, the fee for the cost estimate shall be credited to the invoice in question.
2.6. Contract language and contract settlement language is German.
3. prices
3.1. Price quotations are in principle not to be understood as a lump sum price.
3.2. For services ordered by the customer, which are not covered by the original order, the customer is entitled to an appropriate fee.
3.3. The customer shall arrange for the proper and environmentally compatible disposal of old material. If we are separately commissioned to do so, the customer shall additionally pay for this to the extent agreed for this purpose, in the absence of an agreement on remuneration.
3.4. We are entitled of our own accord, as well as obligated at the request of the customer, to adjust the contractually agreed charges if changes of at least 3% occur with regard to
a) of the wage costs by law, regulation, collective agreement, company agreements or
b) other cost factors necessary for the performance of the service, such as material costs, have occurred since the conclusion of the contract due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. The adjustment shall be made to the extent that the actual production costs at the time of the 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.
3.5. The remuneration for continuing obligations is agreed as value-assured in accordance with the CPI2005, and the remuneration is adjusted as a result. The month in which the contract was concluded is taken as the starting point.
3.6. In the event of a change in costs, the fee for consumers as customers shall only be adjusted in accordance with Section 3.4 and in the case of continuing obligations in accordance with Section 3.5 in the event of individual contractual negotiations if the service is to be provided within two months of the conclusion of the contract.
4. goods provided
4.1. If equipment, parts or other materials are provided by the customer, we shall be entitled to charge the customer a surcharge of 5% of the value of the equipment, parts or material provided.
4.2. Such equipment, parts and other materials provided by the customer are not subject to warranty.
5. payment
5.1. One third of the fee is due upon conclusion of the contract, one third upon commencement of the service and the remainder after completion of the service.
5.2. The entitlement to a cash discount requires an express written agreement vis-à-vis entrepreneurial customers.
5.3. In the event of a delay in payment for which we are responsible, we shall be entitled to charge interest at a rate of 8 percentage points above the prime rate to consumers as customers; 9.2 percentage points above the prime rate to business customers (Section 456 of the Austrian Commercial Code).
5.4. We reserve the right to claim further damages for delay, however, vis-à-vis consumers as customers only if this is negotiated in detail.
5.5. If the entrepreneurial customer defaults on payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend the fulfillment of our obligations under this contract until the customer has fulfilled them.
5.6. We shall then also be entitled to call due all claims for services already rendered from the current business relationship with the customer. This applies to consumers as customers only in the event that an overdue service has been due for at least six weeks and we have unsuccessfully reminded the customer under threat of this consequence, setting a grace period of at least two weeks.
5.7. The customer shall only be entitled to set-off insofar as counterclaims have been established by a court or acknowledged by us. Consumers as customers are also entitled to a right of set-off insofar as counterclaims are legally related to the customer’s payment obligation, as well as in the event of insolvency of our company.
5.8. If the payment deadline is exceeded, any allowances granted (discounts, deductions, etc.) shall be forfeited and added to the invoice.
5.9. In the event of a delay in payment for which the customer is responsible, the customer undertakes to pay reminder charges of € 10 per reminder, insofar as this is in reasonable proportion to the claim pursued. Reminder fees of € 40,- will be charged to business customers (§458 ABGB).
6. credit check
6.1. The customer declares his explicit consent that his data may be transmitted to the state-preferred creditor protection associations AKV EUROPA Alpenländischer Kreditorenverband für Kreditschutz und Betriebswirtschaft, Creditreform Wirtschaftsauskunftei KubickiKG and Kreditschutzverband von 1870 (KSV) exclusively for the purpose of creditor protection.
7. cooperation obligations of the customer
7.1. Our obligation to perform shall commence at the earliest as soon as the customer has created all structural, technical and legal prerequisites for performance 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 due to relevant expertise or experience.
7.2. In particular, the customer shall provide, without being requested to do so, the necessary information on the location of concealed power, gas and water lines or similar devices, escape routes, other obstacles of a structural nature, boundary lines, other possible sources of interference, sources of danger as well as the necessary structural data and any projected changes in this respect before the start of performance. Order-related details on the necessary information can be requested from us.
7.3. If the customer does not comply with this obligation to cooperate, our performance shall not be deemed defective – exclusively with regard to the performance not fully given as a result of incorrect customer information.
7.4. The customer shall arrange for the necessary authorizations of third parties as well as notifications and approvals by authorities at his own expense. We point these out in the context of the conclusion of the contract, unless the customer has waived this or the entrepreneurial customer had to have such knowledge due to training or experience.
7.5. 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.
7.6. The customer shall provide us free of charge with lockable rooms for the stay of the workers as well as for the storage of tools and materials for the time of the performance of the service.
8. performance execution
8.1. Minor changes to our performance that are reasonable and objectively justified for the customer shall be deemed to have been approved in advance. This right only exists vis-à-vis consumers if it is negotiated on a case-by-case basis.
8.2. Partial deliveries and services that are objectively justified (e.g. progress of construction, size of plant, etc.) are permissible and may be invoiced separately.
9. performance deadlines and dates
9.1. In the event of force majeure, strike, unforeseeable delays on the part of our suppliers for which we are not responsible or other comparable events beyond our control, deadlines and dates shall be postponed for the duration of the event in question. This does not affect the customer’s right to withdraw from the contract in the event of delays that make it unreasonable to commit to the contract.
9.2. If the start of performance is delayed or interrupted due to circumstances attributable to the Customer, in particular due to a breach of the duties to cooperate pursuant to Section 7 of these GTC, performance deadlines shall be extended accordingly and agreed completion dates shall be postponed accordingly.
9.3. Delivery and completion dates are only binding for business customers if they have been agreed in writing.
10. delay in performance
10.1. In the event of a delay in the performance of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period. The grace period must be set in writing (by registered letter from the entrepreneurial customer) with simultaneous threat of withdrawal.
11. makeshift repair
11.1. In the case of makeshift repairs, there is only a very limited durability, depending on the circumstances.
12. transfer of risk
12.1. The risk for materials and equipment delivered by us and stored or assembled at the place of performance shall be borne by the customer. Losses and damage caused by the customer shall be borne by him.
13. default of acceptance
13.1. If the customer is in default of acceptance for longer than 2 weeks (refusal of acceptance, default in advance performance or otherwise), and if the customer has not ensured the elimination of the circumstances attributable to him, which delay or prevent the performance of the service, despite a reasonable grace period, we shall be entitled, if the contract remains in force, to dispose of the goods specified for the performance of the service. Dispose of equipment, parts and materials elsewherein case of continuation of the performance of the service, provided that we subsequently procure the same within a period of time appropriate to the respective circumstances.
13.2. In case of default of acceptance by the customer, we are also entitled to store the goods at our premises if we insist on performance of the contract, for which we are entitled to a storage fee in the amount of 3€/m2.
13.3. This shall not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.
13.4. In the event of a justified withdrawal from the contract, we may demand a lump-sum compensation from the customer in the amount of 10% of the order value plus VAT without proof of the actual damage. The obligation to pay compensation by an entrepreneurial customer is independent of fault.
13.5. The assertion of a higher damage is permissible. This right only exists vis-à-vis consumers if it is negotiated on a case-by-case basis.
14. retention of title
14.1. The goods delivered, assembled or otherwise handed over by us shall remain our property until payment has been made in full.
14.2. A resale is only permissible if we have been informed of this in good time beforehand, stating the name and address of the purchaser, and we consent to the sale.
14.3. In the event of our consent, the purchase price claim shall already now be deemed assigned to us.
14.4. If the customer is in default of payment, we shall be entitled to demand the return of the reserved goods after setting a reasonable grace period. We may only exercise this right vis-à-vis consumers as customers if at least one overdue payment of the consumer has been due for at least six weeks and we have reminded him unsuccessfully under threat of this legal consequence and setting a grace period of at least two weeks.
14.5. The customer must notify us immediately of the opening of bankruptcy proceedings against his assets or of the seizure of our goods subject to retention of title.
14.6. We are entitled to enter the location of the goods subject to retention of title in order to assert our retention of title, insofar as this is reasonable for the customer, after giving reasonable advance notice.
14.7. Necessary and reasonable costs for the appropriate prosecution shall be borne by the customer.
14.8. The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
14.9. We shall be entitled to dispose of the returned goods subject to retention of title freely and at the best possible price vis-à-vis entrepreneurial customers.
15. property rights of third parties
15.1. Does the customer bring intellectual creations If the customer has not provided us with any documents or other materials and if industrial property rights of third parties are asserted with regard to such creations, we shall be entitled to stop the production of the delivery item at the risk of the customer until the rights of third parties have been clarified and to claim reimbursement of the necessary and appropriate costs incurred by us, unless the unjustified nature of the claims is evident.
15.2. The customer shall indemnify and hold us harmless in this respect.
15.3. We are entitled to demand reasonable cost advances from entrepreneurial customers for any litigation costs.
16. our intellectual property
16.1 Plans, sketches, cost estimates and other documents provided by us or created by our contribution shall remain our intellectual property.
16.2. The use of such documents outside of the intended use, in particular the passing on, duplication, publication and making available, including copying even of extracts, requires our express consent.
16.3. The customer further undertakes to maintain secrecy towards third parties with regard to the knowledge he has gained from the business relationship.
17. warranty
17.1. The warranty period for our services towards entrepreneurial customers is one year from handover.
17.2. 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 over the service in his power of disposal or has refused to take over the service without giving reasons.
17.3 Remedies of a defect claimed by the Customer shall not constitute an acknowledgement of such defect claimed by the Customer.
17.4. The entrepreneurial customer shall grant us at least two attempts to remedy the defect.
17.5. 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.
17.6. The entrepreneurial customer must always prove that the defect was already present at the time of handover.
17.7 Defects in the delivery item which the entrepreneurial customer has discovered or should have discovered by examination in the ordinary course of business after delivery must be reported to us in writing without delay, at the latest 10 days after handover. Hidden defects must also be reported within this reasonable period from discovery.
17.8. Any use or processing of the defective object of performance that threatens further damage or makes it difficult or impossible to determine the cause shall be discontinued by the customer without delay, unless this is unreasonable.
17.9. If a notice of defect is not made in due time, the goods shall be deemed approved.
17.10. The defective delivery or samples thereof are to be returned to us by the entrepreneurial customer – if economically justifiable.
17.11. The costs for the return transport of the defective item to us shall be borne in full by the entrepreneurial customer.
17.12. The customer is obliged to enable us to determine the defect without delay .
17.13. The warranty is excluded if the customer’s technical equipment, such as supply lines, cabling, etc., is not in a technically perfect and operational condition or is not compatible with the delivered items, insofar as this is circumstantial for the defect.
18. liability
18.1. Due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., we are liable for financial losses only in cases of intent or gross negligence.
18.2. The liability towards entrepreneurial customers is limited to the maximum liability amount of any liability insurance concluded by us.
18.3. These limitations also apply with regard to damage to an item that we have accepted for processing. However, this only applies to consumers if this has been negotiated in an individual contract.
18.4. Furthermore, the above restrictions also apply to damage caused by test drives and test operations.
18.5. Claims for damages by entrepreneurial customers must be asserted in court within six months, otherwise they will be forfeited.
18.6. The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage they cause to the customer without reference to a contract on their part with the customer.
18.7. Our liability is excluded for damage caused by improper handling or storage, overloading, failure to follow operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, provided that this event was causal for the damage. Likewise, there is an exclusion of liability for failure to carry out necessary maintenance, unless we have contractually assumed the obligation to carry out maintenance.
18.8. If and to the extent that the customer is liable for damages for which we are liable, insurance benefits by a damage insurance policy of its own or taken out in its favor (e.g. liability insurance, hull, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability shall be limited in this respect to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium).
19 Severability clause
19.1. Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
19.2. We, as well as the entrepreneurial customer, are now already jointly obligated – based on the horizon of honest contracting parties – to make a substitute provision that comes as close as possible to the economic result of the invalid condition.
20. general
20.1. Austrian law shall apply.
20.2. The UN Convention on Contracts for the International Sale of Goods is excluded.
20.3 The place of performance is the registered office of the company (Poigen 39, 3580 St.Bernhard – Frauenhofen).
20.4. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the entrepreneurial customer is the court with local jurisdiction for our registered office.
20.5. The current uncertainty due to the Corona pandemic (force majeure) is known to the customer and to us and this has been included in the business basis. The customer expressly declares that he agrees with the legal consequences in case of default of acceptance or withdrawal (in particular according to 13.).
End