GENERAL TERMS AND CONDITIONS OF BUSINESS of Hawle Service GmbH
1.1. A contract with Hawle Service GmbH (FN 245063m) – hereinafter referred to as the Contractor – shall come into existence either through the joint preparation of a written order, or through the submission of an offer by the Contractor and written order confirmation by the customer – hereinafter referred to as the Client (both consumer and entrepreneur) – or vice versa. Separately stated special conditions shall apply to the entrepreneurial client (in short UAG). Written offers of the Contractor are only valid for 14 days, within which period the Client must confirm and accept the order in writing. These General Terms and Conditions, as well as the conditions, time limits and descriptions stated in the contract or in the offer, shall be an inseparable part of the concluded contract.
1.2. If the Client objects to these General Terms and Conditions but allows the order to be executed (delivery/assembly), these General Terms and Conditions shall apply in any case; the legal validity theory shall not apply in this case. At the same time, any existing GTC of the Client shall not be recognised and cannot become the basis of the contract (unless otherwise stated in the written contract or in offers).
1.3. The contract shall be governed by Austrian law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of performance shall be the registered office of the Contractor.
2.1. Product prices are included in the order or quotation. If no product prices are stated, the list prices valid on the day of delivery shall apply. The product prices (in particular when ordering in our internet shop) are ex warehouse Leobersdorf, without packaging, excluding statutory VAT. If additional verbal/written orders are placed by the Principal over and above the contract, before or during the performance of work, appropriate prices shall apply to these. The same shall apply to services provided by the Contractor which are absolutely necessary for the performance of the work (even if they are not included in the order), such as the disposal of old material, securing of construction sites, difficult transport routes, official permits, attestations and expert opinions.
2.2. The Contractor’s cost estimates shall not be binding and shall be subject to a charge; the CU shall be expressly informed of this beforehand, the UAG shall not.
The Contractor’s offers and cost estimates shall be based on the assumption that the necessary foundations for the performance of the services are available on site. If it subsequently transpires that there are deficiencies in this respect, the Contractor shall be entitled to charge for the additional expenditure in an appropriate manner.
2.3. The Customer shall arrange for the professional and environmentally sound disposal of old material at its own expense; if a separate order is placed, the Contractor shall be entitled to demand appropriate remuneration.
2.4. The Contractor shall be entitled to adjust the agreed remuneration (increase or reduction of remuneration) if factors occur that are independent of the Contractor’s will and justify an increase (wage costs due to collective agreement/law, etc., increases in material costs at the supplier).
2.5. In the event of default on the part of the UAG, interest on arrears shall apply in accordance with the following provisions. In the event of default on the part of the Contractor, interest on arrears pursuant to § 352 of the Austrian Commercial Code (UGBb) shall apply (at a rate of 8 percentage points above the base interest rate), and 6 % interest on arrears p.a. shall be agreed vis-à-vis the Client.
3.1. The work services to be provided by the Contractor (inspection maintenance and repair of hydrants) shall be performed in accordance with the state of the art, the delivery of products shall be of average quality and grade.
3.2. If the CL chooses a certain material/product/type of execution himself, he shall be warned if the purpose of the order cannot be fulfilled with it or can only be fulfilled in a strongly deviating manner; in the case of expert UAG, the duty to warn shall not apply. The Contractor shall be entitled to charge an appropriate fee plus VAT for the resulting manipulation effort, apparent inspection of the technical condition of the hydrants and the hydrant network. If it becomes apparent at the start of installation or repair that the local and technical conditions are not suitable for carrying out the order or that there are hazards, the Principal shall be notified accordingly. If the Client then does not issue the necessary additional orders for the proper execution of the order, the contract shall be deemed to be terminated and the Contractor shall be entitled to charge for the services rendered up to this point in time.
3.3. The Contractor shall not be liable in any way for material or equipment provided by the Client.
3.4. The Contractor shall in principle be free in the execution of the order; it may therefore freely choose the number of personnel, the type of execution, the type of material including processing, unless a special execution has been agreed in the order or the Client issues special instructions.
The Contractor shall be entitled to use authorised subcontractors to carry out the repair and service work.
3.5. Furthermore, the Contractor’s duty to warn shall be limited only to the areas directly affected by the work to be carried out, but not to indirect circumstances and local conditions that could be indirectly affected by the work.
If an instruction or an express execution request of the Client contradicts the recognised rules of technology, the Client shall be informed thereof. If the execution is nevertheless requested in accordance with the instruction, the Contractor shall be released from any liability.
3.6. During the execution of the work, only known representatives of the Client shall be entitled to issue instructions to the Contractor’s senior personnel. If the Client’s instructions, which are technically justifiable, lead to order changes or order extensions, the Contractor shall be entitled to charge reasonable prices for them. The Contractor shall document these changes in writing.
3.7. When concluding a maintenance contract, the agreed prices shall be value-assured by the CPI 2010 or a successor index; the base month of the conclusion of the contract and the last published index figure before the comparative month of the due date and invoicing shall apply.
3.8. Der AG ist zur Mitwirkung bei der Leistungsausführung verpflichtet und hat alle baulichen, technischen und rechtlichen Voraussetzungen auf eigene Kosten zu schaffen. The Principal shall be obliged to cooperate in the performance of the service and shall create all structural, technical and legal prerequisites at its own expense.
The Principal shall provide on its own initiative the necessary information in the performance area, concealed electricity, gas and water lines or similar devices, other obstacles of a structural nature, as well as possible sources of disturbance, sources of danger. Furthermore, he shall point out special features that cannot be expected in the normal course of events (valuable objects or installations in the service area that could be damaged).
If damage occurs as a result of a failure to cooperate with the CO, the CO shall be released from liability; the same shall apply to the private CU only in the event of fault.
3.9. Official permits and notifications shall only be obtained and carried out by the Contractor if this has been specifically agreed in the order. Otherwise, the Client shall be obliged to do so at its own expense; the Client shall obtain the necessary information from the authorities itself.
3.10. Reasonable changes in performance that are objectively justified and minor shall be deemed to have been approved in advance, whereby this point shall be negotiated in detail with the CL in advance; the latter shall not apply in the case of the UAG.
3.11. Agreed delivery and execution deadlines shall not be deemed guaranteed, they shall be postponed due to force majeure, strike, unforeseeable and non-culpable delays by the Contractor’s supplier or other comparable events which are not within the Contractor’s sphere of influence. In the event of a delay on the part of the Contractor, the UAG shall set a grace period of 14 working days in writing. In this case, the Customer may only withdraw from the contract if he cannot reasonably be expected to continue to be bound by the contract.
If the start or continuation of the performance is delayed due to circumstances attributable to the Customer or if the Customer violates his obligation to cooperate, all performance completion dates shall be postponed accordingly.
The Contractor shall not be obliged to commence performance until all technical details have been clarified and any necessary official approvals have been obtained; delays in this respect shall also postpone any agreed completion date.
3.12. If damage to hydrants or fittings occurs during the execution of our contract for work, the Contractor shall only be liable in the event of culpable causation; in the event of proper operation, liability shall not apply in full.
4. FAILURE TO DELIVER OR PERFORM:
4.1. If the delivery or execution of the contract for work or parts thereof is not carried out for reasons within the Client’s sphere of influence, the Contractor shall be entitled to charge an appropriate fee for the non-performance of the order, whereby this shall be agreed at a flat rate of 15 % of the net order value plus VAT.
However, if the Client refuses to perform or the work is carried out at such short notice that the Contractor is no longer able to carry out a replacement order, the Client shall pay the full remuneration – after deduction of any material costs saved – in accordance with § 1168 of the Austrian Civil Code (ABGB).
4.2. Pursuant to § 1336 ABGB, it shall be negotiated in detail with the private Principal that damages exceeding the contractual penalty can be claimed.
4.3. If the execution of the work is only delayed by the Client, the Contractor shall be entitled to charge standing times for the employees deployed and additional travelling times in an appropriate amount. In the case of a private Contractor, this shall only apply if the Contractor is at fault and is informed of the reasons why the Contractor has neither saved himself anything nor acquired or deliberately failed to acquire any other use as a result of not carrying out the work (§ 27 a KSchG).
5.1. The Contractor shall be liable for his work performance in accordance with the statutory provisions only to the extent that cover is provided by the existing liability insurance (sum insured EUR 4,000,000.00).
If the damage exceeds this amount, if the damage is not insurable (damage to own trade), if the liability insurance refuses coverage or if the damage is not insured, the Contractor’s liability shall be limited to intent or gross negligence, so that the Contractor shall not be liable for all damage and consequential damage (except personal injury) in case of slight negligence.
The Contractor shall only be liable to the Contractor for damage to property if the Contractor can prove gross negligence on the part of the Contractor.
This limitation of liability shall also apply to the Contractor’s employees, subcontractors and vicarious agents, including in the case of damage caused to the Customer without reference to the contract. T
The liability of the Contractor is completely excluded if the Client improperly handles or stores delivered goods/material, does not carry out prescribed maintenance, does not follow operating instructions or overloads the technical equipment, as well as for natural wear and tear.
If the Client has its own insurance, it shall be obliged to claim on this first; the Contractor shall only be liable for the disadvantages incurred by the Client for claiming on its insurance, e.g. higher insurance premium.
The Client shall be obliged to keep the areas necessary for the performance of the work clear, to secure valuables himself or to remove them beforehand.
5.2. The Contractor shall not be liable for unavoidable damage resulting from the execution of the order (damage to grass, asphalt or concrete surfaces, damage to pipes or other trades).
5.3. In the case of time value or emergency repairs to hydrants, the durability and function is limited, so that in these cases the state of the art may be deviated from for reasons of urgency. This is not to be seen as a limitation of the warranty, but rather a technically conditioned limitation of performance due to the urgency of the work. In the case of such emergency repairs, which are to be carried out without delay (gas or water breakage), necessary overtime/night hours or costs of accelerated material procurement shall be charged separately.
In the case of makeshift repairs, a limited durability is expressly agreed. The warranty for current value or emergency repairs is excluded in its entirety vis-à-vis the UAG.
6.1. The plans and sketches, cost estimates and documents produced by the Contractor shall constitute the Contractor’s intellectual property; the Client shall not be entitled to use, pass on, reproduce or publish them.
6.2. If the OP hands over documents which are subject to third party intellectual property rights, these shall only be used at the OP’s risk. If a third party asserts claims, the Contractor shall be entitled to stop work until the claims have been clarified, the Contractor shall indemnify and hold the Client harmless, and reasonable advance payments for legal costs shall be made upon request.
6.3. www.hawle-service.at,www.hydrantenservice.at, www.wassermonitor.at,www.hydrantenplan.at The texts, graphics, images, sounds, animations and videos visible on our website www.hawle-service.at, www.hydrantenservice.at, www.wassermonitor.at,www.hydrantenplan.at are protected by copyright and by competition laws. The content of our website may not be copied, distributed, modified or made available to third parties for commercial purposes. The publication of images does not constitute a licence for any user to use our intellectual property. The images are protected by copyright and may not be used by users or third parties.
7. WARRANTY AND GUARANTEE:
7.1. The statutory warranty period for delivered products and service work is 2 years from receipt by the AG and UAG. If a contract for work and services is concluded for immovable property, for the processing or manufacture of immovable property, this period shall be 3 years. In the case of used products, the Contractor shall negotiate the reduction of the warranty period to 1 year individually with the Client. In all cases, the warranty period vis-à-vis the BU is limited to 1 year; furthermore, the 6-month period of § 924 of the Austrian Civil Code (ABGB) is waived, so that the BU must always prove the existence of the defect at the time of handover. Furthermore, the UAG must assert claims for damages in court within 6 months of knowledge of the defect in the event of any other forfeiture.
7.2. The handover shall be effected by taking over the services into the power of disposal of the CUSTOMER or in case of unjustified refusal to take over the services. If the precisely specified notice of defect is not given by the BU for delivered goods or work services within 5 working days of receipt of the goods or handover of the work, warranty claims, claims for damages or a challenge of error as to the defect-free nature of the item can no longer be asserted in accordance with § 377 para. 2 UGB.
7.3. If defects are remedied by the contractor, this shall not be deemed an acknowledgement of liability, but a non-binding goodwill gesture.
7.4. If the Client claims defects and these turn out to be unjustified after inspection and/or obtaining an expert opinion, etc., the Client shall bear all costs for this.
After completion of the work, CU shall be obliged to sign a written confirmation of performance and completion of the work submitted to it by CO; in the event of refusal, CO shall draw up a corresponding record.
7.5. For consumers, the statutory provisions regarding warranty shall apply, unless otherwise effectively stated in these General Terms and Conditions.
7.6. In the event of justifiably notified defects, the Contractor shall have the option to carry out an improvement at its own expense or to replace the defective part within 14 days of receipt of the notification by the Contractor. In the case of defects of a larger extent, the period for this shall be 4 weeks.
If the Contractor fails to remedy the defect, the Client shall be entitled to substitute performance after expiry of these deadlines, but shall be obliged to obtain evidence (in court or through experts) beforehand. The Client shall grant the Contractor at least 2 attempts at improvement in this sense.
7.7. If the manufacturer grants a guarantee for delivered material or goods, the Client shall only be entitled to this claim directly against the manufacturer, whereby the Contractor shall assist in forwarding and enforcing the claim within the scope of its possibilities.
8. TERMS OF PAYMENT:
8.1. In principle, the remuneration shall be due for payment immediately upon receipt of the invoice without deduction or discount, unless otherwise agreed in the order.
The due date shall be when the invoice is delivered to the address of the Principal stated in the order, whereby transmission by e-mail or fax shall be sufficient.
Payments shall – irrespective of the Principal’s dedication – first be credited to the costs of debt collection, interest and only then to capital; otherwise § 1416 ABGB shall apply.
8.2. The Contractor shall be entitled to issue partial invoices; if the Client is in default with the payment of a partial invoice (after the Contractor has rendered the service to this extent), the Contractor shall be entitled to stop the work with immediate effect and to withdraw from the contract, setting a 10-day grace period, and to assert claims for damages.
8.3. If the order value of a contract for work and services exceeds € 5,000 net, the Contractor shall be entitled – without a separate agreement – to issue partial invoices at 14-day intervals.
8.4. If payment by instalments has been agreed, the payment in arrears must have been due for at least 6 weeks and a reminder must have been sent under threat of the consequences of withdrawal, setting a period of grace of at least 2 weeks; the 6-week period shall not apply to the contractor.
8.5. If a payment deadline is exceeded, any remuneration granted (rebates, discounts and cash discounts) shall be forfeited and subsequently offset; this shall also apply if insolvency proceedings are opened against the assets of the CL.
The Principal shall be obliged to pay EUR 25 per necessary and appropriate reminder; in addition, the Principal shall bear the costs of the appropriate enforcement or collection of the claim.
8.6. The Principal declares his express consent that his data may be transmitted to the state-preferred associations AKV, KSV, ÖVC, etc. exclusively for the purpose of creditor protection and that queries may be made.
9. RESERVATION OF OWNERSHIP:
9.1. If the Contractor delivers goods to the Client, these shall remain the property of the Contractor until payment has been made in full. If CU resells the goods, it shall be obliged to transfer the retention of title to the buyer of the goods (extended retention of title); furthermore, CU shall be obliged to assign the purchase price claim to CO without being requested to do so if no payment has yet been made by CU.
10. WEBSITE HAWLE-SERVICE.AT, HAWLE.LIVE, MAP.HAWLE-SERVICE:AT:
10.1. The liability of the Contractor for correctness, completeness and up-to-dateness on the homepage is excluded, likewise we are in no way responsible for linked websites of third parties and the Contractor does not assume any liability for them.
This also applies to legal violations on linked pages, we are not obliged to check these. The liability of the Contractor for damage caused directly or indirectly by the use of these websites is limited to intent or gross negligence.
11.2. Insofar as we receive personal data, this will not be passed on to third parties without express consent.
In the case of data transfer and transmission by electronic means, we assume no liability for data security. The Contractor does not agree from the outset to any sending of advertising or information material; in the event of infringement, we reserve the right to assert claims for damages.
11. PLACE OF JURISDICTION:
11.1. For all legal disputes of the UAG against the CO, the registered office of the CO’s company shall be decisive, for legal disputes of the CO against the CU, the place of jurisdiction of § 14 KSchG shall apply.