GENERAL TERMS AND CONDITIONS FOR WORKS ORDERS OF GLOCK ECOTECH GMBH
Updated September 9th 2022
The conclusion of supply contracts and contracts for work and services takes place exclusively in accordance with the following Terms and Conditions of Business of GLOCK ecotech GmbH, company registration number 322734 i, hereinafter referred to as "Contractor", in the respective valid version at the time of conclusion of contract. The respective valid version of the Terms and Conditions of Business can be viewed at www.glock-ecotech.com. General terms and conditions of business of the Customer which depart from, conflict with or supplement these Terms and Conditions of Business shall not become an integral element of the contract even if the Contractor is aware of them, unless the Contractor expressly agrees to their validity in writing. In the event of contradictions to the quotation, these General Terms and Conditions of Business shall take precedence over other contractual provisions. The respective specifications, the content of the operating instructions, the technical data sheet, the list of interfaces for the demarcation of the services to be provided, the explosion protection document, the HAZOP for the wood gasification plant and any other annexes to the contract that are contained in the order confirmation shall form an integral element of these General Terms and Conditions of Business. In the event of contradictions when interpreting a contract, the provisions of the contract shall apply first, followed by the contractual bases in the above order.
2. Conclusion of contract
Quotations by the Contractor remain subject to change and are non-binding; this also applies to pre-contractual communications, cost estimates, descriptions etc. By placing its purchase order, the Customer declares its offer of contract with binding effect. The written form is required for contractual provisions to be binding; this also applies to the departure from the written form. When goods or services are ordered electronically, receipt of the Customer’s purchase order is confirmed immediately, but confirmation of receipt does not yet represent any binding acceptance of the purchase order. The conclusion of the contract shall in all events only take place through the written confirmation of acceptance by the Contractor, or through the provision of a service on the basis of the order. The Contractor is entitled to accept the offer of contract contained in the purchase order within two weeks. In the event of the Contractor not being correctly or properly supplied by third parties, the Contractor is entitled not to perform, or only to perform partially, for the duration of the delay. Wishes for changes shall only be taken into account by the Contractor when they are confirmed in writing.
The Contractor is entitled to provide partial and advance performances. All the performances to be provided by the Customer, such as obtaining official authorisations, preparing submission documents, providing the public utilities, infrastructure, creating the on-site connections, waste water systems, energy supply, process water, power supply, energy, infrastructure etc. apply to the Customer, without the Contractor being subject to any duty of inspection, warning or supervision. The proper provision of the aforementioned advance performances by the Customer is an essential requirement for the proper provision of the Contractor’s services. The Customer shall therefore provide the plans necessary on-site for the construction of the respective heating plant, and shall be liable for the consensual construction. The details of the plans shall be stipulated by the Contractor. The Contractor shall not be subject to any inspection, warning or supervision period whatsoever for the construction of the parts of the plant to be provided by the Customer (defined in the interface list in accordance with the technical Annex) in respect of either the execution according to plan or the construction, or in the event of any departures from the plans. The coordination of the Contractor’s services and the Customer’s advance performances is solely a matter for the Customer. In the event that the Customer does not provide its advance performances professionally or does not do so in good time, the Customer shall be obliged to indicate the hindrance immediately in writing (notice of obstruction). The Customer must ensure that all the parameters necessary for the installation and assembly of the plant are met, in order that the installation and commissioning can be undertaken. The requirements for the execution of the performance by the Contractor shall have been met when all the contractual and technical requirements for the execution of the supply and services have been created and produced by the Customer at its own expense. Unless anything has been agreed otherwise in writing, the installation of the plant and the commissioning of the plant on-site shall be undertaken by the Contractor. The place of performance is the place of the Contractor’s works unless anything is agreed otherwise. If delivery carriage paid or similar should be agreed in accordance with Incoterms 2000, the Customer must ensure that secure storage is provided for the contractual object in suitable premises. In the event of assistants or other resources being required, the Customer is obliged to provide these free of charge. Adherence to the delivery dates by the Contractor is subject to the receipt in good time of the documents to be provided by the Customer, the agreed payment terms and other obligations of the Customer. Unless anything is agreed to the contrary, the delivery period shall be preserved provided the contractual object is ready for dispatch at the factory. The Customer is obliged to take over the contractual object ready for dispatch within 2 weeks, otherwise the contractual object can be stored at the Customer’s expense and risk, and after the expiry of a further period of 2 weeks can be sold to third parties with claims to damages being maintained. The agreed acceptance must take place immediately after notification of completion. It is a requirement for acceptance that corresponding protocols are obtained from the tradesmen and professionals brought in by the Customer at its own expense (such as installers, electricians, system operators etc.) which permit the commissioning of the plant that forms the subject of the contract. The acceptance costs shall be borne by the Customer. Acceptance shall be deemed to have been undertaken when the contractual object has been constructed and handed over free from major defects that adversely affect its functionality. Minor defects shall not prevent the acceptance. The Contractor is entitled to a formal acceptance and confirmation of receipt of the operating instructions. If the Customer is in default on the basis of a written request for acceptance, the Contractor shall be free to set a further grace period of at least two weeks by registered letter. If the Customer also allows this written grace period set by registered letter to expire fruitlessly, i.e. does not state any formal acceptance date, the plant shall be deemed to have been accepted. In the event of default of acceptance (in whatever phase of the contract processing) the risk and costs shall pass to the Customer. After a further written warning sent by registered letter and after setting a period of at least two weeks, the Contractor shall without further declaration have the right to choose between dispatching the plant or parts thereof at the Customer’s expense and risk, or storing and disposing of these and retaining the down payment received from the Customer as flat-rate compensation – irrespective of the damages incurred and irrespective of fault – subject to the assertion of further claims. In addition, the Contractor shall be entitled to charge the storage costs in the amount of at least EUR 5,000 (net) monthly until the reassignment; this shall be subject to any demonstrably higher damages arising due to the storage of the plant.
The following shall be charged: Hours worked for work preparation, working, waiting and travelling times, travel and overnight costs, overtime supplements etc. A separate agreement must be concluded for the maintenance of the contractual object. Maintenance visits resulting from incorrect use of the contractual object shall also be chargeable.
5. Technical requirements
The Customer is aware that the contractual object shall only be functional if the technical requirements stipulated by the Contractor in accordance with the operating instructions and the other contractual details are complied with. The requirement for the production of “green electricity” is only possible if the plant is operated with the stipulated materials. Departures in terms of the quality, dimensions, weight etc. of the contractual object are only permitted in accordance with the relevant standards.
6. Force majeure
Circumstances that make the provision of the performance impossible, in particular all cases of force majeure, official measures, disruption of operations, transport delays etc., including within the sphere of the Contractor’s suppliers, shall release the Contractor from the obligation to perform for the duration of the hindrance. In the event of lasting impossibility of performance the Contractor shall be entitled to withdraw from the contract with no liability for damages.
7. Shipment and transfer of risk
The shipment of the contractual object shall take place at the expense and risk of the Customer. The risk of accidental loss shall pass to the haulier, freight carrier or other person designated to undertake the shipment upon handover. The choice of mode of shipment shall be incumbent upon the Contractor. The Customer hereby expressly agrees to this choice.
The remuneration for the contractual object is payable within 14 days of invoicing, net without any deduction and in the currency stated on the invoice, unless advance payments or any other form of payment have been agreed in writing. The date of payment shall be deemed to be the date of arrival at the Contractor’s premises. In the event of late payment, interest on late payment shall be charged from the date on which payment or partial payment is in arrears, in the amount of 9.2 percentage points p.a. above the base rate set by the Österreichische Nationalbank; the assertion of further damages is not excluded. Any acceptance of cheques or bills of exchange by the Contractor shall always take place only on account of payment. All associated interest and charges shall be at the expense of the Customer (e.g. collection, discounting and bill of exchange charges). Irrespective of the payment reference provided by the Customer, payment from the Customer shall first be set against incidental charges and costs, then against the respective oldest liability of the Customer.If the Customer is in arrears with any payment, or if it has not redeemed a bill of exchange when due, ceased to make payment or if there are circumstances which are deemed tantamount to cessation of payment, all outstanding claims shall become payable immediately. The Contractor shall be entitled at its own discretion to request advance payments or the provision of security. In the event of arrears of payment greater than 2 weeks – including with only a partial invoice – the Contractor shall be entitled to declare the entire remuneration payable and reserve its services. The Customer is not entitled to retain payments or offset these against counterclaims on account of claims under warranty or other claims of any kind whatsoever. Payments may only be made to representatives of the Contractor against special written authority. Discounts and bonuses granted are subject to the condition that the Customer pays in full and on time.
9. Retention of title and withdrawal from contract
The Contractor shall retain the title to the contractual object, and also to all replacement parts supplied, until full payment of the invoice amounts plus interest and other costs. Any payments shall firstly be set against interest and costs and lastly against the capital. Circumstances appearing after the acceptance of the order which adversely affect the Customer’s creditworthiness shall entitle the Contractor (even without the existence of payment arrears) to request advance payment or withdraw from the contract. The Contractor is also entitled to withdraw from the contract if the Customer does not meet its obligations, and to retain the payment received as flat-rate compensation in accordance with the provision in Point 3 of these General Terms and Conditions of Business.
The Customer is aware that the plant shall only function if it is operated in accordance with the technical requirements, the technical data and operating instructions, and the other Annexes to the contract. Any liability by the Contractor for warranties or for the stipulated use shall therefore lapse if this plant is not operated in accordance with the operating instructions and the technical requirements. The Contractor shall be liable exclusively for the proper supply of the contractual object within the context of the order issued, and with the exclusion of all other claims. The Contractor is exclusively obliged to choose between rectifying warranty claims by improvement or by replacement, with the exclusion of all other claims under warranty, all claims for damages and other liability claims. The Contractor shall only be liable for damage and loss to the items handed over to it for repair insofar as these have arisen due to grossly negligent or intentional breach of its duty of care. Any and all liability by the Contractor for slight negligence is excluded, in particular the reimbursement of consequential damages, lost profits and financial losses, savings not achieved, losses of interest, increased personnel costs, production stoppages and damages from third party claims against the Customer. In the case of newly installed parts which the Contractor obtains from sub-suppliers, the Contractor‘s liability is exclusively limited to those claims under warranty to which the Contractor is entitled against the sub-supplier. A further requirement for the retention of the claim under warranty is that the Customer shall grant the Contractor the possibility of remote maintenance via the Internet so that it is possible for the Contractor to log into the system. To retain the claim under warranty the Customer must maintain the necessary process control system; if the connections fail for any reason whatsoever the Contractor’s claim under warranty shall lapse. In the event of the resale of the plant, the Customer undertakes to pass this obligation on to its customer and provide the Contractor with the necessary details in this respect in writing, as otherwise the warranty claim against the Contractor shall lapse. Defects must be asserted to the Contractor in writing within two weeks of the delivery date or handover describing these precisely, otherwise the assertion of claims under warranty, claims for damages or liability claims in this respect shall be excluded. Objections on account of the quantity and quality of the contractual object can only be asserted immediately after receipt of the articles, otherwise the Customer shall forfeit all its claims in this respect. The duty of warranty shall further expire if the defect or the affected parts have in the meantime been modified or repaired by the Customer or a third party, or are not operated in accordance with the technical stipulations. The warranty is also excluded if repairs, alterations or other modifications of the contractual object take place by third parties or the Customer. No warranty is provided for consumables (e.g. spark plugs, engine filters) and wear parts; for a more detailed definition of wear parts reference is made to the original operating instructions. After the acceptance of the respective wood gas block-type thermal power station has taken place, the Customer must immediately notify the Contractor in writing of any defects appearing, and document the defect accordingly. In any event, however, claims under warranty or damages are limited to 5% for the respective plant. This provision also applies for claims from any lost profits; reimbursement of consequential damages resulting from defects is expressly excluded. The warranty period for the plant is 2 years from handover taking place. Claims must be asserted judicially within 3 months of becoming identifiable, otherwise they shall lapse. If individual parts of the plant are replaced during the warranty period or any other incident covered by warranty occurs, the warranty period shall not start afresh but is limited by the above period even for these cases. The Customer shall bear the full burden of proof for all qualifying conditions for claims, in particular for the defect itself, for the date on which the defect was established and for the timeliness of the written notification of the defect. Section 924 Sentence 2 ABGB [Austrian Civil Code] is inapplicable. Maintenance visits by the Contractor are chargeable when these are the result of improper use (in which case any warranty shall lapse), disruptions to business from an unclarified cause, or for necessary repairs that do not constitute an incident covered by warranty (breakdowns). Claims to damages from consultations and negotiations are excluded.
11. Place of jurisdiction, applicable law, miscellaneous contractual provisions
The place of jurisdiction for all disputes arising from the contractual relationship is Klagenfurt. In addition, the Contractor is entitled to take legal action at the Customer’s general place of jurisdiction (at home or abroad). The Customer is aware that the plant is in accordance with the Austrian regulations and requirements. Insofar as country-specific adaptations of the plant are necessary, these shall be incumbent upon the Customer with the complete entitlement to liability and warranty claims of the Contractor shall not be subject to any duty of inspection or warning in respect of the adaptation of the plant to meet the respective country-specific requirements; such duties are fully excluded and were taken into account when establishing the purchase price. The Customer hereby declares that it shall use authorised specialist tradespersons to meet the country-specific requirements. Any cession of claims from this contract is only permitted with the consent of the other party. Modifications or additions to the contract require the written form, including any change to this clause regarding the written form. Works orders are governed exclusively by Austrian material law with the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods and the exclusion of the rules of international private law regarding the conflict of laws.