General Terms and Conditions (AGB)

 1. Validity

1.1 Validity These Terms and Conditions shall apply between FSK Automation FlexCo and natural and legal persons (hereinafter referred to as the Customer) for the present company-related legal transaction as well as for all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.

1.2 The current version of our GTC shall apply at the time the contract is concluded; these are also available on our homepage (www.fsk-automation.at) or will also be sent to the customer.

1.3. We contract exclusively on the basis of our GTC. Any terms and conditions of purchase and acceptance of the customer shall not take precedence over these GTC and shall only be binding on FSK Automation if they have been recognized by us in writing in each individual order case.

1.4 Terms and conditions of the customer or amendments or supplements to our GTC shall require our express written consent in order to be valid. FSK Automation shall also not be obliged to object to any terms and conditions used by the customer that conflict with these GTC. No objection shall in no way imply approval or acceptance of the customer's GTC. Any reference by FSK Automation to the customer's documents shall not be construed as acceptance of the customer's terms and conditions or regulations.

1.5 The customer's terms and conditions shall not be recognized even if we do not expressly object to them after receipt.

 

2. Offers, 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 upon our written confirmation.

2.3 The customer must provide us with information about our products and services that is not attributable to us and that is stated in catalogs, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material), provided that the customer bases its decision to place an order on such information. In this case, we can comment on its accuracy. If the customer breaches this obligation, such information shall be non-binding unless it has been expressly declared in writing to be part of the contract.

2.4 Cost estimates are provided without guarantee and are subject to a charge.

2.5 Objections due to a deviation of the content of the order confirmation transmitted by FSK Automation from the order must be raised within 14 working days after receipt of the order confirmation by the customer, otherwise the content of the order confirmation shall be deemed agreed.

 

 3. Prices

3.1 Prices are not to be understood as all-inclusive prices.

3.2 For services ordered by the customer which are not covered by the original order, the customer shall be entitled to reasonable remuneration in the absence of an agreement on remuneration for work.

3.3 Prices are quoted exclusive of the applicable statutory value added tax and ex warehouse or ex works. Packaging, transportation. Loading and shipping costs as well as customs duties and insurance shall be borne by the customer. We are only obliged to take back packaging if this has been expressly agreed.

3.4 The customer shall arrange for the professional and environmentally friendly disposal of old material. If we are commissioned to do this separately, the customer shall additionally pay for this to the extent agreed for this, in the absence of an agreement on remuneration.

3.5 We are entitled, as well as obliged at the customer's request, to adjust the contractually agreed fees if changes have occurred since the conclusion of the contract with regard to (a) wage costs by law, regulation, collective agreement, works agreements or (b) other cost factors necessary for the provision of services, such as procurement costs of the materials used on the basis of recommendations of the Joint Commissions or changes in national or world market prices for raw materials, exchange rates, etc. The adjustment shall be made to the extent that the actual production costs at the time of conclusion of the contract have changed compared to those at the time of the actual provision of services, provided that we are not in default. The adjustment shall be made to the extent that the actual production costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided that we are not in default.

3.6 The fee for continuing obligations is agreed as value-adjusted according to the CPI 2020 and the fees are adjusted accordingly. The starting point is the month in which the contract was concluded.

3.7 Costs for travel, daily and overnight allowances shall be charged separately. Travel time is considered working time.

3.8 Subsequent changes at the instigation of the customer, including the resulting machine downtime and all other costs incurred by FSK Automation in connection with the changes, shall be charged to the customer.

3.9 If FSK Automation's quotation (cost estimate) is exceeded as a result of changes to the quotation by the customer, the customer shall be deemed to have approved such changes even without notification by FSK Automation. The customer waives the right of withdrawal in such cases. Changes to the order or additional orders may be invoiced at reasonable prices.

3.10. If FSK Automation's offer (cost estimate) is exceeded as a result of changes to the offer by the customer, the customer shall be deemed to have approved such changes even without notification by FSK Automation. The customer waives the right of withdrawal in such cases. Changes to orders or additional orders may be invoiced at reasonable prices.

 

 4. Goods provided

4.1 Devices and other materials provided by the customer are not covered by the warranty. The customer shall be responsible for the quality and operational readiness of materials provided.

 

 5. Payment

5.1 Unless otherwise expressly agreed in writing, one third of the remuneration shall be due upon conclusion of the contract, one third upon commencement of the service and the remainder upon completion of the service.

5.2 The payments specified in item 5.1. shall be made in due time so that they are received by FSK Automation within 14 days of receipt of the invoice, unless otherwise agreed in writing. The period for payment of the invoice shall commence on the day of proper receipt of the goods or the service rendered and receipt of the invoice.

5.3 The entitlement to a discount deduction requires an express written agreement. The client shall lose the entire entitlement to this if it fails to meet its payment obligation under points 5.1. and 5.2. on time, even in part.

5.4 Payment dedications made by the customer on transfer vouchers are not binding for us.

5.5 If the customer is in default of payment under other contractual relationships 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 declare due all claims for services already rendered from the current business relationship with the customer.

5.7 If the payment deadline is exceeded, even if only for a single partial service, any benefits granted (discounts, rebates, etc.) shall be forfeited and added to the invoice.

5.8 If the payment deadline is exceeded, even if only with regard to a single partial service, any benefits granted (discounts, rebates, etc.) shall be forfeited and added to the invoice.

5.9 In accordance with § 456 UGB, we are entitled to charge 9.2 % points above the base interest rate in the event of culpable default of payment.

5.10. We reserve the right to assert further claims for damages caused by delay.

5.11. The customer shall only be entitled to set-off to the extent that counterclaims have been established by a court or recognized by us.

5.12. For reminders necessary and appropriate for collection, the customer undertakes to pay reminder fees of € 50 per reminder in the event of culpable default in payment, insofar as this is in reasonable proportion to the claim pursued.

 

 6. Credit check

6.1 The customer expressly agrees that his data may be transmitted exclusively for the purpose of creditor protection to the creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), In-solvenzschutzverband für Arbeitnehmer oder Arbeitneh-merinnen (ISA) and Kreditschutzverband von 1870 (KSV).

 

7. Obligations of the customer to cooperate

7.1 Our obligation to perform the service shall commence at the earliest as soon as all technical details have been clarified, the customer has created the technical and legal prerequisites (which we will be happy to provide on request), we have received agreed advance payments or security deposits, and the customer fulfills his contractual advance performance and cooperation obligations, in particular also those mentioned in the following sub-items.

7.2 In the case of work to be carried out by us, the customer is obliged to ensure that the work can be started immediately after the arrival of our personnel.

7.3 The customer shall arrange for the necessary third-party authorizations as well as notifications and approvals by authorities at his own expense. These can be requested from us.

7.4 The energy and water quantities or media required for the performance of the service, including trial operation, shall be provided by the customer at the customer's expense.

7.5 The customer shall provide us with lockable rooms that are inaccessible to third parties free of charge for the time of performance of the service for the stay of the workers and for the storage of tools and materials.

7.6 The customer must provide us with lockable rooms that are not accessible to third parties free of charge for the time of performance of the service for the stay of the workers and for the storage of tools and materials.

7.7 The customer shall also be liable for ensuring that the technical installations, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition and are compatible with the works or purchased items to be produced by us.

7.8 We are entitled, but not obliged, to inspect these systems for a separate fee.

7.9 In particular, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data without being asked before work begins.

7.10. Order-related details of the necessary information can be requested from us.

7.11. The customer shall bear sole responsibility for the design and functionality of parts provided. There is no obligation to check any documents, information or instructions provided by the customer - beyond the creation of a technical construction dossier and the certification of compliance with the Machinery Directive and any other applicable directives - with regard to the delivery item, and our liability in this respect is excluded. The obligation to issue the certificate can be contractually transferred to the customer who places the delivery item on the market.

7.12. The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.

 

8. Performance management

8.1 FSK Automation shall only be obliged to take into account subsequent modification and extension requests of the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.

8.2 Objectively justified minor changes to our performance that are reasonable for the customer shall be deemed to have been approved in advance. 

8.3 If, after the order has been placed, the order is amended or supplemented for any reason whatsoever, a cost adjustment due to additional services incurred shall be permissible and the delivery/performance period shall be extended by a reasonable period of time. 

8.4 If, after conclusion of the contract, the customer wishes the service to be performed within a shorter period of time, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall increase appropriately in proportion to the necessary additional expenditure. 

8.5 Partial deliveries and services that are objectively justified (e.g. system size, construction progress, etc.) are permitted and can be invoiced separately. 

8.6 If delivery on call has been agreed, the object of performance/purchase shall be deemed to have been called six months after the order at the latest. 

 

9. Delivery and performance deadlines

9.1 Delivery/service deadlines and dates are only binding for us if they have been agreed in writing. Any deviation from this formal requirement must also be in writing. 

9.2 The delivery periods shall commence on the date of FSK Automation's order confirmation, but not before the order has been fully clarified, in particular not before all documents required and to be provided by the customer and the fulfillment of the advance payment agreement pursuant to Section 5.1 have been received. Delivery periods and delivery dates are ex works. If the goods are not collected or dispatched on time through no fault of FSK Automa-tion  delivery periods and delivery dates shall be deemed to have been met upon notification of readiness for dispatch. 

9.3 The delivery time shall in any case be extended by the duration of the review of the documents or information required by the customer for the execution of the order. Should it turn out during the examination of the documents that an extension of the delivery time beyond the duration of the examination is necessary, the customer expressly agrees to the reasonable extension of the delivery time announced by FSK Automation without being able to derive any claims from this. 

9.4 The delivery time shall in any case be extended by the duration of the review of the documents or information required by the customer for the execution of the order. Should it turn out during the examination of the documents that an extension of the delivery time beyond the duration of the examination is necessary, the customer expressly agrees to the reasonable extension of the delivery time announced by FSK Automation without being able to derive any claims from this. 

9.5 FSK Automation shall not be in default of delivery if the customer is in default with payment obligations. In this case, we shall be released from any obligation to perform until the payment obligations have been fulfilled. 

9.6 FSK Automation shall not be in default of delivery if the customer is in default with payment obligations. In this case, we shall be released from any obligation to perform until the payment obligations have been fulfilled. 

9.7 In the event of postponements for which the customer is responsible, FSK Automation shall also have the option of requesting the customer in writing to fulfill its obligation to cooperate to the agreed extent, setting a reasonable grace period, failing which FSK Automation may withdraw from the contract without setting a further grace period and assert a claim against the customer for invoicing according to services rendered to date on a time and material basis, plus the resulting profit. Counterclaims cannot be asserted by the customer in this case. 

9.8 The customer may not assert any claims against FSK Automation arising from a delay in delivery, even if FSK Automation is at fault for the delay. 

9.9 Deadlines and dates shall be postponed in the event of force majeure, strikes, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control for the period during which the relevant event continues. This shall not affect the customer's right to withdraw from the contract in the event of delays that make it unreasonable to expect the customer to adhere to the contract. 

9.10. If the start of the performance of the service or the performance is delayed or interrupted due to circumstances attributable to the customer, in particular due to a breach of the duty to cooperate in accordance with point 7, the performance periods shall be extended accordingly and the completion dates postponed accordingly. 

9.11. Deliveries are always made ex works at the expense and risk of the client, unless expressly agreed otherwise in writing. 

9.12. In the event of withdrawal from the contract due to default, the customer must set a grace period by registered letter and at the same time threaten to withdraw from the contract. 

 

10. Transfer of risk

10.1 The risk shall pass to the customer as soon as the consignment is ready for collection at FSK Automation's works. has been handed over to the person carrying out the transportation or has left the warehouse or factory of FSK Automation for the purpose of shipment. The customer shall be obliged to accept the goods sent or made available for collection in accordance with the contract without delay. If dispatch is delayed at the request of the customer, the risk shall pass to the customer upon notification of readiness for dispatch. 

10.2 The risk shall pass to the customer as soon as the consignment is ready for collection at FSK Automation's works.  has been handed over to the person carrying out the transportation or has left the warehouse or factory of FSK Automation for the purpose of shipment. The customer is obliged to immediately accept the goods sent or made available for collection in accordance with the contract. If dispatch is delayed at the request of the customer, the risk shall pass to the customer upon notification of readiness for dispatch. 

 

11. Acceptance and performance fulfillment

11.1 The order is fulfilled upon acceptance of the scope of delivery and services. The client shall be notified in writing of readiness for acceptance. Acceptance must be carried out within 2 weeks of notification of readiness for acceptance. If this period is exceeded for reasons not attributable to FSK Automation, the system shall be deemed to have been accepted without defects. The same shall apply to operational use of the system. Acceptance may only be refused in the event of a defect that significantly restricts use. 

 

12. Retention of title

12.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until full payment has been made. 

12.2 A resale is only permissible if we have been notified of this in good time in advance, stating the name and exact address of the buyer, and we agree to the sale. In the event of our consent, the purchase price claim shall already now be deemed assigned to us. 

12.3 Until full payment of the remuneration or purchase price, the customer must note this assignment in its books and on its invoices and inform its respective debtors of this. Upon request, the customer shall provide us with all documents and information required to assert the assigned claims and entitlements. 

12.4 If the customer is in default of payment, we are entitled to demand the return of the reserved goods after setting a reasonable grace period. 

12.5 The customer must inform us immediately before the opening of bankruptcy proceedings against his assets or the seizure of our reserved goods. 

12.6 The customer expressly agrees that we may enter the location of the goods subject to retention of title in order to assert our retention of title. 

12.7 The customer shall bear any costs that are necessary and reasonable for appropriate legal action. 

12.8 The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared. 

12.9 We shall be entitled to sell the goods subject to retention of title that have been taken back on the open market at the best possible price. 

12.10. Until all our claims have been paid in full, the object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with third-party rights. In the event of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately. 

 

13. Third-party property rights

13.1 For delivery items which we manufacture according to customer specifications (design data, drawings, models or other specifications, etc.), the customer alone shall guarantee that the manufacture of these delivery items does not infringe the industrial property rights of third parties. 

13.2 If third-party property rights are nevertheless asserted, we shall be entitled to cease production of the delivery items at the customer's risk until the third-party rights have been clarified, unless the unjustified nature of the claims is obvious. 

13.3 The customer shall indemnify and hold us harmless in this respect. 

13.4 We are entitled to demand reasonable advances on costs from business customers for any legal costs. 

13.5 We may also claim compensation from the customer for necessary and useful costs incurred by us. 

13.6 We are entitled to demand reasonable advance payments for any legal costs. 

 

14. Our intellectual property

14.1 Delivery items and related execution documents, plans, sketches, cost estimates and other documents as well as software provided by us or created by our contribution shall remain our intellectual property. 

14.2 Their use, in particular their dissemination, reproduction, publication and making available, including the copying of excerpts, as well as their imitation, processing or utilization, requires our express consent. 

14.3 Furthermore, the customer undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge obtained from the business relationship. 

 

15. warranty

15.1 The warranty period for our services is 12 months from handover to the customer. 

15.2 In the absence of an 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 possession of the service or has refused acceptance without giving reasons. In the absence of a justified refusal of acceptance, the service shall be deemed to have been transferred to the customer's power of disposal on the day on which the customer is notified of completion. 

15.3 If a joint handover is planned and the customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on this date. 

15.4 Rectification of a defect alleged by the customer shall not constitute acknowledgement of a defect. 

15.5 The customer must always prove that the defect already existed at the time of handover. 

15.6 In order to rectify defects, the customer must make the system or equipment accessible to us without culpable delay and give us the opportunity to have it inspected by us or by experts appointed by us.

15.7 Notices of defects and complaints of any kind must be made in writing immediately (at the latest after 10 working days) at the registered office of our company, describing the defect as precisely as possible and stating the possible causes, otherwise the warranty claims shall be forfeited. The goods or works complained about are to be handed over by the customer, insofar as this is feasible. 

15.8 If the customer's claims of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in establishing the absence of defects or rectifying defects. 

15.9 Any use or processing of the defective delivery item which threatens further damage or makes it difficult or impossible to remedy the cause must be discontinued by the customer immediately, unless this is unreasonable. 

15.10. We are entitled to carry out or have carried out any inspection we deem necessary, even if this renders the goods or workpieces unusable. In the event that this inspection reveals that we are not responsible for any defects, the customer shall bear the costs of this inspection against reasonable payment. 

15.11. Transportation and travel costs incurred in connection with the rectification of defects shall be borne by the customer. At our request, the customer shall provide the necessary labor, energy and premises free of charge and shall cooperate in accordance with point 7. 

15.12. The customer shall grant us at least two attempts to remedy the defect. 

15.13. The customer shall grant us at least two attempts to remedy the defect.  

15.14. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions. 

15.15. The circumstances that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on actual circumstances deviating from the information available to us at the time of performance of the service because the customer has failed to fulfill his obligations to cooperate in accordance with point 7. does not comply. 

15.16. Likewise, this shall not constitute a defect if the customer's technical equipment such as supply lines, cabling, networks, etc. are not in a technically wall-free and operational condition or are not compatible with the delivered items. 

 

16. liability

16.1 We shall only be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., in the event of financial losses in cases of intent or gross negligence due to technical peculiarities. 

16.2 Liability shall be limited to the maximum liability amount of any liability insurance taken out by us. 

16.3 This limitation shall also apply with regard to damage to an item that we have accepted for processing. 

16.4 Claims for damages must be asserted in court within two years, otherwise they shall lapse. 

16.5 The limitations or exclusions of liability also include claims against our employees, representatives and vicarious agents due to damage caused by them to the customer without reference to a contract between them and the customer. 

16.6 Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, incorrect assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, insofar as this event was causal for the damage. Liability is also excluded for failure to carry out necessary maintenance. 

16.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through its own insurance or insurance taken out in its favor (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability shall be limited to the amount of the insurance benefit.  Liability towards the customer shall be limited to the disadvantages incurred by the customer as a result of taking out this insurance (e.g. higher insurance premium). 

16.8 Those product characteristics are owed which can be expected from us, third-party manufacturers or importers with regard to the approval regulations, operating instructions and other product-related instructions and information (in particular also inspection and maintenance), taking into account the customer's knowledge and experience. The customer as reseller must take out adequate insurance for product liability claims and indemnify and hold us harmless with regard to recourse claims. 

 

17. severability clause

17.1 Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts. 

17.2 The parties hereby undertake to agree on a substitute provision - based on the horizon of honest contracting parties - which comes closest to the economic result, taking into account the customary industry practice of the ineffective condition. 

 

18 General

18.1 Austrian law shall apply. 

18.2 The UN Convention on Contracts for the International Sale of Goods is excluded. 

18.3 The place of performance shall be the registered office of FSK Automation FlexCo. 

18.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the customer shall be the Commercial Court of Graz with local jurisdiction for our registered office. 

18.5 The customer must notify us immediately in writing of any changes to his name, company name, address, legal form or other relevant information.

18.6 General data 

Bank: Steiermärkische Bank & Sparkassen AG 
IBAN: AT02 2081 5000 4627 9964 
BIC: STSPAT2G 
Company register no.: FN 647842 i 
UID: ATU81792534 
Commercial register court: Graz