TERMS OF SERVICE
1. Applicability
1.1 These general terms and conditions (hereinafter referred to as “GTC”) apply to all contracts and other legal transactions between Volkan DÖNMEZ, sole proprietorship, Dr.-Salzmann-Straße 10, 4600 Wels (hereinafter referred to as “VD”) on the one hand and all customers on the other , regardless of whether the customer is a natural or a legal person.
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1.2 With regard to customers who are entrepreneurs within the meaning of the Austrian Corporate Code or comparable foreign legal provisions (hereinafter referred to as "entrepreneur-customers"), these terms and conditions also apply to all future transactions, even if not in individual cases, in particular for future supplementary or follow-up orders was expressly referred to.
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1.3 The General Terms and Conditions apply to business customers in the version that can be accessed on the VD website (www.vdprojectsolutions.com) at the time the respective contract is concluded.
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1.4 VD provides deliveries and other services exclusively on the basis of the GTC. General terms and conditions of the customer or purchasing conditions of the customer only apply if these have been expressly confirmed in writing by VD. A reference to general terms and conditions of the customer or purchasing conditions of the customer which are attached or which can be called up or available at a specific point do not constitute an express written confirmation. General terms and conditions of the customer or purchasing conditions of the customer are deemed waived and are expressly contradicted by reference to these terms and conditions. This point 1.4 only applies to business customers.
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1.5 The following provisions on the delivery of goods apply mutatis mutandis to services.
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2. Offer / conclusion of contract
2.1 All documents designated by the VD as "offers", "cost estimates" or the like are initially non-binding and subject to change; they are to be understood as an invitation to submit an offer on the part of the customer and only become binding after a written order confirmation (acceptance of the customer's offer) by VD. "Orders" are binding offers made by the customer to VD.
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2.2 Promises, assurances and guarantees on the part of the VD or agreements that deviate from these GTC in connection with the conclusion of the contract only become binding on business customers if they are confirmed in writing.
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2.3 The customer has information on products and services of the VD that are not attributable to the VD in websites, e-mails, catalogs, price lists, brochures, advertisements on exhibition stands, circulars, advertising mails or other media (information material) - provided that the customer this is the basis for his decision to commission - to explain to VD. In this case, VD can comment on their correctness. If the customer violates this obligation, such information is non-binding, unless it has been expressly declared to be part of the contract, in writing to business customers.
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2.4 All cost estimates prepared by VD are for a fee. Consumers within the meaning of the Austrian Consumer Protection Act are advised of the obligation to pay before the cost estimate is prepared.
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2.5 Contract language and contract processing language is German. VD is entitled to have all documents and documents handed over to VD in non-German language translated into German by the customer (or on behalf of the customer) in the course of drawing up and / or processing the contract. The customer is obliged to reimburse reasonable translation costs. All delivery and service deadlines on the part of VD are deferred for the duration of the translation.
2.6 The entrepreneur-customer must ensure that the services and products ordered from VD correspond to the purpose of the customer or are suitable for the use intended by the customer. In particular, the customer must ensure (and check) that the services ordered by the customer in terms of technical aspects and compliance with legal standards (e.g. building regulations, trade regulations, etc.) and / or technical standards (ÖNORM, DIN , ISO, etc.) are appropriate and suitable for the use intended by the customer. In this respect, VD has no obligation to test, warn or provide information, unless a certain suitability or characteristic is expressly guaranteed in writing. The naming and description of the product name or application does not change anything in the above-mentioned obligation of the entrepreneur-customer.
2.7 The customer is solely responsible for compliance with any notification or approval obligations under public law.
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3. Prices
3.1 All prices are EXW Wels according to INCOTERMS 2010, as well as exclusive of sales tax or similar taxes and also exclusive of packaging.
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3.2 All prices are exclusive of sampling costs and exclusive of all costs for testing and processing equipment and any changes made by the customer. For services initiated by the customer that are not explicitly covered in the original order or that represent changes to the original order, there is a right to appropriate remuneration. Changes in quantity on the part of the customer entitle VD, at its own discretion, to adjust any flat rate or unit price or to withdraw from the contract (order).
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3.3 If it has been agreed that the price depends on the weight of the parts, the final price results from the weight of the approved failure samples.
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3.4 VD is entitled to adjust the contractually agreed fees vis-à-vis business customers, as well as obliged at the customer's request, if changes of at least 5% with regard to (a) wage costs are due to law, ordinance, collective agreement, works agreements or (b ) Other cost factors necessary for the provision of services such as material costs due to recommendations of the joint commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates etc. have occurred since the conclusion of the contract. The adjustment is made to the extent to which the actual production costs change at the time the contract is concluded compared to those at the time the service is actually provided, provided that VD is not in default.
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3.5 The remuneration in the case of continuing obligations is agreed as value-secured according to the CPI 2015 and this results in an adjustment of the remuneration. The starting point is the month in which the contract was concluded.
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4. Delivery and acceptance obligations
4.1 For business customers, delivery and completion dates are only binding if their observance has been expressly promised in writing as a "binding delivery date". All other details of delivery dates are only non-binding estimates.
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4.2 If the start of the performance of the service or the performance are delayed or interrupted by circumstances attributable to the customer, in particular due to the breach of the duty to cooperate in accordance with point 13 of these GTC or because agreed advance payments have not been made or the agreed material supplies have not been made on time, the performance deadlines will be extended accordingly and agreed completion dates postponed accordingly.
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4.3 Deadlines and dates are postponed in the event of force majeure, strikes, unforeseeable delays by VD's suppliers that are not the fault of VD or other comparable events that are beyond the control of the VD during the period during which the respective event is ongoing. This does not affect the right of both contracting parties to withdraw from the contract in the event of delays that make binding to the contract unreasonable.
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4.4 In the event of delay in the fulfillment of the contract by VD, the customer has the right to withdraw from the contract after setting a reasonable grace period. The grace period must be set in writing (by business customers by registered letter) with a simultaneous threat of withdrawal.
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4.5 Objectively justified minor changes to the performance of the service that can be reasonably expected of the customer by VD are deemed to have been approved in advance. This right only applies to consumers within the meaning of the Austrian Consumer Protection Act if it is negotiated on a case-by-case basis.
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4.6 Objectively justified partial deliveries and services are permitted and can be invoiced separately.
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4.7 Deviations from the ordered quantity of up to +/- 10% are permitted.
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4.8 VD is not obliged to accept follow-up orders; expressly not even if the customer's molds, tools and devices are still owned by the VD or if VD is still keeping them.
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5. Transfer of risk, packaging and shipping
5.1 Even in the case of carriage paid delivery, the risk is transferred to the customer upon leaving the factory. In the case of delays for which the customer is responsible (even if not necessarily to blame), the risk is transferred with the notification of readiness for dispatch.
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5.2 Unless otherwise agreed, VD will choose the packaging and shipping method to the best of its ability. The goods will only be insured against breakage, transport and fire damage at the customer's written request and at the customer's expense.
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5.3 The risk for materials and devices delivered by VD and stored or assembled at the place of performance is borne by the customer.
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6. Delay in acceptance or advance performance
6.1 If the customer is in default of acceptance or advance performance for more than seven (7) days (refusal of acceptance, delay in advance performance or otherwise), and despite setting a reasonable grace period, the customer has not taken care of the elimination of the circumstances to be attributed to him, which delay or delay the performance of the service prevent, VD may otherwise dispose of the equipment and materials specific to the performance of the service if the contract is in force, provided that VD can subsequently procure these within a period appropriate to the respective occasion in the event that the performance is continued.
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6.2 If the customer defaults on acceptance or advance performance, VD is also entitled, if the contract is to be fulfilled, to store the goods at VD or in a nearby warehouse, for which VD pays a weekly storage fee in the amount of the costs incurred by VD, but at least 10% of the order value due.
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6.3 This does not affect VD's right to make payment for services rendered due and to withdraw from the contract after a reasonable grace period.
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6.4 In the event of a justified withdrawal from the contract by VD or failure to carry out a work for reasons for which the customer is responsible, VD is entitled to flat-rate compensation for business customers in the amount of 95% of the order value plus VAT without proof of the actual damage request from the customer. The obligation to pay damages by an entrepreneur-customer is independent of fault. The assertion of higher damages is permissible.
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7. Reservation of title
7.1 The goods delivered, assembled or otherwise handed over by VD remain the property of VD until they have been paid for in full.
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7.2 Resale is only permitted if the customer has announced this in good time, stating the name and address of the buyer and VD has consented to the sale.
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7.3 If the VD agrees, the purchase price claim is now deemed to have been assigned to VD. Any legal transaction fees charged for such an assignment are to be borne by the customer and this VD has to hold harmless and harmless in this regard.
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7.4 If the customer defaults on payment, VD is entitled to reclaim the goods subject to retention of title if a reasonable grace period has been set. VD may only exercise this right to consumers within the meaning of the Austrian Consumer Protection Act as customers if at least one backward service by the consumer has been due for at least six weeks and VD has unsuccessfully warned him under threat of this legal consequence and setting a grace period of at least two weeks.
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7.5 The customer must inform VD immediately of the opening of insolvency proceedings against his assets or of the seizure of the goods subject to retention of title by VD.
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7.6 VD is entitled to assert its retention of title to the location of the goods subject to retention of title insofar as this is reasonable for the customer, after appropriate advance notice.
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7.7 The customer bears the costs that are necessary and appropriate for appropriate legal prosecution.
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7.8 The assertion of the reservation of title only constitutes a withdrawal from the contract if this is expressly declared.
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7.9 VD may dispose of the goods subject to retention of title that have been taken back in the hands of business customers and in the best possible way.
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8. PRICES, FEES AND PAYMENT
8.1 If VD is commissioned with advisory and / or consulting services, it will receive a fee in accordance with the agreement upon completion of the agreed work. Unless an agreement has been made, the VD is entitled to appropriate remuneration. However, VD is also entitled to submit interim accounts in accordance with the progress of work and to request advance payments corresponding to the respective progress. The fee is due when the contractor issues the invoice. Any cash outlays, expenses, travel expenses, etc. are to be reimbursed by the customer against the invoice of the VD.
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8.2 All payments are to be made exclusively in euros.
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8.3 Unless otherwise agreed, the wages / purchase price must be paid within 30 days of the invoice date. Any agreed granting of a discount presupposes the settlement of all earlier due invoices.
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8.4 Irrespective of a reminder or the fault of the customer, the statutory default interest rate applies to defaults in payment.
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8.5 We reserve the right to assert further damage caused by delay, but only in relation to consumers in the sense of the Austrian Consumer Protection Act as customers if this is negotiated in detail.
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8.6 If the entrepreneur-customer is in default of payment in the context of other contractual relationships with VD, VD is entitled to suspend the fulfillment of VD's obligations under this contract until the customer has fulfilled them. VD is then also entitled to make all claims for services already rendered from the ongoing business relationship with the customer due. This for consumers in the sense of the Austrian Consumer Protection Act as customers only in the event that a backward service has been due for at least six weeks and VD has unsuccessfully warned the customer under threat of this consequence by setting a grace period of at least two weeks.
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8.7 The customer is only entitled to set-off if counterclaims have been determined by a court or recognized by VD. Consumers within the meaning of the Austrian Consumer Protection Act as customers are also entitled to set-off insofar as counterclaims are legally related to the customer's payment obligation, as well as in the event of the insolvency of the VD.
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9. Provision of materials
9.1 In the event that materials are provided by the customer as agreed, these are to be delivered at his own risk and expense with an appropriate quantity surcharge, but at least 5%, on time and in accordance with the agreement and the purpose of the material provision. If these prerequisites are not met, the performance time will be extended appropriately, but at least until the next capacity window in the VD operations, and the customer must compensate VD for any damage incurred by VD, including damage caused by interruptions in production, except in the event of force majeure.
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9.2 VD assumes no liability or warranty for devices or materials provided by the customer and for any defects or poor performance caused by such devices or materials.
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10. DIRECT DELIVERY RIGHT IN CASE OF BREACH OF CONTRACT BY THE CUSTOMER
10.1 Insofar as deliveries or services that VD must provide to a specific customer in accordance with the contract are to be passed on or performed by the customer to a third party (this third party hereinafter referred to as the "end customer") and the VD's customer commits a breach of contract with VD (such as in particular default of payment or default of acceptance), VD is entitled - without prejudice to the rights according to point 6 of this contract and without prejudice to other claims of VD (in particular claims for damages) due to such a breach of contract - to deliver or to deliver directly to the end customer, bypassing the customer of VD . afford to.
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10.2 In this case, the delivery or service is deemed to have been rendered to the customer if it has been rendered to the end customer.
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11. Warranty
11.1 Unless expressly agreed, VD does not guarantee that the services rendered or the products supplied by VD correspond to the purpose of the customer or are suitable for the use intended by the customer. The naming of an application example does not expressly mean that a certain product is suitable for this application. Reference is made to point 2.6.
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11.2 Unless expressly agreed, VD does not guarantee that the products supplied by the company meet the requirements or provisions of a specific technical standard, such as. ÖNORMEN or DIN, or a specific legal standard (e.g. building regulations, trade regulations). The provision of this point only applies to business customers.
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11.3 In general, only those properties that have been expressly agreed in writing are considered to be conditional properties within the meaning of Section 922 (1) ABGB. Compliance with other properties is excluded as far as legally possible. The provision of this point 11.3 only applies to business customers.
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11.4 Any guarantee of properties that are usually assumed in the sense of § 922 Paragraph 1 ABGB is excluded as far as legally possible. The provision of this point 11.4 only applies to business customers.
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11.5 Unless expressly agreed, VD does not accept any liability or guarantee for a specific period of use for the products supplied. The provision of this point 11.5 only applies to business customers.
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11.6 Unless otherwise agreed, material of medium-sized goods is processed; It is up to the customer to specify better materials and processing methods, as well as tolerances, for parts that are particularly exposed to stress, if this appears necessary.
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11.7 In relation to business customers, the warranty generally presupposes the fulfillment of the contractual obligations of the customer towards the VD from related contracts and other contracts.
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11.8 The warranty period for business customers is six months from delivery.
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11.9 Unless otherwise agreed (e.g. in the case of an agreement on formal acceptance), the time of handover is the time of completion, at the latest when the customer has taken over the service or has refused to take over without giving reasons.
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11.10 Rectifying a defect alleged by the customer does not constitute an acknowledgment of this defect alleged by the customer.
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11.11 The VD must be given at least two attempts on the part of the entrepreneur-customer to remedy the defect.
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11.12 If the customer's allegations of defects are unjustified, the customer is obliged to reimburse the VD for the expenses incurred to determine the absence of defects or to remedy the defect.
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11.13 The entrepreneur-customer must always prove that the defect already existed at the time of delivery.
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11.14 The entrepreneur-customer is obliged to carefully inspect all deliveries and services provided by VD for defects immediately after the time of handover, but in any case upon acceptance or handover to the customer. Defects in the delivery or service item that the entrepreneur-customer has discovered or should have discovered through an examination during the normal course of business during acceptance or handover must be reported in writing to VD immediately, at the latest two days after the handover. Hidden defects must also be reported within this reasonable period of time from their discovery. If a complaint is not made in good time, the goods or services are deemed to have been approved.
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11.15 Any use or processing of the defective object of performance, which threatens further damage or makes it difficult or impossible to ascertain the cause, must be stopped by the customer immediately, unless this is unreasonable.
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11.16 The defective delivery or samples thereof are to be returned to VD by the business customer, provided that this is economically justifiable. The entrepreneur-customer bears the full costs for the return transport of the defective item to VD.
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11.17 It is the customer's responsibility to enable VD to identify any deficiencies without delay.
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11.18 The warranty is excluded if the customer's technical systems such as supply lines, cabling, etc. are not in a technically perfect and operational condition or are not compatible with the delivered items, insofar as this fact is causal for the defect.
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12. Liability
12.1 Due to the breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., VD is only liable for financial loss in cases of intent or gross negligence.
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12.2 For business customers, the limitation periods of § 1489 ABGB are shortened to the effect that claims for damages against the VD must be asserted in court after six months from the knowledge of the damage and the damaging party, but no later than three years from the conclusion of the contract with any other limitation period.
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12.3 Liability towards business customers, regardless of the legal basis of the liability (contract, tort, strict liability or other legal basis), as far as legally permissible, is limited to the lower of the two following amounts: (a) actual coverage amount any liability insurance taken out by VD or (b) the order value of the contract whose obligations VD has violated. This limitation also applies to damage to an item that VD has taken on for processing.
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12.4 Unless otherwise stated in these terms and conditions, any liability on the part of the VD towards the customer for production standstill, lost profit, loss of use, loss of contract or any other consequential damage is excluded.
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12.5 The exclusion of liability also includes claims against employees of the VD, representatives and vicarious agents due to damage that they cause to the customer without reference to a contract on their part with the customer.
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12.6 The VD's liability is excluded for damage caused by improper handling or storage, overuse, non-compliance with operating and installation instructions, incorrect assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by VD, or natural wear and tear, provided this is a causal event for the damage was. There is also an exclusion of liability for failure to perform necessary maintenance, unless VD have contractually assumed the obligation to carry out maintenance.
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12.7 If and to the extent that the customer is liable for damage for VD, can claim insurance benefits through his own damage insurance or insurance taken out for his benefit (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of the Insurance benefits and the VD's liability is limited to the disadvantages suffered by the customer through the use of this insurance (e.g. higher insurance premiums).
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13. Customer's obligation to cooperate
13.1 The duty of the VD to perform the service begins at the earliest as soon as the customer has created the structural, technical and legal requirements for the implementation, which were described in the contract or in information provided to the customer before the contract was concluded or the customer should have known due to relevant specialist knowledge or experience.
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13.2 If the customer does not comply with this obligation to cooperate, the performance of the VD will not be defective, solely with regard to the incomplete performance due to incorrect customer information.
13.3 The customer must arrange for the necessary third party approvals as well as reports and approvals by authorities at his own expense.
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13.4 In the case of consulting assignments, the customer ensures that the organizational framework conditions when the consulting assignment is fulfilled at his place of business allow work that is as undisturbed as possible and that is conducive to the rapid progress of the consulting process.
The customer will also inform VD comprehensively about previous and / or ongoing consultations - also in other specialist areas. The customer ensures that VD is presented in good time with all the documents necessary for the fulfillment and execution of the consulting assignment, even without special request, and that it is made aware of all processes and circumstances that are important for the execution of the consulting assignment. This also applies to all documents, processes and circumstances that only become known during the work of the VD.
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14. Intellectual property of VD
14.1 The copyrights to the works created by the VD and its employees and commissioned third parties (in particular offers, reports, analyzes, expert opinions, organizational plans, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remain with the VD. They may only be used by the customer during and after the termination of the contractual relationship for purposes covered by the contract. In this respect, the client is not entitled to reproduce and / or distribute the work (s) without the express consent of the VD. Under no circumstances does the unauthorized duplication / distribution of the work give rise to liability on the part of the VD - in particular for the correctness of the work - towards third parties.
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14.2 The use of such documents outside of the intended use, in particular the passing on, duplication, publication and making available, including copying only in extracts, requires the express consent of VD.
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14.3 The customer further undertakes to keep the knowledge of third parties obtained from the business relationship confidential.
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15. Third party property rights
15.1 The customer is liable to VD for the freedom of the deliveries and services commissioned from third party property rights. If the customer brings in intellectual creations or documents and third party property rights are asserted with regard to such creations, then VD is entitled to stop the manufacture of the delivery item at the customer's risk until the rights of third parties have been clarified, and to compensate for the necessary and appropriate expended by VD To claim costs, unless the unjustification of the claims is obvious.
15.2 The customer indemnifies and holds VD harmless in this regard.
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15.3 VD is entitled to demand reasonable advances on costs from business customers for any process costs.
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16. FINAL PROVISIONS
16.1 If import and export licenses or foreign exchange permits or similar permits are required for the execution of the contract with the customer, the customer must make all reasonable efforts to obtain the required license or permits in good time.
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16.2 Should individual parts of these terms and conditions be ineffective, this shall not affect the validity of the remaining parts. VD and the entrepreneur-customer already undertake together - based on the horizon of honest contracting parties - to make a replacement regulation that comes as close as possible to the economic result of the ineffective condition.
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16.3 Austrian law applies to the exclusion of the reference and conflict of laws norms of international private law and the UN sales law. The place of fulfillment is the seat of the VD.
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16.4 The exclusive place of jurisdiction for all disputes arising from (or in connection with) the contractual relationship or future contracts between VD and the entrepreneur-customer is the competent court for Wels.