of the MOLIN group, valid for the following companies: MOLIN GmbH & Co.KG, ZAP Vermietungs-u. Beteiligungs GmbH, MO TEC Montagetechnik u. Dienstleistungs- GmbH.
Delivery of all goods and services of the MOLIN group (“the Company”) shall take place exclusively pursuant to these General Terms and Conditions. Differing terms and conditions of the contractual partner (“the Client”) only apply subject to express written agreement and in specific cases. In the case of repeat business (ongoing business relationship) with Clients, the agreement made at the beginning of the business relationship suffices to assure further validity of these General Terms and Conditions.
II Quotations and Orders:
All of the Company's quotations are without engagement and are valid for 14 days from the date of the quotation unless otherwise specified. The Client is obliged to send the Company a purchase order bearing an official company signature (“purchase order”) as confirmation of acceptance of an offer. Purchase orders that are signed, scanned in and sent via email are also permissible. By signing the purchase order, the Client also unconditionally accepts the Company's General Terms and Conditions. The Company cannot guarantee information or supplemental agreements facilitated by telephone or verbally unless they are expressly confirmed in writing. The Client shall apply for any official permits necessary for processing the order at their own expense. Any changes in the scope of work resulting from any regulatory order or provision which were not expressly declared when placing the order and which lead to additional expenditures for the Company shall be invoiced separately. The same applies to other retroactively placed additional orders or changes. Retroactively placed orders are subject to the General Terms and Conditions at hand. Regulatory requirements are not included in the pricing of the quotation unless expressly negotiated otherwise. The Company's quotations shall only be accepted in their entirety. Partial acceptance of the services described in a quotation is not permissible. Unless otherwise specified, however, the Client is obliged to accept the Company's partial services, if these are technically possible and achievable within the given workflow.
The prices our quotations are based on are calculated according to the information provided by the Client for execution of the order (detailed in the bill of quantities). The Client is obliged to declare any special circumstances and characteristics of the building site, such as factors complicating installation, particular factors concerning the installation site, etc. If required and necessary, the Client is obliged to instruct a building site inspection for the assessment of such characteristics. The same applies to delays in the implementation of services not attributable to the Company. Changes in the planned time (extension of the construction period) and duration of the implementation of services, changes in quantities and in quality criteria, as well as improvements or changes to the project or in planning resulting from regulatory or technical requirements, lead to a corresponding price increase; the same is true where flat rates have been agreed. More particularly, the Client is obliged to pay separately for exceedance of the calculated project implementation period by more than 10%. The Company is entitled to invoice price surcharges should the actual quantities or other characteristics differ from the information provided by the Client or in the bill of quantities. The Company is not obliged to examine the quantities declared in the bill of quantities and may trust that the provided planning requirements are correct. Any changes in the scope of work, as well as additional orders placed during or after services are rendered, shall be invoiced to the Client separately even where flat rates have been agreed. If the Client employs the services of a technical planner, the Company may trust in the completeness and correctness of the planning material and bill of quantities and is not obliged to perform calculation checks.
IV Consequences of Delays:
Should order implementation be delayed due to reasons attributable to the Client, the Company is entitled to invoice the Client for any additional expenses and costs. For extensions of the construction period, a contractual penalty of 1% per commenced calendar week, calculated based on the Client's net order total, shall be payable, subject to the assertion of any actual expenses in excess thereof. The contractual penalty shall not require any special proof of performance and is not subject to judicial mitigation. Should order implementation be delayed due to reasons attributable to the Company, however, the Client shall set a reasonable grace period and demand in advance that the Company fulfil these services. Any claims for damages resulting from these delays, particularly fines and other contractual penalties suffered by the Client, can only be transferred to the Company if the Company was demonstrably notified of the possible consequences of such a delay, including the amount thereof, upon order placement. Otherwise, claims for such damages resulting from delays are precluded, unless the Company is at fault due to intent or gross negligence. In any case, claims due to delay may only be asserted after a reasonable grace period. Compensation for damages due to non-performance and due to damage other than to goods is expressly precluded (exclusion of liability). In the case of delays, the Company is entitled to claim interest for delay in accordance with section 352 of the Austrian Enterprise Code (UGB), as well as for costs of out-of-court warning and claiming, and prelitigation expenditures.
V Withdrawal from Contract:
The Client may withdraw from the contract in the event of an important reason agreed upon in writing and if the Company, despite having been granted a reasonable grace period, does not fulfil its performance obligation and does not remedy such delay by employing third parties. Should circumstances arise during order implementation which lead to substantial difficulties in the performance of services, or if their introduction could risk damage to goods, third-party property or both or make such damage seem likely, then the Company, by precluding all claims for compensation of any kind, is entitled to either withdraw from the contract or to suspend work performance until the Client eliminates such difficulties or risks, even if such a suspension causes delayed deadlines or a postponed completion date. In such an event, the Company is entitled to bill the Client for any services rendered up to that point, irrespective of the chosen type of contract. Costs resulting from downtime are also billed to the Client, even where flat rates have been agreed. The Company is further entitled to suspend services or withdraw from the contract and claim damages due to non-performance in the event of the Client's failure to effect payment of due partial invoices or of a deviation from a payment schedule or if insolvency proceedings are instituted against the Client. Upon withdrawal, by reserving the right to assert further claims, the costs for services rendered up to that point shall be due immediately.
VI Contractual Parties’ Liability:
The Company shall be liable for all direct damage resulting from services provided to the extent that such damage arises from gross negligence or malicious conduct on the part of the Company or the Company's vicarious agents during work. Liability for slight negligence is excluded to the extent permitted by law. The Company further accepts no liability for coincidence, force majeure, or consequential damage, compensation for lost profits, loss of interest or for damage resulting from claims of third parties. The Company accepts no liability for advice or information provided by it for which it has not been separately commissioned in writing. Non-provision or incorrect provision of (technical) data or failure to acquire insurance coverage shall in every case constitute contributory negligence on the part of the Client in accordance with section 1304 of the Austrian Civil Code (ABGB). In any case, the Client waives the right to raise the warranty plea of price reduction or no maturity of compensation for work on grounds of notified defects or rescission of contract. The Client shall set the Company a reasonable grace period for the correction of faults or replacement of missing parts. Any notified defects do not change the due date of existing (partial) invoices. Product-liability claims and claims for damages shall be precluded to the extent permitted by law and in every instance of slight negligence. The same applies to consequential damage due to defects as well as to contracts effecting protection for the benefit of third parties. In turn, the Client undertakes to impose this exclusion of liability on his contracting parties. Furthermore, liability on part of the Company shall be limited to the sum of the Company's business liability insurance contract; however, this amount shall not exceed the amount of the order value. The extent of liability agreed upon in these Terms and Conditions also applies to extracontractual claims. Commissioned subcontractors and everyone working by order of the Company may also invoke this limitation of liability. The Client is obliged to report any damage caused by the services of the Company immediately and in writing. A complete declaration of the facts shall be made by the Client within five working days of the occurrence of such damage. Damage that is not externally noticeable is to be reported in writing immediately upon detection, at the latest within ten days after delivery or termination of the respective service. Later claims or notices of defect shall be considered as expired.
VII Order Execution:
The Client may not issue the Company's personnel with orders that differ in nature and scope from the original order without the consent of the Company's management or scheduling department. If, in the course of implementation of services, damage is caused that is not attributable to the Company, the Client shall exclusively be liable for it; this particularly applies to damage caused by personnel implementing instructions issued to them. Should the Client fail to comply with his duty to provide information and directions, he is obliged to indemnify and compensate the Company for all damage caused as a consequence thereof. The Client's duty to provide information and directions shall be such that he must disclose all circumstances and characteristics necessary to perform a service. A violation of this duty to provide information and directions leads to the Client assuming sole liability. Any waiting periods, as well as delays of equipment and personnel deployment occurring for reasons not attributable to the Company, such as installation approval, bad weather conditions, delays related to the building site, delayed third-party delivery of materials or components and similar, shall be borne by the Client, even where flat rates have been agreed. Additions or increases to the project shall be considered as commissioned and approved by the Client upon entry into the construction documents. Personnel present at the building site (especially site and project managers) are authorised to act and sign for the Client and shall be considered to be commissioned and authorised without restriction for this purpose by the Client. Unless otherwise agreed in writing, hourly rates apply.
VIII Payment, Competent Court and Cancellation:
Our invoices are payable in full upon receipt, except where otherwise agreed in writing. The offsetting with counterclaims of any kind is permitted only insofar as the counterclaims have been legally upheld at the time of set-off. The place of jurisdiction is Wels, Upper Austria for both parties, whereby Austrian formal and material law shall also apply to all foreign orders. If the Client cancels the order even partially before the Company commences work, he shall recompense the Company for 15% of the order total, but at least €5,000, subject to the assertion of further claims. The Company is free to demand fulfilment of the agreement despite receiving compensation for cancellation costs.
IX Concluding Provisions:
Should any provision of these Terms and Conditions be or become invalid, this shall not impair the validity of all other provisions herein.
The invalid provision shall be replaced by a valid provision that comes as close as possible to the purpose of the original provision.
As of April 2021