General Terms and Conditions of Sale and Delivery, PBX GmbH
- Scope
1.1. For all business transactions of PBX GmbH, Stockerauer Straße 106/Halle D, A-2100 Korneuburg, FN 467905x (hereinafter: “PBX”, “Seller”, “we” or “us”), the following General Terms and Conditions of Sale and Delivery apply exclusively. Our contractual partner is hereinafter referred to as “Buyer” or “Contractual Partner”. These General Terms and Conditions of Sale and Delivery are binding for all current and future business transactions with PBX, even if no express reference is made to them.
1.2. Regulations deviating from or supplementing these General Terms and Conditions of Sale and Delivery – in particular general terms and conditions of the buyer – only become part of the contract if this has been expressly confirmed in writing by PBX.
- Offer and Conclusion of Contract
2.1. Offers from PBX are non-binding unless they are expressly designated as binding. PBX offers contain a conclusive list of the contractually owed (service) items. An integral part of offers is a Statement of Work (SOW), from which an exact specification of the service components and details of the contract execution, such as delivery time, acceptance, etc., result. In addition, a Service Level Agreement (SLA) can be an integral part of an offer if services are owed.
2.2. The order of the Contractual Partner shall be deemed accepted only upon the PBX Order Confirmation, whereby a contract shall come into existence.
- Secrecy
3.1. Unless a separate Non Disclosure Agreement is concluded, the Contractual Partner hereby irrevocably undertakes to maintain secrecy about all industrial and commercial secrets made accessible to it by PBX, made available to it or otherwise made known to it in connection with or on the basis of a business relationship or contact with PBX and not to make these accessible to third parties in any way whatsoever without the consent of PBX. Furthermore, the Contractual Partner undertakes to use information only on a “need to know” basis and only within the framework of the concluded contract.
3.2. The confidentiality obligation shall remain in force for 3 years after termination of the business relationship with PBX or, irrespective of a business relationship, for 3 years after PBX has made an offer.
- Prices and Terms of Payment
4.1. Our prices are stated in EURO. The statutory value added tax shall be invoiced additionally at the respective valid rate. Any fees are to be paid by the Contractual Partner.
4.2. Unless otherwise agreed, the following payment terms apply: 30 days net cash. In the event of delayed payment, PBX is entitled to demand interest on arrears in the amount of the statutory interest as well as all reminder charges and all costs associated with the pursuit of the claim.
4.3. Unless otherwise agreed, the prices quoted are EXW Incoterms 2020.
4.4. In the case of partial deliveries, partial invoices shall always be admissible.
4.5. In the event of an agreement on partial payments, a loss of payment date shall occur if even only one partial payment is made unpunctually or not in the full amount. With the occurrence of a missed deadline, the entire outstanding balance is immediately due for payment. In the event of loss of payment on time, PBX has the right to take custody of the goods delivered under retention of title without withdrawal from the purchase contract until the entire claim is completely covered including incidental costs.
- Place of Performance and Transfer of Risk
5.1. Unless otherwise agreed, the delivery of the goods shall be deemed sold EXW according to INCOTERMS 2020 (place of performance PBX GmbH, Stockerauer Straße 106/Halle D, A-2100 Korneuburg). The price and performance risk shall pass to the Buyer at the time of the agreed handover.
5.2. In the case of services, the place of performance shall be the place specified in the written order confirmation, secondarily the place where the service is actually rendered by the Seller. The risk for a service or an agreed partial service shall pass to the Buyer upon ist performance.
- Retention of Title, Right of Use
6.1. The goods remain our property until full payment. In the event of resale of the goods subject to retention of title, the Buyer shall assign in advance all claims against the secondary buyer to the Seller on account of payment, but the Buyer shall remain directly obligated without restriction.
6.2. For supplied standard software, those license terms shall apply which the Buyer concludes directly with the respective software manufacturer, such as Microsoft, SAP or third party providers.
- Delivery, Partial Delivery
7.1. If the shipment of goods to the Buyer is ordered separately, the delivery will be made by efficient forwarders of our choice. The Buyer shall be responsible for the proper disposal of sales packaging. Transport damages are to be reported immediately to the forwarder.
7.2. PBX deliveries and services are always divisible. In the case of partial deliveries, partial acceptances are permissible. Partial invoices are permissible and must be settled within our terms of payment.
- Delivery Periods and Dates, Default of Acceptance
8.1. Unless expressly agreed in writing as binding, the delivery periods and dates are non-binding and are always understood as the expected time of provision and handover to the Buyer.
8.2. If the Buyer does not accept the goods provided on the agreed date, he shall be liable for all onsequential damages incurred by the Seller. After prior warning, the Seller also has the right to sell the goods not accepted by the Buyer on the Buyer’s account by private contract. The proceeds of sale to be surrendered to the Buyer shall be reduced by reasonable costs of sale, expenses and costs of storage at the sole discretion of the Seller.
- Warranty
9.1. PBX warrants that the products are free from defects in workmanship or material at the time of delivery or that the services meet the agreed requirements as well as those usually assumed.
9.2. The warranty period is 12 months from handover. This also applies to defects of title.
9.3. The existence of defects shall be proven by the Contractual Partner. §924 ABGB shall not apply.
9.4. The Contractual Partner shall immediately (at the latest within one week after receipt of the goods) give notice of any defects that occur in a specified manner and in writing.
9.5. PBX is entitled in the case of warranty to determine the type of rectification of defects itself. The legal consequences are limited to the fact that we either replace the defective part or – at our option – credit the value of the sales price.
9.6. If operating or maintenance instructions of the Seller are not followed, modifications are made to the products or parts are replaced, any warranty shall be void.
9.7. If Buyer requests defect rectification work to be performed at a location designated by Buyer, PBX may comply with such request, in which case parts to be replaced due to defectiveness shall not be charged, while labor time and travel expenses shall be paid at Seller’s standard rates.
9.8. Liability for normal wear and tear is excluded.
9.9. Only the direct Buyer is entitled to warranty claims against PBX and these claims are not assignable.
9.10. If PBX remedies defects outside the warranty or provides other services, these are charged at cost.
9.11. § 933b ABGB shall not apply.
- Liability
10.1. PBX is – in all cases that come into consideration – only obligated to pay damages in the case of intent or gross negligence. In the case of slight negligence PBX is only liable for personal injury. The burden of proof for the existence of gross negligence is borne by the Contractual Partner.
10.2. PBX’s total liability in cases of gross negligence is limited to 20% of the net order value or EUR 100,000, whichever is lower. Per claim, PBX’s liability is limited to 10% of the net contract value or EUR 50,000, whichever is less.
10.3. The liability expires in 6 months from the date of knowledge of the damage and the damaging party.
10.4. PBX is not liable for indirect damages, lost profit, loss of interest, missed savings, consequential damages and financial damages, damages from third party claims as well as for the loss of data and programs and their recovery.
10.5. PBX only offers individual products or individually agreed services. Overall concepts for transport solutions are not offered and are not the subject of the contract. Accordingly, PBX is not liable for the design, production or operation of an overall concept.
10.6. The liability of PBX for the delivered parts of an overall concept according to the Austrian Product Liability Act (Produkthaftungsgesetz – PHG) remains unaffected.
10.7. If, in whatever case, a penalty has been agreed upon, it shall be subject to the right of judicial moderation. The assertion of claims for damages in excess of the penalty shall be excluded.
- Jurisdiction and Choice of Law
11.1. For the resolution of all disputes arising from a contract – including those concerning its existence or non-existence – the exclusive jurisdiction of the relevant courts at the registered office of PBX is agreed.
11.2. The contract shall be governed exclusively by the laws of the Republic of Austria, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- Miscellaneous Clauses
12.1. Should any provision of these Terms and Conditions be or become legally invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other provisions. The contracting parties shall replace the legally invalid or unenforceable provision by a valid and enforceable provision which comes as close as possible to the legally invalid or unenforceable provision in terms of content and purpose.
12.2. Amendments or supplements to a contract must be made in writing. This shall also apply to the amendment of the written form requirement.
12.3. Any set-off against our claims with counterclaims of any kind whatsoever shall be excluded.
12.4. The use of subcontractors is always permitted.
Version 06/2023