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lt. ECG§5 Abs.1 WKO Link
General terms and conditions of CHIPFACTORY GmbH
Unless the contracting parties have expressly agreed otherwise in writing, these general terms and conditions apply to all services and deliveries by Chipfactory GmbH (“Contractor”). The validity of the general terms and conditions can only be excluded or restricted in individual cases by means of an express mutual agreement. The general terms and conditions also apply if the client (“AG”) refers to his own deviating terms and conditions. The contract forms, general terms and conditions or similar used by the AG are ineffective. Opposing or deviating conditions of the client have no validity, even if they remain uncontested or if the service is accepted without reservation with knowledge of such conditions of the contractor. Deviations from these general terms and conditions, including deviations from the written form requirement, must be made in writing to be effective. The terms and conditions apply equally to consumers and entrepreneurs within the meaning of the UGB.
2. Components of the contract, conclusion of contract
2.1 In addition to these General Terms and Conditions, contract components are the offer of the AN. Verbal collateral agreements do not exist.
2.2 The AN’s offers are generally non-binding, unless otherwise agreed in detail. The contract is only considered to be legally binding when the contractor has submitted a written order confirmation after receiving an order. The services are provided by the contractor to the extent of the order accepted by him.
3. Prices, billing and due dates, right of retention
3.1 Unless otherwise agreed, the fee for the service offered by the Contractor is a flat rate. However, the contractor is entitled to invoice the actual expenditure if additional expenditure becomes necessary due to changes. For each working hour including travel time, a net € 100.00 will be invoiced. Commenced hours are billed as full hours.
3.2 The contractor’s claim for remuneration arises with the conclusion of the contract and is due from this point in time. If the AG is in default of payment, the AN is entitled to withhold the vehicle provided by the AG. A delivery takes place with full payment of the claims of the AN. The right of retention exists for all claims from the order, in particular for reimbursement of necessary and useful expenses as well as damage caused by the client. The right also exists against third party owners of the vehicle.
3.3 All costs of enforcing claims are borne by the client. If the client defaults on payment, an interest rate of 9.2% pa is agreed.
Unless otherwise agreed in writing, all dates are non-binding. Liability for damage caused by delay by the contractor is excluded.
5. Obligation to check and warn / concerns
5.1 The obligation to examine delivered goods according to § 377 UGB is expressly waived. If any defects are discovered, the contractor is in any case entitled to a six-week period in which to file a complaint.
5.2 The AN is not obliged to check the vehicle or other contributions provided by the AG. The AG is obliged to inform the AN about all relevant circumstances.
5.3 If there is a presumption that a defect can be traced back to the quality of the material provided by the client or from inadequate preliminary work, the client must prove that there was no defect.
6.1 The AG must take over the vehicle immediately after notification of completion. In the event of non-acceptance, the contractor is entitled to charge EUR 25 per day as a stand fee. The client is obliged to examine the vehicle upon acceptance and to report any defects immediately. Liability for defects resulting from a breach of the obligation to notify is excluded.
7. Warranty and Compensation
7.1 Liability for damage to the customer’s vehicle is excluded. The client is aware that the changes carried out on his behalf will result in an optimization of the performance of his vehicle, which – depending on the condition of the vehicle – can lead to increased wear and tear or, if used improperly, to damage. If the installation of the tuning chip / the software change invalidates the warranty and guarantees granted by the manufacturer, the contractor shall not be liable.
7.2 The Contractor is released from his warranty and compensation obligation with regard to a defect if the Client cannot prove that (i) the Contractor could have recognized the defect if he had taken due care or (ii) he all warnings and concerns raised by the AN has taken into account
7.3 The warranty period, within which any warranty claims must be asserted in court, is – unless otherwise agreed – two months and begins on the day of acceptance.
7.4 The AG shall immediately inform the AN in writing in the event of any other loss of any warranty or compensation claims about any defect that has occurred and at the same time grant the AN a reasonable period of time to remedy the defect. Only after this period has expired, which must not be less than twenty days from receipt of the notification of the damage by the AN, may the AG make use of the warranty remedies exchange, price reduction or conversion in accordance with the statutory provisions (§§ 922 ABGB) threaten the substitute performance. If the AN has not remedied a deficiency for which he is demonstrably responsible 14 days after he has received the threat of substitute performance, the AG is entitled to commission a third party to remedy the defect at reasonable, market-standard costs. Any claims from warranty and compensation against the contractor are excluded in this case, unless the client proves that the defect or damage is not due to the services provided by a third party.
7.5 In the case of claims for damages due to a defect existing at the time of acceptance, the burden of proof for the fault is incumbent on the client after the warranty period has expired.
8.1 Any liability for slight negligence is excluded. The AN is not liable to the AG for the loss of profit.
8.2 If the AN undertakes a test drive with the AG’s vehicle as part of the performance of the contract, no liability shall be accepted for any damage to the vehicle arising during this test drive.
8.3 No liability whatsoever is accepted for the achievement of performance targets (horsepower, consumption, etc …), the agreed values are guide values. The contractor provides his services within the framework of the due diligence; there is no claim to any kind of success.
In the event of a withdrawal for which the Contractor is not responsible, all services already provided by the Contractor are to be invoiced and paid for. We reserve the right to claim damages due to non-performance.
All products supplied and used by the contractor, such as software, hardware for control units, but also the design of the logo and letterhead may neither be copied nor imitated. This triggers a contractual penalty in the amount of EUR 20,000.
11. Place of jurisdiction and applicable law
11.1 This contract is subject to Austrian law to the exclusion of the UN sales law and the non-mandatory reference standards.
11.2 For all disputes arising from or in connection with this contract, the exclusive jurisdiction of the competent court for commercial matters for the first district of Vienna is agreed.
12. Final provisions
12.1 Changes and additions to this contract must be made in writing to be legally effective. This also applies to any departure from this written form requirement.
12.2 Any claims of the AG cannot be set off against claims of the AN arising from this contract, unless they are counterclaims that have already been legally established by a court or recognized in writing by the AN.
12.3 Should individual provisions of this contract be or become invalid in whole or in part, this shall not affect the validity of the rest of the contract. The invalid provision is to be replaced by a new provision that comes as close as possible to the economic purpose of this provision.
12.4 The parts delivered by the AN remain the property of the AN until they have been paid for in full.