Terms and Conditions of LISN GmbH
Validity of General Terms and Conditions (GTC)
Unless expressly agreed otherwise, our GTC, of which the contractual partner has been made aware, shall apply.
Our contractual partner agrees that in case of doubt, our terms and conditions are to be assumed in the event of the use of GTC by him, even if the contractual partner’s terms and conditions remain unchallenged.
In this respect, contractual performance on our part shall not be deemed to be consent to contractual terms and conditions that deviate from our terms and conditions. If ambiguities nevertheless remain in the interpretation of the contract, these are to be eliminated in such a way that those contents are deemed to be agreed which are usually agreed in comparable cases.
Our offers are subject to confirmation.
Protection of documents / Confidentiality
Cost estimates and other documents such as brochures, catalogues, samples, presentations and the like remain our intellectual property. Any use, in particular the passing on, duplication, publication and making available, including copying even of extracts, requires our express consent.
All of the above-mentioned documents may be recalled by us at any time and must be returned to us without delay and without being requested if the contract is not concluded.
Furthermore, our contractual partner undertakes to maintain secrecy towards third parties with regard to the knowledge obtained from the business relationship.
In the absence of any other agreement, we shall be entitled to invoice the service to be rendered by us according to the actual incidence and the expenses incurred by us as a result. These invoices are to be paid within 8 days of receipt. Partial hours, including travel time, shall be invoiced as full hours.
If no justified objection to our invoice is raised in writing within 2 weeks, it shall be deemed approved in any case.
We shall also be expressly entitled to issue partial invoices if the service is rendered in parts.
Unless expressly stated otherwise, all prices quoted by us are exclusive of value added tax. In the event of invoicing, the statutory value added tax shall be added to these prices.
4.1 Stability of value clause
It is expressly agreed that the value of the claim, including ancillary claims, shall remain stable. The consumer price index published monthly by the Austrian Central Statistical Office or an index replacing it shall serve as a measure for the calculation of the stable value.
The index figure calculated for the month of the conclusion of the contract shall serve as the reference value for this contract. Fluctuations in the index figure up to and excluding 1% shall be disregarded and shall only be charged in full if this margin is exceeded. This margin shall be recalculated each time it is exceeded, whereby the first index figure outside the applicable margin shall always form the basis for both the recalculation of the claim amount and the calculation of the new margin. The resulting amounts shall be rounded to one decimal place.
Insofar as a consumer transaction is concerned, no price changes – unless these have been expressly negotiated in detail – shall be invoiced, at any rate during the first two months after conclusion of the contract.
Terms of payment (due date, partial payment, discount)
The buyer undertakes to pay the purchase price in full upon conclusion of the contract.
Payment shall only be deemed to have been made on time if the amount has been received or credited to our account on the due date.
If the buyer fails to make even a partial payment within the payment period agreed for a discount, he shall lose his discount claim not only with regard to this partial payment, but also with regard to all partial payments already made or to be made at a later date.
Even if the buyer is not responsible for the delay in payment, we are entitled to charge interest on arrears in the amount of 10% above the base interest rate per annum; this does not affect claims for compensation for proven higher interest.
Transport – Assumption of Risk
In the absence of an express agreement to the contrary, the costs and risk of transport for deliveries shall be borne by our contractual partner.
Retention of title
The goods remain our property until full payment of the purchase price and all costs and and expenses have been paid in full. A resale is only permissible if we have been informed of this in good time beforehand, stating the name or company and the exact business address of the purchaser, and we consent to the sale. In the event of our consent, the purchase price claim shall be deemed to have been assigned to us and we shall be entitled to notify the third-party debtor of this assignment at any time. In the event of a plurality of claims on our part, payments made by the debtor shall be allocated primarily to those of our claims which are not (or no longer) secured by a reservation of title or other means of security.
In the event of default, we shall be entitled to assert our rights under the retention of title. It is agreed that the assertion of the retention of title does not constitute a rescission of the contract unless we expressly declare the rescission of the contract.
Place of performance
The place of performance for both our performance and the counter-performance is LISN GmbH, Allgäustraße 5, 6912 Hörbranz, Austria.
Non-performance/delay in delivery and performance
The buyer shall in any case accept minor delays in delivery or completion without being entitled to claim damages or the right to withdraw from the contract.
The delivery date shall be agreed as fixed insofar as we may withdraw from the contract by mere declaration in the event of default on the part of the contractual partner without setting a further period of grace. This declaration must be made within 14 days. We are entitled to claim all damages resulting from the delay.
The delivery date shall be agreed as a fixed date. In the event of delay, no withdrawal is required; the consequences of this are automatic.
Cancellation fees/refusal money
The buyer has the right to withdraw from the contract without giving reasons (§ 909 ABGB) against payment of a cancellation fee (a regret fee) of 50 % of the purchase price.
Unilateral changes in performance
Objectively justified and reasonable changes to our performance or delivery obligation, in particular reasonable delivery time or short-term payment deadline overruns on our part, shall be deemed to have been approved in advance.
Objectively justified and minor changes which do not affect the price may be made by us. This applies in particular to such delivery deadline overruns. We shall then announce how long a delay is to be expected when the actual exceeding of the delivery period can be estimated, but at the latest one week before the originally agreed delivery date.
Apart from those cases in which the right to rescission (termination of the contract) is granted by law, we reserve the right to fulfil the warranty claim at our discretion by improvement, replacement or price reduction.
The transferee must always prove that the defect was already present at the time of handover.
The goods must be inspected immediately after delivery. Defects discovered in the course of such inspection shall also be notified to the seller without delay, but no later than 3 days after delivery, stating the type and extent of the defect.
Hidden defects shall be notified immediately after their discovery. If a notice of defect is not made or not made in time, the goods shall be deemed to have been approved. The assertion of warranty claims or claims for damages as well as the right to contest errors due to defects shall be excluded in these cases.
The statutory warranty provisions shall apply.
Apart from personal injury, we shall only be liable if the injured party can prove gross negligence on our part.
Any recourse claims made against us by contractual partners or third parties under the title of “product liability” as defined by the Product Liability Act (PHG) shall be excluded unless the party entitled to recourse proves that the defect was caused in our sphere and was at least due to gross negligence.
Offsetting against our claims with counterclaims of any kind whatsoever is excluded.
Prohibition to refuse performance and retention of goods
Justified complaints do not entitle the customer to withhold the entire invoice amount, but only an appropriate part of it.
Obstruction of performance
In the event of deliberate obstruction of the contractual partner to fulfil our order, the order shall be cancelled on our part and the contractual partner shall be obliged to pay the full order amount. Additional compensation payments are not affected by this.
All agreements, subsequent amendments, supplements, ancillary agreements, etc. must be made in writing, i.e. also with an original signature or a secure electronic signature, in order to be valid.
Declarations, notifications, etc. addressed to us – with the exception of notifications of defects – must be in writing in order to be valid. – With the exception of notifications of defects, declarations, notifications, etc. sent to us must be in writing, i.e. also with an original signature or a secure electronic signature, in order to be legally effective.
Choice of law
Austrian substantive law shall apply to this contract.
The court with subject-matter jurisdiction at the registered office of our company shall have local jurisdiction to decide on all disputes arising from this contract. However, we shall also have the right to take legal action at the general place of jurisdiction of the contractual partner.
For all actions brought against a consumer who has his domicile, habitual residence or place of employment in Germany, due to disputes arising from this contract, one of the courts in whose district the consumer has his domicile, habitual residence or place of employment shall have jurisdiction. For consumers who are not domiciled in Austria at the time of conclusion of the contract, the statutory courts of jurisdiction shall apply.
Arbitration Agreement – Arbitration
22.1 Domestic Arbitration
All disputes or claims arising out of or in connection with this Agreement, including disputes as to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the International Arbitral Institution of the Austrian Federal Economic Chamber (VIAC) by one or three arbitrators appointed in accordance with such Rules.
22.2 International Arbitration in the WKÖ
“All disputes or claims arising out of or in connection with this Agreement, including disputes as to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the International Arbitral Institution of the Austrian Federal Economic Chamber (VIAC) by one or three arbitrators appointed in accordance with these Rules.”
Expedient/possible supplementary agreements:
“The number of arbitrators shall be three;
the languages to be used in the arbitral proceedings shall be German or English;
the substantive law applicable to the contractual relationship, the substantive law applicable to the arbitration agreement and the rules applicable to the proceedings shall be Austrian substantive law;
the applicability of the expedited procedure;
the design of the confidentiality provisions for arbitrators and their extension to parties, agents and experts.”
All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these rules.
Appropriate supplementary provisions:
The number of arbitrators shall be three;
and: The substantive law of Austria shall be applicable;
and: The language to be used in the Arbitral proceedings shall be German or English.
22.3 Arbitration at the International Chamber of Commerce in Paris
All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with such Rules.
The provisions on summary arbitration shall not apply.
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
The Emergency Arbitrator Provisions shall not apply.
The cost estimate is drawn up to the best of our knowledge, but no guarantee can be given as to its accuracy. Should costs increase by more than 15% after the order has been placed, the contractor shall inform the client immediately.
In the case of unavoidable cost overruns of up to 15%, a separate notification is not necessary and these additional costs can be invoiced without further ado.
Unless otherwise agreed, order changes or additional orders may be invoiced at reasonable prices.
Cost estimates are subject to payment. Any fee paid for the cost estimate shall be credited if an order is placed on the basis of this cost estimate.
Our customer agrees that invoices to him may also be prepared and transmitted electronically.
Insofar as the customer is required to pay in instalments, it is agreed that if even one instalment is not paid on time, all outstanding instalments shall become due immediately without further notice.
In the case of consumer transactions, the above provision shall apply mutatis mutandis insofar as we have rendered our performance in full, even if only one of the customer’s outstanding performances is due for at least six weeks, and if we have sent the customer a reminder setting a grace period of at least two weeks under threat of losing the deadline.
Default interest for credit transactions with consumers
In the case of credit transactions with consumers, the interest on arrears shall amount to the interest rate agreed for the contractual payment plus 5 percentage points per annum.