General Terms of Business
Egger PowAir Cleaning GmbH, Salzburg, hereafter “Egger PowAir”
Egger PowAir Cleaning GmbH is a company specialising in mobile cleaning by dry ice blasting, cleaning with cold compressed air (KDL-process), cleaning with hot compressed air and PowAir Granulate / PowAir Glasspearls throughout the EU and Switzerland.
Egger PowAir operates, sells, lets, leases and provides services with Egger PowAir Cleaning systems, also using equipment of leading manufacturers such as:
Compressors of Atlas Copco, dry ice blasting equipment of the world wide market leader Cold Jet®, blasting machines for hot compressed air of Farrow System®.
Egger PowAir Cleaning GmbH operates across the EU and Switzerland together with PowAir Cleaning System partners who are committed to the quality standards and the operating practices of Egger PowAir Cleaning GmbH. Only system partners and companies which carry the brand “Hot PowAir Cleaning with PowAir Granulate and PowAir Glasspearls” or the brand “Cold PowAir Cleaning” are authorized by Egger PowAir Cleaning GmbH.
A. Framework conditions for all Egger PowAir services:
Service of cleaning and treatment of all types of surfaces and appliances, industrial machines, plants, power plant equipment, vehicles, bridges and buildings, etc. by means of dry ice blasting, cleaning with cold compressed air in accordance with the Egger method (KDL-process), cleaning with hot compressed air and granulates.
Sales, letting and leasing of machinery and equipment, including vehicles for PowAir Cleaning trademark protection, patent development, design, development of education and training methods, and training materials for Egger PowAir.
B. General Terms of Business of Egger PowAir Cleaning GmbH, Salzburg, hereafter “Egger PowAir”
1.1. Egger PowAir concludes its contracts with and provides its services to clients, which are entrepreneurs or natural persons, solely on the basis of its written offers and the applicable version of any written price lists and product descriptions belonging to the offer as well as these General Terms of Business.
As of the first conclusion of a contract, said first contract and all subsequent contracts between Egger PowAir and the respective client are automatically based on the price lists, product descriptions and General Terms of Business in the version applicable from time to time, even if no explicit reference is made to said price lists, product descriptions and General Terms of Business.
1.2. Changes in the price lists, product descriptions and General Terms of Business of Egger PowAir will be communicated to the client in writing and shall be deemed agreed if the client does not object within 14 days.
1.3. Additional agreements, conditions, changes or additions to the contract are only valid if made in writing. This also applies to a deviation from the written form requirement.
1.4. A client’s conflicting conditions or conditions deviating from the contract conditions shall only be effective, even if Egger PowAir has knowledge thereof, if they are expressly accepted in writing by Egger PowAir.
Egger PowAir expressly objects to the inclusion of client conditions. Further objections by Egger PowAir to client conditions are not required.
1.5. In the event of discrepancies between the offer, any price lists and product descriptions, as well as the Egger PowAir’s General Terms of Business, said documents shall apply in the order stated. Hence, the individual offer shall prevail over any other contractual component.
In the event of conflict between contractual components of Egger PowAir and contractual components of the client, the contractual components of Egger PowAir shall prevail.
1.6. Should individual provisions of the contract or of individual contractual components be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision, which is closest to the invalid provision’s economic meaning and purpose.
2. Conclusion of the contract
2.1. The basis for the conclusion of the contract is the respective offer of Egger PowAir to the client. The offers made by Egger PowAir are non-binding. If the client places an order they are bound to the order for a period of two weeks from Egger PowAir’s receipt of said order.
Within this period, Egger PowAir may accept the order, such acceptance leading to the conclusion of the contract.
2.2. If the client places an unsolicited offer to Egger PowAir, i.e. without a previous offer by Egger PowAir, the client shall be bound by said offer for a period of two weeks from its receipt by Egger PowAir.
Within this period, Egger PowAir Cleaning GmbH may accept the order, such acceptance leading to the conclusion of the contract.
2.3. Therefore, the contract is only concluded upon Egger PowAir’s acceptance of the contract.
2.4. The acceptance must always be issued in writing, e.g. by confirmation of the order, unless Egger PowAir signals through the commencement of activities that if noticeable for the client and based on the order that it accepts the order.
3. Scope of service, order processing and client obligations
3.1. The scope of the services to be provided results from the written service description by Egger PowAir. Within the scope of the service description, Egger PowAir shall be free in the way it performs the contract, provided that there are several professionally correct ways to carry out the agreed services
3.2. In the event that Egger PowAir is required to create a specification, this shall be done at the client’s expense.
3.3. Egger PowAir is entitled, at its sole discretion, to carry out the service itself, to use competent third parties as agents for the provision of the contractual service and / or to substitute such services (“third-party service”).
The appointment of third parties as part of an agreed third-party service shall be made on Egger PowAir’s own behalf but in any case on account of Egger PowAir. To the extent that Egger PowAir orders an agreed third-party services, the respective contractors are agents of Egger PowAir.
The client must enter into obligations towards third parties if said obligations exceed the contract period. This also expressly applies in the event of termination of the contract for cause.
3.4. In the event of divisible services, Egger PowAir shall be entitled to issue partial deliveries.
3.5. If Egger PowAir buys services from third parties prior to the conclusion of the contract and if this was noticeable to the client and if no particular specification was agreed for these services between Egger PowAir and the client, the specification agreed between Egger PowAir and the third party shall also apply to the client.
3.6. The client must provide Egger PowAir promptly with all information and documents that are required for the provision of the service or, if such information or documents become known only during the performance of the order, the client must immediately provide such information or documents at that point in time. The client must bear the expenses caused by Egger PowAir having to delay or repeat the work as a result of incorrect, incomplete or subsequently amended information or documents.
3.7. The client is also obliged to check the information and documents on which the performance of the order is based (i.e. technical drawings, photos, descriptions of the substances to be cleaned off, information on hazardous materials) for completeness, accuracy and lawfulness.
The client confirms that the documents and information provided by them are complete and truthful, and that the client is not conducting unlawful activities by providing this data and information.
Egger PowAir shall not be liable for the infringement of rights caused by the documents and information that have been provided by the client. If Egger PowAir is held liable for such infringement of rights the client undertakes to indemnify and hold Egger PowAir harmless; the client must indemnify Egger PowAir for any damages incurred by Egger PowAir and caused by third party claims. This includes in particular the costs of appropriate legal representation. The client undertakes to support Egger PowAir in the defence against any claims made by third parties. The client will, without being prompted, provide Egger PowAir with any documentation for this purpose.
3.8. Unless expressly agreed otherwise, the contract does not oblige Egger PowAir to check the services provided by Egger PowAir for a possible infringement of third party rights caused by said services.
The client is liable for the performance of such legal reviews carried out by an appropriately trained legal expert.
3.9. To the extent that Egger PowAir informs the client prior to placing an order or after the identification of new order details of the need for an additional legal review of its services with respect to other rights or other risks, the liability for the conduct of said legal review with respect to other rights or to taking said risks shall transfer to the client. Consequently, the services provide by Egger PowAir shall be deemed provided properly and in accordance with the agreement.
3.10. The client shall only be entitled to the service in the agreed form as the final product.
3.11. Egger PowAir is entitled to refer to Egger PowAir and possibly the originator with respect to all services provided by Egger PowAir to the client and, subject to a written revocation at any time, to use for Egger PowAir’s own promotional material data such as the client name and logo, project descriptions, project pictures and the like as reference for or indication to the business relationship with the client.
3.12. The client expressly acknowledges and confirms that with respect to all offers and the practical provision of services by Egger PowAir Cleaning GmbH for employment law and health & safety reasons one hour is defined as follows: 50 minutes cleaning work, by the appointed staff, which carry out cleaning work onsite at the client’s location. 10 minutes break. This 50/60 rule complies with existing EU law and employment law with regard to the cleaning activities with compressed air and appropriate abrasives offered and carried out by Egger PowAir Cleaning GmbH.
3.13. If the client wishes to cancel a contract concluded pursuant to clauses 2.1. – 2.3., the cancellation must be made in writing. Up to 90 days prior to the agreed commencement date of work by Egger PowAir Cleaning the cancellation is free of charge. In the event of a short-term cancellation, the following cancellation fees apply, whereby the specified period always refers to the agreed commencement date of work by Egger PowAir:
· Between 89 and 60 days prior: 15% of the agreed remuneration
· Between 59 and 30 days prior: 30% of the agreed remuneration
· Between 29 and 21 days prior: 40% of the agreed remuneration
· Between 20 and 14 days prior: 50% of the agreed remuneration
· Between 13 and 7 days prior: 60% of the agreed remuneration
· Less than 7 days prior: 70% of the agreed remuneration
4. Special provisions
4.1. To the extent that the services provided by Egger PowAir include maintenance works or similar works, Egger PowAir shall not be obliged to adhere to a particular response time, unless certain reaction times are agreed in detail.
4.2. The client is responsible for backing up their data prior to Egger PowAir’s commencement of the works.
4.3. The client is obliged to provide all systems and equipment that may conduct electricity or that may be statically charged with potential equalisation or other necessary protection or to have this provided by authorized master companies (Meisterbetriebe) in order to avoid hazards from electricity, by static electricity or electric shocks.
4.4. Throughout the entire period of provision of the agreed services, the client will provide Egger PowAir with specialised staff, who is well acquainted with the equipment and facilities, and is authorized to make decisions which become necessary during the service provision by Egger PowAir, and who is authorised to, every day at the end of the respective shift, sign the delivery note / s by Egger PowAir in a way that is legally binding to the client and to record any damage or defects on the delivery note / s on the same day in writing. The client confirms that Egger PowAir cannot accept complaints, notice of defects or damage reports issued at a later date.
4.5. The client is obliged to bear any and all waste disposal costs incurred for the disposal of materials that are produced by the cleaning or blasting process by Egger PowAir, such as varnishes, slag, grease, paint, asbestos, food waste, plastics, welding residues, etc. The client is further obliged to reimburse Egger PowAir for such costs. This also applies if dangerous or hazardous waste is to be disposed of.
4.6. The client is obliged to name in detail all materials and substances which are blasted by Egger PowAir and to disclose to Egger PowAir fully, truthfully, in detail and in writing prior to the commencement of any works any hazardous substances and dangerous ingredients with which Egger PowAir will deal during the cleaning process. This concerns, among other things (but not limited to): lead, mercury, PCBs, asbestos, silicates, poisons, chemical ingredients, pesticides, etc.
This is mandatory for the client because only by the complete and truthful disclosure by the client enables Egger PowAir to select the appropriate protective equipment for the persons working for Egger PowAir. If the client fails to disclose any information or discloses incomplete or false information, the client is fully liable for all damages to health incurred by the persons used by Egger PowAir and to pay any and all costs incurred – including any claims arising from disability.
5. Dates / Deadlines
5.1. The binding agreement of deadlines and dates may only be made in writing.
5.2. Unavoidable or unforeseeable events – in particular, the client’s default in meeting their obligations to cooperate or their payment obligations as well as unforeseeable delays in the sphere of Egger PowAir’s contractors that were unforeseeable for Egger PowAir – extend deadlines or postpone dates at least for the duration of the inevitable and unforeseeable circumstances. Egger PowAir must notify the client in writing of such events and circumstances.
5.3. Failure to comply with the deadlines entitle the client to the assertion of claims only if they have granted Egger PowAir in writing a reasonable grace period of at least 14 days.
5.4. If the client does not adhere to deadlines agreed in writing, the client is obliged to financially compensate Egger PowAir for downtime at the agreed hourly rates.
6.1. All prices are net amounts in Euros plus VAT at the statutory rate. They only apply to the present order. The prices quoted are ex registered office or branch office of the client.
6.2. Estimates by Egger PowAir are non-binding. If it becomes apparent that the actual will exceed the costs estimated in writing by Egger PowAir by more than 15%, Egger PowAir shall notify the client of the higher costs. The cost overrun is considered approved by the client, if the client does not object in writing within three days after said notice. A notification is not required for cost overrun up to 15%. Such cost overrun shall be deemed approved by the client from the outset.
6.3. Any services and disbursements made in cash by Egger PowAir, which are not expressly reimbursed or remunerated by the agreed fee, will be paid for separately.
6.4. Egger PowAir’s claim for remuneration incurs for each partial service once it has been provided. Egger PowAir is entitled to invoice partial services to cover its expenses and to request adequate, aliquot advances.
6.5. In the event that the client rescinds their order in whole or in part without such rescission being caused by Egger PowAir’s gross negligence or wilful misconduct, Egger PowAir shall still be entitled to the agreed remuneration. In that case, Egger PowAir is only obliged to deduct savings from purchases of goods and external services that had not been made.
6.6. In case of contracts with an indefinite term or contracts with automatic renewal of the contract term, Egger PowAir is entitled to annually make an appropriate price adjustment taking into account factors such as inflation, the consumer price index, the conclusion of collective bargaining agreements and similar factors.
7.1. Invoices by Egger PowAir are payable from the invoice date in net cash without any deduction and are payable immediately after receipt of the invoice, unless agreed otherwise.
7.2. Until the client issued payment in full, Egger PowAir’s retention of ownership of the goods and / or services provided by it is deemed agreed.
7.3. The client is not entitled to set off its claims against claims of Egger PowAir, unless the client’s claim was accepted in writing by Egger PowAir or determined by a court of law. A right of retention by the client is excluded.
7.4. In case of delayed payment, the statutory interest rates applicable between traders shall be deemed agreed and are payable in the amount of 5% above the respective base interest rate. The client undertakes to bear all costs and expenses incurred in connection with the enforcement of the claim such as, in particular, collection fees or other costs necessary for the pursuit of legal proceedings.
7.5. After an unsuccessful reminder of the client, granting a grace period of at least 7 days, Egger PowAir may request immediate payment of all services and partial services already provided, including those provided under other contracts concluded with the client, and may cease to provide services that have not yet been paid until payment in full of the outstanding payment claims has been issued.
7.6. After fruitless expiry of a further week, Egger PowAir is entitled to rescind all contracts and to claim damages for loss of profit in addition to the payment of the services already provided.
Thus, Egger PowAir is also entitled to discontinue the provision of services that were already remunerated. To the extent that Egger PowAir gains savings from services that can no longer be provided but that were already remunerated, Egger PowAir is entitled to set off said savings against the outstanding receivables.
7.7. Regardless of these options, Egger PowAir may file a lawsuit in court immediately after the due date.
7.8. To the extent that Egger PowAir and the client enter into an agreement on payment in instalments, it is deemed agreed that the entire amount becomes payable in the event of late payment of a single instalment.
8. Early termination
8.1. Egger PowAir is entitled to terminate the contract for cause with immediate effect. A cause exists in particular if:
a) For reasons for which the customer is responsible, the performance of the service is impossible or further delayed despite setting a grace period of 14 days;
b) The client continues to breach material obligations under this contract, despite a written warning and the setting of a grace period of 14 days to remedy the breach of contract;
c) Egger PowAir has legitimate concerns about the creditworthiness of the client and if upon Egger PowAir’s request the client neither issues an advance payments nor provides a suitable security prior to the provision of services by Egger PowAir.
8.2. The client is entitled to terminate the contract for cause without setting a grace period. Cause exists in particular if Egger PowAir continues to breach material provisions under this contract, despite a written warning and the setting of a grace period of at least 14 days to remedy the breach of contract.
9. Confidentiality & non-solicitation
9.1. The client undertakes to keep confidential all information on Egger PowAir, its projects and its clients that is known to the client and qualifies for confidentiality. The client further undertakes not to exploit such information for its own benefit. This provision shall survive after the end of the contract term or its termination. In case of a breach of this obligation a contractual penalty in the amount of EUR 25,000.00 is payable per violation.
9.2. The client and Egger PowAir undertake not to poach each other’s clients or employees. This provision shall survive for a period of three years after the end of the contract term or its termination. In a breach of this obligation a contractual penalty in the amount of EUR 10,000.00 is payable per violation.
9.3. Clauses 9.1. and 9.2. shall also apply to subcontractors / agents, who were contracted by Egger PowAir for the performance of orders (“third-party providers”).
10.1. If the services provided by Egger PowAir are cleaning services, no principles of warranty apply.
For letting and selling, the warranty periods apply for 6 months from delivery and the right to warranty recourse is limited to 12 months from delivery.
10.2. After the performance of the cleaning services or upon request for a preliminary acceptance of a partial performance of such services by Egger PowAir, the client must accept in writing (“release”) the services that were provided or that are to be accepted no later than on the same day, or the client must issue written notice on the delivery note / delivery notes of Egger PowAir of any defects.
The written notice of defects shall contain a detailed and comprehensible description of the defect. In case of defects that do not occur constantly, the exact times and conditions under which the defect occurred must be stated.
In the event of a delayed acceptance or the prior use of the services in actual operation, the services are deemed as accepted by the client.
10.3. Hidden defects, which appear after the expiry of 14 days but within 6 months, must be reported within 14 days.
10.4. Upon timely and justified notice of defects, the defects will be corrected within a reasonable period, whereby the client must enable Egger PowAir to take all measures necessary for the investigation of the defects and their correction.
10.5. The client is only entitled to the repair or replacement of the service power by Egger PowAir. Egger PowAir is entitled to refuse the repair or replacement of the services if this is impossible or if it requires unreasonable endeavours by Egger PowAir on the one hand and if on the other hand the defect does not constitute a substantial limitation for the client. In these cases, the client is entitled to a corresponding price reduction.
10.6. In case of a delayed notice of defects, the assertion of warranty claims and claims for damages, and the right to rescission on the grounds of error due to defects is excluded.
10.7. A reversal of the burden of proof to be borne by Egger PowAir is excluded. In particular, the client bears the burden of proof for the existence of the defect at the time of delivery, the time of discovery of the defect and the timeliness of the notice of defect.
10.8. Claims for damages by the client, in particular due to default, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damages or tort other than for personal injury are excluded, unless they are caused by Egger PowAir’s intent or gross negligence.
Claims for damages by the client shall expire within six months from knowledge of the damage; but in any event after three years from the act of infringement by Egger PowAir.
In any event, only direct damages shall be compensated. Compensation for any consequential damages, such as lost profits, disadvantages due to downtimes, etc., is excluded.
11. Final provisions
11.1. The place of performance shall be the headquarters of Egger PowAir. In the event of shipping, the risk passes to the client as soon Egger PowAir has handed over the goods to the relevant shipping company chosen Egger PowAir.
11.2. The legal relationship between the client and Egger PowAir shall be governed exclusively by Austrian law to the exclusion of international conflict of law rules. The provisions of the UN Sales Convention shall not apply.
11.3. The place of jurisdiction for all disputes between the client and Egger PowAir is agreed to be the competent Austrian court in Salzburg. However, Egger PowAir is also entitled to select the place of general jurisdiction for Egger PowAir or the client.
Salzburg, 15th of July 2014 Egger PowAir Cleaning GmbH, Robert Egger – Managing Director