General Terms of Service
as of 7th March 2019
1. Subject of the contract & validity
1.1. These terms and conditions apply between the Aero Enterprise GmbH, natural and legal persons (in short, customer) for the relevant business transaction as well as for all future business, even if in individual cases, especially in future supplementary or follow-up orders was not explicitly referred to.
1.2. In each case, the current version of the GTC upon signing the contract, available on the Aero Enterprise homepage (www.aero-enterprise.com), has been transmitted to the customer.
1.3. Aero Enterprise only contracts on the basis of the terms and conditions.
1.4. Terms and conditions of the customer or changes or additions to the terms and conditions require their express written consent.
1.5. Customer’s terms and conditions will not be recognized even if Aero Enterprise does not expressly object to them upon receipt.
1.6. As a licensor, Aero Enterprise offers its services as a “software-as-a-service model” with recurring payments. This includes the AERO Software Package (hereinafter referred to as “Software”), the AERO Base Database and all functions under the domain data.aero-enterprise.com. These were developed and owned by Aero Enterprise.
1.7. Without the prior written consent of Aero Enterprise, the licensee is therefore not entitled, in particular, to reproduce, modify, make available to third parties or use on any hardware other than the contractual hardware, without prejudice to the provisions of § 40d of the German Copyright Act.
2. Offers, conclusion of contract
2.1. The offers of Aero Enterprise are not binding.
2.2. Commitments, warranties and guarantees on the part of Aero Enterprise or agreements deviating from these terms and conditions in connection with the conclusion of the contract become binding only upon written confirmation.
2.3. In the case of catalogs, price lists, brochures, displays on trade fair stands, newsletters, advertisements or other media (information material), information about products and services that are not attributable to Aero Enterprise, the customer has – provided that the customer bases his decision to commission them – on Aero Enterprise. In this case, Aero Enterprise can comment on their accuracy. If the customer violates this obligation, such information is not binding, unless expressly stated in writing to the content of the contract.
2.4. Quotations are made without guarantee and are, if not otherwise agreed, against payment.
3.1. Prices are basically not to be understood as a flat rate.
3.2. All prices are in Euro without VAT. They apply only to this order.
3.3. The prices are quoted from the registered office of Aero Enterprise (Linz/Austria).
3.4. The costs for other services as well as any contract fees will be invoiced separately.
3.5. For services ordered by the customer, which are not covered by the original order, there is a claim to adequate remuneration due to the lack of a wage agreement.
3.6. Prices are exclusive of applicable VAT and ex warehouse. Packing, transport, loading and shipping costs as well as customs and insurance are charged to the customer. Aero Enterprise is only obliged to take back the packaging if expressly agreed.
3.7. The professional and environmentally sound disposal of waste material has to be arranged by the customer. If we are instructed separately, this is to be remunerated by the customer in addition to the agreed extent, due to lack of remuneration agreement.
3.8. Aero Enterprise is entitled, as well as at the request of the customer, to adjust the contractually agreed charges, if changes amounting to at least 2% regarding
a. labor costs by law, regulation, collective agreement, works agreements or
b. other cost factors necessary for the provision of services, such as procurement costs of the materials used, have come about as a result of recommendations by the Joint Commissions or changes in national or world commodity prices, exchange rates, etc. since conclusion of the contract. The adjustment is made to the extent that the actual cost of sales changes at the time the contract is concluded compared to the date of actual service provision, unless Aero Enterprise is in default.
3.9. The fee for continuing obligations is agreed as value-secured in accordance with the 2010 CPI and, as a result, the fees are adjusted. The starting point is the month in which the contract was concluded.
10.3. Costs for travel, day and overnight money will be charged separately. Travel times are considered working hours.
4.1. One third of the fee is due upon conclusion of the contract, one third at the start of service and the remainder after completion of service.
4.2. The entitlement to a cash discount deduction requires an express written agreement.
4.3. Customer made payment assignments on transfer documents are not binding on Aero Enterprise.
4.4. If Customer is in default of any other contractual relationships with Aero Enterprise, Aero Enterprise shall be entitled to stop fulfilling the obligations under this Agreement until Customer has fulfilled its obligations.
5.5. Aero Enterprise is then also entitled to make all claims for already rendered services from the ongoing business relationship with the customer due.
4.6. If the payment period is exceeded, even if only with regard to a single partial service, benefits granted (discounts, discounts, etc.) shall be forfeited and will be added to the invoice.
4.7. In the case of late payment, the customer undertakes to reimburse Aero Enterprise for the necessary and appropriate costs (dunning costs, collection fees, attorney’s fees, etc.).
4.8. According to § 456 UGB, Aero Enterprise is entitled to charge 9.2% points above the base interest rate if the default of payment is due.
4.9. Aero Enterprise reserves the right to assert further damage caused by delay.
10.4. The customer is only entitled to offset if the counterclaims have been legally established or acknowledged by Aero Enterprise.
11.4. For reminders that are necessary and appropriate for recovery, the customer is obligated to pay dunning charges of € 40, – as far as this is in reasonable proportion to the debtor’s claim, in the case of culpable default in payment.
12.4. The client is not entitled to withhold payments not complete complete delivery, guarantee or warranty claims or complaints.
5. Co-operation obligations of the customer
5.1. Aero Enterprise’s obligation to perform the service will begin at the earliest once all technical details have been clarified, the customer has created the technical and legal requirements (which may be provided upon request), has received agreed down payments or security deposits from Aero Enterprise, and the customer’s contractual wholesale value and obligations to cooperate, in particular those mentioned in the sub-items below.
5.2. In the case of services to be performed by Aero Enterprise, the customer is obliged to ensure that work can commence immediately upon arrival of the service personnel.
5.3. The customer must arrange the necessary permits of third parties as well as notifications and authorizations by the authorities at his expense. These can be requested.
5.4. The energy and water quantities required for performance, including trial operation, shall be provided by the customer at his expense.
5.5. The customer may be required to provide third parties with lockable rooms that are not accessible to third parties for the time of the performance of the work, as well as for the storage of tools and materials.
5.6. The customer is responsible for ensuring that the necessary structural, technical and legal prerequisites for the work to be produced or the object of purchase have been defined, that the information provided to the customer in the contract or in the contract prior to the contract has been circumscribed or the customer had to be familiar due to relevant expertise or experience.
5.7. Likewise, the customer is liable for the fact that the technical equipment, such as cables, cabling, networks and the like are compatible in a technically flawless and operational state as well as with the works or purchased items to be manufactured by Aero Enterprise.
5.8. Aero Enterprise is entitled, but not obliged, to inspect these systems for a separate fee.
5.9. In particular, the customer must provide the necessary information on the location of concealed power, gas and water pipes or similar facilities, escape routes, other obstacles of structural nature, possible sources of danger and the required static information before the assembly work.
5.10. Order-related details of the necessary information can be requested.
11.5. The customer alone is responsible for the design and functionality of provided parts. A duty to inspect with regard to any documents, data or instructions provided by the customer does not exist – beyond the installation of a technical construction dossier and the certificate of compliance with the Machinery Directive and any other applicable directives – with regard to the delivery item, and any liability in this regard is excluded. The obligation to issue the certificate may be contracted to the customer placing the delivery item on the market.
12.5. The customer is not entitled to assign claims and rights from the contractual relationship without written consent.
6. Performance execution
6.1. Aero Enterprise is only obliged to consider subsequent changes and expansion requests of the customer if they are necessary for technical reasons to achieve the purpose of the contract.
6.2. Customer reasonable and objectively justified minor changes in performance are deemed to be approved in advance.
6.3. If, after the order has been placed, for whatever reason, the order is modified or supplemented, the delivery / performance period is extended by a reasonable period.
6.4. If the customer wishes to carry out the service within a shorter period of time after conclusion of the contract, this may constitute a change of contract. This may require overtime and / or accrue additional costs as a result of accelerating the procurement of materials, and the fee will increase in proportion to the additional effort required.
6.5. Partial deliveries and services that are justifiable in terms of subject matter (eg size of plant, construction progress) are permissible and can be invoiced separately.
6.6. If delivery on call has been agreed, the service / purchase item shall be deemed to be called up no later than six months after the order has been placed.
7. Delivery and service periods
7.1. Delivery and service deadlines and dates are only binding if they have been specified in writing. A departure from this formal requirement also requires the written form.
7.2. Deadlines and deadlines shall be postponed in the event of force majeure, strikes, unforeseeable delays caused by suppliers or other similar events beyond the control of Aero Enterprise during the period in which the relevant event lasts. This does not affect the customer’s right to withdraw from the contract in the event of delays that make a commitment to the contract unreasonable.
7.3. If the commencement of performance or execution is delayed or interrupted by the circumstances attributable to the customer, in particular due to the breach of the obligation to cooperate in accordance with point 6, performance deadlines will be extended accordingly and the completion dates postponed accordingly.
7.4. Aero Enterprise shall be entitled to charge 5% of the invoice amount for each commenced month of the performance delay for the storage of materials and devices and the like required thereby in its operation, whereby the customer’s obligation to pay and the obligation to accept it remain unaffected.
8.1. When withdrawing from the contract because of delay, the customer has to grant a grace period by registered letter with simultaneous threat of withdrawal.
8.2. Force majeure, labor disputes, natural disasters and transport restrictions as well as other circumstances beyond the control of Aero Enterprise exempt the supplier from the obligation to deliver or permit a redefinition of the agreed delivery time.
9. Retention of title
9.1. The delivered, assembled or otherwise delivered goods remain the property of Aero Enterprise until full payment.
9.2. A resale is only permitted if it has been announced in good time in advance stating the name and the exact address of the buyer and Aero Enterprise agrees to the sale. In the case of consent, the purchase price claim is already assigned to Aero Enterprise.
9.3. The customer has to note this assignment in his books and on his invoices and to inform his respective debtors about this until the payment or purchase price has been paid in full. Upon request, it shall provide Aero Enterprise with all documents and information necessary to assert the assigned claims and claims.
9.4. If the customer is in default of payment, Aero Enterprise is entitled, with a reasonable grace period, to demand the reserved goods out.
9.5. The customer must notify Aero Enterprise immediately prior to the commencement of the bankruptcy of his assets or the seizure of the reserved goods by Aero Enterprise.
10.6. The customer expressly agrees that Aero Enterprise may enter the location of the reserved goods in order to assert its retention of title.
9.7. Necessary and appropriate for the purpose of legal prosecution costs borne by the customer.
9.8. The assertion of the retention of title is only a withdrawal from the contract, if it is expressly declared.
9.9. The returned reserved goods may use Aero Enterprise freehand and in the best possible way.
9.10. Until full payment of all claims, the goods / merchandise may not be pledged, assigned by way of security or otherwise encumbered with third-party rights. In case of seizure or other claim, the customer is obliged to point out the property right of Aero Enterprise and to inform immediately.
10. Property rights of third parties
10.1. For delivery items, which Aero Enterprise manufactures according to customer documentation (design information, drawings, models or other specifications, etc.), only the customer guarantees that the production of these delivery items does not violate third-party property rights.
10.2. If industrial property rights of third parties are nevertheless asserted, Aero Enterprise is entitled to stop the production of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the unenforceability of the claims is obvious.
10.3. The customer indemnifies and holds harmless Aero Enterprise in this respect.
10.4. Aero Enterprise has the right to demand appropriate cost advances from corporate customers for any litigation costs.
10.5. Likewise, Aero Enterprise can claim for the replacement of incurred necessary and useful costs by the customer.
10.6. Aero Enterprise has the right to demand reasonable cost advances for any litigation costs.
11. Our intellectual property
11.1. Deliverables and related design documentation, plans, sketches, estimates, and other materials, as well as software provided by or provided by Aero Enterprise, remain the intellectual property of Aero Enterprise.
11.2. Their use, in particular their dissemination, duplication, publication and availability, including only excerpts of copying, as well as their copying, processing or exploitation requires an explicit consent.
11.3. The customer further undertakes to keep secret the knowledge gained from the business relationship with third parties.
11.4. The present image data come from the company Aero Enterprise, which is considered the author. They are protected by copyright and may only be used with the express permission of the author. The consent to use is automatically given by commissioning Aero Enterprise to inspect the customer’s or third party industrial equipment.
11.5. On the pictorial material, the customer is granted the not exclusively internal permission to use the data for the purpose of data interpretation, classification of anomalies and the like, regardless of location and time.
11.6. The license to use is only valid when the agreed fee has been paid in full. Reproduction or use of the photographic material in video sequences and texts in other electronic or printed publications, except for internal use, is not permitted without the express permission of Aero Enterprise.
12.1. The warranty period for the services of Aero Enterprise is one year from handover.
12.2. In the absence of a different agreement (for example formal acceptance), the time of delivery is the completion date, at the latest when the customer has taken over the service into his power of disposition or has refused to take over the business without specifying reasons. With the day on which the completion is indicated to the customer, the achievement counts as lacking in the reason of justified assumption of the assumption as into its power of disposition taken over.
12.3. If a joint handover is planned and the customer stays away from the handover date communicated to him, the takeover is deemed to have taken place on that day.
12.4. Resolutions of a defect alleged by the customer do not constitute an acknowledgment of a defect.
12.5. The customer must always prove that the defect was already present at the time of delivery.
12.6. For the rectification of defects, the customer must make the system or devices accessible without culpable delay and grant the possibility of being assessed by Aero Enterprise or by an appointed expert.
13.7. Complaints of defects and complaints of any kind are to be announced in writing (as far as possible after 10 working days) at the registered office of Aero Enterprise with the most exact possible error description and indication of the possible causes in case of other loss of the warranty claims. The objected goods or works are to be handed over by the customer, if this is feasible.
12.8. If claims of defects of the customer are unjustified, he is obliged to replace incurred expenses for the determination of freedom from defects or troubleshooting.
12.9. Any use or processing of the defective delivery item which threatens further damage or makes it difficult or impossible to remedy the cause shall be discontinued by the customer as soon as this is not unreasonable.
10.12. Aero Enterprise is entitled to make or have any investigation deemed necessary, even if the goods or workpieces are rendered unusable by them. In the event that this investigation reveals that Aero Enterprise is not responsible for any errors, the Customer shall be responsible for paying the costs of this investigation for reasonable consideration.
11.12. Transport and travel costs incurred in connection with the correction of defects shall be borne by the customer. At the request of Aero Enterprise, the customer shall provide the necessary manpower, energy and rooms free of charge and shall cooperate in accordance with point 7.
12.12. To remedy the defect, Aero Enterprise must be given at least two attempts by the customer.
12.13. A conversion request can avert Aero Enterprise by improvement or appropriate price reduction, as long as it is not a material and irrecoverable defect.
12.14. If the objects of performance are produced on the basis of specifications, drawings, plans, models or other specifications of the customer, Aero Enterprise only guarantees their conditional execution.
12.15. No defect justifies the fact that the work is not fully suitable for the agreed use, if this is based exclusively on deviating actual circumstances of the information provided by Aero Enterprise at the time of provision of the service, because the customer does not comply with his obligation to cooperate according to point 7.
12.16. Likewise, this does not represent a defect if the customer’s technical equipment such as supply lines, cabling, networks and the like. not in a technically perfect and ready to use condition or incompatible with the delivered items.
13.1. Due to violation of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc. Aero Enterprise is liable for financial losses only in cases of intent or gross negligence due to technical features.
13.2. The liability for indirect damage – such as lost profits, costs associated with a business interruption, data loss or claims of third parties – is expressly excluded.
13.3. Liability is limited to the maximum liability of any liability insurance taken out by Aero Enterprise.
13.4. This limitation also applies to the damage to an item that Aero Enterprise handles for processing.
13.5. Claims for damages become statute-barred after the legal regulations, however at the latest with expiration of one year starting from knowledge of the damage and the injuring party.
13.6. The limitations or exclusions of liability also include claims against the Aero Enterprise employee(s), agents and vicarious agents for damage caused to the customer by the customer without reference to any contract.
13.7. Liability of Aero Enterprise is excluded for damage caused by improper handling or storage, overuse, failure to follow operating and installation instructions, incorrect installation, commissioning, maintenance, customer or non-Aero Enterprise authorized third party service, or natural wear and tear, if that event was causal for the damage. Likewise, the disclaimer for omission of necessary maintenance.
13.8. If and to the extent that the customer is liable for damages for which Aero Enterprise is liable, insurance benefits through its own or for its own benefit, indemnity insurance (eg liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of Insurance performance and limits the liability of Aero Enterprise to the customer in this respect to the disadvantages that arise for the customer by the use of this insurance (eg higher insurance premium).
13.9. Product features are expected to be expected from Aero Enterprise, third party manufacturers or importers, based on regulatory, operating and other product-related instructions and notices (including, but not limited to, inspection and maintenance), to the customer’s knowledge and experience. The customer as a reseller must take out sufficient insurance for product liability claims and indemnify and hold harmless with regard to recourse claims.
13.10. To the extent permitted by law, the software is provided on an as-is basis. The Licensor shall never be liable for any damages, costs or other payments incurred by Licensee arising out of any act, malfunction, error, and / or other interaction of the Software with any terminal, third-party software, or any other Licensee’s services. In addition, the Licensor will never be liable for errors in the source code written by Licensee (or any third party) when relying on the software or source code of the Software.
14. Other provisions
14.1 If individual provisions of these terms and conditions are or become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, an effective provision shall be made which corresponds to the purpose and economic purpose of these conditions.
14.2. Subsidiary agreements and changes to these conditions must be in writing to be valid.
14.3. The parties undertake to make a substitute settlement – starting from the horizons of honest contracting parties – which comes closest to the economic result, taking into account the usual commercial practice of the ineffective condition.
15. Loyalty, secrecy and final provisions
15.1. The contracting parties commit themselves to mutual loyalty. You will refrain from any solicitation and employment, including through third parties, by employees who have worked on the realization of the contracts, by the other contracting party during the term of the contract and 1 year after termination of the contract. The contracting party, on the other hand, is obliged to pay flat-rate damages in the amount of one year’s salary of the employee.
15.2. Aero Enterprise obliges its employees to comply with the provisions of §6 of the Data Protection Act.
15.3. Unless otherwise agreed, the legal provisions applicable between entrepreneurs apply exclusively in accordance with Austrian law, even if the contract is carried out abroad.
15.4. For any disputes, the local jurisdiction of the relevant court for the registered office of Aero Enterprise shall be exclusively agreed (regional court Linz/Austria).