Terms and conditions

Please note: Only the German version of our Terms and Conditions is binding and the English version is for information purposes only.

GABRIEL CONSTRUCTIONS GmbH

1. scope of application

1.1
These General Terms and Conditions (GTC) shall apply to the conclusion, content and performance of all contracts concluded between Helmut Gabriel, owner of GABRIEL KONSTRUKTIONEN GmbH, FN 82693 h, (in short: GABRIEL KONSTRUKTIONEN) and third parties (CUSTOMERS). These GTC shall also apply to subsequent contracts without the need to refer to them again in individual cases.
1.2
Deviations from these GTC are only effective if they are agreed upon in writing between GABRIEL CONSTRUCTIONS and the CUSTOMER; they replace these GTC only to the extent that they conflict with these GTC. If one of the provisions made in these GTC should be invalid, this shall not affect the validity of the remaining provisions made in these GTC.

2. services

2.1
GABRIEL KONSTRUKTIONEN is a technical service provider. In the ordinary course of business it renders services which are assigned to the following areas:
2.1.1
Consulting in the areas of special machinery, steel, plant, equipment design and materials handling,
2.1.2
Design in the fields of railway industry, paper machinery industry, food industry, equipment industry, in plant construction and materials handling,
2.1.3
Production of equipment in the fields of railway vehicle industry, paper machine industry, food industry, operating equipment industry, in plant construction and materials handling technology,
2.1.4
Assembly of the equipment in the areas of rail vehicle industry, paper machine industry, food industry, operating resources industry, in plant construction and materials handling technology,
2.1.5
Quality assurance (controlling) in the areas of rail vehicle industry, paper machine industry, food industry, operating resources industry, in plant construction and materials handling technology.
2.2
Any other services not mentioned in the quotation or offer shall be rendered by GABRIEL KONSTRUKTIONEN as extraordinary services only if they have been expressly agreed upon in writing with GABRIEL KONSTRUKTIONEN’s company drawing.

3. contract

3.1
The CUSTOMER is obliged, before submitting the offer, to inform GABRIEL KONSTRUKTIONEN of all information and facts which could be of importance in connection with the execution of the agreement and to make available all necessary documents.
3.2
Offers (cost estimates) made by GABRIEL KONSTRUKTIONEN are non-binding unless they are expressly designated in writing as binding. The CUSTOMER may accept the offer only with respect to the entire performance offered.
3.3
An offer made by GABRIEL KONSTRUKTIONEN or a declaration of acceptance made by GABRIEL KONSTRUKTIONEN which has as its subject matter various services mentioned in clause 2 or a blanket declaration shall be deemed to be an offer or declaration of acceptance in respect of one of the services mentioned in clause 2 which most closely corresponds to the declaration. A declaration made by GABRIEL KONSTRUKTIONEN shall be divided into as many separate declarations as the services mentioned in item 2 are covered. The same shall apply mutatis mutandis to declarations made by CUSTOMER.
3.4
The services mentioned in item 2 are divisible. Individual services within a service group (item 2.1.1 to item 2.1.5) are also divisible. The CUSTOMER is obligated to accept individual partial services (item 2.1.1 to item 2.1.5) as fulfillment of the part of the contract. GABRIEL KONSTRUKTIONEN is entitled to fulfill individual partial services (item 2.1.1 to item 2.1.5) independently of other partial services.
3.5
All contracts and agreements are binding only after they have been confirmed in writing by GABRIEL KONSTRUKTIONEN or GABRIEL KONSTRUKTIONEN has commenced performance of the contractual relationship. Changes to the contractual relationship are only effective if they are agreed upon in writing between GABRIEL KONSTRUKTIONEN and the CUSTOMER. If an order confirmation issued by GABRIEL KONSTRUKTIONEN deviates from the agreement, the change shall be deemed approved if the CUSTOMER does not object in writing within three days.

4. duties to inform and cooperate, power of attorney

4.1
The CUSTOMER undertakes to cooperate duly in the performance of the contract. The duty to cooperate shall also include the free provision of electricity, water and sanitary facilities as well as the free provision of dry premises for the secure storage of tools and machines.
4.2
The CUSTOMER declares that the third parties intervening on site for the CUSTOMER in each case are provided with corresponding power of attorney. The scope of the power of attorney shall include at least all those legal matters which are directly or indirectly connected with the performance of the service; thus in particular the right to demand changes in the performance of the service on behalf of the CUSTOMER or to accept declarations of any kind.
4.3
During the term of the contract, the CLIENT shall be obliged to inform GABRIEL KONSTRUKTIONEN of all changed or newly occurring circumstances that could be of importance in connection with the performance of the contractual relationship as soon as they become known.

5. performance of services, retention of title

5.1
GABRIEL KONSTRUKTIONEN shall be obligated to perform the service at the earliest as soon as all technical and contractual details have been clarified, the CUSTOMER has fulfilled his obligations and has created the structural, technical and legal prerequisites for performance.
5.2
Any necessary permits from third parties, in particular from the authorities, shall be provided by the CUSTOMER.
5.3
GABRIEL KONSTRUKTIONEN reserves the right to make minor changes in the technical aspects of the performance of the services which are reasonable for the CUSTOMER and shall be approved by the CUSTOMER in advance.
5.4
If GABRIEL KONSTRUKTIONEN agrees to a change in the contract requested by the CUSTOMER, the content of which is to be performed by the CUSTOMER itself or by a third party, GABRIEL KONSTRUKTIONEN shall be entitled to 20% of the remuneration originally agreed upon for this service. GABRIEL KONSTRUKTIONEN shall be entitled to an appropriate fee for additional or changed services ordered by the CLIENT which are not covered by the contractual relationship.
5.5
All goods delivered shall remain the property of GABRIEL KONSTRUKTIONEN until full payment has been made.
5.6
Unless otherwise agreed in writing with the CUSTOMER, GABRIEL KONSTRUKTIONEN owes only diligent efforts in the performance of the contract (item 2.1.1 to item 2.1.5); no success and no certain result.
5.7
GABRIEL KONSTRUKTIONEN is entitled to engage subcontractors (under its own responsibility) for the performance of services or to subcontract the contractual relationship to a third party (substitution).

6. performance deadlines and dates

6.1
Completion dates shall be binding on GABRIEL KONSTRUKTIONEN only if

their observance has been promised „fixed“ in the individual case, and
GABRIEL KONSTRUKTIONEN has received written notice from the CUSTOMER at least six weeks prior to the intended completion that the prerequisites for performance on site have been met.
6.2
If the start of the performance or the execution is delayed by circumstances for which GABRIEL KONSTRUKTIONEN is not responsible, the dates and deadlines agreed upon as binding, including the dates promised as „fixed“, shall also be postponed in accordance with the duration of the delay, but at least for six weeks in each case.
6.3
The additional costs incurred in this case due to delays, in particular costs for standing times incurred or increases in material or labor costs, shall be borne by the CUSTOMER.

7 Price, cost estimate

7.1
The contractual relationship shall be based on a cost estimate or a lump-sum price. Prices shall be lump-sum prices if they are expressly designated as such („fixed“). All prices quoted by GABRIEL KONSTRUKTIONEN are exclusive of VAT. Unless otherwise agreed in writing or unless a special fee agreement has been made, the fee guidelines and service specifications of the Professional Association of Technical Offices and Engineering Offices in the current version shall apply.
7.2
Cost estimates are subject to payment. Any fee paid for a cost estimate shall be credited against the agreed fee if a contractual relationship is established on the basis of the cost estimate.
7.3
No warranty for the correctness of cost estimates shall be assumed.
7.4
GABRIEL KONSTRUKTIONEN shall notify the CUSTOMER without delay of any increase of more than 15% in the sum of the costs shown in the cost estimate. After notification, the CLIENT may agree to the increase or withdraw from the contract – with compensation for the expenses incurred to date. Increases of up to 15% of the costs shown in the cost estimate can be charged without notification.

8. copyright, secrecy

8.1
All technical documents, plans, sketches, cost estimates, brochures, catalogs, samples and the like are the intellectual property of GABRIEL KONSTRUKTIONEN and may not be used otherwise, in particular not be passed on, reproduced or published. The obligation to protect intellectual property is not limited in time.
8.2
The CUSTOMER shall maintain strict secrecy about the contents of all documents, contents of conversations and other information brought to its knowledge as well as about the entire contents of the respective contractual relationship. The documents, data or information transmitted shall be kept by the CUSTOMER in a manner that does not permit inspection by unauthorized persons. The number of natural persons or legal entities directly involved in the processing by the CLIENT shall be limited to the lowest possible number. Only that information may be passed on to persons directly involved in the matter which they absolutely need. The CLIENT shall ensure and undertake in advance that all natural persons or legal entities involved on its side shall maintain the same strict secrecy and confidentiality as itself; this secrecy and confidentiality agreement shall be transferred to them. The obligation of secrecy is not limited in time.
8.3
The CLIENT undertakes to indemnify and hold GABRIEL KONSTRUKTIONEN harmless from and against any and all damages, costs and expenses arising from the breach of the obligation to protect intellectual property (clause 8.1) and/or the confidentiality obligation (clause 8.2).

9. price changes

9.1
If an offer is accepted so late that the performance of services is accepted by the CLIENT later than three months after the offer was made, GABRIEL KONSTRUKTIONEN shall be entitled to increase or decrease the prices on which the offer is based by applying the current construction cost index or the fee guidelines of the Technical Offices-Engineering Offices mutatis mutandis.
9.2
If the performance of services is delayed by at least three months for reasons within the CUSTOMER’s sphere of influence, the services performed up to the expiration of six months shall be invoiced – if necessary on a pro rata basis – as completed work.
9.3
In the event of a breach of the CUSTOMER’s duties to inform and cooperate (item 3.1, item 4), the CUSTOMER shall bear any additional costs incurred, in particular costs for standing times or increases in material or labor costs.

10. terms of payment, due date

10.1
GABRIEL KONSTRUKTIONEN shall be entitled to demand 20% of the agreed remuneration as a down payment upon conclusion of the contract. In addition, the CUSTOMER shall, at the request of GABRIEL KONSTRUKTIONEN, make partial payments in accordance with the progress of the performance.
10.2
The fee shall be due for payment as soon as GABRIEL KONSTRUKTIONEN has sent the CUSTOMER an invoice for the services rendered, irrespective of the CUSTOMER’s commissioning of the services.
10.3
In the event of default by the CUSTOMER, the CUSTOMER shall owe

default interest of 16% p.a. on the total amount of the invoice,
in the event of a higher interest burden on GABRIEL KONSTRUKTIONEN due to a bank loan, higher interest from the title of damages, if applicable,
the reimbursement of all extrajudicial or judicial costs necessary for the appropriate legal prosecution,
a contractual penalty of 15% of the outstanding amount.
10.4
The set-off of the CUSTOMER’s claims against those of GABRIEL KONSTRUKTIONEN is excluded – with the exception of § 6 paragraph 1 line 8 KSchG.

11 Cancellation (Withdrawal), Contractual Penalty, Prohibition of Assignment

11.1
If the CUSTOMER withdraws from the contract without a justifiable reason („cancellation“), the CUSTOMER shall owe a contractual penalty in the amount of 15% of the agreed remuneration regardless of fault. Compensation for damages in excess of this shall remain unaffected.
11.2
Claims against GABRIEL KONSTRUKTIONEN may not be assigned by consumers without prior written consent of GABRIEL KONSTRUKTIONEN.
11.3
In case of a justified withdrawal from the contract by GABRIEL KONSTRUKTIONEN or an unjustified withdrawal from the contract by the CUSTOMER, GABRIEL KONSTRUKTIONEN shall be entitled to the entire agreed remuneration. The crediting rule of § 1168 ABGB is excluded.

12 Warranty, Compensation

12.1
In the case of mutual business transactions with entrepreneurs, the warranty period shall be 6 months; defects must be notified by the entrepreneur in writing by registered letter within 14 days. Redhibition and/or price reduction shall be excluded. Claims of the CUSTOMER for improvement shall be fulfilled by GABRIEL KONSTRUKTIONEN within one third of the period agreed upon for the performance of the contractual relationship.
12.2
Parts of the services rendered (item 2) which are not directly affected by a defect shall not give rise to any warranty claims.
12.3
Liability for damage to property caused by slight negligence shall be excluded. In the case of a mutual business transaction, compensation for consequential damage caused by a defect, damage caused by delay and loss of profit shall also be excluded. The CUSTOMER’s claim for damages shall be limited to the net remuneration underlying the performance of the service.
12.4
If services are rendered by the CUSTOMER, GABRIEL KONSTRUKTIONEN shall not assume any duty of supervision or monitoring; GABRIEL KONSTRUKTIONEN shall not assume any liability for services rendered by the CUSTOMER.
12.5
The existence of gross negligence has to be proven by the injured party in case of a mutual business transaction.
12.6
In the case of a mutual business transaction, claims for compensation shall become statute-barred 6 months after knowledge of the damage and the damaging party, in any case 5 years after performance of the service or delivery.
12.7
GABRIEL KONSTRUKTIONEN shall only be liable for a fault of selection if, with the CUSTOMER’s knowledge, it uses subcontractors for the performance of services or passes on the contractual relationship to a third party (substitution).

13. place of performance, choice of law, place of jurisdiction

13.1
Unless otherwise agreed, the place of performance shall be the registered office of GABRIEL KONSTRUKTIONEN in 1230 Vienna.
13.2
Austrian substantive law shall apply to these GTC and all contracts to which these GTC are applicable. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The contractual language shall be German.
13.3
For any disputes regarding the conclusion of the contract as well as from or on the occasion of contracts concluded between GABRIEL KONSTRUKTIONEN and the CLIENT, the Austrian jurisdiction and (in contracts with entrepreneurs exclusively) the local jurisdiction of the court having subject-matter jurisdiction at the registered office of GABRIEL KONSTRUKTIONEN is agreed.