of the contractor Der Fellhof VertriebsGmbH, hereinafter referred to as Der Fellhof.
Scope of application
Contract basis. Der Fellhof concludes its contracts and provides its services exclusively on the basis of its written quotes and service descriptions, as valid from time to time, which form part of a quote (e.g. individual specifications or general folders), price lists and these Terms.
Unless specific to a certain project (e.g. individual specifications), descriptions of services, prices lists and terms and conditions, as amended from time to time, are thus applicable to all legal relationships between Der Fellhof and the customer and, from the conclusion of the first contract, therefore automatically govern also all other contracts that are concluded between Der Fellhof and the relevant customer, even if those price lists, product descriptions and terms and conditions are not explicitly incorporated by reference in these contracts.
Future changes. Changes in the description of services, price lists and the Terms of Der Fellhof will be notified to the customer in writing and shall be deemed to have been agreed, unless the customer objects to changes within four weeks.
Once the new agreement enters into force, changes in the Terms will be applicable also to all other current contracts.
Supplementary agreements. All supplementary agreements of any kind that are reached both prior to the conclusion and also throughout the term of a contract are valid only if made in writing.
Contract components of the customer. Even if Der Fellhof is aware of the customer’s requirements in respect of the service content, these will form part of the contract only if Der Fellhof has integrated these into the offer or explicitly acknowledges these otherwise, for example by reference to these requirements.
Even if Der Fellhof is aware of legal texts of the customer, such as terms and conditions or contract clauses, these will be applicable only if Der Fellhof accepts these by way of an additional note (such as “Terms and conditions accepted”) which expressly refers to and covers a legal text. Otherwise, Der Fellhof expressly objects to the inclusion of the customer’s legal texts such as terms and conditions or contract clauses.
The fact that Der Fellhof has simply accepted the customer's requirements in terms of the service content therefore does not mean that Der Fellhof has accepted the customer's legal texts, even if those requirements should include these legal texts (and contain language such as "Our General Terms and Conditions shall apply").
Inconsistencies. In case of any inconsistency between the quote, service descriptions (project-specific documents, general documents), price lists, if any, and Der Fellhof’s Terms, these shall apply in the above order. The individual elements will hence automatically amend the more general elements of the contract.
In case of any inconsistency between Der Fellhof's elements of a contract and the customer's elements of a contract, all contract elements of Der Fellhof shall prevail.
Conclusion of contract
Der Fellhof's offers. Offers of Der Fellhof to the customer, e.g. customized offers to the customer or non-customized offers such as order forms, catalogues or web shops, are subject to change and non-binding, without exception.
Offer by customer. If the customer places an order based on an offer or unsolicited, without Der Fellhof having previously made an offer (e.g. if additional contracts are awarded in current business relationships), the customer shall be bound by that order one week after it was received by Der Fellhof.
Acceptance of an order by Der Fellhof. A contract is therefore concluded only once Der Fellhof has accepted the customer’s order.
As a matter of principle, Der Fellhof shall accept orders in writing, for example by issuing an acknowledgment of order, unless Der Fellhof's actions on behalf of the customer and on the basis of the order signify to the customer that Der Fellhof accepts the customer's order.
Der Fellhof shall not be deemed to have accepted an order simply by acknowledging the receipt of an order.
Scope of services, order processing and customer’s duty to cooperate
Divisible services. Der Fellhof may make partial deliveries of services which are divisible.
Forfeiture. The customer is obliged to timely collect all services ordered from Der Fellhof or made available to Der Fellhof for processing. If services are not collected in due time, Der Fellhof may dispose of the services after six months and bill the costs of disposal to the customer.
Deadlines and target dates. All deadlines and target dates indicated by Der Fellhof are non-binding, unless expressly marked as binding.
Inevitable or unforeseeable events. In case of inevitable or unforeseeable events, including but not limited to any delay in the fulfilment of obligations by the customer, and if inevitable or unforeseeable events occur with Der Fellhof or its contractors that are unforeseeable for Der Fellhof, deadlines will be extended or target dates postponed for as long as such inevitable and unforeseeable event prevails, including the time it takes to take the necessary organizational measures in such a case. Der Fellhof shall notify the customer thereof in writing.
Customer’s duty to cooperate. The customer shall promptly provide any information in writing and make available all services to Der Fellhof without request and in a format which permits these to be processed, which Der Fellhof requires to provide its services.
This includes, but is not limited to nominating a contact person for the execution of the contract, making available documents, materials and facilities, coordinating the order details, and accepting (releasing) partial services and services.
Whenever the requirement for the customer to provide information or services becomes evident only while Der Fellhof provides its services, the customer shall promptly forward any such information.
The customer shall independently verify the fitness, accuracy and lawfulness of any information and services provided by him.
The customer shall be liable for any damage caused by any omission of, delay in or insufficiency of cooperation by the customer, including but not limited to any extra efforts thereby incurred by Der Fellhof. If Der Fellhof is unable to execute the services as agreed due to any omission of, delay in or insufficiency of cooperation by the customer, Der Fellhof, notwithstanding other rights, may discontinue the service, provide other services for other customers instead, and continue the execution of the services for the customer hereunder not until after the completion of these services, provided that the customer has fulfilled his cooperation duties until then. All target dates and deadlines will thereby be postponed.
If Der Fellhof is held liable by third parties due to an infringement of laws in connection with information or services provided by the customer, the customer shall also hold harmless and indemnify Der Fellhof for and against such claims and support Der Fellhof in the defence of third-party claims.
Interferences by the customer. In the event that the customer arbitrarily interferes with the services of Der Fellhof or makes changes contrary to the terms of the agreement, the customer shall be liable for any extra effort incurred by Der Fellhof, e.g. for reviews, documentation, identification and allocation of defects, and corrective action.
Der Fellhof's verification obligations. Der Fellhof is only liable that the services provided by Der Fellhof are not per se unlawful (e.g. use of a copyrighted work without the author’s consent).
However, Der Fellhof is not obliged to subject services created by Der Fellhof to legal examination as to whether they infringe third-party rights or violate laws due to the customer's intended use of these services (e.g. use of graphics as logo). It shall be the customer's responsibility to perform these legal examinations particularly in terms of administrative law, criminal law, competition law, trademark law, design rights, copyrights, personal rights and data privacy laws or to retain a qualified legal expert to perform these examinations.
Whenever Der Fellhof points out to the customer, before the customer awards a contract or when new order details become known during a contract, that it is necessary to subject the services to additional legal examination, the customer shall be liable to carry out such legal examination in respect of other rights or to take these risks in the event that Der Fellhof was subject to information and verification obligations. Der Fellhof shall thus be deemed to have properly provided the service as agreed.
Confidentiality & no solicitation
Confidentiality. The customer shall keep confidential and may not utilize for itself for or any third party any confidential information on Der Fellhof, its projects and its customers. This confidentiality obligation survives also after termination of the contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 50,000 for every breach.
No solicitation. The customer may not solicit or entice away customers or employees of Der Fellhof. This obligation survives three years after termination of a contract. If the customer breaches this obligation, he is liable to pay a penalty in the amount of EUR 50,000 for every breach.
Prices. All prices are quoted in Euros, inclusive of statutory value added tax, ex Der Fellhof's business domicile or branch office.
Additional services. All services provided by Der Fellhof that are not expressly covered by the agreed compensation, including but not limited to extra services agreed later on, will be charged separately.
Cost advance. Der Fellhof is entitled to request the customer to advance costs in order to cover its own expenditure.
Partial services. Der Fellhof is entitled to bill partial services.
Unjustified withdrawal. If the customer withdraws from the contract in its entirety or from any part of the contract without Der Fellhof having acted with gross negligence or intent, Der Fellhof is nevertheless entitled to the agreed compensation. In this case, Der Fellhof must merely allow a deduction of expenses saved from not yet having purchased goods or third-party services. The same applies if Der Fellhof withdraws from the contract for good cause within the customer’s control.
Price adjustments. In case of contracts concluded for an indefinite time and contracts that are renewed automatically, Der Fellhof is entitled to reasonably adjust the price on an annual basis in consideration of factors such as inflation, consumer and producer price index, collective bargaining agreements that were concluded, currency fluctuations, and similar external factors beyond Der Fellhof’s control.
Der Fellhof may also reasonably adjust the prices of individual services after conclusion of a contract if the cost of such services increases by more than 5% beyond Der Fellhof's control. In case of opposite conditions, consumers are also entitled to a reduction of the compensation.
Payment date. Der Fellhof's invoices are due without deduction from the invoice date. As a matter of principle, services will be provided only until the price has been paid in its entirety.
Online transactions. Invoices of Der Fellhof for online transactions are payable when the order is placed.
Reservation of title. Der Fellhof retains title to the goods supplied until such time as the customer has paid the purchase price in its entirety, including all related costs and interest.
In case of default, Der Fellhof may enforce its rights of reservation. In this case, the customer agrees that Der Fellhof may collect the goods. The enforcement by Der Fellhof of its reservation of title does not operate as withdrawal from the contract, unless Der Fellhof expressly gives notice of withdrawal.
If the customer resells the goods, the customer assigns its claim toward the buyer to Der Fellhof for the purpose of security. Der Fellhof is entitled to notify the buyer of that assignment.
Late payment. In case of any delay in payment, the customer shall pay statutory interest at a rate of 9% per year. The customer shall pay all costs and expenses incurred in connection with the collection of a claim, including but not limited to collection charges and other necessary costs for appropriate legal pursuit of rights.
Continuing payment default. After Der Fellhof has unsuccessfully reminded the customer to pay and granted an at least seven-day grace period for payment, Der Fellhof may inform the customer that all services and partial services already provided, including those Der Fellhof has provided according to other contracts concluded with the customer, are immediately due for payment and may temporarily discontinue the provision of yet unpaid services until such time as the customer has paid all outstanding compensations in their entirety.
After a period of another week has elapsed without the customer having made payment, Der Fellhof may withdraw from all contracts and claim compensation for lost profit, in addition to compensation for services already provided. Der Fellhof may also discontinue services which the customer has already paid, provided that such discontinuation will generate savings. In this event, Der Fellhof may set off its savings against outstanding claims.
Notwithstanding the above, Der Fellhof may certainly sue the customer also immediately after the expiry of the due date.
Payment by instalment. If and when Der Fellhof and the customer have agreed on payment by instalment, the entire compensation is due immediately even if the customer is in arrears with only one instalment.
Guarantee. If a third party has provided a guarantee for parts of the contractor's services, that guarantee shall be asserted directly vis-à-vis the third party (e.g. manufacturer's guarantee).
Where Der Fellhof has given a guarantee, any entitlement under the guarantee commences with handover. Any entitlement under the guarantee is statute-barred six months of the date on which the customer has become aware that a guarantee event has occurred, and with the expiration of the guarantee period, at the latest. If the guarantee does not specify the content of the guarantee, Der Fellhof will be liable only for usually expected properties.
Warranty. The provisions of the legal warranty system are applicable and, in addition, any guarantees or customer services promised within the scope of the product description.
Compensation for damage and other claims. The customer cannot seek compensation for damage and assert claims based on other liability provisions, including but not limited to recourse claims, unless these are based on gross negligence or intent of Der Fellhof.
This limitation of liability shall not include claims asserted based on personal injury and other mandatory liability rules.
Protection of third parties. For the avoidance of doubt, this contract does not have any protective effect on third parties.
Online dispute resolution
Online dispute resolution platform for consumers. The European Union has set up an "Online dispute resolution platform" (ec.europa.eu/odr) dedicated to resolve disputes with consumers. Der Fellhof will decide on a case-by-case basis whether to participate in a dispute resolution procedure. Questions in connection with the resolution of disputes can be addressed to Der Fellhof at firstname.lastname@example.org.
Applicable law. All legal relationships and circumstances between the customer and Der Fellhof shall exclusively be governed by and construed in accordance with Austrian law, to the exclusion of international conflict of law rules.
Mandatory consumer law. If Der Fellhof has oriented its professional and business activities towards the customer's home country, mandatory provisions for the protection of the consumer applicable in the customer's home country shall be applicable in addition.