GENERAL TERMS AND CONDITIONS
of QMAGO GmbH
Sumpfstrasse 26
6312 Steinhausen
Switzerland
1. General
1.1. The following General Terms and Conditions (hereinafter: GTC) form the basis of all offers, orders, deliveries, and services and generally regulate the rights and obligations between QMAGO GmbH (hereinafter: QMAGO) and the contracting partner. All orders and services are accepted and carried out solely on the basis of the following GTC.
1.2. The General Terms and Conditions of the contracting partner are hereby expressly rejected and shall not become part of the contract. Other business or contractual conditions are recognized only insofar as they correspond with these GTC or have been expressly declared in writing by QMAGO to form the basis of the respective contract or service (individual agreement).
2. Offers/Orders/Scope of Performance
2.1. Offers from QMAGO are always non-binding and without obligation. All orders, acceptances, as well as supplements, changes, or side agreements require written order confirmation by QMAGO in order to be legally valid. All technical data, descriptions, and illustrations provided by QMAGO in offers, brochures, on the website, or other information and advertising material are non-binding. Any commitments, in particular all drawings, illustrations, dimensions, weights, or other performance data and descriptions, are only binding if expressly agreed upon in writing. The same applies to any special characteristics.
2.2. QMAGO is entitled to accept orders only in part. The contracting partner is bound to its order for the usual confirmation period, but at least for ninety (90) days. In case of discrepancies between QMAGO’s confirmation and the respective order, only QMAGO’s order confirmation shall prevail, unless the contracting partner immediately, or at least within seven (7) days of receipt of the confirmation, communicates its objection.
3. Prices
3.1. The agreed prices are fixed prices for the duration of the project, unless otherwise stated.
3.2. If the start of performance by the contracting partner is delayed due to site-related circumstances, the contracting partner has no right to price changes.
3.3. If the order is placed at a lump-sum price, billing shall take place regardless of the actual quantities or services performed. The contracting partner is obliged to verify the quantities of the specification and/or plans prior to placing the order and declares that it is aware of and has examined all price-determining factors. The agreed contract sum is a non-exceedable maximum amount. Subsequent calculation errors, additional quantities, or other errors – for whatever reason – do not entitle to an increase of the lump-sum price, and additional claims for these reasons will not be accepted. Additional or reduced services due to expressly agreed modifications shall be determined separately and added to or deducted from the lump-sum price. Only a lump-sum price increase confirmed in writing by QMAGO will be taken into account in billing.
3.4. If billing is based on actual services/deliveries at unit prices, quantities and measurements must be jointly determined and substantiated with verifiable statements, billing plans, and delivery notes. In the case of unit price billing, the contracting partner must notify QMAGO in writing of significant excess quantities in individual items before performing the associated service and must obtain written approval from QMAGO for the excess quantities, even if QMAGO should have been aware of these excesses or they originate from its sphere. A quantity excess is considered significant if the contract value of the relevant items is exceeded by 20%. Failure to comply with this reporting obligation results in the contracting partner losing any entitlement to compensation for the excess quantity.
3.5. Additional or reduced quantities, shifts within individual items, or elimination of items or service groups, regardless of the amount or reason, do not entitle the contracting partner to any change in unit prices or extension of deadlines. Any disadvantages arising for the contracting partner from elimination, cancellation, or reduction of a service will not be compensated by QMAGO. In the event of quantity increases in contract items, the lump-sum prices for site overheads, both one-time and time-bound costs, remain unchanged.
3.6. The agreed prices include all deliveries and services as well as construction elements, workpieces, and equipment necessary for proper execution of the commissioned performance, even if these are not separately listed in the specification or service description. This particularly includes all costs for transport, insurance, packaging, taxes, duties, fees, and charges connected with the contracting partner’s deliveries and services. QMAGO shall only bear such costs as are expressly indicated as QMAGO’s obligation. In particular, the prices also include costs for all types of difficulties arising from mutual obstruction by multiple companies, measurement or testing work, maintaining traffic, working on railway property or near high-voltage lines, relocation of cables, lines, or channels while complying with owners’ requirements, adverse weather, blasting operations, environmental protection, repair of damages, monument protection requirements, and all ancillary services not separately listed. The unit prices also include all expenses and costs necessary to fulfill the obligations under this contract as well as all other relevant provisions, in particular the obligation for proper documentation.
4. Terms of Payment
4.1. Payment shall be made by bank transfer to the account specified by QMAGO. Unless otherwise agreed between QMAGO and the contracting partner, payment is considered timely if QMAGO can access the amount within thirty (30) days after receipt of the invoice.
4.2. If no credit limit has been agreed with the contracting partner or if the contracting partner exceeds an agreed credit limit, payment must be made in advance by bank transfer. In this case, QMAGO is only obliged to perform once the invoice amount is available.
4.3. If the contracting partner does not comply with the payment terms, management is entitled without further reminder to demand interest at 9.2 percentage points above the 6-month EURIBOR p.a. Default interest shall be capitalized after two months past due.
4.4. The contracting partner is not entitled to offset claims against QMAGO. QMAGO, however, is entitled at the time of invoicing to offset existing claims against the contracting partner.
4.5. The contracting partner has no right of retention.
4.6. In the event of default in payment or other obligations, QMAGO is entitled – without prejudice to other rights – to withhold deliveries until performance of the agreed counter-performance within the outstanding period, or to withdraw from the contract after a reasonable grace period and claim damages for non-performance. In such a case, the contracting partner must immediately reimburse QMAGO for any services already rendered. QMAGO expressly reserves the right to assert further damage claims.
4.7. If circumstances become known that raise justified doubts about the contracting partner’s creditworthiness (e.g., payment delays, initiation of multiple enforcement proceedings, insolvency applications), all claims of QMAGO against the contracting partner become immediately due. QMAGO then has the right to withdraw from all orders of the contracting partner and to terminate all contracts with the contracting partner immediately by written notice, even if already confirmed.
4.8. The contracting partner undertakes to reimburse QMAGO for all costs necessary for appropriate pursuit of claims in case of breach of contractual obligations. In addition, the costs of collection agencies up to the maximum fees permitted by the applicable regulation, as well as attorneys’ fees according to the attorney tariff, shall be reimbursed.
5. Warranty and Guarantee
5.1. QMAGO assumes warranty only under the following provisions and only towards the contracting partner. Assignment of warranty claims to third parties is excluded. § 933b Austrian Civil Code (ABGB) is waived.
5.2. The presumption of defectiveness under § 924, second sentence ABGB, is waived. In the case of a defect subject to warranty, QMAGO may choose to repair, replace, or provide a reasonable price reduction.
5.3. QMAGO assumes no warranty for services if these were subsequently altered by the contracting partner or attributable third parties, or if defects or damages arose from improper handling, unauthorized modifications, non-compliance with operating instructions, or instructions relating to electrical connections, safety regulations, or protective measures.
5.4. Acknowledgment of warranty claims by QMAGO does not extend the original warranty period.
6. Liability, Damages
6.1. QMAGO is liable solely for proper performance and that the service meets the technical requirements as expressly confirmed in writing by QMAGO.
6.2. QMAGO’s liability is generally limited to gross negligence and intent. Liability for slight negligence is excluded. Furthermore, liability – insofar as legally permissible – is limited to 25% of the contract volume or EUR 10,000.00, whichever is lower.
6.3. Any liability of QMAGO for indirect, consequential, or incidental damages, or for loss of profit, is excluded and expressly waived.
6.4. Any further claims of the contracting partner not explicitly listed in these GTC are expressly excluded.
7. Miscellaneous
7.1. Notices and declarations of intent shall be legally effective to the address provided by the contracting partner at the time of order, until written notification of a new address. In case of incorrect, incomplete, or unclear information provided by the contracting partner, the latter shall bear all costs incurred by QMAGO. The contracting partner is obliged to notify QMAGO in writing without delay of any changes in name, address, or registered office, otherwise QMAGO shall not be liable for damages. In case of omission, any written communication to the last known address shall be deemed valid delivery.
7.2. Transfer of rights arising from the contract with QMAGO to third parties requires the written consent of management.
7.3. The assertion of reduction beyond half (laesio enormis) is excluded.
7.4. Amendments and side agreements are valid only with written confirmation by duly authorized representatives registered in the commercial register and apply only to the individual case. Other employees of QMAGO are not authorized to agree on amendments or side agreements to these GTC.
7.5. Should one or more provisions of these GTC be invalid or unenforceable, the validity of the remaining provisions and the underlying contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable one that comes closest economically.
8. Applicable Law, Place of Performance, Jurisdiction
The place of jurisdiction for all claims arising from the contract is the competent court at QMAGO’s registered office in Zug. QMAGO reserves the right, however, to bring action at any other permissible venue or at the contracting partner’s place of business. These General Terms and Conditions are governed by Swiss law, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
QMAGO GmbH
Sumpfstrasse 26
6312 Steinhausen
Switzerland
