General Terms and Conditions (hereinafter “GTC”) of LXM AERO GmbH (hereinafter “LXM AERO” or “Contractor” or “we”)
These general terms and conditions apply to all legal transactions – including all future contractual relationships, i.e., also in cases in which this is not expressly agreed upon in the additional or future contracts. All of our declarations of intent under private law are to be understood on the basis of these General Terms and Conditions. Conditions of our client (hereinafter also “customer”) that conflict with or deviate from our General Terms and Conditions shall not become part of the contract unless we have expressly agreed to their validity in writing. Actions to fulfil the contract on our side do not count as consent to contractual terms that deviate from our General Terms and Conditions.
Provisions in the contract that deviate from the provisions of the General Terms and Conditions take precedence over the General Terms and Conditions.
- Conclusion of Contract
A) Our offers are non-binding and subject to change. The contract is only considered binding when we send an order confirmation. Verbal commitments, subsidiary agreements etc. that deviate from these GTC or other written declarations of intent, in particular those made by employees, suppliers etc., are not binding for us. The content of the brochures, advertising announcements etc. used by us does not become part of the contract unless expressly agreed in the written contract or the order confirmation.
B) The client is obliged to check an order confirmation received from us. If our order confirmation contains changes compared to the order, these are deemed to have been approved by the customer unless the customer objects immediately, but no later than within three working days. If orders are sent to us, the requester is bound to them for a reasonable, but at least eight-day period from receipt of the request.
C) The content of the contract concluded with the customer results primarily from the written contract including annexes and these General Terms and Conditions.
A) The prices are understood to be the value of goods and services ex works without allowance and other discounts plus costs for loading, packaging, freight, and any insurance and plus the applicable value added tax (VAT).
Should the wage costs change between the conclusion of the contract and the provision of the service due to collective bargaining agreements in the industry or internal agreements or should other cost centres relevant to the calculation or costs necessary for the provision of the service, such as those for materials, energy, transport, external work, financing etc. change, then we are entitled to increase or reduce the prices accordingly. This applies in particular if these circumstances arise due to changes that were not to be expected in advance, such as wars, pandemic events or the effects of political changes that lead to a disproportionate increase in delivery or energy costs. Item 3 A) does not apply to consumer transactions.
B) Additional services due to changes that are not attributable to our sphere and require a reworking or reworking of individual areas, in particular as a result of official requirements, are to be remunerated in accordance with the increased scope of services.
- Terms of Payment, Interest on Arrears
A) Payments must be received by LXM Aero’s bank account specified on the invoice within fourteen (14) days of the invoice date. Payment must be made in Euros. Any bank charges or transfer fees shall be borne by the customer.
B) In the event of default in payment, we shall be entitled to charge interest on arrears from the due date in accordance with Section 456 of the Austrian Commercial Code (UGB) at a rate of 9.2 percentage points above the respective current base interest rate, but in any event in the amount of 8% pa. Further claims, such as in particular the claim to higher interest from the title of damages, shall remain unaffected.
- Withdrawal from the Contract
A) In addition to the general legal reasons, we are further entitled to withdraw from the contract in the event of default of acceptance or other important reasons, such as in particular the opening of bankruptcy proceedings against the assets of a client or the rejection of an application for bankruptcy due to insufficient assets to cover costs, if the service is interrupted for more than three months by the client and if the customer foils the performance. In the event of withdrawal, we are entitled to the entire payment for the services provided by us up to the point of withdrawal. We are entitled to the agreed fee less a flat rate saving of 25% for services not rendered by the day the contract is terminated. Any further claims from the title of damages remain unaffected.
B) If the customer defaults on payment, we are released from all further service and delivery obligations and are entitled to withhold outstanding deliveries or services and to demand advance payments or securities or – if necessary, after setting a reasonable grace period – to withdraw from the contract.
C) If the customer – without being entitled to do so – withdraws from the contract or if he requests its cancellation without justification, we have the choice of insisting on the fulfilment of the contract or agreeing to the cancellation of the contract; in the latter case, the customer is obliged to pay the entire fee for the services provided by us up to the time of withdrawal. We are entitled to the agreed fee less a flat rate saving of 20% for services not rendered by the day the contract is terminated.
D) In the event of a justified cancellation by our customer, we are only entitled to the payment for the services up to the effectiveness of the cancellation.
E) The withdrawal must be declared in writing.
- Reminder and Collection fees
In the event of a default of payment, the customer must reimburse us for the reminder fees incurred in the amount of a flat rate of EUR 40 plus postage per reminder issued and for the record keeping of the obligation in the dunning process an amount of EUR 80 per half year. In addition, we are to be reimbursed by the customer for all costs and expenses incurred as a result of the reminder or the collection of due payments, in particular the out-of-court attorney’s fees etc. required for appropriate legal prosecution.
- Retention of Title
A) All products and documents (slides, plans, calculations, etc.) are handed over by us under retention of title and remain our property until full payment. In the event of customers delay or default, we are entitled to take back the goods at any time. The customer is prohibited from transferring, whether in return for payment or free of charge, or from pledging the products and documents as security or from any other disposition of them until full payment has been made.
B) Return or take back of the item subject to retention of title, is considered to be withdrawal from the contract not automatically but only if this is expressly declared.
C) The customer bears the full risk for the reserved item, in particular the risk of destruction, loss, or deterioration.
- Prohibition of Compensation
A) The compensation of any counterclaims with our fee or other claims, for whatever reason, is not permitted.
B) Claims against us may not be assigned without our express consent. Item 8 A) does not apply to consumer transactions.
- Delivery, delay in delivery and postponement of delivery
A) The start of the delivery time specified by us presupposes that all technical questions have been clarified. Compliance with our delivery obligation presupposes the timely and proper fulfilment of the corresponding obligations of the customer.
B) Delivery dates or delivery periods, which can be agreed as binding or non-binding, must be stated in writing. Delivery periods begin with the conclusion of the contract. If changes to the contract are subsequently agreed, the delivery date or delivery period will change accordingly, if necessary.
C) The delivery period is met if the delivery item has left our premises or the notice of readiness for dispatch has been sent to the customer.
D) Force majeure, riots, strikes, lockouts, and significant operational disruptions not caused by us prolong any agreed delivery dates and deadlines for the duration of the disruptions to performance caused by these circumstances and for a reasonable start-up period.
E) If LXM AERO is prevented from starting work on time for reasons beyond our control and delivery times and/or dates cannot be met as a result, LXM AERO is not liable for a delay in delivery/work or for a complete omission. This applies in particular (but not only) to cases in which the employees sent by us to provide the service are prevented from providing the service on time due to delays or cancellations of public transport, strikes at the airport where the service is to be provided, or the airport cannot be entered for other reasons etc.
F) If LXM AERO is prevented from starting work on time for reasons attributable to the customer or a third party attributable to the customer and delivery times and/or dates cannot be met as a result, LXM AERO is not liable for a delay in delivery/work nor for a total omission. In such cases, the client is obliged to compensate LXM AERO for any damage and additional expenses incurred.
G) If the Client postpones the agreed time of performance or delivery, the following provisions shall apply:
If the Client notifies LXM AERO of the changed time of performance or its commencement within 21 days prior to the agreed time of performance or its commencement, the Client shall, in addition to the payment of a „handling fee“ in the amount of EUR 3.5% of the total volume but at least € 850,00 pay for the working hours estimated for the employees of LXM AERO between the intended time of performance or its commencement and the actual time of performance or its commencement on the basis of the standard hourly rate (which may be higher than the hourly rate actually agreed in the order).
The work we produce (e.g., foils, plans, sketches, models, other documentation, and documents) is protected by copyright. The client does not receive a license to use the work and has no right to use the work. The customer only has the right to use the work exclusively for the contractually stipulated purpose if the contract is completely fulfilled. Use for other objects (particularly other aircraft) is excluded.
- Record keeping
Original plans, original drawings and documents are always kept with us. We are obliged to hand over copies of these documents to our customer at his request against reimbursement of costs. Our retention obligation ends three years after acceptance of the services. During this time, we can release ourselves from our duty of safekeeping by handing over the original documents to the customer.
In the case of justified complaints, the customer is not entitled to withhold the entire, but only a reasonable part of the gross fee amount, except in cases of reversed transactions. This item does not apply to consumer transactions.
- Missed deadline
A) If the customer has to pay his payment obligation in instalments, it is agreed that if payment is not made on time, even just one instalment, all outstanding partial services will become due immediately without setting a further grace period.
B) This item applies to consumer transactions insofar as we have rendered our service in full, even if only a partial service by the consumer is at least six weeks overdue, and if we have reminded the consumer, setting a grace period of at least two weeks, and threatening to lose the deadline.
- Warranty, Inspection, and notification of defects
A) LXM AERO shall prepare a daily cost overview, which the Contractor shall review daily and confirm in writing by its signature. If this confirmation is omitted because LXM AERO cannot prepare or hand over the daily cost summary, the Client shall review and confirm the cost summary no later than one week after completion of the order. If he fails to provide such confirmation, the cost overview shall be deemed approved.
B) The customer must check the service immediately. Notices of defects will only be considered if they are asserted in writing immediately after their discovery. Obvious defects must be reported immediately, at the latest within 3 days after the delivery date. Defects that only become apparent later must be reported immediately, at the latest within 3 days after discovery of the defect, otherwise the defect is deemed to have been approved. The assumption according to § 924 sentence 2 ABGB does not apply.
C) If there is a defect that can be remedied, we will fulfil the customer’s warranty claims either by replacing the item, repairing it within a reasonable period of time or reducing the price, at our discretion. Claims for damages by the customer, which aim to remedy the defect, can only be asserted if we are delayed with the fulfilment of the warranty claims. Paragraphs A) and B) of this item do not apply to consumer transactions.
A) Liability for slight negligence, compensation for consequential damage and financial loss, savings not achieved, loss of interest and damage from third-party claims against the client are excluded. The limitations of liability do not apply to personal injury or damage to health which we are liable for. The injured party has to prove the existence of slight or gross negligence.
B) The limitation period for claims for damages is two years from the transfer of risk. The provisions on damages contained in these GTC or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
C) Our slides, plans and other documents may only be used for execution after official approval and our express release, otherwise claims for damages are excluded. Paragraph A of this item does not apply to consumer transactions for personal injury and for damage to items handed over by the customer in order to fulfil the contract. Paragraph A, second sentence of this item and paragraph B), first sentence, do not apply to consumer transactions.
We are only liable based on the provisions of the Product Liability Act and only in cases of intent or gross negligence.
- Choice of law, place of jurisdiction
A) Austrian law applies to the exclusion of its international referral norms. The applicability of the UN Convention on Contract for the international sales of goods is expressly excluded. The contract language is German or English. The Parties agree to Austrian domestic jurisdiction. The competent court at our company headquarters has exclusive local jurisdiction to decide all disputes arising from this contract. This item does not apply to consumer transactions.
B) Before initiating court proceedings, both parties must endeavour to reach a mutual out-of-court settlement of the legal dispute by entering into negotiations. If, despite these negotiations, no agreement might be concluded, both parties are entitled to immediately bring an appropriate action. If one of the parties does not comply with the obligation to enter into out-of-court negotiations beforehand, this party – except in the event of imminent danger – is responsible for the costs of the court proceedings, in particular the costs of its own representation, regardless of the outcome of the court proceedings, at least in full and to reimburse the other party for the reasonable costs incurred (including the costs of representation in court).
- Place of fulfilment
The place of performance is our company headquarters, Rohrbacherstrasse 9, 1130 Vienna, Austria.
- Change of address
The client is obliged to notify us of changes to his residential or business address as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification is omitted, declarations are also deemed to have been received if they are sent to the last known address.
- Severability Clause
Should individually provisions of these General Terms and Conditions be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions.
Each party is obliged to treat confidential the content of all documents received from the other party and all information given orally and in writing (whether of an economic, financial, or technical nature and regardless of whether it has been expressly marked as confidential information). Such documents or information may not be passed on to third parties or copies made of them without the prior written consent of the other party; excepted from this is the transfer to affiliated companies within the meaning of § 228 Para. 3 UGB. Such documents or information may only be used or reproduced by the parties for the purpose of providing the services in accordance with the present contract.
- The above obligations do not apply to information that.
- be considered public property (i.e., generally known) at the time of disclosure or become public property at a later date through no fault of the recipient; or
- was known to the recipient prior to the time of disclosure by the other party, provided that this can be proven by written records of the recipient; or
- was made available to the recipient by a third party who did not receive this information directly or indirectly from the other party.
The obligations set out in this item are binding for all parties and remain in force even after the termination or performance of the contract. In the event of a violation of the aforementioned provisions, the party who commits such a violation must compensate the other party for any resulting damage.