General Terms and Conditions
1. General
1.1 The following terms and conditions shall apply exclusively to all sales. With the carrying out of the first delivery, the Purchaser acknowledges these, also in their latest respective versions for all subsequent deliveries. Deviations from theses terms and conditions shall be agreed in writing; where applicable, they shall only apply to the order for which they were expressly agreed. In the event of contradictory terms and conditions communicated to us by the Purchaser, silence on our part shall not be interpreted as an acceptance of these terms and conditions. The terms and conditions of purchase of the Purchaser shall only be binding on the Seller if the Seller has accepted them separately.
1.2 The legal force of these general terms and conditions shall be ackowledged through the acceptance of this order / order confirmation / invoice as well as the shipment.
2. Purchase Orders
2.1 All offers are subject to change and non-binding. Orders shall only be deemed to be accepted when they have been confirmed in writing by the Supplier. This shall also apply to sales made by agents.
2.2 Agreements and / or changes made verbally and / or by telephone shall only be valid when they have been confirmed in writing by the supplying plant.
3. Prices and Pament Terms
3.1 If between contract conclusion and service performance
a) wage increases occur through statute, regulation or collective agreement or
b) material costs increase due to the recommendations of the Joint Commission or due to changes in the global market prices for raw materials, then the affected prices shall be increased accordingly; except if there is a time period of less than two months between order placement and service performance.
3.2 The prices shall be understood as net prices and payable without any deductions. All supplementary fees, public charges, newly introduced taxes, freight costs as well as any increases thereof that directly or indirectly affect the supply shall be borne by the Purchaser.
3.3 Insofar as nothing else is specified in the offer and / or invoice, the following payment conditions shall apply: 1/3 on order placement, 1/3 on readiness for shipment, the rest net within 8 days of the invoice date.
3.4 Representatives are not authorized to accept payments.
3.5 The invoice amounts shall be paid free of all charges and without deductions. There shall be no obligation to accept bills of exchange. On acceptance, the payment is first deemed to have been effected after it has been honoured; all related expenses, interest and costs shall be at the expense of the Purchaser. Should the payment deadlines be exceeded, whilst reserving the right right to assert any further compensation claims for late payment, the actual accrued own bank credit costs shall be charged from the due date but at least at 2% above the actual official discount rate. Late payment interest in accordance with § 1333 paragraph 2 ABGB (Austrian General Civil Code), reminder, recovery and collection costs shall be at the expense of the Purchaser (§ 1333 paragraph 3 ABGB).
3.6 The Purchaser shall not be entitled to withhold payments on account of warranty claims or other counterclaims not recognised by the Seller. If the Purchaser is in default with any agreed payment or other obligation, the Seller shall be entitled to either demand fulfillment of the contract and
a) postpone fulfillment of its own obligations until the late payments or other obligations have been settled
b) extend the delivery period accordingly,
c) call for the payment of the entire still outstanding purchase price.
3.7 If on expiry of the grace period in accordance with 9.3, the Purchaser has not rendered the payment due or fulfilled other obligations, then the Seller may withdraw from the contract by means of a written notice. At the Seller’s request the Purchaser shall return to the Seller any already delivered goods and compensate the Seller for any reduction in the value of the goods that has occurred as well as refund to the Seller all justified expenses that the Seller has incurred in connection with the performance of the contract. Regarding undelivered goods, the Seller
shall be entitled to make available to the Purchaser the completed respectively partly finished parts and ask for a prorated part of the sales price.
4. Delivery and Service Times
4.1 Time limits and dates shall be non-bindung for us.
4.2 Time limits shall begin from the date of order confirmation, but not before the full clarification of all details and the provision by the Purchasr of any necessary official or similar certificates; dates shall be postponed accordingly. Time limits and dates relate to the point in time of the notification of the readiness for delivery ex works or warehouse.
4.3 Force majeure and unforeseeable events that make the delivery considerably more difficult or impossible for us – for example, interruption of operations of all kinds, delays in the delivery of raw and construction materials or component parts shall entitle us to postpone the delivery for the duration of the hindrances and a reasonable restart time or to withdraw from the contract insofar as we have not yet fulfilled it.
4.4 We shall have the right to extend the delivery time once only for four weeks for urgent reasons; the Purchaser shall be notified of this before the expiry of the delivery time.
4.5 If we are behind schedule with a delivery, the Purchaser shall have the right, after a grace period of at least one month to be specified in writing by him / her, to withdraw from the contract to the extent that we have not yet fulfilled it. In this case, compensation for damages for non- fulfillment instead of the exercising of the right of withdrawal can only be claimed – and is in fact restricted to the not yet fulfilled part of our delivery obligation – if we or our agents have brought about the delayed delivery wilfully or even negligently.
5. Passing of Risk
5.1 The risk shall pass to the Purchaser as soon as the ordered equipment or parts of the equipment is / are handed over to the freight forwarder or carrier or has / have left the Supplier‘s works for the purpose of shipment and, in fact, regardless of whether the handover / shipment takes place from the place of fulfillment, who bears the freight costs, who carries out the transport or whether the Supplier, in accordance with the concluded contract, is committed to carrying out the installation itself.
5.2 If the goods are ready for shipment and the delivery or acceptance is delayed for reasons for which the Supplier cannot be held responsible, then the risk shall pass to the Purchaser when the Purchaser receives notice of the readiness for shipment; furthermore, from this day on, the Purchaser shall bear the resulting storage costs and other expenses and at least 1⁄2% of the invoice amount for each month or started month from the notice of the readiness for shipment.
5.3 Insofar as the Supplier is also commissioned for the installation, at his or her request – also in subsections – acceptance shall take place without delay at the cost of the Purchaser. If, within 12 working days after the receipt of completion notification, no acceptance has been carried out for reasons for which the Supplier is not responsible, then on the expiry of the 12th day, the performance of the Supplier shall be deemed to have been accepted if the Supplier informed the Purchaser of this consequence with the delivery of the completion notice. Insofar as the Purchaser has put the performance or part of the performance of the Supplier into service, the acceptance shall be deemed to have taken place at the point in time of the putting into service.
5.4 Defects complained of by the Purchaser shall only then justify the rejection of the acceptance when these significantly adversely affect the serviceability of the performance.
6. Complaints
The Supplier shall not be held liable for any and all defects that result from documents or inaccurate information provided by the Purchaser. Complaints must be brought to notice in writing without delay, at the latest within 8 days following the receipt of the goods. The Supplier must be given a reasonable period of time, but at least 8 days, and opportunity for investigation. For this purpose, the goods must be returned to the delivery works. In the interests of the Purchaser, it is pointed out that with damage during transport, the establishment of the facts by the rail company or freight forwarder must be organized immediately on receipt of the goods.
Returns are only permitted within 21 days in exceptional cases and only after the prior written approval of the Supplier.
7. Warranty
In accordance with the recognized rules of technology, we warrant freedom of defects in materials and workmanship. For possible defects in delivery or service – including the absence of assured properties – we warrant to the exclusion of further demands as follows:
7.1 The warranty period is 2 years, calculated in each case from the transfer of risk
7.2 Defects must be reported immediately following receipt of the goods at their final destination; otherwise any and all claims shall be rendered null and void.
7.3 We shall be obligated to the repair or replacement free of charge or to reimburse the reduction in value, at our discretion, of parts that within the warranty period prove to be significantly impaired in their serviceability as a result of a circumstance occurring before the passage of risk. Replaced parts shall become our property.
7.4 If we fail to meet our warranty obligations, the Purchaser shall have the right, to the exclusion of any further claims after installation and insofar as the reversal process entails disproportionately high effort and expense, to a reduction in the purchase price only, otherwise the right of withdrawal in the event that the referral to a price reduction is unreasonable.
7.5 The warranty shall not cover
a) Defects that occur as a result of normal wear and tear, defective installation and assembly work by third parties, defective commissioning, incorrect or negligent treatment, improper use, inappropriate maintenance of the equipment, due to incorrect or late protective coating, as a result of external influences (for example, magnetic fields) as well as non-observance of the operating instructions.
b) Defects that are caused by modifications or maintenance work carried out by the Purchaser or third parties without our approval.
c) The lightfastness of plastic coatings
d) Supply parts that, as a result of their material properties or their type of use, are subject to excessive normal wear – for example, seals, plastic bearings, etc.
7.6 The Purchaser shall give us reasonable opportunity and time for the carrying out of warranty work; otherwise, any and all claims shall be rendered null and void. Additional services or material provided by the Purchaser shall be provided and made available again or free of charge. Moreover, the Purchaser shall be obligated to ensure that the improvement work can be carried out without danger to property or people. The Purchaser shall be responsible for communicating the dates for improvement work and, following consultation, to set these so that, where applicable, they do not lead to operational interruptions. Should the contractual object be
continued to be used despite the defect, then the warranty shall be restricted solely to the original defect.
7.7 We shall be entitled to refuse to eliminate defects in sofar as the Purchaser does not fulfil his / her obligations to a reasonable extent.
7.8 The costs for defect rectification undertaken by the Purchaser him- / herself shall only then be reimbursed by us when we have given written approval for this. Modifications to our deliveries and services carried out by the Purchaser or allowed to be carried out by third parties shall render all warranty claims by the Purchaser and also all claims for damages null and void.
7.9 Warranty claims shall lapse at the end of one month after our rejection or the non-acceptance of our regulatory proposal, in each case calculated from the date of our letter.
7.10 Negotiations concerning complaints of defects shall not imply that we waive our right to object that the complaint was not made in a timely or adequate manner. Persons charged with the examination of defects shall not be entitled to the recognition of defects with effect against us.
7.11 The Customer shall expressly renounce all rights accorded to him / her in accordance with § 933 b ABGB.
7.12 Further claims, insofar as is permissible, shall be excluded: this shall apply, in particular, to claims for compensation for damages that have not resulted from the contractual object itself. 7.13 These provisions shall also apply to the supply of goods other than those contractually agreed.
8. Liability
8.1 In all cases, the Supplier shall only be held liable for wilful intent and / or gross negligence. The limitation of liability shall also apply to tortious claims for compensation insofar as they are in connection with the defective delivery.
8.2 The liability shall be limited to the direct damage of the delivery object. This shall also apply to claims arising from unlawful acts.
8.3 Should the performance be completely or partially impossible for the Supplier, then his / her liability for damages to business persons shall be limited on the one hand to the wilful intent and / or gross negligence of the organ and the managing executives and on the other to a maximum
of 10% of the value of that part of the performance that cannot be delivered or commissioned on time because of the impossibility. In this case, the liability for damages to non-business people shall be limited to wilful intent and gross negligence.
9. Retention of Title
9.1 The delivered products shall remain the sole property of the Supplier until the full payment of all accounts receivable of the Supplier, including future accounts receivable, arising from the business relationship with the Purchaser or for other legal reasons.
9.2 Until full payment has been made, the Purchaser shall not pledge or assign the goods as security. Should the goods be impounded by a third party or any other intervention takes place that endangers the Supplier’s rights or possible means of disposal, the Purchaser shall inform the Supplier immediately.
9.3 Should the products delivered subject to retention of title be resold by the Purchaser, then the Purchaser herewith assigns to the Supplier in advance, up to the full settlement of all accounts receivable from him by the Supplier for goods delivered, the accounts receivable by him from the Purchaser or third parties from the resale of the goods together with all ancillary rights. The Purchaser is authorized, subject to revocation, to collect the accounts receivable from the resale. In sofar as the Purchaser fulfills correctly his / her payment obligations, the Seller shall not make use of his / her collection rights.
9.4 The Purchaser shall be obligated to give to the Supplier all necessary information and documents for the exercising of the rights to which he / she is entitled, especially to name the debtors of the assigned accounts receivable and inform them of the said assignment.
9.5 The Supplier is herewith authorized to inform the debtor of the assignment in the name of the Purchaser. If the value of the securities given to the Supplier exceeds his / her performance receivables by more than 20%, then, at the request of the Purchaser, the Supplier shall be obliged to reassign this amount.
9.6 If at the instigation of the Purchaser, the shipment of the goods takes place directly to a third party as his / her customer, then the Purchaser shall be obligated to specify in his / her purchase contract with the third party the retention of title as well as the business terms and conditions in the scope of this clause.
9.7 If, before payment to the Supplier, the goods are passed on by the Purchaser to a third party, then the Purchaser shall be liable for the disclosure to the Tax Office for Stamp Duties and Transfer Taxes, he / she shall bear the incidental cession fees and he / she shall accept any possible increases in fees that are due to non-disclosure or late disclosure.
10. Validity of the Provisions
Should one or more of the provisions of these Business Terms and Conditions of Sale become wholly or partially invalid, the validity of the remaining provisions shall remain unaffected.
11. Applicable Law / Place of Fulfillment / Place of Jurisdiction
The relationships between the Seller and the Purchaser shall be subject exclusively to Austrian Law. The Place of Fulfillment shall be the supplying site. For all disputes arising from this contractual relationship, the local jurisdiction and factual jusisdiction of the Güssing District Court in accordance with §104 JN shall be exclusively agreed. However, the Seller may also bring the matter before a different court which has jurisdiction over the Purchaser.