Last revised: 01.02.2012
1. General:
These terms and conditions shall apply to all legal transactions with us, unless explicitly agreed otherwise between us and the Customer. No order shall be deemed accepted until a written confirmation is provided by us. Oral agreements shall not be effective unless confirmed by us in writing.
Any terms and conditions issued by the Customer shall not be applicable unless accepted by us in writing. If any individual agreements deviating from these terms and conditions were made with the Customer, the other terms will not be affected.
Where we are the Client (Buyer), our terms and conditions shall be deemed acknowledged and accepted by accepting and/or processing our order.
Should any provision of our terms and conditions be or become invalid, it shall be replaced on the basis of these terms and conditions and statutory regulations by provisions meeting the requirements of the purpose of the contract. This shall not affect the validity of any other provision.
Written notices shall be deemed to have been received by the Customer by ordinary mail if sent to the Customer’s last known address. The same applies if the envelope was treated as unclaimed matter. The notice shall be deemed to have been given if we have a printout or an initialed copy of the dispatched document proving dispatch.
The Customer’s rights under the legal transactions concluded with us are not transferable.
Cancellation of or changes or supplements to the agreement with the Customer must be in writing and signed by both contracting parties to be effective. The same applies to the waiver of the requirement of written form.
2.Offer:
Illustrations and data provided in our business documents, catalogs, brochures etc. are approximate only. They are not binding unless explicitly agreed otherwise in writing. We shall have the right to change models, designs or their features.
If no order is placed, the Customer must promptly return all offer documents, including drawings, diagrams etc. without having the right to make photocopies or transcriptions. If the Customer breaches this obligation, the Customer must pay a penalty of 10 % of the Contract price.
Customer requests made later, which are not included in the original offer (reference offer), must be acknowledged by a new offer from us. We are not obligated to meet the additional request until the new offer has been accepted. The same applies to subsequent changes to the original offer. In this case we reserve the right to provide a new offer for the complete work including the original order.
3.Pricing:
Our prices are based on delivery Ex Works. Prices are without postage, packing and transport insurance. Prices in our business documents are net prices. The published prices according to our price lists in effect at the date of delivery are applicable. Where projects require a long execution time we have the right to adjust the price for our services to our applicable hourly rates.
4.Payment:
Net payment is due within 30 days of date of invoice. 2 % discount is allowed for receipt of payment within 14 days of date of invoice and/or notice that the goods are ready for shipment, and also for payment by direct debit. Subject to further claims interest will accrue on all late payments at the rate of at least 4 % above the applicable statutory rate issued by the Austrian National Bank. In the event of late payment or reasonable doubts about the Customer’s creditworthiness we shall have the right to withdraw from the still unfulfilled commitment to deliver or to demand advance payment. The following terms of payment are applicable to deliveries worth more than 20,000.- EUR net:
Net payment of 1/3 of the order value upon receipt of the acknowledgement of order; payment of the remainder within 14 days of date of delivery or notice that the goods are ready for shipment, 2 % discount is allowed for net payment within 30 days.
Payment by bill of exchange is subject to our prior consent and in lieu of payment to collect our claim related to the underlying delivery contract. Unless settled otherwise the tax on bills of exchange, bank discount and other collection charges shall be put to the Customer’s account separately.
If the merchandise cannot be delivered for reasons attributable to the Customer, the term of payment shall not be extended. The term of payment in this case shall commence on the date of our notice that the goods are ready for shipment.
Customer’s payments shall be applied first against accounts receivable under a delivery other than the present delivery and only then against accounts receivable under the present delivery. Moreover, first against costs, interests, interest on arrears and only then to the capital (the same applies particularly also in connection with our retention of title).
Customer‘s failure to pay the invoice or one of several invoices in due time leads to default with regard to all outstanding debts to the effect that all outstanding debts shall be immediately due and payable, regardless of the maturities of individual partial amounts granted by agreement or acceptance of bills of exchange.
Withholding payments on grounds of warranty claims or offsetting payments against counterclaims by the Customer due to and/or against counterclaims that have not been explicitly acknowledged by us is excluded; at any rate, any right of retention against Customer’s claims shall be limited to the capital required to cover the removal of defects.
If the Customer gets into financial difficulty, (asset deterioration, means of payment without cover, protest of bill of exchange or check, garnishment, arrangement in bankruptcy, insolvency etc.) the total amount of the invoice under the present delivery plus any other outstanding debt shall be immediately due and payable without us having to give the Customer a notice of default. In such events we shall have the right at any time to take back the goods delivered at the Customer’s expense and use them optimally without the Customer being absolved from the responsibility of performance of the Contract or being able to claim damages for loss caused by the other party’s non-performance of its contractual obligations.
Before delivery is effected we shall have the right of avoidance of the Contract if we have reasonable doubt about the Customer’s solvency. The same is true if we obtain negative information about the Customer’s creditworthiness from a reliable source. For new customers, we reserve the right to supply goods through cash on delivery.
In the event of default the Customer undertakes to pay, for appropriate financial exactions or collection, including, but not limited to, the dunning costs incurred by us, and all accruing costs, expenses, cash outlays, including, but not limited to, the lawyer’s fees incurred due to the default in payment, according to the scale of charges for the out-of-court dunning procedure for as a supplement to the autonomous scale of charges of the Upper Austrian Bar Association in Linz. Regardless of any declarations of commitment to the contrary we shall have the right to use incoming sums of money in our discretion first to cover dunning costs, lawyer’s fees etc. and only last for interest and principal amount, even in the event of an enforcement or attachment order.
5.Retention of title:
We retain title to the goods which have already been delivered until we have received full payment of the purchase price for the goods (fee for Contract labor), including all incidental expenses and/or discharge of bills of exchange or checks given in lieu of payment, where applicable. The acceptance of checks or bills of exchange does not affect the retention of title agreed upon. The retention of title to the present goods applies also to other goods supplied by us and shall therefore remain valid until the Customer has settled all invoices for all of the goods supplied by us. All goods at the Customer’s warehouse that have been supplied by us, regardless of the date of delivery and whether any partial payments have been made since then, belong to us until the Customer has settled all invoices. In the event of a breach of Contract by the Customer, including, but not limited to, default in payment, we shall have the right to retake, at the Customer’s expense, possession of the goods at the Customer’s internal and field warehouses up to the amount we are owed and to demand assignment of the Customer’s right to recover possession from third parties, where applicable.
Where the goods subject to retention of title have been manufactured into a new product with goods from a third party or the Customer, we shall acquire co-ownership of the resulting new product. The same applies if the goods subject to retention of title have been mixed or combined with goods of third parties or the Customer. Our co-ownership share depends on the relationship between the value of the goods subject to retention of title and the value of the other product. The new products resulting from processing, combination or mixing shall be treated as goods subject to retention of title to the extent to which we are owners or co-owners of these products.
The Customer is obligated to treat the goods subject to retention of title with care and sufficiently insure them against all common risks, including, but not limited to, fire, theft and water risk, and furnish proof thereof at our request. At our request the Customer shall store the goods subject to retention of title separately and identify them as belonging to us.
The Customer hereby assigns to us all claims resulting from loss or damage of the goods subject to retention of title, including, but not limited to, insurance claims and damages, against third parties. The Customer shall obtain the approvals from the parties liable for such claims that are necessary for the assignment.
If, when we retake possession of the goods, our prices are lower than at the delivery date, the prices current as of the date of repossession shall be used as value.
Until further notice the Customer shall have authority to sell the goods in the proper course of his business. The authority to sell the goods in proper business transactions terminates when the Customer suspends his payments and/or a petition in insolvency, composition or reorganization proceedings has been filed. In this case the Customer is obligated to return, on first request, goods supplied by us (goods subject to retention of title). A revocation as described above or reclaiming of the goods subject to retention of title does not mean that we withdraw from the contract. The Customer hereby assigns to us the proceeds of sale of the goods subject to retention of title received by him from a third party purchaser. We shall not collect the assigned receivables as long as the Customer meets his payment obligations. The Customer is obligated, however, to disclose third-party debtors to us at our request and to notify them of the assignment. The Customer is also obligated to record the assignment in his books. The Customer has the right to collect receivables from third-party debtors as long as he meets his payment obligations and he has not been otherwise instructed by us. Goods subject to retention of title or the assigned claims must not be pledged or assigned for security. Title to the goods shall also remain with us if individual receivables have been included in a current account and the balance of this account has been struck and acknowledged, unless the balance due has been cleared. The Customer must promptly notify us of the suspension of payments and at the same time provide us with a list of the goods subject to retention of title that are still present and a list of receivables from the sale of goods subject to retention of title to a third party.
The Customer may sell goods subject to retention of title to a third party granting a respite for payment of the purchase price only on condition that the Customer, upon resale, informs the second purchaser about the assignment for security and records the assignment in his books.
Non-assignment clauses in our Customers’ “General Terms and Conditions of Trade and Purchase“ and any other Contract terms relating to assignment of claims must be deemed nugatory.
6.Delivery Period:
Delivery periods communicated by us are non-binding. If a binding delivery date (delivery period) is communicated by us, we shall not be in default before the Customer has granted us, in writing, an extension of at least 8 weeks. The Customer shall have the right to cancel the Contract for delay of delivery only if we are unable to provide a binding delivery promise within the time period. Delays of delivery do not give rise to claims for damages. In the event of any form of force majeure, shortage of raw material, unforeseeable problems, including problems attributable to the nature of the manufacturing process, subcontractor delays, operational restrictions, regulatory actions or other unforeseeable obstacles in production or delivery, including strike or lockout at our company or companies of subcontractors, we shall have the right to overstep the agreed delivery time or to cancel the contract, in whole or in part, without the Customer being entitled to subsequent delivery or damages.
We reserve the right to make partial delivery without the Customer being entitled to subsequent deliveries or damages, except in the presence of deliberate action or gross fault.
In the event of default of acceptance by the Customer we shall have the right to withdraw from the Contract or claim damages after having granted an extension of maximally 30 days.
If the Customer has failed to create the prerequisites for the delivery set forth in the contract, delivery periods, if any, shall not commence, and any agreements as to contractual penalties or any other penalties for breach of Contract shall lapse. The Customer must promptly notify us of any delays in the execution of a project or the order that are not attributable to us. In this case all delivery dates shall lapse.
If the order cannot be completed in the foreseeable future for technical reasons or any other reasons beyond our control, we shall be entitled to a full refund of expenditure made under the Contract with the Customer until then. Moreover, in this event, we have the right to withdraw from the Contract if the problems that have occurred cannot be solved within a reasonable period of time.
7.Shipment and Packaging:
Unless otherwise agreed shipment is at the cost of the Customer. At our request the Customer must advance the transportation costs or pay them directly.
Customer’s forwarding instructions shall be binding on us only if we have confirmed them in writing. We are bound to procure transport insurance only at Customer’s written request and at Customer’s expense. Unless otherwise agreed the cost price of the packaging will be invoiced to the Customer. The packaging is not returnable. We choose the adequate packaging and shipment type to the best of our judgment. Partial shipments are allowed.
8.Transfer of Risk and Acceptance:
The risk transfers to the Customer when the goods leave our site or one of our distribution centers. The same applies if the transportation is carried out by us or through our means of transport and we bear the transportation costs.
If the goods are ready for shipment and shipment is delayed for reasons beyond our control, the risk transfers to the Customer no later than on the date of notice that the goods are ready for shipment.
There is no requirement as to form for acceptance of work, where applicable. The work shall be deemed to have been accepted on first use at the latest.
If the Customer requests a deferred shipment or delivery, we shall have the right to invoice the Customer for storage charge at a rate of 1/2 % of the invoice amount per month or part thereof, starting one month after the date of notice that the goods are ready for shipment. Further claims on our part shall not be affected thereby.
The risk transfers to the Customer upon delivery or assembly, if the goods ready for shipment have left our company also if free delivery was agreed. Packaging is done with the utmost care. We choose the shipment type to the best of our judgment. At the Customer’s explicit request we shall procure insurance against damage in transit and by fire for the consignment, passing on the cost to the Customer. We shall not be liable for damage in transit except in the event of deliberate action or gross negligence. Other than that the Austrian Freight Forwarders’ Standard Terms and Conditions apply in the event of damage in transit.
Where we carry out the assembly, installation and test operation of goods supplied a special arrangement must be agreed. In this case Article 7 para 3 of these terms applies to the transfer of risk.
If the Customer requests a deferred shipment or delivery, the risk shall in both cases transfer to the Customer for the period of delay from the date of notice that the goods are ready for shipment, but we shall be obligated to procure insurance as requested by the Customer at the Customer’s expense.
There is no requirement as to form for acceptance of work, where applicable. The work shall be deemed to have been accepted on first use at the latest.
9.Assembly and Commissioning:
At the Customer’s request we shall assemble and commission the goods and plants supplied by us and start them up, charging the travel and living expenses and the costs of hours of labor. Traveling and waiting time are charged as hours of labor. The Customer is responsible for obtaining required official permits for installations and operation of plants. Qualified employees of the Customer must be present monitoring all works.
10.Warranty:
The subject matter of the Contract is a merchandise that is usable as described in our brochures and in other business documents.
The Customer is obligated to examine the merchandise without delay on delivery and promptly notify any noticeable defects in writing. We assume liability only for defects notified to us in due time and proper form. *
Unless explicitly agreed we are not the general contractor for an overall project and are therefore not liable for the functioning of the overall project (work) and/or for the overall coordination; we only assume liability for the work part provided by us being state-of-the-art and functioning according to paragraph 1 of this Article.
The place of warranty fulfillment is our registered office and/or operational site. Business expenses and travel expenses associated with the fulfillment of warranty claims must be borne by the Customer. *
We assume a warranty for noticeable and hidden defects or for absence of assured properties. We have the right of choice as defined by § 932 para 2 Austrian Civil Code as to whether a defect is rectified by repair or replacement of the defective item.
Claims extending beyond this, on whatever legal grounds, particularly to rescission or price reduction, are excluded.*
The statutory warranty period for goods is reduced to 6 months. *
Where manufactured parts or pieces of material that have not been manufactured by us are defective, our seller’s warranties are limited to claims to which we are entitled under the respective agreements with the manufacturer or subcontract manufacturer. No further claims can be made by the Customer in this case. *
We are only obligated to make subsequent improvements or deliveries within our warranty obligation if the Customer has fulfilled the Customer’s contractual obligations. *
Customer’s right under this warranty shall lapse at any rate if the Customer has executed interventions on the goods without consulting us beforehand and without having obtained a written approval from us. The same applies also if the Customer has changed, improperly handled or processed the goods. Second-hand products are not subject to a warranty. *
Presumption of defectiveness as defined by § 924 Austrian Civil Code is hereby waived.
11.Industrial Property Rights:
We ensure that our goods and services and their use do not violate patents (patent application) or any other industrial property rights of third parties. If a third party alleges infringement of a patent or an industrial property right, the Customer shall be obligated to
a) inform us without delay about the claims in writing or by telex;
b) authorize us to arrange for the defense against such claims and carry out litigation;
c) grant us the required powers of attorney and provide us with the support requested to the best of Customer’s ability;
d) authorize us to change the goods and services we consider necessary and reasonable at any time.
The Customer warrants that the blueprints, drawings, samples and other documents procured by the Customer and their use do not violate patents (patent application) or any other industrial property rights of third parties. The Customer shall keep us indemnified against any such claim.
12.Return of Goods:
As a matter of principle we do not take goods back that have been duly delivered by us. If taking back goods for a credit note is agreed, a return receipt must be enclosed with the consignment stating the item number, item description, invoice number and invoice date on which the consignment was originally delivered.
Return consignments shall be returned to us at the Customer’s expense. The Buyer is not entitled to claim back the invoice amount for the goods returned but must wait for a credit note issued by us. If goods are returned according to the terms of the contract, we shall charge a processing fee in the amount of 3 % of the invoice value of the goods taken back for checking it. We shall take back goods, if agreed, always with the proviso that the goods are undamaged and free of defects. Where corrective maintenance work is necessary, the Customer shall bear the cost thereof.
13.Product Liability and Damages:
Any claims for damages whatsoever beyond the scope of the Product Liability Act (damages for nonperformance, delays, damage caused by a defective product, damage on grounds of contractor’s and tort liability) and any rights of recourse whatsoever, particularly as defined by § 933 b General Civil Code, are excluded, provided that the circumstances causing the damage are not attributable to deliberate action or gross negligence on our part (if the customer is a consumer then not for personal injuries).
If damage occurs upon commissioning of a work in which other entrepreneurs are involved in addition to us, such damage shall be attributable to us only if there is no doubt that we are the cause. The same applies mutatis mutandis also if we are the only skilled craftsman, particularly if the Customer did not take all precautions possible to exclude damage events.
14.Copyright and Confidentiality:
Where we produced developments by order of our Customer we have the right to pass these developments also on to other persons if the Customer paid for the costs of the development.
Knowledge from developments can only be relinquished to the Customer in the form of a license, unless otherwise agreed.
We reserve all rights to our developments, including, but not limited to, the copyright.
The offers provided by us and all associated documents (drawings, diagrams etc.) remain under our ownership and must be treated strictly confidentially as our business secret by the Customer. Disclosing them to third parties is not allowed. In the event of breach the Customer must pay a penalty of 10 % of the Contract price.
15.Application of Business and Industry Terms and Conditions, Austrian Standards and Order of Application in case of inconsistencies:
The present contractual relationship shall be governed (in case of inconsistencies in the order below) by:
The written agreement through which the Contract was created, including a statement of work, where applicable, and specifications, where applicable.
The present Terms and Conditions.
The Terms and Conditions issued by our Trade Association that are relevant to our industry sector.
The Austrian standards including standardized terms of Contract for individual subject areas.
The relevant Austrian standards including standardized terms of contract, including, but not limited to, the Austrian standards A 2060, B 2210.
16.Governing Law, Place of Performance and Place of Jurisdiction:
The law of Austria is applicable. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. The Contract language shall be the German language.
The place of performance shall be the registered office of our company.
For all disputes arising from this Contract the court having jurisdiction ratione materiae at our company domicile shall have exclusive jurisdiction ratione loci.
17.End-Users (Consumers):
If the Customer is a consumer (end-user) then the terms and conditions above shall not apply if and when they are contrary to mandatory provisions of the Consumer Protection Act. The same applies particularly to provisions of these GTCs that are marked with an *.
Consumers are informed that in addition to a possibly shorter period of guarantee the statutory 2-year warranty period is available to consumers in any case, unless a permissible reduction was set in the individual case.
18.Price Increases:
In the case of substantial changes in the Supplier’s costs, including, but not limited to, raw material costs, the Supplier has the right to request a reasonable price increase for the products agreed. If the Buyer rejects such price increases or if negotiations on such price increases conducted by the Parties do not result in a newly agreed price within one month of the date of the request to conduct such negotiations, the Supplier shall have the right to terminate the Contract in writing unilaterally with immediate effect and without liability to the Customer. Such termination shall not affect any individual orders confirmed by the Supplier which have not yet been fully processed at the time of the termination. It is at the Parties’ discretion to extend the one-month period for negotiating price increases.
19.Force Majeure:
In the event of strikes, lockouts, natural disasters, war, civil commotions or other events beyond the Supplier’s control such as tool breakage and product-specific machine failure, and in all other generally recognized cases of force majeure (“Force Majeure“) the Supplier shall be released from his responsibilities for fulfillment of its contractual obligations to the extent to which Force Majeure prevents the Supplier from fulfilling his contractual obligations, in whole or in part, in the ordinary course of his business. The Supplier is indemnified against all liability that may arise from non-fulfillment or delayed fulfillment of contractual obligations in the presence of Force Majeure.
20.Limitation of Liability:
To the extent permitted by law the Supplier’s liability is limited to providing a refund for direct damage (i.e.: new installment or replacement costs, sorting costs, direct labor costs, direct recall costs in the cases where recall is required by law). We shall not be liable for any special or consequential damage, including, but not limited to, loss of earnings. The Supplier shall be liable only for a damage caused by the Supplier acting at least negligently. In any case the Supplier’s liability hereunder shall not exceed an amount of 2% of the relevant Contract value. Both Parties have a duty to mitigate damages.