General Terms of Delivery

  1. Scope
    1. These general conditions apply to legal transactions between companies, namely for the delivery of goods and analogously also for the provision of services.
    2. Deviations from the conditions mentioned in point 1.1 are effective only with written approval of the seller.

  2. Offer
    1. Offers by the sellers are non-binding.
    2. All offers and project documents may not be reproduced or made available to third parties without the consent of the seller. They can be reclaimed at any time and must be returned to the seller immediately if an order is placed elsewhere.

  3. Conclusion of Contract
    1. The contract is considered concluded once the seller has, after receiving the order, sent a written order confirmation or made a delivery.
    2. The information contained in catalogues, brochures, and the like, as well as other written or verbal statements, are only relevant if they are expressly referred to in the order confirmation. 3.3 Subsequent amendments and additions to the contract require written confirmation in order to be valid.

  4. Prices
    1. Prices apply ex works or ex warehouse of the seller excluding sales tax, packaging, and loading. Any fees, taxes, or other charges levied in connection with the delivery shall be borne by the buyer. If consignment is requested, it and any transport insurance requested by the buyer will be charged separately, but does not include unloading and carrying. Packaging is charged at cost and not taken back. Given our participation in the Reclay system, our packaging is free of obligations. Our Reclay license number is 6147.
    2. In the event of an order deviating from the overall offer, the seller reserves the right to adjust the price correspondingly.
    3. Prices are based on the costs at the time of the first price quote. If the costs increase by the time of delivery, the seller is entitled to adjust the prices accordingly.

  5. Delivery
    1. The delivery period commences at the latest of the following dates: a) date of order confirmation
      b) date of fulfilment of all technical, commercial, and other requirements incumbent on the buyer
      c) date upon which the seller receives a deposit or security to be paid before delivery
    2. Official licenses and any licenses required from third parties for implementation need to be obtained by the buyer. If such permits are not obtained in time, the delivery period is extended accordingly.
    3. The seller is entitled to carry out and charge for partial or advance deliveries. In the event of an agreement on delivery on call, the goods are considered called one year after the order date at the latest.
    4. To the extent that unforeseeable circumstances or those independent of the will of the party occur, e.g. all cases of force majeure, which prevent the adherence to the agreed delivery deadline, the same is extended by the period of these circumstances; in particular, these include armed conflicts, official interventions and prohibitions, delays in transport and customs clearance, transport damage, shortage of energy and raw materials, labour disputes, and the loss of an essential, difficult to replace supplier. The above-mentioned circumstances also justify the extension of the delivery deadline if they occur at suppliers.

  6. Transfer of Risk and Place of Fulfilment
    1. Unless otherwise agreed, the delivery of goods is considered sold as EXW in line with INCOTERMS® 2010.
    2. In the case of services, the place of fulfilment is the one specified in the written order confirmation, and secondarily the one where the service is actually provided by the seller. The risk for a service or an agreed partial service passes to the buyer upon provision.

  7. Payment
    1. If no terms of payment have been agreed, 1/3 of the price is due upon receipt of the order confirmation,
    2. due at half the delivery period, and the remainder upon delivery. Irrespective, the value added tax included in the invoice must in any case be paid no later than 30 days after the submission of the invoice. In the case of insolvency proceedings regarding the assets of the buyer or the rejection of such an application due to a lack of assets, deliveries are only made against advance payment. In the case of partial clearing, the corresponding partial payments are due upon receipt of the respective billing document. The same applies to any amounts exceeding the original contractual sum which arise due to additional deliveries or any other agreements, irrespective of the terms of payment agreed upon for the main delivery. All payments are to be made net cash and without any discounts and in the agreed currency to the seller’s paying agent.
    3. The buyer is not entitled to withhold or offset payments due to warranty claims or other counterclaims. A payment is deemed to have been made on the day that the amount in question is at the seller’s disposal.
    4. If the buyer is in arrears with an agreed payment or other service from this or other legal transactions, the seller may without prejudice to his other rights a) delay the fulfilment of his own obligations until such payment or other service has been effected and take advantage of a reasonable delivery period extension,
      b) settle all outstanding claims arising from this or other legal transactions and charge default interest in the amount of 5% per month plus value added tax for these amounts as of the respective due date, unless the seller proves costs exceeding this,
      c) in the case of a qualified insolvency, that is, after two delays in payment, to only fulfil other legal transactions against prepayment. In any case, the seller is entitled to charge pre-trial costs, in particular reminder fees and attorney’s fees. Discounts or bonuses granted are subject to the timely fulfilment of the full payment. The seller reserves ownership of all goods delivered until full payment of the invoice amounts plus interest and costs is made. The buyer herewith transfers to the seller any receivables due from a resale of reserved goods to secure the seller’s purchase price claim, even if the goods have been processed, remodelled, or mixed. The buyer is entitled to dispose of the goods subject to retention of title on resale with deferment of the purchase price, only on the condition that he notifies the second buyer of the security assignment at the same time as the resale or makes note of the assignment in his accounts. Upon request, the buyer must notify the seller of the assigned claim together with its debtor and provide all information and documents necessary for the recovery of the claim and to notify the third party debtor of the assignment. If the goods are seized or otherwise levied upon, the buyer is obliged to highlight the seller’s property right and to inform him immediately.

  8. Warranty and Liability for Defects
    1. Provided that the agreed terms of payment have been fulfilled, the seller is, subject to the conditions hereunder, obliged to remedy any defects that affect the functionality at the time of delivery, as long as the defect is a construction, material, or design defect. Statements made in catalogues, brochures, advertising leaflets, and written or oral statements that have not been in the contract cannot be used to make any warranty claims.
    2. The warranty period is 12 months, unless special warranty periods have been agreed upon for individual delivery items. This also applies to goods and services that are permanently connected to a building or land. The warranty period begins with the time of the transfer of risk according to point 6.
    3. For improved or replaced parts, the warranty period begins anew, but always ends 6 months after the expiration of the original warranty period.
    4. If the delivery or service is delayed for reasons that are not within the sphere of the seller, the warranty period begins 2 weeks after its delivery or performance readiness.
    5. The warranty claim presupposes that the buyer has highlighted the defects in writing within a reasonable period of time, and that the notification is received by the seller. The buyer must prove the existence of the defect within a reasonable period of time and, in particular, make the documents or data available to him available to the seller. In the event of a warranty defect according to clause 8.1, the seller must, at his discretion at the place of fulfilment, repair the defective goods or the defective part, or have them sent for rectification, or grant an appropriate price reduction.
    6. All additional costs incurred in connection with the correction of defects (such as for installation and removal, transport, disposal, travel, and travel time) must be borne by the buyer. For warranty work at the buyer’s business location, the required auxiliary personnel, lifting equipment, scaffolding, small materials, etc. must be provided free of charge. Replaced parts become the property of the seller.
    7. If a product is manufactured by the seller on the basis of design details, drawings, models, or other specifications supplied by the buyer, the liability of the seller extends to the agreed scope of execution only.
    8. Excluded from the warranty are defects resulting from disposition and assembly not performed by the seller, improper installation, failure to comply with installation requirements and conditions of use, excessive use of the parts beyond the capacity indicated by the seller, negligent or incorrect handling, and use of unsuitable operating materials. This also applies to defects attributable to material provided by the buyer. The seller is also not liable for damages resulting from the actions of third parties, atmospheric discharges, surges, and chemical influences. The warrant does not cover the replacement of parts subject to natural wear. When selling used goods, the seller assumes no liability.
    9. The warranty expires immediately if the buyer or a third party not expressly authorised by the seller makes changes or repairs to the delivered goods without the written consent of the seller.
    10. Claims according to § 933b ABGB always lapse upon expiration of the deadline specified in clause 8.2.
    11. The provisions specified in clauses 8.1 to 8.10 apply mutatis mutandis to any responsibility for defects for other legal reasons.

  9. Cancellation of Contract
    1. The prerequisite for the buyer’s withdrawal from the contract is, unless a more specific provision has been made, a delay in delivery due to gross negligence on the part of the seller, as well as the expiry of a defined, reasonable grace period. The cancellation must be asserted by registered letter.
    2. Regardless of other rights, the seller is entitled to withdraw from the contract, a) if the execution of the delivery or the commencement or continuation of the service is impossible for reasons for which the buyer is responsible, or delayed further beyond a reasonable period of grace,
      b) if there are concerns about the buyer’s solvency and the buyer does not, upon the seller’s request, make advance payments or provides appropriate securities before delivery,
      c) if, due to the circumstances set out in clause 5.4, the extension of the delivery time is more than half of the originally agreed delivery period, or at least 6 months, or
      d) if the buyer does not comply or properly comply with the obligations imposed by clause 13.
    3. A cancellation can also be effected if a part of the delivery or service remains outstanding for the above reasons.
    4. If insolvency proceedings are opened against the assets of the buyer or if an application for the initiation of insolvency proceedings is rejected due to a lack of sufficient assets, the seller is entitled to withdraw from the contract without granting a grace period. If this withdrawal is exercised, it takes effect immediately with the decision to discontinue the business. If the business remains operational, a cancellation only becomes effective 6 months after the opening of the insolvency procedure or the rejection of an application for opening such a procedure due to a lack of assets. In any case, the termination of the contract takes effect immediately provided that the insolvency law to which the buyer is subject is not in conflict with such a measure, or provided that the termination of the contract is necessary to avert serious economic disadvantages for the seller.
    5. Without prejudice to the seller’s claims for damages including pre-litigation costs, any services or partial services already rendered must be invoiced and paid in accordance with the contract in the event of a cancellation. This also applies if the delivery or service has not yet been accepted by the buyer and to preparatory measures carried out by the seller. Instead, the seller is entitled to demand the return of goods that have already been delivered.
    6. Other consequences of the cancellation are excluded.
    7. The assertion of claims on the grounds of laesio enormis, errors, or lack of commercial basis on the part of the buyer is excluded.

  10. Liability of the Seller
    1. The seller is only liable for damages outside the scope of the Product Liability Act in the case of proven wilful intent or gross negligence, within the scope of legal regulations. The total liability of the seller in cases of gross negligence is limited to the net order value or to EUR 200,000, whichever is lower. In the event of damage, the liability of the seller is limited to 25% of the net order value or to EUR 50,000, whichever is lower.
    2. Liability for minor negligence, compensation for consequential damage, pure financial loss, indirect damage, production downtime, financing costs, costs for backup energy, loss of energy, data, or information, loss of profits, unrealised savings, interest losses, and damages from third-party claims against the buyer is excluded. In the event of non-compliance with conditions in terms of installation, commissioning, and use (as contained in operating instructions, for example) or regulatory approval conditions, any compensation is excluded.
    3. The provisions of clause 11 finally apply to all claims of the buyer against the seller, regardless of the legal reason and title, and also apply to all employees, subcontractors, and subcontractors of the seller.

  11. Industrial Property Rights and Copyright
    1. If a product is manufactured by the seller on the basis of design details, drawings, models, or other specifications supplied by the buyer, the buyer must indemnify and hold harmless the seller in the event of any infringement of property rights.
    2. Execution documents such as plans, sketches, and other technical documents, as well as samples, catalogues, brochures, illustrations, and the like, remain the intellectual property of the seller and are thus subject to the relevant statutory provisions regarding duplication, imitation, competition, etc. Clause 2.2 also applies to execution documents.

  12. Compliance with Export Regulations
    1. In the event of the buyer passing on goods (and related documentation, regardless of the manner in which it is supplied, or services provided by the seller [including technical support of any kind]) delivered by the seller to third parties, the buyer is required to comply with the applicable national and international (re)export regulations. In any event, the buyer must comply with the (re)export regulations of the country of domicile of the seller, the European Union, and the United States of America when passing on goods or services to third parties.
    2. If required for export control checks, the buyer must, upon request, promptly provide the seller with all necessary information, i.a. the final recipient, final destination, and purpose of the goods or services.

  13. General
    1. If individual provisions of the contract or elements of these provisions should be ineffective, the effectiveness of the remaining provisions is not affected. The invalid provisions must be replaced by a valid one that comes as close as possible to the initially intended goal.

  14. Jurisdiction and Applicable Law
    1. For the resolution of all disputes arising from the contract - including those concerning its existence or non-existence - the exclusively responsible court is at the location of the seller’s headquarters in Vienna. The district court in question is the one located in the Viennese district “Innere Stadt”. The contract is governed by Austrian law excluding the referral norms. The application of the UNCITRAL United Nations Convention on contracts for the international sale of goods is excluded.

  15. Proviso
    1. The fulfilment of the contract by the seller is subject to the condition that the fulfilment is not hindered by any obstacles arising from national or international (re)export regulations, in particular embargoes and/or other sanctions.

 

Issue January 2013