Terms and Conditions
These General Terms and Conditions of Delivery are basically designed for legal transactions between companies. If, by way of exception, they are also used as a basis for legal
transactions with consumers within the meaning of Section 1 (1) (2) of the Consumer Protection Act, Federal Law Gazette No. 49/1979, they shall apply only to the extent that
they do not contradict the provisions of the first main section of this Act.
The United Nations Convention on Contracts for the International Sale of Goods of 11. 4. 1980, Federal Law Gazette 1988/96, is expressly excluded.
1.1 These General Terms and Conditions of Delivery shall apply unless the parties have expressly agreed otherwise in writing.
1.2 The following provisions on the delivery of goods shall also apply to services mutatis mutandis.
1.3 Assembly work shall be subject to the supplementary assembly conditions of the Association of the Austrian Mechanical Engineering and Steel Construction Industry.
2 Conclusion of Contract
2.1 The contract shall be deemed to have been concluded when the Seller, after receiving the written order confirmation and this is confirmation is not demonstrably contradicted by the buyer within 10 days.
2.2 Amendments and supplements to the contract shall only be valid if a written confirmation of the Seller is produced. The Buyer’s terms and conditions of purchase shall only be binding on the Seller if they are separately acknowledged by Seller.
2.3 In the event that import and/or export licenses or foreign exchange permits or similar permits are required for the execution of the contract, the party responsible for obtaining such licenses or permits shall make all reasonable necessary licenses or permits in a timely manner.
3 Plans and documents
3.1 The information contained in catalogs, brochures, circulars, advertisements, illustrations and price lists, etc., concerning weight, dimensions, capacity, price, performance capacity, price, performance, etc. shall only be authoritative if expressly stated in the offer and/or the order confirmation.
3.2 Plans, sketches, cost estimates and other technical documents, which may also be part of the quotation, as well as samples, catalogs, brochures, illustrations and the like shall always remain the intellectual property of the seller. Any utilization, duplication, reproduction, distribution and handing over to third parties, publication and demonstration may only take place with the expressed consent of the owner.
4.1 In the absence of any agreement to the contrary
a) the prices quoted do not include packaging;
b) the packaging shall be done in a manner customary in the trade in order to avoid normal transport conditions, damage to the goods on the way to the specified destination, at the expense of the purchaser.
5 Transfer of risk
5.1 Unless otherwise agreed, the goods shall be deemed to be “ex works” (EXW) sold (readiness for collection).
5.2 In all other respects, the INCOTERMS shall apply in the version in force valid on the day of the conclusion of the contract.
6 Delivery period
6.1 In the absence of any agreement to the contrary, the delivery period shall commence on the latest of the following dates:
a) date of order confirmation;
b) date of fulfillment of all technical, commercial and other financial preconditions to be fulfilled by the conditions;
c) the date on which the Seller receives a deposit to be paid prior to delivery of the goods and/or a security for payment to be issued or otherwise opened.
6.2 The Seller shall be entitled to make partial and advance deliveries.
6.3 If the delivery is delayed due to a circumstance on the part of the Seller which constitute a reason for relief within the meaning of Art. 14, a reasonable extension of the delivery period shall be granted.
6.4 If the Seller is responsible for a delay in delivery, the Buyer may either demand performance or rescind the contract by granting a reasonable extension of time or declare withdrawal from the contract.
6.5 If the period of grace provided for in Art. 6.4 was not used through the fault of the Seller’s fault, the Buyer shall be entitled to terminate the contract in respect of all goods not yet delivered by written notice. The same shall apply to goods already delivered but which, without the goods which cannot be used in a reasonable manner without the goods still outstanding. In this case the buyer has the right to be reimbursed for the undelivered goods or for the goods that are not payments made for usable goods. In addition, the the delay in delivery was caused by gross negligence on the part of the seller, the Seller’s gross negligence, the Buyer shall also be entitled to compensation for the justified expenses which he had to incur until the termination of the contract, and which cannot be used.
6.6 If the Buyer does not accept the goods provided in accordance with the contract at the contractually agreed place or at the contractually agreed time and if the delay is not due to an act or omission of the Seller, then the Seller may either demand performance or, after setting a grace period demand performance or withdraw from the contract by granting a grace period. If the goods have been segregated, the seller may demand the storage of the goods at the expense and risk of the Buyer. The seller shall also be entitled to reimbursement of all justified expenses which he had to incur for the execution of the contract and which are not included in the payments received.
6.7 Claims of the Buyer against the Seller other than those referred to in Art. 6 on the grounds of the Seller’s default shall be excluded.
7 Acceptance Test
7.1 If the Buyer wishes to have an acceptance test, this shall be agreed upon in writing with the Seller upon conclusion of the contract. Unless otherwise agreed, the acceptance test shall be carried out at the place of manufacture or at a place to be determined by the Seller during the normal working hours of the Seller. The general practice for acceptance testing in the industry concerned shall apply. Seller shall notify Buyer of the acceptance test in due time so that Buyer can be present at the test or be represented by an authorized representative. If the delivery item proves to be in breach of contract during the acceptance test, the Seller shall immediately remedy any defect and restore the condition of the delivery item in accordance with the contract. The Buyer may demand a repetition of the inspection only in cases of significant defects. Following an acceptance test, an acceptance report shall be drawn up. If the acceptance test has confirmed the contract and that the delivery item is in perfect working order, this shall be the delivery item, this shall be confirmed by both contracting parties in any case. If the purchaser or his authorized representative is not present at the acceptance test despite timely notification by the the Seller, the acceptance report shall be signed only by the Seller. The Seller shall in any case provide the Buyer with copy of the acceptance report, the correctness of which the the Purchaser may no longer dispute even if he or his authorized representative could not sign it due to lack of presence. Unless otherwise agreed, the Seller shall bear the costs of the performed acceptance test. The buyer the costs incurred by him or his authorized representative in connection with the acceptance test, e.g. travel expenses, living expenses and allowances.
8.1 Unless otherwise agreed, the prices shall be ex works of the Seller, excluding loading.
8.2 Prices shall be based on the costs at the time the prices are quoted, unless otherwise agreed. Should the costs change up to the time of delivery, such changes shall be for the benefit or at the expense of the Buyer.
9.1 Prices shall be based on the costs at the time the prices are quoted, unless otherwise agreed. Should the costs change up to the time of delivery, such changes shall be for the benefit or at the expense of the Buyer.
9.2 The Buyer shall not be entitled to withhold payments on account of warranty claims or other counterclaims.
9.3 Prices shall be based on the costs at the time the prices are quoted, unless otherwise agreed. Should the costs change up to the time of delivery, such changes shall be for the benefit or at the expense of the Buyer.
a) suspend the performance of its own obligations until settlement of the overdue payments,
b) claim a reasonable extension of the delivery period,
c) make the entire outstanding purchase price due,
d) if there is no reason for exoneration on the part of the Purchaser within the meaning of Article 14, interest on arrears shall be charged from the due date at a rate of 7.5% above the respective base interest rate of the European Central Central Bank (see Directive/EC on combating late payment in commercial of June 29, 2000), or declare the withdrawal from the contract by granting a reasonable period.
9.4 In any case, Buyer shall pay to Seller as further damage caused by delay the dunning and collection costs incurred.
9.5 If, upon expiration of the grace period pursuant to 9.3, Buyer has not made the payment payment or other performance owed, Seller may withdraw from the contract by written notice.The Buyer shall return to the Seller any goods already delivered and reimburse all justified expenses that the seller had to make for the execution of the contract. With regard to goods not yet delivered, the Seller shall be entitled to make the finished or processed parts to the purchaser and to charge the corresponding share of the sales price.
10 Retention of title
10.1 Until all financial obligations of the Buyer have been fulfilled in full, the Seller shall retain the object of purchase. The Seller shall be entitled to make its ownership of the delivery item visible on the outside. The buyer must comply with the necessary formal requirements for the preservation of the retention of title. In the event of seizure or other claim, the buyer is required to assert the property right of the seller’s right of ownership and to inform the seller immediately.
11.1Seller shall be obligated, in accordance with the following provisions, to remedy any defect impairing the design, material or workmanship. Likewise, the Seller shall be liable for defects in expressly stipulated properties.
11.2 This obligation shall only apply to defects which have been discovered during a period of one year in the case of one shift, in the case of single-shift operation from the time of transfer of risk or, in the case of delivery with installation, from completion of assembly.
11.3 The Buyer may only invoke this article if he informs the Seller immediately in writing of the defects that have occurred. The presumption of § 924 ABGB is excluded. The Seller thus informed must, if the defects are to be remedied by the Seller in accordance with the provisions of this Article, at its option:
a) repair the defective goods on the spot;
b) have the defective goods or parts returned to him for repair for the purpose of rectification;
c) replace the defective parts;
d) replace the defective goods.
11.4 If the Seller has the defective goods or parts returned to him for the purpose of repair or replacement, the Buyer shall bear the costs and the risk of transport, unless otherwise agreed. The return of the repaired or replaced goods or parts to the or replaced goods or parts to the purchaser shall, unless otherwise agreed at the expense and risk of Seller, unless otherwise agreed.
11.5 The defective goods or parts replaced in accordance with this Article shall be at Seller’s disposal.
11.6 The Seller shall only be liable for the costs of the Buyer’s own Seller shall only be liable for the costs of remedying the defect itself if Seller has given its has given its written consent to this.
11.7 The Seller’s warranty obligation shall only apply to defects which occur under the intended operating conditions and normal use. In particular, it shall not apply to defects which are due to: poor installation by the Purchaser or its agents, poor maintenance, poor workmanship or workmanship carried out without the written consent of the Seller Seller’s representative, or repairs or, normal wear and tear.
11.8 The Seller shall be liable for those parts of the goods which the Seller has subcontractor specified by the Buyer, the Seller shall be liable only to the extent of the warranty claims to which it is entitled against the sub-supplier. If goods are manufactured by the Seller on the basis of design information, drawings or models of the Buyer, the Seller’s liability shall not extend to the correctness of the design, but to this, that the execution was carried out according to the specifications of the buyer. The buyer shall indemnify and hold the seller harmless in the event of any infringement and hold harmless in the event of any infringement of industrial property rights. In case of acceptance of repair orders or in the case of alterations or conversions of old goods as well as in the case of delivery of used goods, the seller shall not assume any warranty.
11.9 From the beginning of the warranty period, Seller shall not assume any liability beyond that stipulated in this article.
12.1 It is expressly agreed that the Seller shall not be liable to the Buyer for any compensation to the Buyer for injury to persons, for damage to goods which are not the subject of the contract, for other damages and loss of profit, unless the circumstances of the individual case show that the seller is guilty of gross negligence. The reversal of the burden of proof according to § 1298 ABGB is excluded. The object of purchase shall only provide that level of safety which is required on the basis of approval regulations, operating instructions, Seller’s regulations concerning the handling of the object of purchase – in particular with regard to any prescribed and any other given instructions. In the event of slight negligence on the part of the Seller, unless Article 12.1. is not applicable, the damages shall be limited to 5 % of the order amount, however, to a maximum of maximum 727,000 euros. All claims for damages arising from defects in supplies and/or services must be expressly acknowledged by the Seller within one year after expiry of the warranty period specified in the contract, otherwise the claims shall be extinguished.
13 Consequential damages
13.1 Subject to any provisions to the contrary in these Terms and Conditions, the Seller’s liability towards Buyer shall be limited to the following Production stoppage, loss of profit, loss of use, loss of contract or any other economic or indirect consequential damage.
14 Grounds for exoneration
14.1 The parties shall be released from the timely performance of the contract in whole or in part if they are prevented from doing so by events of force majeure or events which shall be deemed to be exclusively unforeseeable and unavoidable for the parties and do not originate from their sphere. Strikes and industrial disputes shall, however, be event of force majeure. The Buyer hindered by an event of force majeure may, however, only invoke the existence of force majeure if it notifies the Seller immediately, but no later than within 5 calendar days at the latest, of the commencement and foreseeable beginning and the foreseeable end of the hindrance, confirmed by the governmental authority or chamber of commerce of the country of delivery. In the event of force majeure, the parties shall make every effort to eliminate or reduce the difficulties and foreseeable damage and to keep the other party informed thereof on an ongoing basis. Otherwise they shall be liable to the other party to pay damage. Dates or deadlines that are not met due to the effects of the force majeure shall be extended by a maximum of the duration of the effects of the force majeure, or or, if applicable, by a period to be determined by mutual agreement. If a circumstance of force majeure lasts longer than four weeks, the Buyer and Seller shall negotiate a settlement of the technical effects of the event. Should no amicable solution be reached, the seller can withdraw from the contract in whole or in part.
15 Data protection
15.1 The Seller shall be entitled to store, transmit, use and disclose personal data of the business transactions, to revise and delete such data.
15.2 The parties undertake to maintain absolute secrecy with regard to third parties concerning the business relations.
16 Place of Jurisdiction, Applicable Law, Place of Performance
16.1 The place of jurisdiction for all disputes arising directly or indirectly from the contract shall be the local competent Austrian court for the registered office of the Seller. 16.2 The Seller may, however, also appeal to the court having jurisdiction over the Buyer.
16.3 The parties may also agree on the jurisdiction of an arbitration court.
16.4 The contract shall be governed by Austrian law to the exclusion of the the United Nations Convention on Contracts for the international sale of goods of 11. 4. 1980, BGBl. 1988/96.
16.5 The place of performance for delivery and payment shall be the registered office of the Seller, even if the handover takes place at another place as agreed.