General Terms and Conditions
1. Scope of application
Unless otherwise agreed in writing with the purchaser, these general terms and conditions of sale apply also to all other orders, even if reference is not made to them. We are not bound by different purchasing conditions, even if we have not objected to them. Also, submission of the order confirmation by the purchaser is not considered to be an acceptance of the terms and conditions of the purchaser.
2. Acceptance of orders
All orders require our written confirmation to be binding. Likewise, subsequent changes or cancellations of already confirmed orders require our written consent. Messages by fax or telex meet the requirement of the written form.
3. Delivery time
Our information about delivery dates is not binding. We are not liable for any delays on the part of the suppliers or other third parties. Our delivery obligation is subject to our own correct and timely supply. In case of any delay in supply, a period of grace will be granted to us of at least 2 weeks. Within this period, there is no liability on our part, even if the delay in delivery is our fault. Likewise, we are not liable for delivery delays that are beyond our control, for example, due to strike or force majeure. For the duration and scope of the resulting necessary restrictions, we are released from making the deliveries, without the business transaction in question being reversed and without the purchaser being entitled to claim for damages of any kind whatsoever. Delivery obligations and delivery periods shall also be suspended as long as the purchaser is in arrears with a payment or does not carry out an action necessary to fulfil an order.
The purchaser is obliged to take possession of the goods immediately after notification of supply. In the event of a default in acceptance, the purchaser shall be liable for the storage charge, subject to any other rights. As far as partial deliveries are possible, we may deliver part shipments at our discretion. Each partial delivery shall serve as a business transaction in its own right and may be billed separately by us. For goods that are produced in bulk, we assume no liability for unconditional compliance with the ordered quantity. Deliveries within the scope of the usual tolerance shall be accepted by the customer at the same price. Any change to an order will result in a change to the original non-binding delivery date. In the case of collection by the purchaser, or by a third party it commissions (especially forwarding agents), the purchaser shall ensure that the motor vehicle it provides, as well as the means of securing the load, are suitable for the legitimate loading of the goods it has ordered. Should a legitimate loading of the motor vehicle it provides not be possible or should the necessary means of securing the load not be sufficient, we are entitled to refuse loading and to charge the purchaser(s) with the expenses incurred by us. The rejection of the load for the reasons just mentioned does not release the purchaser(s) from collection.
4. Shipment and transfer of risk
The shipment always takes place, without exception, at the risk of the purchaser, even with freight-free deliveries. Unless special arrangements have been made, shipment will be made based on our best judgement, but without any responsibility for the cheapest shipping or INCOTERMS 2000. Packaging material will be charged at cost and will not be taken back. Goods, which are sent directly to third parties, shall be deemed to have been delivered as conditionally and finally accepted with regard to their external and internal condition.
For the calculation, the dimensions and / or weights determined in our factory or in the loading station are decisive, taking into account the usual tolerances. Over- and under-deliveries, up to 10% of the ordered weight or the number of pieces, are considered to be standard commercial practice. In the event of damage or loss during transport, the recipient must immediately have the driver prepare a description of the facts and take photos and the damage must be reported in writing to the carrier and notified to us immediately; in the case of rail transport, the recipient shall be relied on to make a statement of the facts.
The purchaser has to inspect the goods immediately on acceptance or arrival in the destination station and to notify defects to us immediately in writing, unless they are hidden defects. Hidden defects are to be reported to us immediately in writing on being recognised by the purchaser. The agreed warranty period is six months. In the case of justified and timely complaint against the quality of the delivered goods, and if the defect cannot be remedied by us, we will at our discretion, against return of the goods, either provide a credit or a free-of-charge replacement in accordance with the delivered condition agreed by us. The right of withdrawal from the contract or conversion by the purchaser is excluded. The possibility of special recourse according to § 933 b of the Austrian Civil Code (ABGB) after expiry of the warranty period is excluded. Further claims for compensation of any kind, in particular liability for processing costs, are also excluded.
Properties are only guaranteed in accordance with § 922 (1) ABGB if they are expressly promised by us. Information in product descriptions are not expressly guaranteed properties. Despite careful preparation and regular review, all information in these documents is always subject to the reservation of any printing, arithmetical and/or typographical errors and other errors. We assume no liability or warranties for the topicality, correctness and completeness of the content of these documents and their further use. We reserve the right to change and / or supplement these documents (even just partially) without any prior notice or message, at any time, without the purchaser being entitled to any claims whatsoever.
We are liable only for intentional or grossly negligent behaviour on our part, whereby in this context the reversal of the burden of proof within the meaning of § 1298 sentence 2 ABGB is waived. The liability for minor and simple gross negligence is, however, excluded. Furthermore, our liability is limited up to the value of the goods sold to the purchaser. We shall not be liable for lost profit, consequential damage, economic success, indirect damage and purely financial losses of any kind. Claims for damages, especially claims asserted in lieu of warranty claims, become time-barred within six months from knowledge of the damage by the purchaser and the injured party.
A liability on our part to other persons than the purchaser is expressly excluded. Insofar as the purchaser or our other contractual partners redistribute the products placed on the market or distributed by us, the purchaser is obliged to transfer the above rule in full to its customers and to oblige them to pass it on to all subsequent customers. The purchaser or any of our other contracting parties shall indemnify and hold us harmless for all the disadvantages we suffer should they fail to impose the above-mentioned obligation and a claim is made against us by third parties. Redistribution is understood as any assignment to another customer, whether in an unprocessed or processed form, in the context of carrying out work.
The list prices valid on the day of delivery apply, unless fixed prices have been expressly agreed. Transport and other additional expenses will be invoiced separately in the absence of a separate written agreement. Any discounts or rebates granted are only valid for the respective delivery and are not also granted for any follow-up orders or deliveries, even if we do not raise objection to any deductions made by the purchaser on any follow-up orders or deliveries.
8. Payment default
If the deadlines for payment are not met, we shall be entitled, at our discretion, to (i) charge default interest in the amount of 9.2 percentage points above the base rate, to charge the costs of extra judicial enforcement and debt recovery measures regardless of fault, and to charge compensation for the damages incurred by us or (ii) withdraw from the contract and claim damages for non-performance. In the latter case, irrespective of the fault of the purchaser, we are entitled to demand or retain the agreed down payment, but at least 15% of the purchase price as a contractual penalty. The obligation to pay the contractual penalty does not prevent the assertion of additional damages. Allowed payment periods shall begin from the date of billing. If the payment deadlines are not met, we are furthermore entitled to demand immediate payment of all due claims against the purchaser.
9. Retention of title
All delivered goods remain our property until full payment of our total claim. The total claim is both our claim from the delivery of the goods and from the delivery of other goods or for other legal reasons. The retention of title expires only with the settlement of all our claims by the purchaser. This also applies, in particular, to a balance arising from a current account balance, which may be at the expense of the purchaser.
A transfer of rights to third parties, under the contract between us and the purchaser, is not permitted without our permission. Offsetting with counter claims against our claims is not permitted, unless we should expressly acknowledge such offsetting in numerical terms and in writing in individual cases.
11. Place of fulfilment
Place of performance for all deliveries and payments is Hainfeld or Wilhelmsburg.
For all those disputes arising from this contract, for which and for whatever reason the jurisdiction of the Arbitration Court according to clause 13 is not given, the exclusive court of jurisdiction is the court of competent jurisdiction for Hainfeld. For all contracts and disputes arising out of or in connection with this contract, only Austrian law, excluding its reference standards, shall be deemed agreed. The UN Sales Convention is excluded.
13. Arbitration clause for supplies to purchasers registered in a state without a civil enforcement convention with Austria
All disputes arising from the contract of sale with purchasers, registered in a state without a civil enforcement convention with Austria, shall be finally settled by one or more arbitrators appointed in accordance with the Rules of Arbitration of the International Arbitration Court of the Vienna Chamber of Commerce in Vienna (Vienna Rules). The language to be used in arbitration is German.