These Terms and Conditions of Sale and Delivery are generally 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 only apply insofar as 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 April 11, 1980, Federal Law Gazette 1988/96, is expressly excluded.
1. preamble
1.1 These Terms and Conditions of Sale and Delivery shall apply unless the contracting parties have expressly agreed otherwise in writing.
1.2 The following provisions on the delivery of goods shall also apply mutatis mutandis to services.
1.3 The assembly conditions of the Austrian Association of the Mechanical Engineering and Steel Construction Industry shall apply in addition to assembly work.
2. conclusion of contract
2.1 The contract shall be deemed concluded if the Seller has sent a written order confirmation after receipt of the order and this is not demonstrably contradicted by the Buyer within 10 days.
2.2 Amendments and supplements to the contract shall require the Seller’s written confirmation in order to be valid. The Buyer’s terms and conditions of purchase shall only be binding on the Seller if they have been separately accepted by the Seller.
2.3 If import and/or export licenses or foreign exchange permits or similar authorizations are required for the performance of the contract, the party responsible for obtaining them must make all reasonable efforts to obtain the required licenses or permits in good time.
3. plans and documents
3.1 The information contained in catalogs, brochures, circulars, advertisements, illustrations and price lists, etc. regarding weight, dimensions, capacity, price, performance, etc. shall only be authoritative if express reference is made to them in the offer and/or the order confirmation.
3.2 Plans, sketches, cost estimates and other technical documents, which may also form part of the offer, as well as samples, catalogs, brochures, illustrations, etc. shall always remain the intellectual property of the Seller. Any utilization, duplication, reproduction, distribution and handing over to third parties, publication and presentation may only take place with the express consent of the owner.
4th packaging
4.1 Unless otherwise agreed
a) the prices quoted do not include packaging;
b) packaging shall be carried out in a customary manner in order to avoid damage to the goods on the way to the specified destination under normal transport conditions, at the Buyer’s expense and shall only be taken back by agreement.
5. transfer of risk
5.1 Unless otherwise agreed, the goods are sold “ex works” (EXW) (ready for collection).
5.2 Otherwise, the INCOTERMS shall apply in the version valid on the day the contract is concluded.
6. delivery period
6.1 Unless otherwise agreed, 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 financial requirements incumbent on the Buyer by agreement;
c) date on which the Seller receives a down payment to be made prior to delivery of the goods and/or a payment guarantee to be created or otherwise has been opened.
6.2 The Seller is entitled to make partial and advance deliveries.
6.3 If the delivery is delayed due to a circumstance occurring on the part of the Seller which constitutes 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 fulfillment or declare its withdrawal from the contract after setting a reasonable grace period.
6.5 If the information specified in Art.
6.4 If the seller is at fault for not using the grace period provided for in the contract, the buyer may withdraw from the contract by written notice with regard to all goods not yet delivered. The same shall apply to goods already delivered but which cannot be used in an appropriate manner without the outstanding goods. In this case, the buyer shall be entitled to a refund of the payments made for the undelivered goods or for the goods that cannot be used. In addition, if the delay in delivery was caused by gross negligence on the part of the seller, the buyer shall also be entitled to compensation for justified expenses which he had to incur up to the dissolution of the contract and which cannot be used further. The Buyer must return to the Seller any goods that have already been delivered and 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 on the part of the Seller, the Seller may either demand performance or withdraw from the contract, setting a grace period. If the goods have been separated, the seller may store the goods at the expense and risk of the buyer. The seller is also 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 mentioned in Art. 6 due to the seller’s default are excluded.
7. acceptance test
7.1 If the Buyer requests an acceptance test, this must be expressly agreed with the Seller in writing 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 Seller’s normal working hours. The general practice for acceptance testing in the relevant branch of industry shall apply. The seller must notify the buyer of the acceptance test in good time so that the buyer can be present at the test or be represented by an authorized representative. If the delivery item proves to be in breach of the contract during the acceptance test, the seller must immediately rectify any defect and restore the delivery item to the contractual condition. The Buyer may only demand that the inspection be repeated in cases of significant defects. Following an acceptance test, an acceptance report must be drawn up. If the acceptance test has shown that the delivery item conforms to the contract and is in perfect working order, this must be confirmed by both contracting parties in any case. If the buyer or his authorized representative is not present at the acceptance test despite timely notification by the seller, the acceptance report shall only be signed by the seller. In any case, the seller must provide the buyer with a copy of the acceptance report, the accuracy of which the buyer can no longer dispute even if he or his authorized representative was unable to sign it due to lack of presence. Unless otherwise agreed, the seller shall bear the costs of the acceptance test carried out. However, the buyer shall in any case bear the costs incurred by him or his authorized representative in connection with the acceptance test, such as travel expenses, living expenses and reimbursement of expenses.
8th prize
8.1 Unless otherwise agreed, the prices are ex works of the Seller without loading.
8.2 The prices are based on the costs at the time the prices are submitted, unless otherwise agreed. Should the costs change up to the time of delivery, these changes shall be in favor of or at the expense of the Buyer.
9. payment
9.1 Payments shall be made in accordance with the agreed terms of payment. If no terms of payment have been agreed, 35% down payment after written order confirmation, 65% before delivery at the latest net upon acceptance of the goods. Irrespective of this, the VAT included in the invoice must be paid no later than 30 days after invoicing.
9.2 The Buyer is not entitled to withhold payments due to warranty claims or other counterclaims not recognized by the Seller.
9.3 If the Buyer is in default with an agreed payment or other performance, the Seller may either insist on performance of the contract and
a) postpone the fulfillment of its own obligations until settlement of the overdue payments or other services,
b) claim a reasonable extension of the delivery period,
c) declare the entire outstanding purchase price due,
d) unless there is a reason for relief on the part of the buyer within the meaning of Art. 14, charge default interest from the due date in the amount of 12.5
% above the respective prime rate of the European Central Bank (see Directive/EC of June 29, 2000 on combating late payment in commercial transactions), or declare withdrawal from the contract, granting a reasonable grace period.
9.4 In any case, the Buyer shall reimburse the Seller for the dunning and collection costs incurred as further damage caused by default. Furthermore, the Buyer shall reimburse the Seller for any storage costs incurred as a result of any delay caused by the Buyer. To this end, the Seller may either demand the costs incurred by him through storage with third parties, or € 0.20 net per day and per pallet space (1.2 x 0.8 m) occupied by the retained or unaccepted goods
9.5 If the Buyer has not made the payment or other performance owed upon expiry of the grace period pursuant to 9.3, the Seller may withdraw from the contract by written notice. At the Seller’s request, the Buyer shall return to the Seller any goods already delivered and compensate the Seller for any reduction in value of the goods and reimburse the Seller for all justified expenses incurred by the Seller in the performance of the contract. With regard to goods not yet delivered, the Seller is entitled to make the finished or processed parts available to the Buyer and to demand the corresponding share of the sales price for this.
9.6 Payment obligations, in particular the specified monetary values, are deemed to be agreed in euros, unless otherwise agreed. Conversion shall be made in all cases on the basis of the officially determined conversion rate.
10. reservation of title
10.1 The Seller retains title to the object of purchase until all financial obligations of the Buyer have been met in full. The Seller shall be entitled to mark its ownership on the outside of the delivery item. The Buyer shall comply with the formal requirements necessary to safeguard the retention of title. In the event of seizure or other claims, the buyer is obliged to assert the seller’s right of ownership and to inform the seller immediately.
11. warranty
11.1 In accordance with the following provisions, the seller is obliged to remedy any defect that impairs the usability and is based on a defect in design, material or workmanship. The Seller shall also be liable for defects in expressly stipulated properties.
11.2 This obligation shall only apply to defects that have occurred during a period of one year from the time of the transfer of risk in the case of single-shift operation or from the completion of assembly in the case of delivery with installation.
11.3 The Buyer may only invoke this article if it notifies the Seller immediately in writing of the defects that have occurred. The presumption rule of § 924 ABGB is excluded. If the defects are to be remedied by the seller in accordance with the provisions of this article, the seller notified in this way must, at his discretion:
a) repair the defective goods on site;
b) have the defective goods or the defective parts returned to him for repair;
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 risk of transportation, unless otherwise agreed. Unless otherwise agreed, the return of the repaired or replaced goods or parts to the Buyer shall be at the Seller’s expense and risk.
11.5 The defective goods or parts replaced in accordance with this Article shall be at the Seller’s disposal.
11.6 The Seller shall only be liable for the costs of remedying defects himself if he has given his written consent.
11.7 The Seller’s warranty obligation shall only apply to defects that occur under the intended operating conditions and during normal use. In particular, it shall not apply to defects resulting from: poor installation by the Buyer or its agent, poor maintenance, poor repairs or modifications carried out by a person other than the Seller or its agent without the Seller’s written consent, normal wear and tear.
11.8 The Seller shall only be liable for those parts of the goods which the Seller has purchased from the subcontractor specified by the Buyer within the scope of the warranty claims to which it is itself entitled against the subcontractor. If goods are manufactured by the Seller on the basis of design specifications, drawings or models provided by the Buyer, the Seller’s liability shall not extend to the correctness of the design, but to the fact that the design was carried out in accordance with the Buyer’s specifications. In such cases, the Buyer shall indemnify and hold the Seller harmless in the event of any infringement of industrial property rights. The Seller shall not assume any warranty for the acceptance of repair orders or for modifications or conversions of old or third-party goods or for the delivery of used goods.
11.9 From the beginning of the warranty period, the Seller shall assume no further liability than is stipulated in this article.
12. liability
12.1 It is expressly agreed that the Seller shall not be liable to the Buyer for damages for personal injury, for damage to goods that are not the subject of the contract, for other damage and for loss of profit, unless it is clear from the circumstances of the individual case that the Seller is guilty of gross negligence. The reversal of the burden of proof according to § 1298 ABGB is excluded.
12.2 The object of purchase only offers the level of safety that can be expected on the basis of approval regulations, operating instructions, regulations of the seller regarding the handling of the object of purchase – in particular with regard to any prescribed inspections and other instructions given.
12.3 In the event of slight negligence on the part of the Seller, unless Article 12.1 applies, compensation for damages shall be limited to 5% of the order amount, up to a maximum of EUR 727,000.
12.4 All claims for damages arising from defects in deliveries and/or services must – if the defect is not expressly acknowledged by the seller – be asserted in court within one year of the expiry of the contractually agreed warranty period, otherwise the claims shall lapse.
13. consequential damage
13.1 Except as otherwise provided in these Conditions, Seller’s liability to Buyer for loss of production, loss of profit, loss of use, loss of contracts or any other economic or indirect consequential loss is excluded.
14. grounds for discharge
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 force majeure events. Only events which are unforeseeable and unavoidable for the parties and which do not come from their sphere of influence shall be deemed to be events of force majeure. However, strikes and labor disputes are to be regarded as force majeure events. However, the Buyer hindered by an event of force majeure may only invoke the existence of force majeure if it provides the Seller without delay, but at the latest within 5 calendar days, with a registered letter confirming the beginning and foreseeable end of the hindrance and stating the cause, expected effects and duration of the delay, confirmed by the respective government 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 minimize the difficulties and foreseeable damage and shall keep the other party informed of this. Otherwise they shall be liable to pay damages to the other party. Dates or deadlines that cannot be met due to the effects of force majeure shall be extended by a maximum of the duration of the effects of the force majeure 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 seek a negotiated settlement of the technical effects. If no amicable solution can be reached, the seller may withdraw from the contract in whole or in part.
15. data protection
15.1 The Seller is entitled to store, transmit, revise and delete personal data of the Buyer in the course of business transactions.
15.2 The parties undertake to maintain absolute confidentiality vis-à-vis third parties with regard to the knowledge gained from the business relationship.
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 Austrian court with local jurisdiction for the registered office of the seller. However, the Seller may also appeal to the court having jurisdiction over the Buyer.
16.2 The parties may also agree on the jurisdiction of an arbitration tribunal.
16.3 The contract shall be governed by Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, Federal Law Gazette 1988/96.
16.4 The place of performance for delivery and payment shall be the Seller’s registered office, even if the handover is agreed to take place at a different location.
