General terms and conditions of delivery
1. scope of application
These general terms and conditions apply to legal transactions between companies, namely to the delivery of goods and, mutatis mutandis, to the provision of services.
2.1 Offers of the Seller shall be deemed to be subject to change without notice.
2.2 All offer and project documents may neither be reproduced nor made accessible 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 the order is placed elsewhere.
3 Conclusion of contract
3.1 The contract shall be deemed to have been concluded when the Seller has sent a written order confirmation or a delivery after receipt of the order.
3.2 No warranty claims can be derived or liability established from information in catalogues, brochures, advertising literature and written or oral statements that have not been included in the contract.
3.3 Subsequent amendments and additions to these terms and conditions shall require written confirmation in order to be valid.
4.1 The delivery period shall commence on the latest of the following dates:
a) Date of the order confirmation
b) Date of fulfilment of all technical, commercial and other requirements incumbent on the buyer;
(c) the date on which the seller receives any deposit or security to be paid before delivery of the goods.
4.2 Official approvals and any approvals of third parties required for the execution of installations shall be obtained by the Buyer. If such approvals are not granted in time, the delivery period shall be extended accordingly.
4.3 The Seller is entitled to make and charge partial or advance deliveries. If delivery on call has been agreed, the goods shall be deemed to have been called at the latest 1 year after the order.
4.4 If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as all cases of force majeure, which impede compliance with the agreed delivery period, the latter shall in any case be extended by the duration of these circumstances; these include in particular armed conflicts, official interventions and prohibitions, transport and customs clearance delays, transport damage, energy and raw material shortages, labour disputes as well as the failure of an essential supplier who is difficult to replace. These aforementioned circumstances shall also entitle us to extend the delivery period if they occur at subcontractors.
4.5 The Seller has the right to use subcontractors for all deliveries and service components, provided that it notifies the Buyer of this.
5 Transfer of risk and place of performance
5.1 Unless otherwise agreed, the delivery of the goods shall be deemed EXW
acc. INCOTERMS® 2010 sold.
6.1 Unless payment terms have been agreed, 100% of the payment is due before delivery. Irrespective of this, the VAT included in the invoice must be paid in any case no later than 21 days after the invoice is issued.
6.2 In the case of partial settlements, the corresponding partial payments shall be due upon receipt of the respective invoice. This shall also apply to offsetting amounts arising from subsequent deliveries or other agreements in excess of the original contract sum, irrespective of the payment terms agreed for the main delivery.
6.3 Payments shall be made without any deduction free Seller’s paying agent in the agreed currency. Any acceptance of cheques or bills of exchange shall always be on account of payment only. All related interest and expenses (such as collection and discount charges) shall be borne by the buyer.
6.4 The buyer is not entitled to withhold or offset payments due to warranty claims or other counterclaims.
6.5 A payment shall be deemed to have been made on the day on which the Seller can dispose of it.
6.6 If the buyer is in default with an agreed payment or other performance under this or other legal transactions, the seller may, without prejudice to its other rights
a) postpone the fulfilment of its own obligations until such payment or other performance has been effected and make use of a reasonable extension of the delivery period,
b) make all outstanding claims from this or other legal transactions due and charge the statutory default interest plus VAT for these amounts from the respective due date, unless the Seller proves costs exceeding this,
c) in the event of qualified insolvency, i.e. after two delays in payment, only fulfil other legal transactions against cash in advance.
In any case, the Seller shall be entitled to charge pre-litigation costs, in particular reminder fees and lawyer’s fees in accordance with the legally applicable provisions.
6.7 The Seller retains title to all goods delivered by him until full payment of the invoice amounts plus interest and costs.
6.8. The seller has the right to transmit the invoice electronically.
7 Warranty and liability for defects
7.1 The Seller shall, subject to compliance with the agreed terms of payment, be obliged to remedy, in accordance with the following provisions, any defect affecting the functionality which exists at the time of handover and which is due to a defect in design, material or workmanship. No warranty claims can be derived from information in catalogues, brochures, advertising literature and written or oral statements that have not been included in the contract.
7.2 Unless otherwise agreed, the statutory warranty period shall apply. This also applies to objects of delivery and performance that are firmly connected to a building or land. The warranty period shall commence at the time of the transfer of risk in accordance with §§ 3, 4 and 5. Point 5.
7.3 If the delivery or service is delayed for reasons that are not within the sphere of the Seller, the warranty period shall commence 2 weeks after the Seller’s readiness to deliver or perform.
7.4 The warranty claim requires that the Buyer has notified the Seller in writing of the defects that have occurred within a reasonable period of time and that the Seller has received the notification. The buyer must prove the existence of the defect within a reasonable period of time, in particular provide the seller with the documents or data available to him. In the event of a defect covered by warranty pursuant to clause 7.1, the Seller shall, at its discretion, repair the defective goods or the defective part at the place of performance or have them sent to it for repair or make a reasonable price reduction.
7.5 For warranty work at the Buyer’s premises, the necessary auxiliary staff, lifting equipment, scaffolding and small materials etc. shall be provided. Replaced parts become the property of the seller.
7.6 Unless otherwise agreed, the warranty shall not cover defects resulting from arrangement and assembly not carried out by the Seller, inadequate equipment, failure to observe the installation requirements and conditions of use, overloading of the parts in excess of the performance specified by the Seller, negligent or incorrect handling and use of unsuitable operating materials; this shall also apply to defects attributable to material provided by the Buyer. The seller is also not liable for damage caused by the actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not cover the replacement of parts that are subject to natural wear and tear.
7.8 The warranty shall expire immediately if the buyer himself or a third party not expressly authorised by the seller makes changes or repairs to the delivered items without the written consent of the seller.
7.9 Provisions 7.1 to 7.7 shall apply mutatis mutandis to any liability for defects on other legal grounds.
8. withdrawal from the contract
8.1 The prerequisite for the Buyer’s withdrawal from the contract is, unless a more specific provision has been made, a delay in delivery attributable to gross negligence on the part of the Seller as well as the unsuccessful expiry of a reasonable grace period set. The withdrawal must be asserted by registered letter.
8.2 Irrespective of its other rights, the Seller is entitled to withdraw from the contract,
a) if the execution of the delivery or the start or continuation of the performance is impossible for reasons for which the buyer is responsible or is further delayed despite the setting of a reasonable grace period,
b) if doubts have arisen as to the buyer’s solvency and the buyer does not make an advance payment at the seller’s request or provide suitable security before delivery,
c) if the extension of the delivery period due to the circumstances listed in item 4.4 amounts to more than half of the originally agreed delivery period, but at least 6 months, or
d) if the buyer does not or not properly fulfil the obligations imposed on him by point 13.
8.3 Withdrawal may also be declared with regard to an outstanding part of the delivery or service on the above grounds.
8.4 In the event that insolvency proceedings are instituted against the assets of the Buyer or an application for the institution of insolvency proceedings is rejected for lack of sufficient assets, the Seller shall be entitled to withdraw from the contract without setting a grace period. If such resignation is exercised, it shall take effect immediately upon the decision not to continue the business. If the company is continued, a withdrawal shall only become effective 6 months after the opening of insolvency proceedings or after the rejection of the application for opening for lack of assets. In any case, the contract shall be terminated with immediate effect unless the insolvency law to which the buyer is subject precludes this or if the termination of the contract is indispensable to avert serious economic disadvantages to the seller.
8.5 Notwithstanding the Seller’s claims for damages including pre-litigation costs, in the event of withdrawal, services or partial services already rendered shall be settled and paid for in accordance with the contract. This shall also apply insofar as the delivery or service has not yet been taken over by the buyer as well as for preparatory acts performed by the seller. In lieu thereof, the Seller shall also be entitled to demand the return of items already delivered.
8.6 Other consequences of withdrawal are excluded.
8.7 The assertion of claims on the grounds of laesio enormis, error and lapse of the basis of the transaction by the Buyer is excluded.
9. disposal of waste electrical and electronic equipment
The Buyer, who is domiciled in Austria, shall ensure that all information is made available to the Seller in order to be able to fulfil the Seller’s obligations as manufacturer/importer in accordance with the legally applicable regulations.
10 Liability of the seller
10.1 The Seller shall only be liable for damage outside the scope of application of the Product Liability Act if it can be proven that it acted with intent or gross negligence, within the scope of the statutory provisions. The Seller’s total liability in cases of gross negligence is limited to the net order value or EUR 35,000, whichever is lower. Per case of damage, the liability of the seller is limited to 25% of the net order value or EUR 8,750, whichever is lower.
10.2 Unless otherwise agreed, liability for slight negligence, with the exception of personal injury, as well as compensation for consequential damage, pure financial loss, indirect damage, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, the loss of profit, savings not achieved, loss of interest and damage from third party claims against the buyer are excluded.
10.3 Unless otherwise agreed, any compensation for damages shall be excluded in the event of non-compliance with any conditions for assembly, commissioning and use (such as contained in operating instructions) or the official approval conditions.
10.4 If contractual penalties have been agreed, any further claims of the buyer under the respective title shall be excluded.
10.5 The provisions of clause 10 shall apply conclusively to all claims
of the Buyer against the Seller, irrespective of the legal basis and title, and shall also be effective for all employees, subcontractors and sub-suppliers of the Seller.
11 Industrial property rights and copyright
11.1 Execution documents such as plans, sketches and other technical documentation
Documents, as well as samples, catalogues, brochures, illustrations and the like, shall always remain the intellectual property of the Seller and shall be subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. Point 2.2 also applies to execution documents.
12. assertion of claims
All claims of the purchaser must be asserted in court within 2 years of the performance of the services, unless mandatory statutory provisions provide for other time limits.
13.1 If individual provisions of the contract or these terms and conditions should be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision which comes as close as possible to the intended objective.
13.2 The German language version shall be deemed the authentic version of the Terms and Conditions and shall also be used for the interpretation of the contract.
14 Jurisdiction and Law
For the purpose of deciding all matters arising from the contract
Disputes – including those concerning its existence or non-existence – shall be settled by the competent court at the head office of the seller. The contract shall be governed by Austrian law to the exclusion of the conflict of law rules. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
14. reservation clause
The performance of the contract by the Seller is subject to the proviso that there are no obstacles to performance due to national or international (re-)export regulations, in particular no embargoes and/or other sanctions.
January 2022 issue