1.2
Our contracting party agrees, that our conditions apply notwithstanding his own GTC, even if the conditions of the contracting party are not contradicted. Contract performance activities on our part shall not be considered as agreement to contract terms deviating from our terms.
1.3
General Terms and Conditions of any sort, which contradict these Terms and Conditions, are only considered as effective insofar as we have confirmed them in writing.
1.4
The publication of this catalogue renders all previous conditions and price lists null and void.
2. Contract
2.1
Our offers are subject to confirmation and do not imply any obligation to accept the order.
2.2
Objectively justified and reasonable changes of our performance and/or delivery obligation, in particular reasonably exceeding the delivery period, are considered as approved in advance.
2.3
All specifications and data concerning the purchase object and its appearance contained in brochures, drawings, dimensional drawings and descriptions, are approximate and non-binding. We reserve the right to make technical or structural changes and adjustments.
2.4
A sales contract shall only become legally binding for us, once we have confirmed the order in writing.
We must confirm oral agreements in writing in order for them to become effective.
2.5
The purchaser shall incur all additional expenses related to a sales contract.
2.6
The place of performance for supply and payment is Vienna.
3. Prices
3.1
Our prices are determined based on the respective valid price lists and the duration of the agreed delivery period. We reserve the right to increase costs should the scheduled delivery date change due to reasons outside of our control.
3.2
If not expressly stated otherwise, all prices are net prices exclusive of all taxes and, in the case of export orders, without customs duty and without export value added tax.
3.3
All price quotations in the price list are subject to errata.
4. Terms of payment
4.1
In order to have debt discharging effect, payments to us must be made into an account named by us or to a person authorised to collect. When transfers are used, punctual payment is determined based on the moment when our named account is credited.
4.2
Unless agreed otherwise, all payments must be made exempt from charges within 30 days after the invoice date without deduction. A discount of 3% can be deducted if payments are made within 14 days of the invoice date. If the purchaser does not even make a partial payment within the term of payment specified for a discount deduction, he shall not be entitled to any discount, not only for this partial payment, but also for all payments already made and such subsequent payments.
4.3
Bills of exchange shall only be accepted upon special agreement and only on account of payment, not on account of performance. Collection and discount charges shall be at the purchaser's expense. We may refuse any offered payment by bill of exchange without stating a reason.
4.4
Value added tax must be paid in full based on the total price once the invoice has been issued, even if other terms of payment had been agreed for payment of the purchase price. As a matter of principle, the purchaser shall observe the value added tax legislation. The presentation of down payment value added tax invoices is considered as agreed in the case of longer examination and payment terms.
4.5
We shall be entitled to charge default interest and compound interest of 3% each per annum above the respective bank interest rate, in cases of the term of payment being exceeded, cases of default of acceptance and cases of loss of set date. This shall not affect the applicability of § 1333 Austrian Civil Code. In the case of default, the purchaser shall be obligated to pay default interest as well as covering all other procedural and non-procedural costs related to collection. This also includes the costs of us calling in a lawyer. If we carry out collection ourselves, the purchaser undertakes to pay an amount of € 10.00 for each reminder carried out, as well as an amount of € 5.00 for keeping records on the obligation in credit control for each half-year. Furthermore, all other damages must be reimbursed regardless of negligence or fault for the delay of payment, in particular those damages related to the fact that non-payment results in us having to pay correspondingly increased interest rates on all credit accounts. Any warranty claims made by the purchaser, do not entitle the purchaser to withhold agreed payments.
4.6
In the case of delay of payment, the purchaser forfeits any discounts granted.
4.7
We are entitled to withdraw from the contract without a period of grace, in the case of delay of payment or inability to pay on part of the purchaser. In these cases we are entitled to take back already delivered products - regardless of the applicability of section 8. We shall also be entitled to withdraw from the contract, if the goods have been delivered to the purchaser and the purchase price has been deferred.
4.8
Set-off with counterclaims or retention of payments by the purchaser for any reason is prohibited unless there is an explicit agreement.
5. Loss of set date
5.1
Loss of set date occurs, if the purchaser defaults on a contractual payment for more than 2 weeks. In this case we are entitled to declare the entire remaining invoice amount due for immediate payment. Loss of set date also occurs, if the purchaser defaults on the surrender of an agreed bill of exchange or with the signing of credit documents necessary for financing for more than 8 days. Furthermore, our entire remaining claim is immediately due for payment, if distraint has been carried out unsuccessfully on the purchaser's assets, or the sale of properties has been granted by court order or forced administration has been authorised, or if the creditworthiness is reduced in any other way (in particular through the opening of an insolvency procedure).
5.2
Loss of set date entitles us to withdraw from the contract.
6. Delivery
6.1
Delivery periods are always without obligation, unless a fixed date has been expressly agreed upon. The delivery period begins when the order becomes legally valid. We are entitled to re-specify the delivery date if there is an agreed amendment of the order. We are not liable for supply delays for which we are not responsible. In such cases, the purchaser waives his right to withdraw from the sales contract and also to assert claims for damages. In all other cases, the purchaser is not entitled to withdraw from the contract without an appropriate period of grace. The obligation to supply does not apply in the event of force majeure and other delays beyond our sphere of influence, even if these concern a subcontractor (e.g. fire, strike, embargo, absence of means of transport).In such cases the seller is entitled to withdraw from the contract without any obligation to compensate damages; this also applies at our discretion to subsequent deliveries which are not yet due.
6.2
Our selling prices do not include transport costs. We will pay these costs on request, if they are remunerated separately. The delivery is made free of charge for minimum order quantities of € 150.00 and above. A minimum quantity fee of € 8.00 will be charged for order quantities of less than € 150.00. The delivery takes place at the purchaser's risk.
6.3
In the case of return of goods in the original packaging, for which we are not responsible, we shall charge 20 % of the net value of the goods to cover the costs of handling and taking the goods back into stock.
7. Transfer of risk
7.1
Irrespective of the place of performance, use and risk are transferred to the purchaser at the latest on the dispatch of the delivery from our warehouse, in the case of delivery ex works from the appropriate location.
7.2
If dispatch from our factory or warehouse is delayed for reasons which the purchaser is responsible for, the risk is transferred to the purchaser on the day the goods are ready for dispatch. If it is agreed that delivery will take place on request, the goods will be considered as having been requested for delivery half a year after the order is placed at the latest. If we cannot fulfil requirements due to a lack of appropriate merchandise planning, then the legal effects of default of acceptance shall come into effect at this point in time.
7.3
We will only replace damaged items if the purchaser can prove that we have caused this either wilfully or through gross negligence.
8. Default of acceptance
8.1
The purchaser shall be in default of acceptance, if the delivery can not be made on the agreed date due to reasons which the purchaser is responsible for. This is the latest point in time at which risk and costs are transferred to the purchaser. At our discretion, we are furthermore entitled to ship the purchase object or to store it in any manner on behalf and at the expense of the purchaser. At this point of time, the goods are considered delivered according to the contract in every respect.
The purchaser shall immediately make any payments, which are due for the delivery or which are caused by the delivery.
8.2
The default of acceptance entitles us to withdraw from the contract. It is not necessary for there to be a period of grace before this takes place. We are entitled to make claims to the purchaser for damages for failure of performance in the case of withdrawal from the contract.
8.3
If the purchaser does not accept the supply by the agreed time, then we are entitled to charge the purchaser all costs resulting from this delay.
9. Retention of title
9.1
The supplied purchase object remains our property up until complete payment of the purchase price is made (including value added tax, default interest and costs) and/or redemption of outstanding bills of exchange and of any further invoice amounts for the delivery of spare parts for the purchase object concerned. In cases of processing or connection joint ownership shall ensue in the ratio of the value percentage.
9.2
We shall be entitled to mark the purchase object, in a manner that we deem appropriate to make easily recognisable for everyone that it is our property. This marking will be carried out at the expense of the purchaser. The purchaser acknowledges that arbitrary removal of the marking before the transferral of ownership of the purchase object results in the agreed purchase price being due immediately.
9.3
As long as we retain ownership, the purchaser shall only be permitted to sell, pledge, assign as security, mediate or otherwise permit the use of the purchase object, if we are notified in good time of the intention to do so and given the name/company and the exact domicile of the acquirer, and only if we agree in writing to this sale, pledge, assignment as security, mediation, or other use of the purchase object. In the case of our agreement, the purchase price receivable shall now already be considered as assigned to us and we are entitled to notify the garnishee of this assignment at any time. During the period of retention of title, the purchaser shall be obliged to keep the purchased object in an appropriate condition.
9.4
Furthermore, we reserve the right to ownership of all goods supplied up to fulfilment of all claims to which we are entitled - i.e. also interest, fees and costs including possible bill of exchange liabilities.
9.5
Our acceptance to take goods back shall not be (The withdrawal of goods by us is not)considered as withdrawal from the contract, all our rights from the legal transaction, including the right to assert damages for non-performance, shall remain effective.
9.6
The purchaser is entitled to resell the goods supplied under retention of title in the course of normal business dealings, as long as he is not in default of payment. In this case, the purchaser shall relinquish all receivables resulting from this resale to third parties to the amount of the respective invoice amount agreed between the purchaser and ourselves. The purchaser remains entitled to collect these receivables as long as he is not in default of payment. The purchaser is, however, obliged to submit all documents to us, and to specify the names of his customers, so that we are able to collect the receivables ourselves. The purchaser is obliged to disclose the assignment to his customers.
10. Warranty period / compensation for damages
10.1
The warranty period is 6 months. The purchaser is obliged to carry out immediate inspection, at the latest however within 5 working days after the acceptance of goods, with notification of type and scope of defect and to make a detailed record of determinable defects on the delivery note or waybill so as not to preclude any claims. If no immediate examination is possible on acceptance this must be noted on the delivery note or waybill as ÔuncheckedÕ so as not to preclude any claims, and any defects determined within 5 working days from receipt of goods during a subsequent inspection shall be communicated in detail in writing. If warranties are granted in a separate written agreement, these shall be considered exclusively as a stipulation of the existence of individual, specifically mentioned characteristics within the warranty period. Hidden defects must be reported immediately once they have been discovered. The goods shall be considered as approved if no notice of defect is issued, or if it is not issued in good time. In these cases, the assertion of warranty claims or compensation for damages, and the right to challenge errors on grounds of defects shall be excluded. Assembly or other resulting costs shall not be remunerated.
10.2
We have a transport insurance policy for our deliveries. We shall therefore not be liable for supplies damaged during transportation, unless we receive a transport damage notification immediately. Returns shall only be accepted in the original packaging according to prior agreement.
10.3
Apart from those cases, in which the right to rescission applies by law, we reserve the right to fulfil the warranty claim at our discretion by improvement, exchange or price reduction.
10.4
The right of recourse according to § 933b ABGB (Austrian Civil Code) is subject to a limitation period of 2 years after performance or supply.
10.5
Our liability shall be limited to damages, which occur to the supplied item. Claims of the purchaser for compensation of further damages, in particular loss of profit or consequential damage shall be excluded, unless we are responsible due to intent or gross negligence. The purchaser must prove degree of responsibility, fault and negligence. Claims for damages are subject to a limitation period of one year after recognition of damage and tortfeasor, and a limitation period of 2 years from the supply of performance or delivery.
10.6
The purchaser shall be obligated to observe all instructions for use that they have received. In case of doubt we must be consulted. We shall not be liable for defects or damages resulting from neglect of these instructions, not obtaining our advice or arbitrary changes to the purchase object.
10.7
We shall not be liable for the faults of subcontractors or other companies used for fulfilment of the contract.
11. Product liability
11.1
Possible claims for recourse, which contracting or third parties assert against us under product liability in terms of the Product Liability Act shall be excluded, unless the person entitled to recourse proves that the error was caused in our sphere of influence and is at least due to at least gross negligence.
11.2
Claims for damages shall expire within 5 years from when they were placed into circulation. The purchaser shall legally transfer this period to his customers.
11.3
Rights of recourse shall only exist if the purchaser proves that the error was caused by the supplier before placing into circulation.
11.4
Our liability according to the Product Liability Act shall furthermore be excluded for any damages, which result from neglecting operating instructions or violating legal or other regulations.
12. Cancellation
If the purchaser cancels the order or withdraws for a reason, for which he is not already entitled to do so according to legal regulations, we are entitled to demand a cancellation fee in the amount of the lost profit, which must be at (least) 15% of the purchase price (or no less than £ 20 / € 30), regardless of our claim for performance. The purchaser shall not be entitled to make this decision.
13. Place of jurisdiction and applicable law
13.1
For all disputes resulting from or in connection with a contractual relationship, in which we participate as a contracting party, it is agreed that at our discretion we are exclusively entitled to select the competent District Court for Commercial Matters in Vienna or the competent local court in Breitenfurt.
13.2
It is agreed that these terms shall be governed exclusively by the laws of the Federal Republic of Austria, and that the UN Convention on the International Sale of Goods is precluded. The contract language is German.
14. Other
14.1
If any provision of these General Terms and Conditions proves to be or become partly or fully ineffective, this shall not affect the validity of the remaining provisions. It is agreed, that any invalid provision will be replaced by a provision, which comes closest to the invalid provision from an economic point of view and in a legally permissible manner.
14.2
All agreements, subsequent changes, additions, special agreements etc. must be made in writing to be valid. This also applies to the renouncement of the written form requirement.
