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GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
1.1 The following terms and conditions shall be valid for all our offers, sales, deliveries and services and shall become content of the contract. They shall not apply if our contracting partner is a consumer and the concluded business transaction is not part of their company's undertaking (§ 1 KSchG [Austrian law for the protection of consumers]). They shall also apply to all future business relations, even if they are not expressly agreed upon again.
1.2 We shall hereby expressly object to any deviating or additional general terms and conditions of the Purchaser. They shall not apply even if the Purchaser has based their order or other statement on them.
§2 Offers and orders
2.1 Our offers shall not be binding, unless they are described as binding in writing. An effective contract shall thus only be concluded upon our confirmation of order or delivery of the goods in whole or in part.
2.2 Any stated dimensions, weights, illustrations, drawings as well as other documents that are part of our non-binding offers shall remain our property and shall only be approximate. They may become binding content of the contract upon our express written confirmation only.
§3 Doubtful ability to pay
3.1 If we become aware of any circumstances that justify doubts about the Purchaser's ability to pay after conclusion of the contract, we may make any further deliveries dependent on an advance payment of the goods by the Purchaser. We may set a reasonable deadline to the Purchaser for the advance payment of the goods and rescind the contract if we do not receive the advance payment in due time; the Purchaser may provide security by bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall be due for payment without deduction immediately regardless of any agreed payment terms.
3.2 Doubts about the Purchaser's ability to pay shall be justified, amongst others, if an application for the institution of insolvency proceedings against their assets has been filed or if they fail to make payments to us or to third parties in due time.
4.1 Unless otherwise agreed with the Purchaser, our prices shall apply "ex works". The packaging costs shall be included in the price.
4.2 The statutory value-added tax shall not be included in our prices and shall be separately shown in the invoice in its statutorily applicable amount on the day of the invoicing.
§5 Delivery time
5.1 All stated delivery dates shall not be binding and shall only apply as approximate dates, unless they have been expressly stated by us as binding. In case of non-binding delivery dates, delivery within 30 days after the stated delivery time shall in any case still be considered to have been made in due time.
5.2 If we culpably fail to comply with an expressly agreed deadline or are in delay for other reasons, the Purchaser shall grant us an appropriate grace period that commences after receipt in writing by us. After ineffectual expiry of this grace period, the Purchaser shall be entitled to rescind the contract (§ 918 et seq. ABGB [Austrian Civil Code]). All further claims, especially for compensation of damages of any kind, also of such damages not accrued on the delivery item itself, shall be expressly excluded.
5.3 If we are temporarily prevented from performance in whole or in part or if performance is made considerably more complicated in whole or in part due to force majeure or other extraordinary circumstances not caused by our negligence, the agreed delivery time shall be extended by the duration of the impediment to performance. The same shall apply to any deadline set for performance by law or by the Purchaser, particularly to grace periods in case of delay.
5.4 Prior to expiry of the delivery time or period for performance, as the case may be, extended according to sub-clause 3, the Purchaser shall neither be entitled to rescission nor to damages. If the impediment to performance lasts longer than 26 weeks, both the Purchaser and we shall be entitled to rescission as far as the contract has not yet been executed. If the Purchaser is entitled to rescission without the setting of a grace period by contract or by law (e.g. due to discontinuation of interest), this right shall remain unaffected.
5.5 In the case of a possible delay in delivery, unless it is based on intention or gross negligence, any claims for damages of any kind shall be excluded.
6.1 The first delivery of each order shall be invoiced including shipping charges. All further partial deliveries or spare part deliveries shall be free of charge.
6.2 Unless otherwise expressly agreed in writing, we shall be entitled to partial deliveries in reasonable extent.
7.1 Our invoices shall be paid within 30 days from the invoice date without deduction. All deviating payment terms shall be introduced in writing.
7.2 The Purchaser shall be in delay even without having been warned by us if they fail to pay the purchase price within 14 days after the due date of the invoice or equivalent payment schedule.
7.3 If the Purchaser is in delay with a payment, their entire payment obligations from the business relationship with us shall be due immediately. In this case, we shall be entitled to charge interest in the statutorily provided amount as from the relevant time. Proof of a higher damage by the Seller shall remain reserved.
7.4 Payments made by cheque shall only be accepted on account of performance. The purchase price claim shall not lapse until the cheque has been completely cashed.
7.5 The Purchaser shall only be entitled to set-off, also if notifications of defects or counterclaims are asserted, if the counterclaims are determined with final and binding effect, acknowledged by the Seller or undisputed. The Purchaser shall only be permitted to exercise a right of retention if their counterclaim is based on the same contract of sale.
8.1 The Purchaser shall inspect the received goods with respect to completeness, damages in transit, obvious defects, quality and characteristics, and notify any defects in any case within 7 days.
8.2 We shall not be obliged to guarantee if the Purchaser fails to notify an obvious defect in writing in due time. As far as there is a defect on the goods we are responsible for and it has been notified by the Purchaser in writing in due time, we shall be obliged – excluding the rights of the Purchaser to rescind the contract or reduce the purchase price – to supplementary performance, unless we are entitled to refuse the supplementary performance due to the statutory regulation. The Purchaser shall grant us a reasonable deadline for supplementary performance for every individual defect.
8.3 We shall guarantee for substantial defects, at our option, by means of improvement or subsequent delivery or conversion. The Purchaser shall grant us a reasonable deadline for removal of the defect.
8.4 The Purchaser may only assert claims for damages according to the following conditions due to the defect if the supplementary performance has failed or the supplementary performance is refused by us. The Purchaser's right to assert any further claims for damages according to the following conditions shall remain unaffected.
8.5 We shall be liable without limitation according to the statutory provisions for intentional or grossly negligent breaches of duty as well as for damages based on violation of life, body or health. In all other cases, we shall only be liable if the violated contractual obligation is of visibly substantial meaning for the achievement of the purpose of the contract, and only limited up to the amount of the typically foreseeable damage.
8.6 The limitation of liability according to sub-clause 5 shall apply accordingly to other than contractual claims for damages, particularly claims based on tort, except for the claims according to the Product Liability Act. Furthermore, it shall also apply in favour of our employees, representatives and vicarious agents.
8.7 As far as we have given a guarantee of quality and/or durability with respect to the goods or parts of the goods, we shall also be liable in line with this guarantee. However, we shall only be liable for damage based on the lack of the guaranteed quality or durability but not accrued directly on the goods if the risk of such damage is visibly included in the guarantee of quality and durability.
8.8 We shall also be liable for damages caused by ordinary negligence as far as this negligence concerns the violation of such contractual obligations the compliance of which is particularly important for the achievement of the purpose of the contract (cardinal obligations). However, we shall only be liable as far as the damages are associated with the contract in typical manner and foreseeable. In all other cases, we shall not be liable for any ordinary negligent violations of collateral duties not essential for the contract. The limitations of liability included in §7 shall also be applicable as far as the liability for the legal representatives, executive employees and other vicarious agents of the Seller is concerned.
8.9 Any further liability shall be excluded regardless of the legal nature of the asserted claim. As far as the Seller's liability is excluded or limited, this shall also apply to the personal liability of their employees, representatives and vicarious agents.
§9 Reservation of title
9.1 We shall reserve the title to the goods (goods subject to reservation of title) until receipt of all payments based on the contract of sale. The delivered goods shall only become property of the Purchaser if the Purchaser has fulfilled their entire obligations from the business relationship, including accessory claims, claims for damages and cashing of cheques. In case of payment by cheque, the reservation of title in all its forms here indicated shall not lapse with the cheque payment, but only upon cashing of the cheque.
9.2 If the Purchaser processes any goods subject to reservation of title that are our property, we shall not incur any obligations by this. In case of processing, mingling or combination of goods subject to reservation of title with other goods that are not our property, we shall be entitled to a co-ownership share in the new item in proportion of the invoice value of the goods delivered by us to the invoice value of the other goods. If the Purchaser acquires sole ownership of the new item, the contractual parties agree that the Purchaser shall grant us co-ownership of the new item in proportion of the invoice value of the goods delivered by us and store them for us free of charge.
9.3 The Purchaser shall inform us immediately in writing about all accesses by third parties, particularly about enforcement measures as well as other impairments of their property. The Purchaser shall compensate us for all damages and costs caused by violation of this obligation and by measures required for protection against third party access.
9.4 If the Purchaser fails to fulfil their payment obligation despite having been duly warned by us, we may demand the surrender of the goods subject to reservation of title still in their property without the prior setting of a deadline. The accruing transportation costs shall be borne by the Purchaser. Our seizure of the goods subject to reservation of title shall always constitute rescission of the contract. After recovering the goods subject to reservation of title, we shall be permitted to dispose of them. The proceeds of the disposal shall be offset against our outstanding accounts receivable.
§10 Place of performance
Place of performance for any payments shall be the respective registered office of the bank in charge of our account, for our delivery of goods it shall be the place of dispatch.
§11 Data processing
The Purchaser shall agree that we process the data about the Purchaser received in connection with the business relationship in compliance with the Data Protection Act for the fulfilment of own business purposes, especially that we store them and submit them to the Kreditschutzverband [Austrian association for the protection of creditors], as far as this is made in line with the purpose of the contract or required in order to maintain our justified interests and there is no reason to assume that the interest worthy of protection of the Purchaser in the exclusion of the processing, especially the submission, of this data predominates.
§12 Severability clause
Any changes or additions to the contract or to these General Terms and Conditions shall be made in writing to be effective. Should any regulation of these General Terms and Conditions of Delivery and Payment be or become invalid or unenforceable, this shall not affect the validity of the remaining General Terms and Conditions of Delivery and Payment.
§13 Place of jurisdiction and applicable law
13.1 The law of the Republic of Austria, with exclusion of the United Nations Convention on Contracts for the International Sale of Goods, shall exclusively apply to the contractual relationship between the Purchaser and us, even if the Purchaser's residence or place of business is abroad.
13.2 The Purchaser shall not be entitled to assign any claims based on the contract of sale without the Seller's consent.
13.3 If the Purchaser is an entrepreneur, a legal person under public law or a special fund under public law, the place of jurisdiction for both parties – also for actions on dishonoured bills or cheques – shall be Vienna, Austria. However, we shall also be entitled to sue the Purchaser at their general place of jurisdiction.
General Terms and Conditions of Delivery and Payment art. no. 06706