1. Signature of contract:
The following conditions shall apply exclusively to all our deliveries and services. The purchaser’s purchasing conditions, irrespective of whether general or special, shall only be binding on us if we explicitly acknowledge them in writing in the individual case. Our quotations shall always be non-binding. Orders placed with us and any changes to such orders are binding for the purchaser under all circumstances. Orders placed or changes made are only binding on us following our written order confirmation.
2. Prices:
All prices apply ex works and are exclusive of Value Added Tax, unpacked and are daily prices, unless a term price has been explicitly determined in writing. For orders without an explicit price agreement, the prices applicable on the day of delivery shall apply. We are entitled to increase our prices to a reasonable extent if changes to raw material or auxiliary material prices, wages, salaries, freights or other public charges occur after the quotation was submitted. By contributing towards the cost of tools, the purchaser shall not acquire a title to the tools. These shall remain our property. Early payment discounts, discounts and the term of payment with regard to the tools require a special agreement. We shall be entitled to scrap the tools three years after final delivery. The ordering party shall bear the costs of modification, maintenance and replacement of the tools.
3. Delivery and delivery period:
Our delivery is considered complete upon handover to the purchaser, shipping agent or carrier or after notification of readiness for dispatch. Our deliveries are subject to timely and correct delivery by our suppliers. The delivery obligation commences on the day of acceptance of the order by us, but not before full settlement of all details regarding execution. If the purchaser has the obligation to procure documentation, details, consents or approvals or make an initial payment, the delivery period shall not commence before fulfilment of these obligations. Obstacles to execution and delivery of an order which we cannot rectify at all or not in an economically reasonable manner (e.g. strikes, operational breakdowns, lockouts, delayed receipt of raw materials, traffic disruptions, etc.) and their consequences are considered to be force majeure and shall release us from the obligation to deliver without the purchaser being entitled to a claim for damages. We are entitled to proceed with the ordered deliveries after elimination of such obstacle. However, the right to damages as a result of delayed delivery is also excluded if such delay occurred as a result of damage to the machines and tools used in the production of the material ordered and we are neither guilty of wilful intent nor of gross negligence in this regard. Depending on the nature of the products, deviations in weight, quantity, running metres, etc. of up to +/- 10 per cent are permitted both with regard to the entire final quantity and also with regard to agreed partial deliveries, unless determined otherwise in our applicable technical delivery conditions. The quantity units we specify (depending on the factory, normally weights, in special cases also quantities, running metres, etc.) are decisive for the calculation of the invoice value.
4. Acceptance:
Material supplied by us is only accepted if the relevant material standards provide for acceptance or if this was explicitly agreed when the order was placed. Acceptance must take place within an appropriate timeframe, however no later than within two weeks of notified readiness for acceptance, at the expense of the ordering party. Otherwise, the goods are considered accepted. In this case, we are entitled to dispatch the material or to store it at the purchaser’s expense and risk. Any required export documentation must be procured by the purchaser.
5. Packaging:
If packaging is necessary in the opinion of the seller, customary packaging shall be used, as a general rule at the expense of the purchaser.
6a. Freight and insurance:
The freight costs and the costs of insurance of the consignment, if such insurance is requested by the purchaser, must be borne by the purchaser. If the purchaser provides us with special loading and dispatch provisions, such provisions shall be executed at the purchaser’s risk and expense. We shall determine the dispatch route and the dispatch method as well as the forwarding agent and carrier.
6b. Transfer of risk and receipt:
7. Dispatch and default of acceptance:
In case of untimely instruction of potentially necessary dispatch provisions or untimely collection of the goods, the purchaser shall be deemed to be in default of acceptance. Notwithstanding the other rights due to us in this instance (damages) we shall be entitled, at our own discretion, to execute dispatch in the purchaser’s name. Additional expenses incurred must be borne or reimbursed by the purchaser. Should the purchaser fail to accept our proper delivery or necessary delivery documents, our order shall be deemed to be fulfilled and the purchaser shall be obliged to pay the whole sum. In this case, we are entitled to store the material at the expense and risk of the purchaser.
8. Analyses and measuring tolerances:
Generally, our analyses and analytical methods are authorative. If their accuracy is disputed, an arbitral analysis must be undertaken by a body to be determined jointly. The purchaser shall bear the costs for this process. Existing EN (DIN) standards apply to the agreed specifications, unless otherwise explicitly agreed upon in writing. Otherwise, our technical supply conditions shall apply.
9. Warranty:
The warranty period commences on the day the goods are declared ready for dispatch and/or on the day of delivery and ends after 6 months (after 3 months in case of multi-shift operation). Written notifications of defects are required for the assertion of defects, i.e. for obvious defects immediately upon receipt of the goods; in case of concealed defects immediately following their discovery. In case of agreed acceptance, any notification of defects which could have been detected within the framework of the agreed acceptance type shall be excluded. We shall only be liable within the scope of the warranty claims we have against the preliminary supplier for those components of the product which we obtained from preliminary suppliers. The pre-requisite for the acknowledgement of a defect is always the use of the product in accordance with its quality conditions. For goods provided to us for processing, the goods are only subjected to an identity check upon delivery (for quantity, packaging). Should defects become apparent during processing, the ordering party / client undertakes to hold us harmless despite the failure to report the defect. If we acknowledge a defect, we reserve the right to take back the product at the calculated price, to rectify the defect or to undertake a substitute delivery of the product against return. Claims exceeding this scope, in particular claims for damages, shall be excluded. The purchaser shall not be entitled to withdraw from the contract due to the delivery of a defective product.
10. Force majeure:
Events of force majeure and other circumstances outside of our sphere of influence both at our premises and at those of our preliminary suppliers shall entitle us to extend the delivery period by the duration of the operational obstacle, while excluding any claim for damages, or to withdraw from the contract in whole or in part.
11a. Limitation of liability:
If deliveries are made according to drawings or according to other information provided by the purchaser, and if this infringes rights of third parties, especially property rights, the purchaser shall completely indemnify us and hold us harmless. Other claims are excluded, unless we are liable in cases of wilful intent or gross negligence. For loss or damage to sketches, samples and similar objects provided, liability for contretemps and slight negligence is excluded. The ordering party bears the burden of proof for the existence of gross negligence. We only enter into insurance policies in this regard upon an explicit order by and at the expense of the ordering party. Claims for damages by the ordering party, regardless of the legal claim, in particular due to non-permissible actions, manufacturer’s liability, incorrect or non-consultation, positive violation of a contractual duty, fault upon signature of contract, impossibility are excluded in case of slight negligence of the supplier.
11b. Copyright protection of the supplier:
The ordering party must not use documentation and sketches provided to it and constructive services rendered by us except for their intended purpose and must not make these accessible for another purpose or to third parties without our consent. The ordering party shall be liable to the full extent of the damage and to all degrees of culpability for each infringement of this provision.
12. Termination:
In the event of non-compliance with the payment conditions or where circumstances become known which call into question the creditworthiness of the purchaser in accordance with bank and credit insurance regulations, we shall be entitled to execute outstanding deliveries and services only against prepayment or provision of security, irrespective of earlier agreements to the contrary, or to withdraw from the contract and demand damages due to non-fulfilment.
13. Payment:
The invoice amount must be paid in accordance with the agreed payment conditions. The payment must be made in the agreed currency by transfer to one of our bank accounts. It is a pre-requisite for the utilisation of cash discounts that no due payment obligations exist. Cheques or bills of exchange require a special agreement and are only accepted in lieu of payment. Interest and expenses are chargeable to the purchaser. Payments by bill of exchange shall not entitle the purchaser to a cash discount. The purchaser is not entitled to withhold payment, regardless of the reason. Set-offs against counterclaims require an explicit agreement. In case of default or notification of payment difficulties, we reserve the right to demand payment of all outstanding sums immediately while at the same time cancelling further deliveries (immediate maturity), to withdraw from all as yet unfulfilled contracts and to retain all pre-payments received until an indemnification payment, if any, is determined or to apply this against our claims. Without prejudice thereto, we reserve the right to execute outstanding deliveries against prepayment or payment of a security.
The risk shall be transferred on dispatch of the delivered components to the ordering party at the latest in any case, even if partial deliveries are made or if the supplier agreed to render other services, e.g. the dispatch costs or carriage and set-up. Supplied objects must be accepted by the ordering party, even if they exhibit immaterial defects, notwithstanding the rights described in the “Warranty” section. Partial deliveries are permissible.
In case of arrears, we shall be entitled to impose default interest amounting to 7% above the respectively applicable EURIBOR rate. In case of default, all dunning and collection costs must be reimbursed by the purchaser.
Payments are always applied against the oldest unpaid invoice or receivable. Expenses incurred in conjunction with transfers or on the basis of document collections and document letters of credit for our deliveries in the purchaser’s or destination country must be borne by the purchaser.
Assignment prohibitions declared in "General Business and Purchasing Conditions" of our customers and all other contractual conditions relating to the assignment of claims are considered ineffective.
14. Reservation of title:
All goods supplied remain our property until complete fulfilment of all liabilities (reserved goods). In the event of seizure or other use of the goods by third parties, the purchaser shall be obliged to inform such third parties of the reservation of title and to inform us of such seizure or other use of the goods without delay.
In case of any violation of contract by the ordering party, especially in case of payment default, the supplier shall be entitled to take back and the ordering party shall be obliged to surrender the goods. Taking back or seizing the goods shall only constitute a withdrawal from the contract if explicitly declared as such in writing by the supplier. If the ordering party processes our reserved goods with other goods, we are entitled to proportionate co-ownership to the new product. Upon the sale of the product which is our property, we shall become entitled to the claim against the third-party purchaser, whereas the purchaser shall be obliged to inform the seller and assign to the seller all claims arising from resale. At our request, the purchaser shall be obliged to provide notification of assignment to its customer. In the event the purchaser processes, amalgamates or combines the product with other products not belonging to us, the purchaser shall transfer to us the title to the new stock or to the item within the scope of the invoice value of the reserved goods.
The purchaser shall store the new stock or the item free of charge for us. However, we shall be entitled to inspect the purchaser’s warehouse at any time in order to reclaim the products belonging to us against deduction of the utilisation amount, and to prohibit the further sale of reserved goods.
14.a. Reservation of title in case of deliveries to customers outside of Austria:
1. We reserve the title to the goods supplied until complete payment of all receivables (including all balance claims from a current account) which are or will be due to us from the customer for any legal reason. We shall be entitled to take back the purchased item should the purchaser violate a provision of the contract.
2. The purchaser shall be obliged to treat the purchased item with care until transfer of ownership. In particular, it shall be obliged to adequately insure the purchased item at its own expense against theft, fire and water damage in the amount of the value of the new product.
3. The purchaser shall be entitled to resell the goods subject to proprietary rights in normal business transactions. The purchaser shall hereby transfer claims of the customer arising from the resale of the reserved goods to us in the total of the final invoice amount agreed (including VAT). This transfer shall apply regardless of whether the object of sale has been re-sold without processing or after being processed. The purchaser shall retain its right to collect the receivable, even after the transfer. Our authority to collect the receivable ourselves shall remain unaffected thereby. However, we shall not collect the receivable as long as the purchaser fulfils its payment obligations arising from the received revenues, is not in payment default and, in particular, is not the subject of an application for the initiation of insolvency proceedings and no suspension of payment exists.
4. The treatment and processing or conversion of the object of sale by the purchaser shall always be performed in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall be transferred to the converted object. To the extent the object of sale is processed with other objects not belonging to us, we shall acquire the right of co-ownership to the new object in the ratio of the objective value of our object of sale to the other treated objects at the time of processing. The same shall apply in case of amalgamation. To the extent amalgamation occurs in such a way that the object of the purchaser must be viewed as the main object, it shall be deemed agreed that the purchaser shall transfer to us proportionate co-ownership and preserve the thus arising sole ownership or co-ownership for us. In order to secure our claims against the purchaser, the purchaser shall also transfer to us such claims it has vis-à-vis a third party due to the reserved goods being affixed to real estate; we hereby accept such transfer.
5. We undertake to release the securities we are entitled to at the request of the purchaser, insofar as their value exceeds the claims to be secured by more than 20 %.
15. Applicable law, place of jurisdiction:
All contractual relationships are subject to Austrian law. German law shall only be agreed upon with regard to the determination of the reservation of title in accordance with section 14.a. of these conditions. The place of jurisdiction for disputes arising from the contractual relationship shall be the court with subject matter and local competence at the seat of the supplier’s headquarters for contractual partners headquartered in a contracting member state of the European Convention on Jurisdiction and the Enforcement of Judgments (EuGVVO).
16. Effectiveness:
In the event of ineffectiveness of one of these provisions, the seller shall be entitled to substitute the ineffective provisions with an effective provision, the economic intent of which comes as close as possible to that of the ineffective provision. The legal ineffectiveness of individual provisions of these business conditions and of the other contractual conditions shall not affect the effectiveness of the remaining conditions. In deviation from section 14, we shall only deliver to customers outside of Austria on the basis of the reservation of title described in further detail below. This shall also apply to all future deliveries, even if explicit reference thereto is not always made. If maintenance and inspection work needs to be executed, the purchaser must execute these in good time and at its own expense. For as long as as ownership has yet to be transferred, the purchaser must inform us in writing without delay if the supplied item is seized or subject to other interventions by third parties. Should the third party be unable to reimburse us for the in and out of court costs of a lawsuit, the purchaser shall be liable for the financial loss we incur.