terms and conditions
TERMS AND CONDITIONS APPLICABILITY
Any and all of our legal transactions shall be exclusively based on these General Terms and Conditions. Differing terms and conditions of the customer shall not be accepted by us and shall only apply with our written consent, even if we do not explicitly object thereto on a case-by-case basis.
CONCLUSION OF CONTRACTS
Contracts shall only be concluded upon our written acknowledgement of order. Any other arrangements or side agreements, even if made at a later point of time, shall become effective only upon our written confirmation. All documents provided to the customer, in particular technical drawings, images, logos and the like shall remain our property. The customer shall not be entitled to make these documents available to third parties. The use and utilization of the provided documents shall be permitted for the agreed purpose only. Further use intentions shall require the express written permission. Upon request, these documents shall be returned to us immediately and shall be deleted from any systems.
All prices stated by us shall be non-binding and shall be deemed stated in euros (€) exclusive of VAT, unless expressly stated otherwise. Changes of costs that have to be incurred for the provision of services, such as costs for materials, energy, transport, etc. shall entitle us to increase prices accordingly. The customer may, for that reason, neither be entitled to rescind the contract nor to claim frustration of contract. Costs for packaging, shipping, customs and other services shall be invoiced separately. The packaging shall not be taken back.
Agreed delivery periods shall commence upon our mailing of the acknowledgement of order. However, the relevant period shall only commence when we have confirmed receipt of all technical or other information, documents, down payments or other services of the customer. In case of a delay of agreed payments the delivery period shall be extended accordingly. The delivery period shall be deemed observe if the item to be delivered leaves our warehouse prior to expiration of the delivery period or if we have advised the customer of readiness to deliver by then. Promised delivery dates shall be observed to the best extent possible but shall not be binding. Delays in delivery shall not entitle the customer to rescind the contract or to raise claims under warranties, avoidance on account of mistake or to claim damages. We shall have the right to carry out and invoice partial or advance deliveries. The choice of mode and route of shipment shall be reserved to us, with any liability excluded.
TERMS OF PAYMENT, DEFAULT, PROHIBITION TO SET OFF, CROSS-BORDER SHIPMENTS
Our invoices shall be payable within 30 days of the invoice date without any discount or deduction of expenses. In case of a delay in payment on the part of the customer we shall be released from all other service and delivery obligations and shall be entitled to retain deliveries or services still outstanding. Furthermore, the customer shall be obliged, irrespective of fault, to pay default interest in the amount of 1% per month, while we shall be entitled to claim bank interest in the customary amount which goes beyond the aforementioned interest.
RETENTION OF TITLE
We shall retain title to all goods delivered by us until payment of the full purchase price including interest and ancillary charges irrespective of the legal ground of the same. In case of a current account, the item to which title has been retained shall also serve as security for our outstanding balance. Claiming retention of title shall not be deemed a rescission of the contract and shall not release the customer from his obligations, in particular to pay the price, unless we declare rescission of contract. The customer shall be entitled to pass on his vested right in connection with our retention of title with respect to the object of the purchase within the scope of his business operation, however, he may not pledge the object of purchase or transfer title thereto by way of security. Customer shall immediately notify us of any seizure or other impairment of title by third parties. The customer shall be obliged to bear the costs of elimination of the intervention and to take the measures to effect the same, in particular to bear the costs of intervention proceedings and the like. Retention of title shall also extend to products being the result of processing. In case of processing, combining, or mixing of our goods with other materials we shall acquire co-ownership of the products being developed in this way in accordance with and subject to the portion of value added. The customer already at this point assigns all claims under a sale of goods to which we hold title - if applicable in the amount of our co-ownership share - for the purpose of security and satisfaction and we accept such assignment. The customer shall be obliged to advise us the name and address of his customers, the existence and the amount of the claims resulting from resale, as well as to provably inform his relevant customer about the assignment of claims. Furthermore, the customer shall be obliged to state the assignment of this claim to us in his accounts in an appropriate way. We shall be entitled at any time to inform the customer's customer of such assignment. If the customer fails to fulfil his obligations or discontinues his payments, the entire residual debt shall become payable immediately, also to the extent that bills of exchange becoming payable later on exist. In that case we shall be entitled to claim immediate release of the purchased item with any right of retention being excluded.
WARRANTY, DAMAGES, DELIVERY OF OTHER GOODS, PRODUCT LIABILITY
The customer shall notify defects in writing immediately upon receipt of the shipment and not later than seven days after delivery and before any processing; otherwise, warranty claims and/or claims for damages and/or avoidance on account of mistake shall be excluded; however, notices of defects shall not entitle to a retention of invoiced amounts or parts thereof. Differences between the goods ordered and those delivered, such as wrong measurements or wrong goods (delivery of other goods) must be notified within 7 days of delivery and prior to processing, even if the goods are not delivered to the customer directly. Otherwise, the goods shall be deemed accepted and cannot be taken back or exchanged by us. The warranty period for defects which it was not possible to see in the course of an inspection upon receipt shall be six months and shall be neither extended nor interrupted by improvement attempts; this shall also apply to partial deliveries. The customer shall always have to prove defectiveness of the delivered goods at the time of delivery; the legal assumption of Section 924 ABGB [General Civil Code] shall be expressly excluded. Warranty shall cease if the customer himself or third parties change or repair the delivered item without our written consent. In case of a complaint the customer shall be obliged to accept the goods first, to unload the same properly and to store them. We shall have the option to choose whether to fulfil the warranty claims by replacement, improvement, price reduction or cancellation of contract. Assignment of warranty claims or claims for damages, or the like shall not be permissible. In case of a resale of the delivered goods by the customer any claims under warranty vis-à-vis us shall forfeit. The right of recourse as provided for in Section 933 b ABGB shall become time-barred one year after delivery/service. We shall be liable for damage caused to our customer in the course of effecting the transaction only in case of our gross negligence or gross negligence on the part of the agents working for us, except for physical injury, for which we shall be liable even in case of slight negligence. Compensation for consequential damage, pure pecuniary damage, lost profit, and damages under third-party claims shall be excluded. The party harmed shall have to prove gross negligence. Claims for damages shall become time-barred six years/months after delivery or service. To the extent that we are liable as per the foregoing provisions as to the merits, we shall only be liable as to the amount for damage typically foreseeable at the time of conclusion of the contract, but in any case, limited to the amount of the average damage typical of the contract. To avoid damage, the instructions given in brochures, instructions for use or other product information shall be strictly followed by the customer. We expressly warn against application beyond the defined areas of application. If our customer himself is held liable under the Austrian Product Liability Act or similar foreign provisions, the customer shall waive any right of recourse he may have vis-à-vis us, in particular as defined by Section 12 of the Austrian Product Liability Act or similar foreign provisions. If our customer puts the goods delivered by us into the market outside the European Economic Area, he undertakes to exclude the obligation to compensate his customers under the Product Liability Act to the extent possible under the law agreed or applicable between the customer and his customer. In this case or in case he fails to comply with such obligation to exclude such obligation, the customer shall be obliged to indemnify and hold us harmless from and against any third-party claims under product liability.
RESCISSION OF CONTRACT
In the event of delay in acceptance or other important reasons, like, in particular, bankruptcy of the customer or dismissal of a petition for bankruptcy for lack of assets, as well as in case of delay in payment by the customer we shall be entitled to immediately rescind the contract or parts thereof without having to grant a grace period, any other claims notwithstanding. Rescission shall become effective through our unilateral declaration.
PLACE OF PERFORMANCE, CHOICE OF LAW, PLACE OF JURISDICTION, SEVERABILITY CLAUSE
The place of performance concerning all obligations of the parties under this contract shall be the place of our registered office in 5270 Mauerkirchen/Austria, irrespective of any agreement on the place of delivery and the bearing of any transportation costs or on the place of payment. This contract shall exclusively be subject to substantive Austrian law. The conflict of laws rules of private international law and UN Sales Law (CISG) shall hereby be expressly excluded. For our customer the exclusive place of jurisdiction for all disputes arising from or related to the present contractual relationship shall be the court having jurisdiction over the subject-matter and over 5270 Mauerkirchen/Austria. We, however, shall be entitled, at our option, to file suit against the customer at any other court which may have jurisdiction under national or international law. Ineffectiveness of individual provisions of our General Terms and Conditions shall not affect the effectiveness of the remaining provisions of these General Terms and Conditions. The contracting parties shall be obliged to agree on a new provision which comes as close as possible to the purpose of the ineffective provision.