General Terms and Conditions of Business
Unless otherwise agreed in offers and order confi rmations, these terms and conditions shall apply to all deliveries and services. Our offers are subject to change without notice unless otherwise agreed in writing. All agreements, including those made orally, must be confi rmed by us in writing before they are binding, unless we acknowledge them formally. The General Terms and Conditions of Business (terms and conditions of purchase, etc.) of the client shall only apply in cases where we formally acknowledge them in writing. Any lack of objection the General Terms and Conditions of the client on our part does not automatically constitute our agreement.
II. Weights, measures, quantities
Illustrations, drawings, blueprints, indications of weights and measures in brochures, flyers and such like are only approximations. Actual deviations from details given as well as deviations in size, weight and quality are permissible in the context of standard practice or if necessitated by an appropriate or necessary change to the technical design. In cases where items which are not part of the standard product range or which have to be specially manufactured are ordered, the client shall agree to deviations in quantity of up to 10% (plus or minus) as the agreed terms.
III. Pricing, set-off
Our deliveries are subject to the prices quoted on the currently valid price lists; in the case of changes in price, we reserve the right to apply those prices valid on the day of the delivery. For all offers, orders, order confi rmations, etc., the unit prices and not the overall prices shall apply; this applies in particular to changes to the quantities purchased or ordered. Should changes to our price lists be made between conclusion of the contract and delivery within two months, the changes shall only apply for consumers within the meaning of the Consumer Protection Act (KSchG) if such possible changes have been negotiated. The retention of payment or the offsetting of outstanding accounts based on warranty claims or other counterclaims of the buyer not acknowledged by us is not permitted. If the buyer is a consumer within the meaning of the Consumer Protection Act (KSchG), then the setting off of a claim shall be permitted pursuant to ß 6 paragraph 1, sub-paragraph 8, of the Consumer Protection Act.
IV. Terms of payment
Our binding terms of payment are set out in our confi rmation of order. Otherwise, each invoice is to be paid promptly and in full. Cash payment is only accepted in full satisfaction of debt if the payment is made to a collecting agent who has been authorised in writing. Should the client fail to adhere to the terms of payment or should we have reason to believe the client is unable to pay, then we shall be entitled to demand immediate payment of outstanding accounts - including from other business -, to demand advance payment on orders placed or to demand a guarantee of payment for orders already in production. In the event of any failure to meet these conditions, we shall be entitled to cancel, in whole or in part, the contract within an appropriate period and/or to demand compensation. In the event of default in payment, we shall be entitled to apply interest on arrears at a rate of 1.5% per month. The client shall also be obliged to cover the costs of any claims asserted out of court, in particular by a collecting agent authorised by us. We shall only accept bills of exchange based on special agreement. Bills of exchange and cheques shall only be accepted on account of payment. Discount interest, collection charges, exchange charges and protest fees shall be paid by the client, as shall all dunning costs, legal fees, recovery costs and information costs incurred by us or by representatives hired by us.
V. Delivery period
The delivery period commences once all technical, commercial and fi nancial delivery issues have been clarifi ed and is only an approximation. We are entitled to make part or advance deliveries. Partial invoices are permitted. Any claims arising from changes to the delivery date may only be asserted if a fi xed-date purchase has been agreed. Observation of the delivery period is dependent on the fulfi lment of any obligations the client is obliged to meet prior to delivery according to the terms of the agreement. The client shall not be entitled to assert any claims against us in the event that the delivery period has to be extended owing to force majeure or events which we or any representative hired by us is powerless to infl uence. In the event that we are responsible for default of delivery, the client shall be entitled to demand performance of the contract or, after allotting a reasonable period within which to make performance (this shall correspond to at least the duration of the delivery period originally agreed), to withdraw from the contract. For special orders, only performance of the contract is enforceable. If the client fails to place an order promptly and/or in full, we shall be entitled to demand immediate payment of outstanding accounts - proportionate to the delivery not ordered - as of the agreed order deadline. The right to compensation shall remain unaffected.
VI. Liability, warranty
The period for asserting warranty claims begins with the handing over of the goods (delivery). All (possibly caused in transit) defects must be reported in writing immediately upon acceptance of the goods; hidden defects immediately upon their discovery. The buyer is obliged to examine the goods delivered. If the goods delivered are tainted by obvious defects, the buyer is also obliged to return the delivered goods immediately. Should the buyer fail to examine the goods, he shall forego any right to assert warranty claims. In this case, the buyer is only entitled to assert his rights relating to delayed performance ñ that is the right to choose between performance of the contract, allotting a reasonable period within which to make performance (this shall correspond to at least the duration of the delivery period originally agreed), or to withdraw from the contract. Under the warranty, the buyer is entitled to rectifi cation of the defect (remediation or provision of missing item), exchange of goods, a reasonable reduction in price or cancellation of the contract (cancellation of sale). In line with the legal provisions, the buyer is only entitled to demand a price reduction or cancellation of sale if rectifi cation or exchange are not possible, involve disproportionate expenditure on our part or if we are unable to meet the buyerës request either at all or within a reasonable period of time. Goods deemed by the buyer to be defective must be returned to us via our request for determination of defects and rectifi cation/exchange. If the notice of defects is justifi able, we shall be liable in this case for carriage costs. All claims for compensation asserted against us by the buyer, in particular for damages resulting from the defectiveness of the goods and consequential damage caused by defective goods, are excluded, except in the event of damage caused intentionally or through gross negligence. Damage claims pursuant to the Product Liability Act shall not be affected.
VII. Reservation of title
The goods delivered shall remain our property until full payment of the purchase price and all outstanding accounts, including costs, arising from the business relationship or any other legal grounds - also in respect of third parties. The client has a duty of safekeeping and, upon request, shall store the goods separately or surrender possession, but is entitled to sell our goods in the normal course of business. If goods still subject to reservation of title are sold to a third party, the purchase money claim in respect of the third party shall pass to us. If we take back the goods delivered on the grounds of the reservation of title, the defaulting buyer shall be liable for any loss of income resulting from the resale. He shall furthermore cover any costs resulting from the possible return or transport of goods to the third party. In case of default we are also entitled to reclaim the goods without withdrawing from the contract and to exploit the goods at the clientës expense. Pledging of our goods, as well as outstanding accounts resulting from their sale or transfer by way of security prior to our full satisfaction is excluded. If the goods we deliver are processed by the buyer before ownership has been transferred, we shall take part ownership based on the ratio of the invoice value of our processed goods to the invoice value of the product of the processing.
VIII. Cancellation and default in acceptance
In the event that the buyer withdraws from the contract without just cause, a cancellation fee of 20% shall apply. We reserve the right to claim for greater damages. In the event of default in acceptance on the part of the buyer, we shall be entitled to deposit in court. The deposit has the effect of discharging the contract. In case of default we shall be entitled to apply the agreed rate of interest on arrears as well as storage charges. If, owing to default in acceptance, we incur expenses (storage charges, for example) which we pay on behalf of the buyer, we shall be entitled to demand remuneration according to the rules of management of affairs without mandate.
IX. Place of fulfi lment and jurisdiction
The place of fulfi lment is Berndorf. The place of jurisdiction shall be the functionally competent court for Berndorf. For consumer business, however, the places of jurisdiction according to plaintiffës choice shall apply exclusively pursuant to ß 14 Consumer Protection Act (KSchG).
X. Applicable law
Austrian law applies. Any agreement as to payment in a currency different from the statutory currency or any agreement as to a place of fulfi lment outside of Austria does not constitute an agreement to any law other than Austrian law.
XI. Consumer business
Wherever the provisions of these General Terms and Conditions of Business differ from the statutory provisions of the Consumer Protection Act (KSchG), then the appropriate or corresponding provisions of the Consumer Protection Act shall apply instead.