Terms and Conditions
Our general terms and conditions for commercial transactions
1. The following terms and conditions of business to all contracts concluded between the principal as a commercial entity and us for the delivery of material and works. They also apply to all future business relations, even if they are not expressly stipulated again. Revised terms and conditions of the principal that are not explicitly acknowledged by us are not binding on us, even if we do not expressly contradict them. The following terms and conditions of business also apply if we carry out the principal’s order without reservation in awareness of conflicting or deviating terms and conditions of the principal
2. The contracts contain all agreements, which were made between the principal and us relating to the performance of sales contracts of sale, set out in writing.
II. Offer and conclusion of contract
1. We may accept an order by the principal, which is to be qualified as an offer to conclude a sales contract/works contract, within two weeks by sending an order confirmation or by delivering the ordered products within the same period.
2. Our offers are non-binding, unless we have expressly specified them to be binding.
3. We reserve our ownership rights, copyrights and other proprietary rights to all figures, calculations, drawings and other documents. The principal may only disclose them to third parties subject to our written consent, regardless of whether we have marked them as confidential.
III. Terms and conditions of payment
1. Our prices are ex works excluding packaging upon delivery or based on the place of performance at our company headquarters, unless otherwise specified in the order confirmation. Our prices do not include statutory VAT. We shall separately invoice the VAT to the statutory amount on the date of the invoice.
2. A discount is only permitted with a written agreement between us and the principal. The purchase price is payable net (without deduction) immediately upon receipt of the invoice by the principal, unless the order confirmation contains other terms of payment. A payment shall only be deemed to have been made when the amount due has been credited to our account. In the case of payment by cheque, payment is only deemed to have been made when the cheque is cashed.
3. The principal is entitled to offset, even if complaints or counterclaims are asserted, only if the counterclaims have been legally established, recognized by us or are uncontested. The principal is only entitled to exercise a right of retention if the principal’s counterclaim is based on the same contractual relationship.
IV. Delivery and performance times
1. Delivery dates, performance deadlines or deadlines that have not been explicitly stipulated as binding are strictly non-binding. The delivery/performance time commences when the technical issues have been clarified. Also, the principal must fulfil all obligations properly and on time.
2. In the event that a delay for which we are responsible is due to the culpable violation of an essential contractual obligation, or where the fault is attributable to our representatives or appointed agents, we will only be liable in accordance with the statutory provisions, with the condition that — in this case — our liability is limited to reasonable, foreseeable and typically occurring damage.
3. Any further liability for a delay for which we are responsible is excluded. Further statutory claims and rights of the principal, to which the principal is entitled in addition to the claim for damages due to a delivery delay caused by us, remain unaffected.
4. We are entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the customer.
5. If the principal is in default of acceptance, we are entitled to demand compensation for the damages incurred and any additional expenses. The same applies if the principal culpably violates its obligations to cooperate. The risk of accidental deterioration and accidental loss shall pass to the principal in the event of acceptance default or debt default.
V. Transfer of risk — shipping/packaging
1. Loading and shipping for pure deliveries are uninsured and at the risk of the principal. We will endeavour to take into account the wishes and interests of the principal with regard to the type and process of transport resulting additional costs — even if free delivery has been stipulated — shall be borne by the principal.
2. We do not accept returned transport packaging and all other packaging in accordance with the Austrian Packaging Ordinance (i.e. the Verpackungsverordnung), with the exception of pallets. The principal is responsible and bears the cost for the disposal of the packaging.
3. If shipping is delayed at the request or fault of the principal, we shall store the materials at the cost and risk of the principal. In this case, notification of readiness for dispatch is deemed equivalent to dispatch.
4. At the request and expense of the principal, we will insure the delivery by way of transport insurance.
1. Warranty claims of the principal shall only exist if the principal has properly fulfilled its inspection and complaint obligations.
2. In the event of justified complaints, we are — excluding the rights of the principal to rescind the contract or reduce the purchase price/wage (Minderung) — obligated to render subsequent performance, unless we are entitled to refuse subsequent performance under statutory regulations. The principal is to grant us a reasonable deadline for subsequent performance. At the option of the principal, subsequent performance can be rendered by remedying the defect (rectification) or, in the case of sales contracts, by delivering new material. We shall bear the necessary expenses in the case of defect remedy, inasmuch as such expenses are not increased because the contractual object is located elsewhere other than the place of performance. If subsequent performance fails, the principal may — at its option — demand a reduction of the purchase price (Minderung) or rescind the contract. The rectification is first deemed to have failed after the second unsuccessful attempt, unless additional attempts at rectification are reasonable based on the contractual object and reasonable for the principal. The principal may first assert claims for damages because of defect in the following conditions when subsequent performance fails. The right of the principal to assert further claims for damages in the following conditions remains unaffected.
3. The warranty claims of the principal are void one year after delivery of the material to the principal, unless we have fraudulently concealed the defect, in which case the statutory regulations shall apply. Our obligations under Section VI, No. 4 and Section VI, No. 5 remain unaffected.
4.In accordance with the statutory provisions, we are obligated to take back new material or reduce (Minderung) the purchase price (also without the otherwise necessary setting of a deadline if the customer of the principal — as consumers of the new movable item sold (sale of consumer goods) — could demand that the principal take back the material due to the defect of such material or reduce (Minderung) the purchase price, or such a resulting claim to recourse is asserted against the principal. We are also obligated to reimburse the expenses of the principal, in particular the costs of transport, travel, labour and materials, that the principal has to bear in relation to the final consumer within the scope of subsequent performance due to a defect in the material that existed when the risk transferred from us to the principal. The claim is excluded if the principal has not properly fulfilled its inspection and complaint obligations.
5. The obligation under Section VI, No. 4 is excluded inasmuch as it is due to a defect based on advertising claims or other contractual stipulations that do not originate from us, or if the principal has made a special guarantee to the final user. The obligation is also excluded if the principal itself was not obligated to exercise the warranty rights against the final consumer on the basis of the statutory regulations or did not make such a complaint vis-à-vis a claim asserted against the final consumer. This also applies if the principal has assumed warranties to the final consumer that go beyond the extent provided for by law.
6. Regardless of the following limitations in liability, we are liable in accordance with the statutory provisions for damages to life, body and health, which are caused by a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents. For damages that are not covered by Sentence 1 and which result from intentional or grossly negligent breach of contract and malice by us, our legal representatives or our vicarious agents, we are liable according to statutory provisions. In this case, however, the liability for damages is limited to foreseeable and typically occurring damage, inasmuch as we, our legal representatives or our vicarious agents did not act intentionally.
7. We are also liable for damages we cause due to simple negligent breach of such obligations, the fulfilment of which enables the performance of the contract and on the compliance of which the client relies and may rely. We are, however, only liable inasmuch as the damages are typically associated with the contract and foreseeable.
8. Damage claims of the principal due to defect are void one year from delivery of the material for sales contracts, otherwise within the statutory limitation period as of the acceptance of the work. This does not apply in the case of injury to life, body or health by us, our legal representatives or our vicarious agents, or if we or our legal representatives acted intentionally or with gross negligence, or our agents have acted intentionally.
9. We may, at our option and at any time after completion, demand formal acceptance.
VII. Expanded and extended retention of title
1. Until all claims, including all balances receivable from current account, that we have against the principal now or in the future are fulfilled, the delivered goods, including the material that we ourselves have redesigned and installed, as well as the resulting works (=retained goods), shall remain our property — also in the case of installation in a building. In the event that the principal breaches the contract, e.g. default of payment, we are entitled after previously setting a reasonable deadline to take back the retained goods and, inasmuch as is possible without significant destruction the substance connected to the work, to develop and take them upon ourselves. If we take back the retained goods or if they are attached, this constitute a rescission of the contract. We are entitled to exploit the re tained goods after taking them back. After deduction of a reasonable sum for the costs of xploitation, the proceeds of exploitation are to be offset against amounts owed to us by the principal.
2. The principal is entitled to sell and/or use — in particular, install — the retained goods in the proper course of business. The principal herewith assigns to us as collateral the full extent of the claims arising from the resale or for another legal reason (insurance, work performance) with regard to the retained goods (including all balances receivable from a current account in an ongoing business relationship) up to the amount of the outstanding liabilities owed to us by the principal that exist at the time of resale (including outstanding current account liabilities); we herewith accept the assignment. We revocably authorize the principal to collect the claims assigned to us for the principal’s account on its own behalf. The authorization to collect can be revoked at any time if the principal fails to meet its payment obligations properly. The principal is not authorized to assign such claims for the purpose of collecting receivables by way of factoring, unless the obligation of the factor is established to effect the consideration in the amount of the claims directly to us for as long as our claims against the principal exist. In any case, the principal is obligated to inform purchasers or attaching creditors and, in the case of an insolvency petition, the insolvency administrator of our right to claim and to ensure that the collateral co-ownership of the retained goods is observed in the case of insolvency/bankruptcy and that any proceeds up to the amount of the outstanding liabilities owed to us by the principal, which all exist at the time of the attachment or insolvency/bankruptcy (including outstanding current account liabilities), are paid to us following exploitation .
3. The processing, conversion or installation of the retained goods by the principal is, in any case, done for us. Inasmuch as the retained goods are processed together with other items that do not belong to us, we shall acquire co-ownership of the new item in relationship of the value of the retained goods (delivery of goods and compensation for work, final invoice amount including VAT) and to the other processed items at the time of processing. The same applies to the new item resulting from the processing of the retained goods. In the case of inseparable mixture of the retained goods with other goods not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods (goods delivery and compensation for work, invoice amount including VAT) and tothe other processed items at the time of mixing. In the event that the item belonging to the principal is considered the main item as a result of the mixing, the principal and we agree that the principal conveys to us pro-rata co-ownership in such item; the conveyance is herewith accepted. Our resulting sole ownership or co-ownership of an item shall be preserved for us by the principal.
4. In the event of third-party access to the retained goods, in particular for attachments, other enforcement and insolvency, the principal will make known our ownership and inform us without delay, so that we can enforce our proprietary rights. If the third party is unable to reimburse us for judicial or extrajudicial costs arising in this connection, the principal shall be liable herefor.
5. We are obliged to release the collateral due to us, insofar as the realizable value of the collateral exceeds the secured claims by more than 10%, whereby we are free to select the collateral to be released.
VIII. Place of performance, jurisdiction, applicable law
1. The place of performance and jurisdiction for deliveries and payments (including cheques and bills), as well as for all disputes between us and the principal arising from the purchase agreements concluded between us and the principal is determined by our company’s headquarters. We are, however, entitled to sue the principal at the principal’s place of residence and/or business.
2. Relationships between the contracting parties are governed exclusively by the substantive law that applies to our place of business. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.