Terms of Service
1. Scope and Validity
These "General Terms and Conditions of Sale" shall be applicable, insofar as the contracting Partners have not agreed otherwise expressly and in writing, to all deliveries and, analogously, to all services rendered by the Vendor. The version valid at the time of contractual conclusion shall be definitive in each case. General Terms and Conditions of the Buyer shall be applicable insofar as they do not conflict with the "General Terms and Conditions of Sale" or if they have been recognised by the Vendor, expressly and in writing, prior to order placement.
2. Contractual conclusion
All offers of the Vendor are subject to change and non-binding. By placing an order, the Buyer confirms its contractual offer to be binding. All orders and agreements, as well as any amendment or supplementation thereof, shall be legally binding upon the Vendor only if they are confirmed by that Party in writing and signed or executed by an authorised signatory of the company. Apart from the powers accorded to the Vendor by law or contractual agreement, the Vendor shall be entitled to withdraw from the Supply Contract at any time without setting a grace period if insolvency proceedings have been initiated respective to the assets of the Buyer or if a bankruptcy petition is rejected owing to insufficient assets being available to cover costs or if the Buyer discontinues its payments.
Unless otherwise expressly covenanted, all prices are ex works (EXW Incoterms 2020), exclusive of packaging and loading. The respective statutory amount of value added tax and any other taxes, fees and other levies at the time of supply/service shall be borne by the Buyer and shall be additionally invoiced to that Party. The same shall apply to packaging costs, freight charges and the costs arising from transportation insurance.
4. Acceptance test
Insofar as an acceptance test is covenanted and no regulation to the contrary has been stipulated, the material costs of the acceptance test to be carried out at the works of the Vendor or that Party's sub-contractor during standard working hours shall be borne by the Vendor. The personal costs arising from acceptance, such as travel and accommodation expenses, for the acceptance body of the Buyer or that Party's commissary shall be borne by the Buyer.
5. Delivery timelines
Unless expressly covenanted to the contrary, the delivery timelines and deadlines shall always be deemed merely approximate. Any delivery effected prior thereto or effected thereafter for a period of up to four weeks shall, under all circumstances, be deemed timely. The obligation of delivery incumbent upon the Vendor is subject to correct and timely internal delivery, unless incorrect or delayed internal delivery is attributable to the Vendor. Claims of the Buyer respective to compensation for damages owing to delayed fulfilment shall be excluded. Compliance with delivery deadlines and timelines shall, furthermore, be contingent upon compliance, on the part of the Buyer, with the contractual obligations that are to be fulfilled, such as terms of payment and other conditions.
6. Transfer of risk
Irrespective of the mode of handover or despatch covenanted, the delivery of the goods shall be deemed to have been effected upon handover of the goods to the Buyer or the initial carrier or forwarding agent or to the person otherwise identified by the Vendor or that Party's sub-contractor for execution of despatch. The Buyer shall be obligated to take delivery of the goods immediately after being notified of their readiness for delivery. In the instance of delay in acceptance or deferment of the delivery date desired or caused by the Buyer, the delivery shall be deemed to have been effected upon provision of notification of readiness for despatch. Upon delivery, the risk of damage, loss or deterioration of the goods shall pass to the Buyer, irrespective of the terms of delivery agreed. In the instance of default specific to acceptance, the Buyer shall become liable to pay interest on storage expenses subject to other rights accruing. Loading and transportation of the goods shall, under all circumstances, be effected at the risk of the Buyer, namely irrespective of the pricing agreed and even if transportation is carried out or arranged by the Vendor.
If no other agreement has been concluded, the covenanted price shall be payable, within 14 days, upon delivery of the goods or upon notification of readiness for despatch (consistent with Clause 6), against invoicing by the Vendor and without effecting any deduction, to one of the accounts specified by the Vendor. The date of payment shall be deemed to be the date upon which complete payment is received in the Vendor's account. Cheques and bills of exchange shall be accepted on account of payment only after separate, written agreement. Associated fees and expenses of all kinds shall be borne by the Buyer. The Buyer shall not be entitled to offset or withdraw payments that are due consequent to warranty claims or other counter-claims.
If the Buyer is in default of a payment that has fallen due, the Vendor shall be entitled to charge default interest amounting to 8% over and above the base rate of interest at the time that the payment falls due.
The Buyer shall be required to inspect the goods immediately after taking delivery or, in the instance of shipping, from the point of their assimilation within that Party's area of disposition, and to provide immediate, written notification of any defects to the Vendor, unless hidden defects are involved. Hidden defects are to be notified to the Vendor in writing as soon as they are identified by the Buyer. The warranty period covenanted spans a period of six months. A warranty claim on the part of the Buyer shall subsist only if that Party shall have fulfilled all its payment obligations and other contractual obligations. Specific to those parts of the goods that the Vendor has procured from sub-contractors, the Vendor shall be liable only within the parameters of the warranty claims to which the Vendor itself is entitled vis-à-vis the sub-contractors and which are enforceable. The warranty shall exclude those defects and damages, which arise owing to negligent or inappropriate handling or use of the goods on the part of the Buyer. The Vendor shall also refrain from assuming any guarantee for the goods being suitable for a particular purpose. In the instance of timely and legitimate complaint, the Vendor shall fulfil its warranty obligations vis-à-vis the Buyer by way of rectification or replacement, whereby the Vendor shall be accorded the right to choose between these legal remedies. The Buyer's right to effect withdrawal from or rescission of the Contract are excluded. The vendor shall effect supply within the parameters of the standards or specifications set out in that Party's documentation, whereby the mechanical and physical properties specified in the brochures and leaflets are merely to be understood as reference values. Any further agreements relating to special aptitudes and requirements shall, without exception, be subject to the written consent of the Vendor. The warranty shall cease to be effective at once if attempts are made by the Buyer or by third parties to eliminate the defects evinced by the goods supplied without the written consent of the Vendor. Any inappropriate self-assembly or re-building of the machines, as well as the inappropriate replacement of spare parts and parts subject to wear and tear are excluded from any warranty and any claims for compensation for damages related thereto. The original warranty period shall not be extended by work or deliveries effected due to warranty. Only the Buyer can assert claims arising from the title of the warranty. Any warranty of the Buyer shall be excluded specific to used goods.
9. Repair orders
Repair orders placed by the Buyer shall be executed by the Vendor only to the exclusion of any liability for any success thereof, as well as for damages of all kinds.
10. Retention of title
The Vendor reserves the right to the title of the goods supplied up to the time of complete payment of the purchase price.
The overall claim is both the claim arising from delivery of the goods and from the delivery of spare parts and any accessories. The retention of title shall cease to be effective only once all claims have been settled by the Buyer. The assertion of retention of title by the Vendor shall not be deemed to constitute withdrawal from the Contract. Legal action specific to the purchase price or a partial amount shall not affect the retention of title.
As long as the Vendor's retention of title subsists, the Vendor is, under all circumstances, also entitled to withdraw from the Contract and to demand that goods be returned. In the instance of withdrawal from the Contract, the Buyer shall be credited the amount for the goods that have been taken back, which shall correspond to the fair value of the goods at the time at which they are taken back, duly deducting expenses incurred by the Vendor, transportation costs and other disadvantages incurred by the Vendor by way of contractual withdrawal.
The Vendor shall be required to take all measures to preserve the retention of title, especially to inform the Vendor immediately of enforcement proceedings or any damage, whereby the Buyer shall be required to indemnify the Vendor and hold that Party harmless for any disadvantages accruing thereby in the instance of an omission in this respect on the part of the Buyer. As long as the retention of title remains in force, re-sale shall only be permitted with the written consent of the Vendor.
11. Force majeure
The occurrence of unforeseeable circumstances or those independent of the will of either Party, such as – in particular – strikes, supply bottlenecks, shortage of energy and all instance of force majeure shall entitle the Vendor to an extension of the delivery deadlines and timelines commensurate with the scope and duration of these circumstances and their consequences, without according the Buyer a right to withdraw from the Contract or assert claims for compensation for damages. In the instance that such circumstances occur, the Vendor shall, however, also be entitled to effect complete or partial cancellation of the order, without the Buyer being able to derive claims for compensation therefrom.
12. Liability and compensation for damages
Specific to damages outside the area of application of the Product Liability Law, the Vendor shall be held liable – as far shall be legally admissible – only in instances of intent or gross negligence. Liability for minor negligence is excluded, as is compensation for consequential and/or pure financial loss, lost profit and consequential damage caused by defects. Claims for compensation for damages, particularly asserted in lieu of warranty claims, shall come under the statute of limitations within six months after the damage and the entity incurring the damage become known to the Buyer. Insofar as the Buyer makes the goods available on the market again, that Party shall be obligated to make the above regulation fully incumbent upon its customers and to obligate the latter to ensure further incumbency upon all subsequent customers. The Buyer shall be liable to the Vendor for all disadvantages in the instance that the latter should fail to undertake the preceding obligation in respect of incumbency. The Buyer shall be required to indemnify the Vendor and hold that Party harmless if third parties assert claims of any manner whatsoever against the Vendor arising from the use or re-sale of the goods, in particular also arising from the title of product liability. Compensation for damages is, under all circumstances, to be mutually limited to the amount of the contractual sum.
13. Data protection
The Buyer expressly consents to the collation, processing, storage and use of personal data made available within the parameters of the contractual relationship.
14. Final provisions
All legally relevant declarations of the Buyer vis-à-vis the Vendor shall be required to be set forth in writing if they are to assume validity. The invalidity or unenforceability of one or more provisions of these General Terms and Conditions of Sale or of a contractual agreement within the context of which they find application shall not result in the invalidity of the remaining provisions. The invalid and unenforceable provision shall be deemed to be replaced by a valid and enforceable provision that most closely approximates the original economic intentions of the Parties who pursued these by way of the invalid or unenforceable provision.
All disputes arising from this Contract or relating to its infringement, dissolution or nullity are to be definitively decided in accordance with the Rules of Arbitration and Conciliation of the International Arbitral Tribunal of the Austrian Chamber of Commerce in Vienna (Vienna Rules) by one or multiple arbitrators appointed in accordance with these Rules.Austrian substantive law shall be applicable. The language to be used during arbitration proceedings is German.