1.1 These general terms and conditions of sales and supply apply unless the contracting parties have expressly agreed terms and conditions to the contrary in writing.
1.2 The following terms for the delivery of goods also apply analogously to services.
2.1 Unless otherwise agreed, the delivery period starts on the latest of the
a) Date of order confirmation;
b) Date upon which the purchaser fulfils all the technical, commercial and financial requirements which are his responsibility;
c) Date on which the seller receives any prepayment which is due prior to the supply of goods and/or any necessary letter of credit is issued.
2.2 The seller is entitled to carry out partial deliveries and advance deliveries.
2.3 If delivery is delayed due to any circumstance occurring on the seller’s side, such as force majeure, fire, labour conflicts etc., the delivery period will be extended by a corresponding period of time.
2.4 If delivery is delayed due to the seller’s fault, the purchaser may either demand fulfilment of the agreement or announce his intention to withdraw from the agreement provided he sets an appropriate period for the seller to make good the delivery. In the case of custom-made products, when determining the period for making good it should be borne in mind that the seller will be unable to use elsewhere the parts that have already been attached.
2.5 If the period for making good as provided for in Clause 2.4 is not complied with by the seller, the purchaser may withdraw from the agreement in writing in respect of all the goods which have not yet been supplied, and all the goods which have been supplied but which can not be appropriately used alone in the absence of the goods which have not been supplied. In this case the purchaser has the right to reimbursement of payments made for the goods which have not been supplied or can not be used. If the delay in delivery has been caused by the gross negligence of the seller, the purchaser has the right to reimbursement of the justified expenditure which he has incurred up to the cancellation of the agreement and for its implementation and which is no longer of use. The purchaser must return to the seller all goods which have already been supplied and can not be used.
2.6 Any claims by the purchaser against the seller due to delay by the latter other than those mentioned in Clause 2 are excluded.
2.7 If the purchaser does not accept the goods supplied in accordance with the agreement at the place agreed in the agreement, or at the time agreed within the agreement, and provided the delay is not caused by an activity or omission by the seller, the seller may either demand fulfilment of the agreement or may withdraw from the agreement subject to giving a notice period.
3.1 Unless otherwise agreed, prices apply ex works from the seller excluding packaging or loading. If supply including delivery has been agreed, the prices apply excluding unloading or subsequent movement.
3.2 Prices are based on the costs at the time the price is provided. If these costs change before the time of delivery, these changes are at the benefit or expense of the purchaser.
3.3 When agreements are concluded without a price being set, the sales price applicable on the day of delivery will be charged.
4.1 Payments must be made in accordance with the agreed payment terms. Unless other payment deadlines have been agreed according to the seller’s written order confirmation, half the purchase price is due on receipt of the order confirmation and the remainder when the seller indicates that the order is ready for shipment.
4.2 The purchaser is not entitled to withhold payments due to claims under guarantee or any other counterclaims which have not been acknowledged by the seller.
4.3 If the purchaser is late making an agreed payment or in completing any other
actions, the seller may either insist on fulfilment of the agreement and
a) delay the fulfilment of his own obligations until the delayed payments or other actions have been made,
b) claim an appropriate extension of the delivery period,
c) demand payment of the entire outstanding purchase price,
d) calculate interest on late payments from the due date at a rate of 12% per annum and request reimbursement of all legal and/or out of court costs incurred in obtaining the action (payment) from the purchaser (and in particular any collection costs such as from the Creditor Protection Association of 1870 (Kreditschutzverband von 1870)), or after providing an appropriate extension period may notify the purchaser that he is withdrawing from the agreement.
4.4 If after the expiry of an extension period in accordance with 4.3 the purchaser has still not made the overdue payment or provided the other service, the seller may release himself from the agreement by informing the purchaser of this in writing. If the seller so requests the purchaser must return to the seller all goods that have already been delivered, and compensate him for the loss in value of the goods that has already taken place and must also reimburse him for all justified costs that the seller has had to incur in carrying out the agreement. In respect of any goods that have not yet been delivered, the seller is entitled to make the finished or attached parts available to the purchaser and to request the appropriate portion of the sales price for these.
4.5 The seller retains the rights of ownership of the purchased items until all the purchaser’s financial obligations have been met in full. The purchaser must comply with all the necessary formalities for preserving the retention of ownership. In the event of pledging or other use, the purchaser is obliged to enforce the seller’s retention of ownership and to inform the latter immediately.
4.6 If the goods are sold, this must take place under retention of ownership. The purchaser must assign to the seller the claims against his buyer to which he is entitled from the resale of the goods up to the amount of the purchase price which is still outstanding. The purchaser is obliged on the one hand to inform his buyer of this assignment when the resale agreement is concluded, and on the other hand to immediately inform the seller of the name and address of his buyer and the amount of his claim against the latter. The seller has the right to make use of the assignment at any time.
Guarantee and liability
5.1 The seller guarantees that goods of the agreed quality will be supplied.
5.2 The purchaser must make a written complaint of any defects with details of the type and extent of defect immediately he takes receipt of the goods or in any event at the first possible moment at which defects become apparent. In the case of packaged goods it is agreed that the period for submitting written complaints is three days.
5.3 Even in the case of written complaints about defects or other complaints the purchaser is obliged initially to accept the goods, and to unload and store them appropriately.
5.4 The seller’s obligations under guarantee apply provided the purchaser has notified any complaints properly in writing in accordance with Clause 5.2. The purchaser expressly renounces the right to enforce any claims under guarantee in respect of defects which he has not notified properly in writing, and he is not entitled to any such claims.
5.5 If the purchaser himself undertakes to remedy any defects the seller must pay for such costs, and in particular the costs of any covering purchases, only if he has given his advance written agreement to this.
5.6 The seller is liable for those elements of the goods that he has obtained from subcontractors only to the extent of the claims under guarantee to which he himself is entitled against his subcontractors.
5.7 It is taken as expressly agreed that the seller does not have to provide the purchaser with any compensation for injuries to individuals or for damages to goods that do not form part of this agreement or for other damages or loss of profits unless it appears from the circumstances of an individual case that the seller has acted with gross negligence. Any liability on the part of the seller for damages arising from inappropriate processing or unsuitable use of the goods supplied is excluded.
5.8 The duty of replacement in respect of any claims for compensation for damage to goods under product liability legislation, or for claims due to product liability that may be derived from any other provisions, is expressly excluded.
5.9 Any claims under guarantee are to be met at the seller’s head office. The costs of dismantling or assembling defective goods which have already been assembled, and of transporting them, or of any other conceivable damages resulting from defects, will only be reimbursed in the event of intention or gross negligence.
Place of jurisdiction, applicable law, place of fulfilment
6.1 The place of jurisdiction for all disputes directly or indirectly arising from this agreement is the local court in Austria which is competent for the seller’s head office.
6.2 Exclusively Austrian law applies. The UN Convention on Contracts for the International Sale of Goods is expressly excluded.
6.3 The place of fulfilment for supply and payment is the seller’s head office even if it is agreed that the goods are to be handed over at a different place.
7.1 If individual terms and conditions of these terms and conditions of sale are invalid or void (in particular in accordance with the Consumer Protection Act) this does not affect the validity of the remainder of the terms and conditions.