General Terms and Conditions of Sale
- Scope and Validity
These „General Terms and Conditions of Sale“ apply to all deliveries and services of the Seller equally to the extent that the parties to the agreement have not agreed other terms and conditions expressly and in writing which shall apply subsidiarily to the text of the seller´s order confirmation (“order confirmation”) regardless of any prior offer made to seller by buyer.
“Goods“ shall mean the products and/or services at set forth in seller´s order confirmation to be supplied to buyer by seller.
Any additional or different terms and conditions or contract forms of Buyer are rejected and shall not become part of the contract unless such terms and conditions or contract forms are expressly assented to in writing signed by authorized representative of the Seller. In case of permanent business relations Seller´s terms and conditions shall apply even without explicitly making reference to them. If any provision of these General Terms and Conditions is or becomes invalid, the other provisions and any contracts concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be replaced by a provision which best corresponds to the intention and economic purpose of the invalid provision.
The terms and conditions of the Buyer are only applicable insofar as they do not contradict the „General Terms and Conditions of Sale“ of the Seller and/or if they are acknowledged by the Seller expressly and in writing before orders are placed.
- Formation of contracts
All quotations issued by the Seller are subject to change without notice. No contract will come into existence until the Seller issues the Seller´s Order Confirmation to the Buyer. All contracts and agreements, and amendments and supplements thereto, are legally binding for the Seller only if they are confirmed in writing and signed or executed on behalf of the company. Any quotation is valid for a period of 30 days only from its date, provided that the Seller has not previously withdrawn it.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the Seller´s agreement in writing and on terms that the Buyer shall indemnify the Seller in full and on demand against all loss, costs (including all labor and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
- Prices and Taxes
The Seller shall be entitled to invoice the work based on actual effort.
The Seller may increase prices in accordance with increases in the Seller´s costs, including delivery costs, production costs and general price list increases occurring after the date of the Seller´s Order Confirmation but before delivery, subject to prior notification to the Buyer and the Buyer shall be obliged to pay for any such increases price.
The Seller shall be entitled to submit partial invoices if the service is rendered in parts too.
All prices shall be calculated in Euros without VAT. Statutory sales tax and any other taxes, fees, duties and other charges incurred at the time of delivery or provisions of a service are to be borne on Buyer´s account and will be charged additionally. Same applies to packaging, freight and transport insurance costs.
All prices confirmed by Seller are EXW point of origin (Incoterms 2020) and exclusive of any applicable excise, sale, use or other taxes, or other governmental charges imposed upon the production, shipment, sale or use of the goods covered hereby, all of which shall be paid by the Buyer to the Seller at the time of sale upon issuance of an invoice by the Seller to the Buyer or to the relevant taxing authority, as required by the relevant taxing authority.
- Estimate of costs
The Seller shall create an estimate of costs, but the Seller is unable to assume any liability. If any costs above 15% increase, the Seller informs the Buyer immediately.
- Payment Terms
The invoices issued by the Seller incl. VAT shall be paid within 7 days of receipt of the invoice without deductions and free of charges. Payments shall be considered as made in time if it is received on due date. If neither the Seller´s Order Confirmation nor the invoice specifies a date by which payment must be made, payment in full will be due within 7 days of the date of receipt by the Buyer of a valid invoice for the relevant goods. All payments shall be paid to the Seller in agreed currency exclusively. The Seller shall be entitled to transmit invoices electronically. The Buyer agrees explicitly to accept invoices transmitted electronically by the Seller.
The Seller shall be entitled to recover payment in full for the goods including VAT or other forms of taxes, notwithstanding that ownership in any of those goods has not passed from the Seller. Where a discount is granted under the said payment terms, such discount will only be allowed upon payment being made by the due date (or earlier date stated on the Seller´s Order Confirmation for the purpose of obtaining the discount) and payment bay such date is a condition precedent to the allowance of a discount.
If any licence or consent of any government or other authority is required for the acquisition, carriage or use of the goods by Buyer, Buyer will obtain the same at its expense and if necessary, provide evidence of the same to Seller on request.
In case of change order caused by the Buyer without any confirmation of the Seller, the Buyer shall reimburse all incurred costs.
If any justified doubt of illiquidity of the Buyer develops all demands of the Buyer become due. Additional, the Seller shall be entitled to withdraw from the contract or to demand compensation after a reasonable extension.
Should one instalment (in case of partial payments) not be paid, the Seller shall be entitled to have immediate maturity come into effect and to render any notes payable due for payment.
- Default interest
In the case of delay in settlement of a due payment, the Buyer must pay the Seller interest on the arrears at the rate of 12 percentage points above the three-month EURIBOR rate at the time the payment is due.
- Default interest for credit businesses with clients
In the case of credit businesses with clients, the client shall pay the Seller default interest on the arrears at the rate of 5 percentage points above the agreed interest rate per year.
In the event that Seller retains a collection agency or other third party to collect any amount owned by Buyer or institutes legal proceedings to collect such amount or to enforce any right under the Terms and Conditions, including enforcement of any security interest granted by Buyer, Buyer shall reimburse Seller for all collection agency and other third party fees and costs and all costs incurred by Seller in such legal proceedings, including, but not limited to, attorneys´ fees.
- Delivery – Risk assumption
Delivery dates quoted or requested are the dates the goods are forecasted by the Seller to be ready for shipment and are given or accepted by Seller in good faith but are not guaranteed. Notwithstanding that the Seller may have failed to deliver or dispatch the goods (or any of them) promptly, the Buyer shall be bound to accept delivery and to pay for the goods in full; time of delivery or time of dispatch shall not be of the essence of the contract. Exceeding or falling short of delivery dates and deadlines by up to four weeks is, however, deemed to be on time. In addition, the Seller´s observance of delivery dates and deadlines depends on the Buyer´s performance of contractual obligations such as complying with payment terms and conditions.
If the Buyer deemed in default of acceptance, the Seller shall be entitled to place the goods in stock and charge for the storage an amount of 2,50€ excl. VAT for every commercial calendar day.
The Buyer shall bear all costs of delivery including storage and insurance. The risk of delivery shall pass to the Buyer. If the Buyer has entered into the contract of carriage itself without using possible selections, the risk of delivery shall pass to the Buyer or the carrier. The transfer of risk to the Buyer takes place when goods leave the factory even if it is freight-free delivery. Any claims for losses or damage shall be made directly by the buyer against the carrier.
Except when otherwise stipulated the Seller shall be applied to choose packaging and shipping method. Upon written request goods can be insured against breakages, damages in transit and fire damages at the Buyer´s expense.
For all deliveries under the contract, Buyer is solely responsible for offloading or unloading all goods. If the Buyer fails to take delivery of the goods or fails to give the Seller adequate delivery instructions, documents, licences or authorizations to enable the Seller to deliver at the time stated for delivery then all risks in the goods will pass to the Buyer, the goods will be deemed to have been delivered and without prejudice to any other right or remedy available to the Seller, the Seller may sell the goods at the best price readily obtainable and (after deducting all the said storage, insurance and other costs relating to the Buyer´s failure to comply with the contract and selling expenses) account to the Buyer for the excess over the contract price or charge the Buyer for any shortfall below the contract price.
- Seller´s Warranty
Goods shall be examined after delivery immediately. Obvious defects must be reported to the Seller in writing within 7 days after receipt of the goods and hidden defects within 14 days after discovery. If the Buyer does not claim defects in time, goods deemed to be approved. The Buyer shall furnish evidence of the Seller´s fault in connection with time of handover.
The Seller warrants that upon delivery the goods are sold with good title and the delivery comply in all material respects with the Seller´s current published product data sheet or where are no product data sheets, that they comply in all material respects with any specification appearing on the Seller´s Order Confirmation and are made with sound materials and workmanship to normal standards accepted in the industry.
In case of justified claim the Seller is obligated to do improvement work or offer free-of-charge replacement (to the extent that these defects are the result of defective materials or manufacturing), on the condition that any instructions (oral or written) of the Seller relating to the goods (including, but without limitation, their storage or use) or (if there are none) good trade practice are strictly complied with. The Buyer is entitled to claim for loss or withdrawal from the contract if the Seller cannot comply with his obligations – additional entitlements are excluded. Goods which are alleged not to comply with the contract shall as far as possible be preserved for inspection by the Seller and if replaced or if a refund is made shall be returned to the Seller (at the Seller´s cost) if the Seller reasonably so requests.
Unauthorized reworking and improper handling and/or use shall lead to the invalidation of all warranty claims.
Excluded from warranty are such defects and damage caused by careless or improper handling or use of the goods by the Buyer. All statements (whether written or oral), drawings, photographs, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller´s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They will not form part of the contract and may not be relied upon by the Buyer.
To the fullest extent permissible by law, the Seller shall not be liable, in contract, tort or otherwise and irrespective of the negligence of the Seller, its agents or employees, for any representations, advice or assistance given (under the contract or otherwise and whether before or after the date of the contract) by or on behalf of the Seller in connection with the goods or the contract.
Claims out of arising from the title of warranty can only be lodged by the Buyer himself.
- Prohibition of refusal of service and retention
In the event of justified complaints the Buyer shall be not entitled to a right of retention.
- Reservation of title
The risk shall pass to the Buyer upon delivery.
Goods are the Sellers property until the invoice is paid (including all costs and fees). The Seller retains ownership of the goods if an unrelated third party purchases the goods from the Buyer at arm´s length in good faith.
Buyer will be responsible for compliance with all Laws applicable to the goods once the goods has been delivered by Seller in accordance with the contract, including, without limitation, those related to operations, safety, maintenance, equipment, size and capacity and pollution prevention.
The Buyer shall not pledge or subject them to any lien or encumbrance or in any way charge by way of security for any indebtedness any goods which are the property of the Seller.
Assertion of the reservation of ownership by the Seller does not imply any withdrawal from the contract, except the Seller declares the withdrawal expressly. The Buyer must comply with the necessary formal requirements for preserving the reservation of title and fulfil or comply with all required disclosure, registration and other formal requirements, whereby the Buyer indemnifies the Seller against all resulting damage in the event that the Buyer neglects to fulfil or comply with the above mentioned formal requirements.
- Liability and compensation
The Seller shall only be liable to the Buyer for damage the Seller verifiably causes in cases of gross negligence. This shall also apply mutatis mutandis to damage caused by third parties brought in by the Seller. The Buyer shall furnish evidence of the Seller´s fault.
The liability of the Seller is in any case limited to damages which arise to the object of delivery itself. To the fullest extent permissible by law and without prejudice to the Seller´s warranty, the Buyer´s sole remedy shall be in damages. The Seller is therefore under no obligation to pay damages to the Buyers for injuries to persons, for damage to items which are not objects of the contract, for loss of profits, or for any other consequential damages howsoever caused. The Buyer must indemnify the Seller if any claims are asserted by third parties against the Seller due to utilisation or further disposal of the goods and especially in case of claims in connection with product liability.
The Seller shall be entitled to claim recovery if the delivery-contract is not concluded due to fault of the Buyer.
The Seller´s total aggregate liability in connection with the goods or the contract (in contract, tort or otherwise an whether or not related to any breach of statutory duty, misrepresentation, negligence or other act, default or omission of the Seller or its employees, agents or subcontractors including but without limitation negligence arising under or in connection with the contract), is limited to the contract price for the goods concerned excluding VAT and all other duties fees or taxes and all costs or charges in relation to transport and insurance. No action may be brought against the Seller in connection with the goods or the contract unless proceedings are issued against the Seller within one year after the Buyer became or ought to have become aware of the circumstances giving rise thereto.
- Industrial and intellectual property rights / Obligation of Secrecy
The Seller accepts no liability in the event that goods manufactured to order of the Buyer constitute infringement of the industrial property rights of third parties (patent rights, trademarks, rights to registered designs, etc.) The Buyer is obligated to indemnify the Seller in this respect.
The Seller shall retain all copyrights to any work done by the Seller and/or by persons working for the Seller and/or by third parties employed by the Seller (including but not limited to tenders, reports, analyses, expert opinions, organization charts, programmes, performance descriptions, drafts, calculations, drawings, data media, etc.). During the contract period and after termination thereof, the Principal may use these materials exclusively for the purposes described under the Contract. Therefore, the Principal shall not be entitled to copy or distribute these materials without the explicit consent of the Seller.
Any violation of this provision by the Principal shall entitle the Seller to prematurely terminate the Contract and to enforce other legal claims, in particular for restraint and/or damages.
All documents mentioned above can be reclaimed anytime and shall reclaim if the contract is not concluded.
The Buyer shall not use any trademarks or trade names applied to or used by the Seller in any manner not approved by the Seller in writing advance. The Buyer shall fully indemnify the Seller on demand against any claims, losses, expenses or liabilities of any kind incurred by the Seller:
- 1. as a result of incorporating property of the Buyer in the goods or applying any trademark, trade name or design to the goods on the Buyer´s instructions of the Buyer relating to the goods
- 2. in relation to any third party claims arising from the use made of or dealing by the Buyer in the goods (irrespective of whether they involve the negligence of the Seller, its agents or employees)
The Agent (Management Consultant) shall be obligated to maintain complete confidentiality concerning all business matters made known to the Agent in the course of services performed, especially trade and company secrets and any other information concerning type and/or scope of business and/or practical activities of the Principal.
- Force majeure
The occurrence of unforeseeable circumstances, or those independent of the will either party, in particular all cases of force majeure, entitle the Seller to extend delivery dates and deadlines according to the extent and persistence of these circumstances and their consequences, without entitling the Buyer to withdraw from the contract or to claim any compensation. The Seller however is entitled to cancel the contract completely or partly when faced with such circumstances, without enabling the Buyer to derive any claims for compensation.
- Final Provisions
Apart from the competencies granted to the Seller by law or contract, the Seller is authorised to withdraw from the contract without granting grace, if bankruptcy or compensation proceedings are instituted against the property of the Buyer or if preliminary proceedings pursuant to the law on compensation have been instituted, or if an bankruptcy petition has been granted due to lack of assets to cover costs, or if the Buyer has suspended payments.
- Governing Law
All disputes or claims arising out of or in connection with this contract may be settled under Austrian law. The provisions of the UN-Convention on Contracts for International Sale of Goods (11.4.1980; BGBI 1988/96) shall not apply
- Agreement on juristication
Buyer and Seller waive trial by jury in any action, proceeding or counterclaim brought by either party against the other on any matter arising out of or connected to these terms and conditions or any order for goods.
Käufer und Verkäufer verzichten auf ein Geschworenenverfahren in sämtlichen Klagen, Verfahren oder Gegenklagen, die von einem Vertragspartner gegen den anderen eingebracht werden oder in sämtlichen Angelegenheiten folgend aus oder in Zusammenhang mit diesen AGB oder einer Bestellung von Ware.
- International abitration
Alle Streitigkeiten oder Ansprüche, die sich aus oder im Zusammenhang mit diesem Vertrag ergeben, einschließlich Streitigkeiten über dessen Gültigkeit, Verletzung, Auflösung oder Nichtigkeit, werden nach der Schiedsordnung (Wiener Regeln) der Internationalen Schiedsinstitution der Wirtschaftskammer Österreich (VIAC) von einem oder drei gemäß diesen Regeln bestellten Schiedsrichtern endgültig entschieden.
Internationale Schiedsgerichtsbarkeit in der WKÖ
All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Abitration and Concilation of the International Abitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these rules.
Schiedsgerichtsbarkeit bei der Internationalen Handelskammer in Paris
Alle Streitigkeiten, die sich aus oder im Zusammenhang mit dem vorliegenden Vertrag ergeben, werden nach der Schiedsgerichtsordnung oder Internationalen Handelskammer (ICC) von einem oder mehreren gemäß dieser Ordnung ernannten Schiedsrichter endgültig entschieden.
Die Bestimmungen zum Eilschiedsverfahren finden keine Anwendung.
These Terms and Conditions are made in the English language. If these Terms and Conditions have been translated to a different language than the English language and differences of meaning and interpretation should occur, the English language version shall be the governing language of these Terms and Conditions.