Delivery Terms

 

1. Preamble
1.1 These general conditions apply unless the contract parties have expressly agreed otherwise in writing.
1.2 The following regulations regarding the delivery of goods shall apply mutatis mutandis
for services.
1.3 For installation works shall additionally apply the mounting conditions of the
Austrian Association of Machinery and Steel Construction Industry.


2. Completion of the contract
2.1 The contract shall be deemed concluded when the seller after receiving the
order has sent a written order confirmation and the buyer does not contradict
demonstrably within 10 days.
2.2 Changes and additions to the contract need written confirmation from the seller. Conditions of purchase from the buyer are only binding for the seller if separately recognized by the seller.
2.3 If import and / or export licenses or foreign exchange permits or similar
authorizations are required for the execution of the contract,
the party that is responsible for the procurement must undertake all reasonable
efforts to gain the necessary licenses or permits in time.

3. Plans and Documents
3.1 The information regarding weight, dimensions, capacity, price, service etc. stated in  catalogs, folders, circulars, advertisements, illustrations and price lists etc. shall only be binding if expressly stated in the offer and / or order confirmation.
3.2 Drawings, sketches, cost estimates and other technical documents, which
can also be part of the offer, as well as samples, catalogs, brochures, illustrations, etc., remain the intellectual property of the seller. Any use, copying, reproduction, distribution or
transfer to third parties, publication and presentation is allowed only with the explicit consent of the owner.


4. Packaging
4.1 .1 Unless otherwise agreed,
a) the stated prices are valid without packaging;
b) the goods are packed, according to custom and usage in order to avoid damage of the goods on the way to the stated destination under normal transport conditions, at the expense of the buyer and only withdrawn upon agreement.

5. Transfer of Risk
5.1 Unless otherwise agreed, the goods shall be deemed as sold “ex works” (EXW) (readiness for collection). 
5.2 Furthermore the INCOTERMS are valid according to the amendment of the day of contract conclusion.

 


6. Delivery Time
6.1 .1 Unless otherwise agreed, the delivery time starts with the latest
of the following dates:
a) the date of order confirmation;
b) the date of fulfillment of all technical, commercial and financial requirements of the buyer according to agreement;
c) the date on which the seller receives a deposit to be paid before delivery of the goods and / or one to be issued or another payment guarantee is opened.                                                   6.2 The seller is entitled to make partial or advance deliveries.
6.3 If delivery is delayed due to a circumstance deriving from the seller, which constitutes a reason for relief within the meaning of article 14, a reasonable extension of the delivery time is granted.
6.4 If the seller has caused a delay in delivery, the buyer may either require performance or   explain withdrawal from the contract within a reasonable period.
6.5 If the grace period stated in article 6.4 was not used due to reasons of the seller, the buyer may withdraw from the contract by written notice regarding all goods not yet delivered.
The same applies for goods already delivered, which cannot be used in appropriate manner without the outstanding goods. In this case the buyer has the right to a refund regarding the undelivered goods or for the payments regarding the unusable goods. Moreover the
buyer has the right, provided that the delivery delay was caused by gross negligence of the seller, for compensation of justified expenses incurred up to cancellation of the contract, and which cannot be used furthermore. The buyer has to return previously delivered and not usable goods to the seller.                                                                                                         6.6 If the buyer does not accept the goods supplied according to the contract on the
agreed place or at the agreed time, and if the delay is not caused by an act or omission of the seller, the seller may either demand performance or withdraw from the contract by setting a period of grace.
If the goods have been segregated, the seller can perform the storage
of the goods at the expense and risk of the buyer. The seller is also entitled to a refund of any justified expenses that he had to make for the execution of the contract and
which are not included in the payments received.
6.7 Other claims, as mentioned in article 6, of the buyer against the seller for seller's delay are excluded.


7. Acceptance Test
7.1 If the buyer wants an acceptance test, this has to be expressly agreed with the seller
in the contract in writing. Unless otherwise agreed, the acceptance test has to be performed at the place of manufacture respectively at a place to be determined by the seller during normal working hours of the seller. The acceptance test is subject to the general practice of the respective industry.
The seller must notify the buyer regarding the acceptance test in time,
in order to be present during the examination or being represented by an authorized
representative.
If during the acceptance test appears that the delivered item is contrary to the contract,
the seller shall remedy any defect immediately, and provide the contractual condition of the delivered item.
The buyer may only ask for a repetition of the test in case of significant deficiency.


After the acceptance test an acceptance report has to be written.
If the acceptance test results in execution according to contract and flawless function of the delivered item, this is definitely to be confirmed by both contract parties. If the buyer or his authorized representative are not present during the acceptance test despite in time notification by the seller, the acceptance report has be signed only by the seller. The seller
in any case has to submit a copy of the acceptance report to the buyer; the byer cannot deny its accuracy even if he or his authorized representative could not sign it due to absence.
Unless otherwise agreed, the seller shall bear the cost of performing the acceptance test. However, the buyer shall bear the costs in connection with the acceptance test, occurred to himself or his authorized representative, such as travel expenses, living expenses and allowances by himself.


8. Prices
8.1 The prices are valid, unless otherwise agreed, ex works of seller without
loading.
8.2 The prices are based on costs at the time of quotation, unless
otherwise agreed. If costs change up to the date of delivery, these changes are in favour or at the expense of the buyer.


9. Payment
9.1 The payments have to be executed in accordance with the agreed payment terms.
If no payment terms have been agreed, one third of the price is due upon receipt of the order confirmation, one third upon half of the delivery time and the rest upon delivery. Regardless this, the VAT, included in the amount of invoice, has to be paid no later than 30 days after billing.
9.2 The buyer is not entitled to withhold payments due to warranty claims
or other counterclaims not recognized by the seller.
9.3 If the buyer is in default with an agreed payment or other performance, the seller may either insist on fulfillment of the contract
and
a) postpone the performance of his own obligations until settlement of the due payments or other services,
b) use an appropriate extension of the delivery period,
c) declare due the entire outstanding purchase price,
d) unless the buyer has no reason for relief within the meaning of article 14,
to charge from the due date interest in the amount of 7.5% over the current base rate of the European Central Bank (see RL / EG General Terms of Delivery of the Austrian Association of Machinery and Steel Construction Industry from 1 January 2002. These General Delivery Conditions are basically designed for transactions between companies. If, exceptionally, also used with legal acts with consumers according to § 1 paragraph 1, item. 2, of the Consumer Protection Law, BGBl. 49. Stück/1979, they are valid only so far as they do not contradict the provisions of the first main section of this law.
The United Nations Convention on Contracts for the International Sale of Goods 11. 4. 1980, BGBl. 1988/96, is expressly excluded. Combating late payment in commercial transactions, 29 June 2000),


or to cancel the contract by granting a reasonable grace period.  
9.4 The buyer shall refund to the seller, as damage caused by delay, the occurred dunning and operating costs.
9.5 If on the expiry of the grace period according to point 9.3 the buyer has not paid the amount due or not provided other services, the seller may withdraw from the contract by written notice. The buyer has, upon request of seller, to return already delivered goods to the seller and to provide replacement for the occurred reduction in value of the goods, as well as
to reimburse legitimate expenses of the seller for the execution of the contract.
Regarding undelivered goods, the seller is entitled to make available the finished or semi-finished parts to the buyer and to request the appropriate part of the sales price.
9.6 The contract parties agree that the rights and obligations covered by the contract
will not be affected by the introduction of the Euro.
Payment obligations, especially the established monetary values, ​​are considered
to be agreed in Euro, as soon as the Euro is the only acceptable currency. The exchange is performed in all cases on the basis of the officially fixed exchange rate.
It is understood that the change to the Euro does not justify the right to cancel, the right of withdrawal, or the right of appeal, neither a claim for justified compensation or contract modification.


10. Retention of Title
10.1 Until the complete fulfillment of all financial obligations of the buyer
the seller retains title to the purchased item. The seller is entitled to mark his property on the delivery item outside. The buyer has to comply with the necessary formalities ensuring the retention of title. In case of seizure or other claims the buyer has to inform the seller immediately and to assert the retention of title of the seller.

11. Warranty
11.1 The seller is obligated in accordance with the following provisions
to remedy any defect affecting the usability, due to a construction error, material defect or processing error.
Likewise, the seller is responsible for expressly stipulated characteristics.
11.2 This obligation shall only apply to defects occurred during a period of one year in single-shift operation from the date of transfer of risk or for delivery with installation from the end of
assembly.
11.3 The buyer can only rely on this article if he announces the occurred defects immediately to the seller in writing. The supposition rule (Vermutungsregel) contained in § 924 of the Austrian Civil Code is excluded. The thus informed seller shall, if the defects are to be removed according to the provisions of this article, according to his choice:                            a) repair the defective goods on the premises;
b) request the return of the defective goods or the defective parts for repair;
c) replace the defective parts;
d) replace the defective goods.

11.4 If the seller requests return of the defective goods or parts for the purpose of
repair or replacement, the buyer takes over, if not otherwise agreed, costs and risk of transportation. The returning of the repaired or replaced goods or parts to the buyer shall be, unless otherwise agreed, at the expense and risk of the seller.

11.5 The under this article replaced defective goods or components are at the disposal of
the seller.
11.6 The seller has to bear costs for removal of defects by the buyer himself only if agreed in writing.
11.7 The warranty obligation of the seller applies only to the defects which appear under
compliance with the prescribed operating conditions and during normal use. They especially do not cover defects which are caused by:
poor installation by the buyer or his agent, poor maintenance, inadequate repairs or changes by a person other than the seller or his representative without the written consent of the seller,  normal wear.
11.8 For those parts of the goods which the seller has bought from a subcontractor prescribed by the buyer, the seller shall only be liable within the framework of his warranty claims against the subcontractor.
If goods are manufactured upon construction details, drawings or models of the buyer, the liability of the seller does not include the correctness of the construction, but that the execution is done according to the buyer`s instructions. The buyer shall in such cases hold the seller, in case of infringement of protective rights, free from loss and legal action.
When accepting repair jobs or modifications or renovation of old and foreign goods, as well as upon delivery of used goods, the seller assumes no responsibility.
11.9 From the beginning of the warranty period, the seller does not take over further liability as stated in this article.


12. Liability
12.1 It is expressly agreed that the seller has not to pay damages to the buyer for injuries of persons, for damages of goods that are not subject of the contract, for other damages and for loss of profit, unless it is clear from the circumstances of the individual case, that the seller is culpable of gross negligence. The reversal of burden of proof according to § 1298 ABGB is excluded.
12.2 The purchase item provides only the security, which can be expected based on approval regulations, operating instructions, regulations according to the seller regarding the treatment of the purchased object - in particular with regard to any prescribed tests - and other information provided.                                                                                                               12.3 For slight negligence of the seller, unless article 12.1 applies, the damages are limited to 5% of the order amount, maximum € 727 000.
12.4 All claims for damages arising from defects in deliveries and / or
services must be claimed legally - should the seller not acknowledge the defect expressively -
within one year after the contract specified warranty period ends, otherwise the claims expire.


13. Consequential Damages
13.1 Except otherwise provided in these terms and conditions, the seller's liability to the buyer for loss of production, loss of profit, loss of use, loss of contracts or any other
economic or indirect consequential damage, is excluded.

 

 


14. Exoneration Reasons
14.1 The parties are free from the timely performance of the contract in whole or in part, if they are inhibited by events of force majeure.
Only events, which are unforeseeable and unavoidable for the parties, and that are beyond their domain, are deemed as events of force majeure. Strike and industrial dispute has to be deemed as an event of force majeure.
The buyer disabled by an event of force majeure may, however,
can only rely on the existence of force majeure, if he immediately, latest within 5 calendar days,  hands over to the seller a statement regarding the beginning and foreseen end of the event, in a registered letter, verified by the government respectively by the chamber of commerce of the supplier country, about the reason, the expected consequences and the estimated length of the delay. 

The parties, in case of force majeure, have to take any effort to remove
or mitigate the difficulties and the foreseen damages and to inform the other party constantly.
Otherwise they become liable for damages against the other party.
Dates or deadlines, which are not met due to force majeure, are extended maximum for the duration of the force majeure, or for a period determined according to mutual agreement.
If an event of force majeure continues for more than four weeks, the buyer and the seller will negotiate a solution for transactional consequences. If no mutual solution can be found, the seller has the possibility to withdraw from the contract wholly or partly.

15. Data Protection
15.1 The seller is entitled to save, to submit, to revise or to delete personal data of the buyer in
the context of business transactions.
15.2 The parties agree upon absolute secrecy regarding data from their business relationship against third parties.

16. Place of Jurisdiction, Applicable Law, Place of Performance
16.1 Place of jurisdiction for any disputes resulting directly or indirectly from the contract
is the competent local Austrian court for the location of the seller.
However, the seller can also appeal to the competent court at the location of the buyer.
16.2 .2 The parties may also agree the jurisdiction of an arbitration court.
16.3 The contract is subject to Austrian law with the exclusion of the Convention of
the United Nations regarding contracts for international sale of goods 11. 4. 1980, BGBl. 1988/96.
16.4 For deliveries and payments the location of the seller shall be place of performance, even
if the transfer takes place in a different location as agreed.
Steindl print service • 1160 Wien, Heigerleinstraße 36-40 • Phone: 01/484 45 84, Fax: 01/484 45 85, email: b.steindl@aon.at

Delivery Terms

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