General Terms and Conditions
§ 1 Validity of terms and conditions
(1) All deliveries, services, and offers provided by the seller are based on the company’s terms and conditions. They are also valid in all future business relationships, even if they haven’t been agreed on again, explicitly. They are considered accepted, at the latest, when the buyer has accepted the goods or services. Any counter statements made by the customer as to his business terms and conditions are herewith contradicted.
(2) Deviations of these business terms and conditions are only effective, if the seller confirms them in writing.
§ 2 Offer and conclusion of contract
(1) The offers provided by the seller are subject to change and are non- binding. Letters of acceptance and various orders require a written confirmation by the seller, in order to be legally effective. This is also the case, if there are any additions, modifications or collateral agreements made.
(2) Drawings, pictures, dimensions, weights or other required data are only binding, if they have been explicitly agreed on in writing.
(3) The seller’s sales representatives are not permitted to negotiate verbal collateral agreements or state verbal affirmation, which extend beyond the contents of the written contract.
§ 3 Prices
(1) If not agreed on otherwise, the seller is bound to the prices of his offers until 30 days after making the offer. Nevertheless, the prices stated in the order confirmation, plus the valid VAT, are decisive. Further deliveries or services are calculated separately.
(2) Prices are, if not stated otherwise, ex works Mitterfelden inclusive normal packaging.
§ 4 Delivery and service period
(1) Delivery dates or deadlines, which can be agreed on as binding or non-binding, require a written form.
(2) Delivery and service delays due to force major and due to events, which prove very difficult or impossible for delivery, such as strikes, lockouts, orders of authorities, in particular, also if these occur to the seller’s suppliers or their subsuppliers, and even if deadlines and dates are fixed and binding, require no justification by the seller. These circumstances entitle the seller to postpone the delivery or the service by the duration of the difficulties, including appropriate preparation time, or even to renounce the contract partially or completely.
(3) The customer has the right to renounce the part of the contract, which has not been fulfilled, after adequate additional time, if the difficulties last longer than 3 months. If delivery is delayed or if the seller is freed of his responsibilities, the buyer cannot demand the right to claim for damages. The seller can only refer to above stated circumstances, if he informs the buyer immediately.
(4) If the seller cannot justify the reason for not meeting binding deadlines or dates, the buyer is entitled to claim damages for delay of 1% for every uncompleted week of delay, however only up to 5% of the invoiced amount related to the delay of the delivery or service. Further claims are not possible unless the delay is due to gross negligence by the seller.
(5) The seller is entitled to partial deliveries and services at any time.
§ 5 Risk transferral
Risk is transferred to the buyer as soon as the consignment is handed over to the person responsible for shipment or has left the warehouse, due to shipment. If the seller is not at fault in the case of a delayed delivery, the risk is transferred to the buyer after notification of willingness to ship. Incoterms 2000 are valid.
§ 6 Proprietary rights
(1) Until fulfilment of all the demands (including all balance debts from account current), which the seller is legally entitled to now and in the future, the seller is granted following securities, which he can demand at his discretion, as long as its value does not exceed the debts by 20%.
(2) The seller is the proprietor of the goods. Processing or modification of the goods are always to the seller’s benefit, being the manufacturer, however without any obligations on his part. If the proprietary right of the seller expires due to connection, it is agreed, that the proprietary of the buyer on the whole object will proportionally (value according to invoice value) be passed over to the seller. The buyer stores the proprietary of the seller at no costs. Goods which are in the sellers proprietary are following called “conditional goods”.
(3) The buyer is entitled to process the conditional goods in proper business, as long as he is not in arrears with payment. Pawning and Security agreement are not permitted. In order to be on the safe side, any demands due to processing or other legal circumstances (insurance, tort) concerning conditional goods, which should arise (including all current debts from account current), are transferred in full amount from the buyer to the seller. The seller authorizes the buyer, until revoked, to collect liabilities, which were transferred to the buyer, in the seller’s name. This power of attorney can only be revoked, if the buyer does not meet payment responsibilities according to agreement.
(4) If a third party has access to the conditional goods, the buyer is required to state the seller’s ownership and to inform the seller immediately.
(5) In the case of contract violation on the part of the buyer – especially payment delay - the seller is entitled to take back conditional goods, or if necessary, to demand transfer of the buyer’s claim of restitution against a third party. Taking back or pawning the conditional good does not mean a withdrawal from the contract, unless Instalment Purchase Law is applied.
(6) On demand, the buyer is required to ensure a personal bank guarantee, if the invoice amounts to over EURO 30,000.00.
§ 7 Acceptance
(1) When the buyer or any legal representative signs the acceptance record, the signing person confirms that the goods are free from faults and defects. The seller does not accept later complaints.
(2) With equipment and facilities, technical acceptance takes place at delivery. In this process the seller or any legal representative explains and shows certain functions of the equipment or facility. This is documented in an explanations and acceptance report.
§ 8 Installation
In case of the seller taking on the installation of the delivered item, the buyer is responsible for preparing the construction area according to the instructions of the seller. The buyer has to prepare the construction area at his own expense. If installation is impossible due to faulty preparation of the construction area or no preparation at all, the buyer has to cover all resulting expenses (e.g. additional journey costs, installation as well as board and lodging costs for staff or costs for installation done by a contractor). The seller is not liable for damages that occur due to inappropriate preparation of the construction area, i.e. preparation not according to the instructions of the seller, or when installation has been carried out by a contractor.
§ 9 Constructional modifications
The seller has the right to modify the construction at any time; however he is not obligated to make any changes to previously delivered products.
§ 10 Limitation of liability
Claims of damage against the seller and his affiliate, due to positive contract violation, due to culpability during contract conclusion or due to tort, are excluded, provided deliberate or gross negligence has not occurred. This is the case for claims of damage due to non-fulfilment, but only if replacement for consequential damage or consequential harm caused by a defect is demanded, unless liability is based on additional insurance, that should insure the buyer against the risk of such damages.Each liability is limited to predictable damage, at the time of the conclusion of contract.
§ 11 Applied law, venue of jurisdiction, partial nullity
(1) For these business terms and conditions and all legal relationships between the seller and the buyer with German or foreign headquarters, German Law is applied; for buyers with Austrian headquarters, Austrian Law is applied.
(2) Traunstein in Germany resp. Salzburg in Austria are the venues of jurisdiction in the case of direct and indirect disputes resulting from the contractual relationship, if the buyer is a general trader according to the Commercial Code, a juristic person under public law or public law special assets.
(3) Should one or more regulations of these business terms and conditions or any other agreements be ineffective or become ineffective, it will not affect the other regulations or agreements.