1. General
The following business terms and conditions are without exception the basis for our deliveries and services, both now and for future business. General terms and conditions, in particular terms and conditions for purchasing, which contradict these terms and conditions, are entirely without legal effect, regardless of when, how or if these have been brought to the attention of the seller. Verbal agreements, additions or amendments to these terms and conditions are only legally valid if they are confirmed by us in writing.
2. Offers
Our offers are subject to change and without commitment. All contracts are only effective once our written order confirmation was received by e-mail or fax, but no later than upon delivery having been made. All statements regarding weights and measures are made without commitment. We reserve the right to make construction changes.
3. Prices
All prices are exclusive of sales tax, freight, transport insurance and packaging and are on an ex-works basis. We are entitled to increase our prices if at any time prior to delivery circumstances arise which require a change in calculation of the prices. This applies in particular to price deviations, pay increases or in case of retroactive introduction or increase of taxes, custom duties, public fees, freight charges and other supplementary fees, which affect or increase the price of our shipment directly or indirectly.
4. Payment and payment terms
Our invoices are due immediately and must be paid within 14 days after the date of invoice and delivery without deductions of a cash discount. Payments are always credited towards the oldest payment due. In the event of a late payment we are entitled to receive an late payment interest in the amount of 5% above the base interest rate as published by the central bank by the receiving country, but at least 9 % p.a. We reserve the right to additional claims for damages caused by the delayed payment. If we become aware of circumstances, which cause us to suspect a significant deterioration of the assets of the buyer after signature of the contract, particularly if the buyer does not pay past-due claims and therefore our payment claims seem to be in jeopardy, then we are entitled to make delivery only against full and partial payment step-by-step or against security. In case of insolvency or bankruptcy proceedings against the buyer we are entitled to cancel any purchase contracts which have not been completed, without the necessity for a separate prior extended deadline for payment. Payment may only be made to us directly or to persons who are explicitly authorized in writing to accept payment, all without the right to compensate or withhold. Payments by bank transfers are considered made on the date the amount is credited to our account. Payment by bills of exchange or checks require prior agreement. Credits from bills of exchange and check are made minus the cash expenses and subject to receipt on the date on which we can actually use the funds received from it.
5. Property right reservation
The delivered goods remain our property until all open claims from this business relationship including all surcharges have been paid completely. A late payment entitles us to collect the goods at any time. The goods delivered under reservation of property rights have to be handled carefully and stored appropriately by the buyer. If the buyer violates the previously described obligation, then he is fully liable for damages. Pledging, collateralization or other types of encumbrance of our goods, which are sold with the reservation of property rights, is not permissible for the duration of the reservation of our property rights. Collection of our goods by third parties have to be reported to us immediately in order to allow us to ascertain our rights. Provisions regarding the transfer or risk contained in these general terms and conditions or in the law are not being changed by the property right reservation. The provisions in this item apply to this order and to all subsequent orders of the buyer. If the goods are sold by the buyer directly to a third party, then the seller has the right to compensation. For that purpose the buyer hereby assigns his claims against the third party with all supplemental rights to the seller in order to avoid the need for a special transfer action of these claims when they are created. The claim is assigned in the amount of the balance claim of the seller, plus any late payment interest. The buyer is obligated to disclose the name of his buyer upon request by the seller and to notify his buyer of the assignment having taken place. The seller, too, is entitled to notify the third party about the assignment. In the event of sale to a third party the buyer is obligated to place appropriate property right reservations with his buyer. The costs of ascertaining our rights from the property right reservation are for the account of the buyer. If the buyer does not comply with these terms and conditions or if the seller becomes aware of circumstances which would appear to diminish the creditworthiness of the buyer, then all claims towards the buyer shall become due and payable immediately. In such case the seller is also entitled to demand the return of the goods, to recall any goods not yet accepted or yet to be delivered, to use any security provided and to withdraw from any contracts not yet processed. It is not necessary to grant additional time.
6. Delivery
The delivery and shipment of the goods always takes place at the risk of the buyer ex-works. The type of shipment is determined by us without any liability from our side. The delivery deadlines and dates are subject to change. The delivery deadlines only start after final clarification of all technical and economic aspects and after receipt of any agreed deposit or advance payments. The delivery deadline is extended appropriately in the event that unexpected obstacles occur, which are outside the sphere of influence of the seller. Liability claims, based on whatever legal title, are excluded in the event of exceeding the delivery deadlines, unless the seller is found to be grossly negligent. Transport insurance shall only be obtained upon written demand by the buyer and at his expense. Any damages during transportation have to be reported immediately by the recipient of the goods to the freight forwarder or driver and a report has to be compiled. Damage claims are excluded – unless the law provides otherwise. If the customer is delayed accepting the goods or if he deliberately violates his obligation to participate, then we are entitled to demand compensation for the arising damages – including possible additional expenses. We reserve the right to file additional claims. The delivery deadlines are extended – regardless of our rights resulting from the delay by the buyer – by such a time period by which the buyer is delayed fulfilling his obligations from this or other orders. The same applies to delivery deadlines. In the event of force majeure, we are entitled to delay the delivery by the amount of time of the force majeure and by an appropriate time to restart or to withdraw from the incomplete portion of the contract entirely or partially. Force majeure includes strike, lock-out and other circumstances, which make it significantly more difficult or impossible for us to make the delivery (e.g. shortages of raw materials), regardless of whether they are incurred by us or by one of our sub vendors. The buyer has the right to demand a declaration from us whether we wish to cancel or deliver within an appropriate deadline.
7. Cancellations
Cancellations of orders already placed by the buyer may only take place in exceptional cases and with the explicit agreement of the seller. Goods which have to be produced or assembled based on an order are excluded from cancellation. If [such cancellation] relates to “storage items”, then the cancellation fee is equal to 10% of the current list price. An additional 10% is added if the original packaging is missing and an additional 15% if the goods show signs of use.
8. Warranty / Defects / Delivery of goods not in compliance with the contract
The delivered goods have to be examined by the buyer immediately. Warranty claims such as quantitative or qualitative defects can only be considered if they are reported by the buyer in writing to the seller within 14 days from receipt of the goods. Defects, which could not be found even during the most careful examination, have to be notified after their discovery and any processing thereof has to cease immediately, but no later than 3 months after receipt of the goods. After the expiration of the deadline of 3 months any defect claims are excluded – no matter what the reason. The burden of proof that any defects may have already existed at the time of the delivery rests with the buyer at all times. In the event of timely notification of defects, we shall accept the return of the defective goods and we shall replace them with goods free of defects. Instead we can also replace the lesser value. A claim according to § 933 b ABGB [Austrian Civil Code] by the buyer is explicitly excluded. If the buyer doesn’t give us the opportunity to check the defect, in particular if he fails to make the goods or samples claimed to be defective available to us immediately upon request, then all defect claims shall be void. The time limit for defect claims shall expire no later than one month after written rejection of the defect claim by us.
9. Liability and product liability
The seller is only liable for damages caused deliberately or grossly negligent. Liability based on minor negligence is excluded. The culpability of the seller has to be proven by the buyer. The liability for indirect damages, consequential damages, loss of profit, loss from operational disruptions as well as claims by third parties against the seller are excluded in any case. Any possible liability by the seller is in any event limited to the amount of the agreed payment or the purchase price for each contract. The contracts accepted by the seller shall only be accepted with the understanding of this limitation of liability Any liability of the seller exceeding this amount is specifically excluded. If the total amount of damages exceeds this amount, then the damage claim of the individual injured parties shall be reduced accordingly. The obligation to replace the material damages based on the product liability law as well as any product liability claims, which could derive from other provisions, are excluded to the extent that this is permitted by law. The ordering party is obligated to transfer the exclusion of liability for product liability claims to any potential contractual partners. Recourse by the buyer against the seller based on the use of the product liability laws is excluded. This exclusion does not, however, relate to non-mandatory claims based on the product liability law. In the event of several ordering parties all ordering parties or customers are liable for all obligations as a result of this contract jointly and severally.
10. Place of venue, applicable law
Decisions regarding any disputes from this contract shall be settled by the legally competent court within the City of Salzburg, which is also locally competent. The buyer is obligated to confirm to the seller upon his request the existence of this agreement regarding the place of venue. During clarification of questions regarding the interpretation of these general business terms and conditions, even in the event of a lawsuit, as well as circumstances not covered in these terms and conditions, only Austrian law shall apply exclusively, excluding its referral and conflict norms (EVG, EPRG) and excluding the U.N. Convention for the International Sale of Goods of 1980 (CISG). In the event of late payment, the buyer is obligated to pay to the seller all collection fees and the legal fees for out-of-court settlements as well as any and all pre-trial costs.