1. Scope of Application
These Terms and Conditions (hereinafter referred to as "Terms and Conditions") shall govern all deliveries and services, even if these Terms and Conditions are not expressly incorporated by reference. Customer acknowledges these Terms and Conditions when he places the order. Any amendment or side agreement shall be effective only if it is approved by us in writing and shall apply only in a particular case, unless expressly otherwise agreed. Costumer's terms and conditions in derogation of these Terms and Conditions are expressly excluded. Should any term or part of a term of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining terms and the agreements concluded on the basis thereof. The parties will replace the invalid term by a valid term which closest reflects the meaning and purpose of the invalid term.
2. Orders and Specifications
Our offers are without engagement. Orders placed by customer are binding upon him and will be accepted by us only if we issue a written confirmation of order or deliver the goods. We are entitled to accept only parts of orders or to refuse orders without stating any reason.
Specifications (e.g. dimensions, weights) are binding upon us only if they are expressly mentioned in our confirmation of order. Any specification shall be strictly confidential and shall not be disclosed to third parties. We reserve the right to modify the specifications of the goods to the extent this is necessary to comply with statutory requirements and to the extent such modifications will not result in a deterioration of the quality and usability of the goods.
All prices are binding only if expressly incorporated by reference in the confirmation of order.
All prices are exclusive of taxes and transport based upon delivery "ex works" as set out in the Incoterms applicable from time to time, unless expressly otherwise agreed. The prices stated in our price lists are non-binding.
4. Delivery, Delivery Period
The delivery period will commence only after all technical and commercial details have been finally settled. Delivery dates are "ex works" Schwaz.
All circumstances outside the parties' control, e.g. force majeure, unforeseeable loss of delivery or production, governmental measures, delays in transport and customs clearance, transport damage, defect of significant manufacturing parts and labor conflicts, will extend the delivery period for as long as such impairment continues. We may carry out part deliveries. For express deliveries (deliveries on the same day) we will charge a 10 % surcharge of the net order value.
5. Completion and Transfer of Risk
Delivery is performed:
a) For deliveries "ex works": upon sending the notice that the goods are ready for delivery.
b) For deliveries to an agreed place of delivery: upon delivery of the goods to the forwarding agent or carrier.
In case of any default in delivery for which we are not responsible, delivery shall be deemed completed if customer is notified that the goods are ready for collection.
The service is performed:
Upon completion of the service and notification of the customer.
6. Notice of Defects and Warranty
Customer shall inspect the delivered goods immediately after receipt as to completeness, accuracy and other absence of defects, and he shall give written notice of defects, if any, without delay or at least five working days after receipt of the goods.
Provided that customer timely gives notice of defects, we warrant that all goods are free and clear of any defects of material and workmanship for the earlier of 12 after delivery or no more than 18 months after notice to the customer that the goods are ready for delivery.
This warranty shall not cover defects of or damage to the delivered goods which are due to
a) normal wear and tear of parts whose normal life expectancy is less than the warranty period, and
b) improper assembly or maintenance, negligence or other improper application by customer.
Supplies and maintenance materials, such as filters, lubricants, spark plugs, exhaust gas and gas contacting parts etc., are excluded from warranty.
Customer's right to claim warranty requires:
a) appropriate storage, use and maintenance/repair of the delivered goods by customer and any authorized third party in particular in accordance with our instructions;
b) signing of the acceptance protocol;
d) proper satisfaction by customer of all contractual obligations, in particular all payment obligations;
e) written notice of defects;
Warranty is, at our sole discretion, restricted to the replacement or improvement of goods. If services are provided as indicated and instructed by customer, we will only warrant for proper compliance with these indications and instructions. The replacement or improvement of goods will not trigger a new warranty period. The objected goods must be delivered to us to Schwaz free of charge.
Customer may not claim damages for any legal ground whatsoever, in particular for default, impossibility of service, positive breach of an obligation, consequential damage caused by defect, defects, tortuous damage or other violations of a contract, unless the foregoing is due to our intent or gross negligence. Customer shall prove the existence of intent or gross negligence. These restrictions apply in particular also to consequential damage, such as lost profit, production standstill, loss of use etc.
Customer shall comply with the instructions we have issued for the use of the delivered goods. We shall not be liable in case of non-compliance with these instructions or governmental conditions.
The limit of liability for damage claims is 10 % of the order sum, unless exceeding amounts are covered by our liability insurance.
To the extent permitted by law, customer may not avoid this contract (e.g. for mistake).
8. Payment Terms
Since there is no differing written agreement, half of the invoice amount payable by the customer according to agreement shall be due and payable upon receipt of the confirmation of order; the remainder shall be payable upon notice that the goods are ready for delivery. Services shall be payable when we issue our invoices.
In case customer defaults in payment, he shall be subject to default interest at a rate of 5 % above Euribor – unless we incur higher costs – but at least 10 % p. a. of the outstanding amounts. If customer is in any default in payment, we may demand immediate payment of the entire invoice amount; this shall not affect our right to prematurely rescind the contract for default in payment. If we retain a collection agency, an attorney or other third parties to collect outstanding claims, all collection charges (in particular legal fees) shall be borne by customer.
Drafts and checks will not be accepted in lieu of payment. Customer may not set off own claims against our payment claims. To the extent permitted by law, customer shall have no right of retention.
When placing the order, customer shall take the measures agreed with us to secure payment (e.g. a bank guarantee, letter of credit, etc.).
If customer is in default with payment or any other services, we are entitled - not-withstanding any other claims - to retain our delivery until the agreed counterservice has been provided or to rescind the contract for non-performance after granting a reasonable grace period and assert damages (in particular for non-performance). In this event, the delivery period we have to comply with will be extended as long as customer is in default. If we rescind the contract, customer shall return to us goods we have already delivered at his own cost and expense and at his own risk. If customer fails to do so, we may disassemble and remove the goods from customer at his own cost and expense and at his own risk. In this event, customer will not assert any retention rights.
9. Retention of Title
Until full payment for the goods, we will retain title to the deliveries. Customer shall inform his customers in writing of this retention of title.
If customer resells our deliveries to third parties, customer shall assign to us his purchase price claim in the amount of our outstanding claims (extended retention of title).
10. Supplementary Provisions for Services
Our service staff will be assigned to carry out services only subject to the following conditions:
a) The service staff will be chosen in accordance with the information provided by customer and at our own free discretion.
b) Customer shall procure and is solely responsible for compliance with all local safety provisions. Before services is commenced, Customer shall comprehensively inform our service staff of all applicable local safety measures and all existing risks, and he shall maintain appropriate insurance.
c) Customer shall give immediate written notice, also by facsimile, of all accidents our service staff had when providing the services.
d) Customer shall bear all costs which may be necessary to carry out the services (in particular cost of material and transport).
e) Customer shall, at his own cost and risk, take all measures which may be necessary for properly and undisturbedly providing and completing the services. Any scaffold, ground, foundation and mortise work, etc. to be carried out shall be timely completed before the services are commenced. All supplies (in particular fuel, petrol, electricity, compressed air, etc.) shall be timely provided by customer at his own cost and expense before the services are commenced. We are only obliged to provide the tools required for assembly; customer shall provide any other special tools or special devices at his own cost and expense. Customer will make available free of charge the rooms required for the accommodation and stay of the service staff, and he will pay for any heating and lighting expenses that may arise in this context.
f) Customer shall take care of all resources and items our service staff has brought along until the services are fully completed. Customer shall be liable towards us and our service staff for any damage to, destruction or loss of these items.
g) The compensation of our service staff is exclusively based on the respective compensation rates arising from the "cost rates for service staff ". We expressly reserve the right to replace offered materials by equal materials and to make constructive changes.
11. Intellectual Property Rights
If we manufacture goods on the basis of customer's construction information, drawings, models or other information, customer shall hold harmless and indemnify us for any infringement upon third party intellectual property rights.
We may store, transmit, process and cancel customer's personally identifiable information in the course of business.
Customer undertakes not to disclose to third parties any information he becomes aware of in connection with the business relations.
13. Applicable Law, Place of Performance, Place of Jurisdiction
The legal relationships with customer shall be exclusively governed by and construed in accordance with Austrian law, to the exclusion of the UN Sales Convention.
Place of performance for all obligations arising from this Contract shall be Schwaz, Austria.
All disputes up to an amount in dispute of EUR 100,000 arising out of or in connection with these Terms and Conditions shall be referred to the court having local and subject-matter jurisdiction for our registered offices. However, we may also refer disputes to a court having jurisdiction for customer.
All disputes in excess of an amount in dispute of EUR 100,000 arising out of or in connection with these Terms and Conditions shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with these rules. Where the Rules of Arbitration of the International Chamber of Commerce contain no provisions, Austrian procedural law shall be applicable. The place of arbitration shall be Innsbruck, Austria. The language to be used in the arbitral proceedings shall be English.
The relevant amount in dispute shall be determined on the basis of the respective applicable provisions of the Austrian law on civil proceedings.
We are entitled to replace materials offered by equivalent materials and to make changes. We will retain title to all intellectual property rights to all technical information made available to customers.
Rights arising from the contract concluded with us may be transferred to third parties only with our prior written consent.