Sales and delivery conditions
1. Order acceptance
All our orders and agreements must be confirmed by us in writing in order to be valid and shall be binding on us only within the scope of the order confirmation. The offers remain subject to price and delivery time confirmation until acceptance.
The Buyer is responsible for ensuring that the rights of third parties are not breached during use of their documents, and shall indemnify and hold us harmless in this regard.
We shall not be held liable for the loss of, or damage to, documents or similar that we receive.
We are only obligated by the Buyer's purchase conditions if these are expressly recognised by us in writing.
If the Buyer withdraws from the Purchase after a legally binding order has been issued - for whatever reason - we have the right, for marketable products, to claim option money (cancellation fee) of 10 % of the sale price. For non-marketable products this additionally includes the replacement of the accumulated manufacturing costs whereby, in this case, the machined parts are available to the Buyer.
2. Delivery times
The calculated delivery time from our factories or warehouses only applies after receipt of final information commercially and technically organised in every department, and is always non-binding. Adherence to the delivery time further depends on the Buyer (ordering party) complying with all payment conditions agreed for the period prior to delivery.
Force majeure and other unforeseen obstacles at our factories or in our suppliers' operations exempt us in all cases from adherence to the confirmed delivery time without providing the Buyer with a right to withdrawal. However, in the event of a longer expected period of obstacles, we are entitled to withdraw from the Agreement.
Claims for damages and penalties from potential exceedance of the delivery time are excluded. The Buyer is obliged to retrieve the goods, failing which we are entitled to store these at the cost and risk of the Buyer, at our discretion, effective immediately.
We are entitled to partial delivery, which the Buyer is obliged to accept.
3. Fulfilment and shipping
The delivery has been fulfilled once the delivery items have been transferred to the freight forwarder or forwarding agent. In case of delay by the orderer, the delivery will qualify as fulfilled on notification of readiness for shipping. Loading and shipping always take place at the Buyer's own risk.
In cases of loss or damage during transportation, any claim against the rail company or another freight forwarder or forwarding agent must be made by the receiver. Any packaging will be calculated at cost and not be taken back, unless agreed in individual cases. Even during assembly by us, the risk for the delivery item passes to the Buyer with the delivery.
Free on board delivery requires the shipping payment to have been made on time by the Buyer, and the necessary ship space to be provided at the correct time. The Buyer shall bear all costs arising from this, such as demurrage, cartage, storage costs, and so on, and our delivery will then be considered fulfilled.
For the acceptance of repair orders, the extent to which they are to be carried out remains subject to our findings, unless there are express written agreements to the contrary.
Prices are subject to changes to our place of lading, unless otherwise agreed, and are based on the current costs for materials and wages known to us at the time the offer was made. If increases in costing factors occur in the time between the offer being made and the delivery, the prices will also be increased proportionately to this, without any need for express agreement from the Buyer in each case. Price increases of this kind do not entitle the Buyer to withdraw from the contract.
5. Measures, weights and documents
In cases where there is no accurate overview of weight- and unit-related manufacturing in relation to the production process, resultant excess or short deliveries of the quantities or weight ordered shall be allowed. Our images, drawings, blueprints, measurement and weight data in catalogues, advertising material, and others, are only approximate and remain subject to change. All these documents remain our intellectual property under the respective legal protection regarding reproduction and competition.
6. Payment conditions
Our invoices are payable net cash and free of charges without any further express agreements, as soon as invoices are received. These are actionable in either Kindberg, Leoben or Vienna, according to our preference. For delayed payment, however, bank interest on late payments of at least 12 percent per annum will be applied. All reminder and other costs connected with the recovery of the claims are borne by the Buyer. In case of delayed payment we are entitled, pursuant to Section 918 of the General Civil Code (ABGB), to assert our right of withdrawal without establishing a grace period, whereby the withdrawal relating to other business yet to be transacted and deliveries cannot be counterbalanced with any of the Buyer's counter-claims. We reserve the right to request security, prior to shipping, for the fulfilment of payment obligations, even if this was not agreed during the transaction, and to cancel the order in the event of refusal. Should the Buyer's financial situation deteriorate, we are also entitled to make deferred receivables due for immediate payment. This also applies for accepted bills of exchange and cheques. We are not obligated to accept bills of exchange unless there is a special agreement for this. Bills of exchange of this kind shall only ever be used as payment, with discounting expenses, bank charges and all possible bill stamps paid by the Buyer.
7. Reservation of title
We shall retain the right of ownership for all goods delivered to the Buyer, whatever their nature, until full payment of the invoice amount has been made, including any ancillary fees. The Buyer is not entitled to pledge these items without our approval, and must immediately notify us in the event of attachment measures in order to protect our rights. In the event of delayed payment, we are entitled to demand the immediate return of our property and, in doing so, choose to, or not to, annul the order. In the former case, we may claim remuneration for wear and devaluation of up to 40 percent of the purchase price, unless higher damage or lost profit can be proven.
If the products delivered by us undergo further machining or processing by the Buyer, we reserve the right to obtain property to the extent of the material values, in any case, as joint ownership of the new product and any sales revenue. In other words, if the Acquiring Party resells goods manufactured by us, he may only do so subject to our ownership of the goods or their proceeds. In this respect, he is our custodian. The transfer of legal claim to third parties takes place automatically, based on this Agreement, and equally applies if the Acquiring Party has not made a reservation to the third party contrary to the Agreement. We are entitled to assert our reservation of title against the Acquiring Party as long as he is our debtor with regard to the existing business relationship. The assigned account receivable that is then owed to us is the invoice amount for the goods subject to reservation of title that are sold in each case.
In cases where the goods subject to reservation of title are being sold by the Buyer together with other goods which do not belong to us, for the goods subject to reservation of title covered by the purchase agreement that are being sold with other goods, the assigned account of the purchase price receivable is the invoice amount.
The Buyer is authorised to collect the receivables from the resale despite the assignment.
At our request, the Buyer must inform us of the identity of the debtors for the assigned account, and notify them of the assignment.
We will only recognise complaints if we are notified of them within 14 days following handover of the goods. If the complaints are received in time and are justified, we will provide either a credit note or a free replacement, according to our preference, and pay for the return carriage. We dismiss all further claims, particularly for damages or replacement of the processing costs. Return of goods to our plant must be agreed by us in advance, with carriage paid by the buyer.
Our liability applies to the buyer (ordering party) only.
An inspection report from our plant is authoritative for proof of defect.
After three months, any liability we have for concealed defects also expires. Any liability we have is excluded for parts that, due to their material properties or type of use, are liable to prior expenditure.
In each case, our liability will also expire as soon as any non-OEM parts are fitted externally.
If we have committed to meeting certain requirements in delivering goods, the goods will be tested at our supplier’s premises and accepted by the Buyer there and then, unless the Buyer is satisfied to receive a certificate from the test.
We are only liable for material defects within the framework of the warranty of our subsuppliers.
Our obligation to correct defects remains dormant for the duration of delayed payment by the Acquiring Party.
If a delivery is manufactured based on Buyer information, images and models, the Buyer will carry full responsibility for all damages and legal consequences with regard to patent, design and trademark law, as well as towards us and third parties. In any such case, our liability will only apply as far as the corresponding model in accordance with the information provided by the Buyer (ordering party).
9. Other exemptions from fulfilment obligation
a) War and general mobilisation void our obligations to fulfil existing contracts. We are, however, required to inform the Buyer that we no longer intend to fulfil the contract within a suitable period of time after these events have occurred.
b) Events occurring due to force majeure are given the same status: disruptions to operations, strikes, lock-outs at the plants themselves or in the businesses supplying them with raw materials, fuel or auxiliary materials.
c) If the circumstances under which the Agreement was concluded have changed so dramatically that it could reasonably be expected that the conclusion would not have taken place under the changed circumstances, or under other terms and conditions, and if the change in circumstances was also not expected on application of the due care and diligence of a prudent businessman then, depending on the nature of the case, we have the right to refuse fulfilment of the contract or to demand an amendment to the provisions of the Agreement taking into account the changed circumstances.
d) A shortage of coal, natural gas or raw material supplies of any kind which makes it very difficult or impossible for us to deliver will entitle us to suspend the delivery for the duration of the shortage, and defer it until a suitable start-up time or alternatively withdraw from the contract with regard to the parts that have not yet been supplied.
11. Place of fulfilment and jurisdiction
The place of dispatch is the place of delivery fulfilment for both parties – even for a carriage paid sales station.
Place of payment fulfilment, even for claims arising from bills of exchange, is Wartberg in Mürztal.
Our company headquarters in Wartberg in the Mürztal is also the place of jurisdiction for all disputes arising from the Supply Agreement either directly or indirectly.
However, we are entitled to institute legal proceedings at the Buyer's registered office at our discretion. Austrian law applies for the legal relationship arising from the Supply Agreement.
Commercial court of Leoben
12. Deviating terms and conditions
Amendments or supplements to the present delivery terms and conditions require, in every case, our express written approval for legal validity and are always only applicable for the case for which they were agreed.
Copy right and warranty
The content of this website is written and reviewed by the responsible person in all conscience. However, any kind of content mistakes cannot be excluded. For that reason no responsibility is taken on the part of publisher for the correctness of the details provided. No liability or responsibility can be assumed for content mistakes, wrong sentences, deletion, price information etc. All rights are reserved. Duplication, further dispersion or usage for commercial needs is not permitted. All offers remain a subject to change and are not binding. The publisher is able to change, to add content to or to delete abstracts of a complete offer without prior notice. Moreover the publisher contains the right to shut down the publication or to close it temporary.