General terms and conditions of sale, delivery and payment
1.1. We sell and deliver only on the basis of and exclusively on the basis of the following terms of delivery and payment. No other GTCs are accepted even when signing supplier contracts.
- Offers and conclusion
2.1. Offers of the seller are subject to change. All contracts require the written acceptance of the seller. The written form requirement may only be waived in writing.
2.2. Our offers, deliveries and services are exclusively based on these General Terms and Conditions (GTC). They shall also apply as a framework agreement for all future contracts concerning the goods offered by the Seller, even if they are not expressly agreed again.
2.3 Deviating, conflicting or supplementary general terms and conditions of business or purchase of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s GTC.
2.4. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.
2.5. The buyer must accept deviations in quality, quantity, weight or other deviations customary in the trade, even if he refers to brochures, drawings or illustrations when placing his order or if the purchase is made on the basis of a sample or trial, unless expressly designated as binding.
- Cost estimates, drawings and technical documentation
3.1. Cost estimates, drawings, technical documents and the like shall remain the property of the Seller, even if they have been handed over prior to an order and are still proposals for a problem solution. The documents or parts thereof may not be reproduced in any form or otherwise brought to the attention of third parties without the express permission of the Seller. The use is permitted internally only within the contractual limits. Copyrights remain with the seller.
3.2. The use by the Seller of the documents to be provided by the Buyer, such as drawings, gauges, samples, etc., must not conflict with any third-party property rights. The Buyer expressly declares that it shall indemnify and hold the Seller harmless in the event of claims being made by third parties on the basis of such industrial property rights. The Seller shall not be required to verify the existence of third party property rights itself.
3.3. Shipping costs for samples are borne by the buyer. The samples remain the property of the seller. Metal surcharge costs charged by the manufacturer shall be borne by the purchaser.
3.4. Delivery time / Self-delivery reservation / Partial deliveries / Delay of the seller
3.5. Delivery deadlines and dates are given to the best of our knowledge and as accurately as possible in the order confirmation. The delivery period shall commence upon receipt of the order confirmation by the Purchaser, but not before the Purchaser has provided the documents, approvals, releases to be provided by the Purchaser and not before receipt of an agreed down payment.
3.6. If the acceptance of the contract offer of the buyer is not anyway by delivery of the goods, the delivery period is specified in the order confirmation. If the delivery period is not specified in the order confirmation, it shall be a maximum of four weeks after conclusion of the contract.
3.7. Should we fail to meet an agreed delivery date, the Buyer shall grant us a reasonable grace period, which shall in no case be less than four weeks.
3.8. Even in the case of bindingly agreed deadlines and dates, we shall not be liable for impediments to delivery and performance due to force majeure or other events unforeseeable at the time of conclusion of the contract, which make delivery significantly more difficult or impossible for us – (this also includes subsequently occurring material procurement difficulties, operational disruptions, strikes, lockouts, lack of personnel, lack of means of transport, official directives, etc., even if they occur at our suppliers or their sub-suppliers) – and for which we are not responsible. If the hindrance is not only of temporary duration, we are entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the impediment lasts longer than three months or if the purchaser cannot reasonably be expected to wait, he shall be entitled, after setting a reasonable period of grace, to withdraw from the contract with regard to the unfulfilled part.
3.9. We are entitled to make partial deliveries if the partial delivery is usable for the Buyer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the Buyer does not incur any additional expenses or costs as a result (unless we agree to bear these costs).
3.10. If the promised service is not available because sub-suppliers do not supply us or do not supply us in time or the stock of the products concerned is exhausted, we shall be entitled to provide a service equivalent in quality and price. If it is not possible to provide a service of equivalent price and quality, both parties may withdraw from the contract and need not provide the promised service. In this case, we undertake to inform the customer immediately about the unavailability and to refund any payment already made by the customer without delay.
3.11. Strikes, lockouts (also at suppliers and sub-suppliers of the Seller) and other cases of force majeure for which the Seller is not responsible but which must be notified to the Buyer shall release the Seller from the performance of the contractually assumed delivery obligation for the duration of their occurrence. This also applies to unforeseen operational disruptions that are unavoidable for the seller. If the timely performance becomes impossible for the Seller due to these events, the Seller shall be entitled to withdraw from the contract.
3.12. If, despite the conclusion of a congruent hedging transaction, the Seller is not supplied by its supplier with the goods ordered by the Buyer on time or correctly, without the Seller being at fault, the Seller may withdraw from the contract with the Buyer. If the incorrect or untimely self-delivery concerns only individual items of a uniform order of the buyer, the seller is also entitled to withdraw from the contract, unless the buyer declares in writing an interest in the partial fulfillment of the contract. If the latter is the case, the Seller shall be released from its obligation to perform with respect to the items affected by the incorrect or untimely self-delivery without requiring a separate declaration by the Seller. The buyer must be notified of incorrect or untimely self-delivery. If the Seller does not withdraw from the contract, it shall be released from its obligation to perform for the duration of the untimely or incorrect self-delivery.
3.13. In the event of default by the Seller, the Buyer may withdraw from the contract after the expiry of a reasonable grace period set by the Buyer of at least 4 weeks, which must be accompanied by a notice that the Buyer will refuse performance after the expiry of the grace period, if the goods have not been reported ready for shipment by the expiry of the grace period. The period shall commence upon receipt by the Seller of the Buyer’s written notice of extension.
3.14. Partial deliveries are permissible. We reserve the right to deliver the goods before the agreed delivery date.
4.1. The prices quoted are net and apply to deliveries ex works of the seller.
4.2. Discounts shall not be granted if the customer is in arrears with the payment of previous deliveries.
4.3. Prices are valid only for 48 hours and must be confirmed separately for longer offer processing.
4.4. The packaging is not charged separately.
4.5. In the case of a purchase price in a foreign currency, the Buyer bears the risk of deterioration of the exchange ratio of the currency against the euro for the period from the conclusion of the contract to the receipt of the amount by the Seller.
4.6. If the Buyer defaults on payment of a purchase price in a foreign currency, the Seller shall be entitled to demand payment in euros instead of the foreign currency. In doing so, he may choose between the foreign exchange purchase rate of the maturity date and the foreign exchange purchase rate of the payment date.
- Payments, set-off and right to refuse performance
5.1. Payments are due immediately without any deductions, unless otherwise stated in the order confirmation or invoice. If a payment term is specified, the invoice amount must be available to the seller from the end of the payment term. Cash on delivery shipments are payable without any deduction.
5.2. Bills of exchange or checks are only accepted on account of performance, never in lieu of performance. With the issuance of the bill of exchange or the check, the ownership of the bill of exchange or check is also transferred to the seller. The costs of discounting and collection shall be borne by the buyer.
5.3. If the buyer is in default, interest will be charged at the rate of 12% per annum until payment is made. The agreement of a longer payment term than according to 6.1 shall not affect the due date of the debt according to 6.1. The seller only postpones the assertion of the claim. For the period between the due date and the expiry of this payment period, the Buyer shall owe interest at the rate of 5% per annum.
5.4. If the Buyer continues to be in default despite a reminder, he shall be obliged to pay all extrajudicial costs for the assertion of the claim, such as costs for the investigation of a delivery address, creditworthiness information and the costs of legal reminders in accordance with the tariff.
5.5. If the financial circumstances of the Buyer deteriorate significantly after the conclusion of the contract, e.g. if bankruptcy or composition proceedings are instituted against the Buyer’s assets, or if such deterioration of assets only becomes known after the conclusion of the contract, the Seller shall not be obliged to perform the delivery until the Buyer has made payment or provided adequate security for the purchase price claim. The same applies if checks of the buyer are not honored or bills of exchange given by him are protested. In the event of a request by the Seller for payment concurrently, the Buyer shall declare its willingness to do so within two weeks and to execute such payment or to provide the corresponding security, otherwise the Seller may withdraw from the contract.
5.6. The Buyer may only set off claims that have been expressly acknowledged or have become res judicata or with the written consent of the Seller. The Buyer shall also have a right to refuse performance due to alleged defects of the goods and the statutory right of retention only with respect to such claims or with the Seller’s written consent. The commercial right of retention according to § 369 HGB is excluded.
5.7. Employees and travel representatives of the seller may accept payments only with power of attorney to collect.
5.8. Credits will not be settled in cash.
- Hazard transmission
6.1. The Seller shall fulfill its obligation at the place of its principal place of business. If the buyer wishes the goods to be delivered to another place, he shall bear the risk and the costs of the shipment and transport of the goods, starting with dispatch ex works.
6.2. The goods shall only be insured against the risks specified by the Buyer – as far as possible – at the Buyer’s express request and at the Buyer’s expense.
6.3. If the shipment is delayed through no fault of the seller, the goods shall be stored at the expense and risk of the buyer. Notification of readiness for shipment is equivalent to shipment.
6.4. The buyer bears the sole risk from the moment of installation of the goods, i.e. as soon as the buyer installs or otherwise uses the goods delivered by the seller, the buyer bears the warranty for himself and his customers.
6.5. The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of shipment.
- Notice of defects and warranty / rectification by the seller
7.1. The Seller warrants against defects in the goods in accordance with the following provisions:
7.2. Defects in the delivered goods must be notified in writing immediately after delivery – in the case of hidden defects immediately after their discovery but no later than 30 days after receipt of the goods by the Buyer. The Seller may rectify justifiably objected goods up to two times or make a replacement delivery. The place of performance for rectifications or replacement deliveries shall be the Seller’s principal place of business. Therefore, the buyer bears the risk and cost of shipping the goods.
7.3. If the repair or replacement delivery fails even the second time, the buyer may demand an appropriate reduction of the purchase price. If the defect of the goods is not merely minor, the buyer may also demand the cancellation of the contract instead of a price reduction. These rules shall also apply if the Seller is unable to repair or replace the defective goods without defects within 30 days from the date of receipt of the defective goods at the Seller’s principal place of business.
7.4. The seller is a mere commercial agent and does not bear any warranty for the function or origin of the goods.
7.5. The warranty period is 30 days from the date of delivery of the goods to the buyer. The warranty obligation shall be extended by the duration of such work through repairs or rework and replacement deliveries. After the expiry of the warranty period, the Buyer shall also have no recourse against the Seller if the Seller provides a warranty to a consumer due to defects in the goods or becomes liable to recourse because one of the Buyer’s subordinates has provided a warranty to a consumer.
7.6. The delivery bill (packing slip) must be returned with all shipments and returns.
7.7. We are NEVER liable for damages.
7.8. The Purchaser acknowledges that the Seller, as a commercial reseller, is regularly unaware of the specific application for which a customer is purchasing the ordered goods and, taking into account the organizational, financial and technical effort that can reasonably be expected of it, it can only carry out the simplest random incoming goods tests (ESD container, original packaging, legibility of the label, applicable type of goods, visual inspection of random samples). Unless otherwise agreed with regard to the type, value and risk potential of contractual goods, tests regarding the quality of goods infringing third party rights or rejects, the suitability of the contractual goods for certain purposes, email queries with label check and comparable quality tests shall not be part of the contractual obligations of the Seller.
7.9. Unless otherwise agreed for individual goods, the warranty period is 6 months and begins on the date of delivery. The above limitation period shall also apply to non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, injury to life, body and health, liability under the Product Liability Act, fraudulent intent and warranty, the statutory limitation periods shall always apply.
7.10. The Purchaser shall not be entitled to any rights of retention with respect to our claims not relating to the delivery item on account of its aforementioned rights. We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
7.11. The seller is not liable for damages caused by him or his vicarious agent due to slight negligence.
7.12. The seller is not liable for any consequential damages arising from the sale of his goods.
- Retention of title
8.1. Until full payment of the purchase price, the delivered goods remain the property of the seller. Dealer customers may resell the reserved goods in the ordinary course of business.
8.2. The buyer must already now pay the outstanding amount to the seller in full as security for the claims resulting from the resale or any other legal reason with regard to the goods subject to retention of title.
8.3. If the buyer is not a dealer himself, he is only entitled to sell the reserved goods with the written consent of the seller. Clause 10.2 (assignment of claims in advance) shall apply mutatis mutandis.
8.4. In the event of default in payment or other significant breaches of contract by the Buyer, the Seller shall be entitled to take back the reserved goods while upholding the contract and to return them only concurrently with payment of the purchase price. In this case, the Buyer hereby assigns to the Seller any claims for restitution against third parties. Also, the seller is entitled to withdraw from the contract in case of default of payment by the buyer. The Buyer irrevocably permits the Seller to enter the Buyer’s premises where the reserved goods are stored in order to enable the Seller to remove the goods or to inspect the goods.
8.5. If the value of the Seller’s security exceeds its claims by 20% on a sustained basis and including the advance assignments, the Seller shall be obliged, at the Buyer’s request, to release securities granted to it at its, the Seller’s, discretion until the value of the remaining securities exceeds the Seller’s claims by less than 20%. The reference value for calculating the value of the security shall be the respective sales price of the seller, less 10% if the goods are no longer as good as new.
8.6. The Buyer is not permitted to pledge or assign the reserved goods as security without the Seller’s written consent.
- Life support systems
Unless otherwise expressly agreed in writing, the Deliverables are not suitable for use in life support equipment or systems, human implants, nuclear facilities or systems, or other applications where product failure may threaten life or cause catastrophic consequential damage. The Buyer shall indemnify the Seller against any claims of third parties resulting from a breach of this notice.
Certain goods are subject to national and various international export controls and embargo provisions. Their export is allowed only with the permission of the competent authorities. The buyer shall pass on this notice to his customers and thus, as far as it is within his power, ensure compliance with the provisions up to the end user. The seller points out the punishability of a violation of the provisions.
- Applicable law
The law of the Republic of Austria with jurisdiction in Vienna shall apply exclusively, with the exception of UNCITRAL sales law. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with such Rules.