GENERAL TERMS AND CONDITIONS OF SALES AND DELIVERY
Application: We sell and act as intermediary only subject to the following conditions. We do not recognize conditions of the buyer that contradict or deviate from our business principles, unless we explicitly agreed to such conditions in writing. Upon (implied) acceptance of our offers, buyer shall be deemed to have accepted our terms and conditions of sale and delivery. Arrangements with the buyer which amend the provisions set forth in the following conditions require our written confirmation. Our offers are without engagement and not binding. Orders require our confirmation.
Quality indications, samples, weights: Unless certain qualities are required, we will deliver our goods in merchantable quality. Weight and volume of the goods we deliver are determined according to information provided by the forwarder. Samples we provide are only to mark the type of goods to be delivered by us. Accordingly, we do not guarantee delivery in strict compliance with the sample. Unless we guaranteed certain qualities of the goods we delivered, our quality and analysis indications are only approximate values.
Effectiveness of agreements: We are only bound by orders and arrangements we have confirmed in writing.
Deliveries are only confirmed by us subject to receipt (timely and in full) of the deliveries by us.
Delivery, period of delivery: We may perform and invoice part deliveries. Unless a firm deal has been agreed, stated periods of delivery are deemed only approximate estimates. If we exceed an agreed delivery date/delivery date confirmed by us for more than eight weeks, the buyer may rescind the contract by written declaration by setting an appropriate grace period, whereupon further claims of the buyer are excluded. In such a case, it must be assumed that the order could not be executed without our fault.
Transfer of risk: Unless the relevant Incoterms are agreed, risk will pass to the buyer upon delivery to the forwarder. If Incoterms are agreed, the version valid as of the date of conclusion of the contract and published by the International Chamber of Commerce (ICC) shall be applied. Our service obligations are satisfied upon delivery to the forwarder of the ordered goods and the related documents. We may cancel the contract concluded with the buyer on the grounds of force majeure, obstructions, such as strikes, production restrictions due to unforeseeable damage or lack of power.
Prices: Our deliveries are either based on agreed prices or on the prices stated in the most recently forwarded list. If the selling prices include public duties which are increased after conclusion of the contract but before they are paid, we may charge these additional ancillary costs to the buyer.
We may increase the agreed prices accordingly in the event of unexpected, incalculable or unforeseeable price increase in sea or land transport.
Payments, set-off, maturity, default: In case of non-compliance with the payment periods agreed with the buyer, we may charge, at our choice, default interest in the amount of 4% p.a. above the interest rate on a loan we have taken out or default interest at the statutory rate in accordance to paragraph 456 of the Austrian Company Code. In this case, we are further entitled to suspend or rescind contracts not yet or partly performed. This shall also apply in case of buyer’s default in acceptance or if he is in default in calling off agreed part deliveries. In the event of a marked deterioration of buyer’s financial situation or in case of default in performance of other agreements reached with us, we may request immediate payment of all debt claims, even if a respite was granted. In this case, we are further entitled to immediately draw bills of exchange delivered to us towards the issuer, acceptor and surety. In case of default of the buyer we may make performance subject to payment in advance of the purchase price. In case of default in payment, buyer is obliged to reimburse, aside from default interest and costs of proceedings, also all pre-procedural dunning and collection charges. Bills of exchange and checks are only accepted in lieu of payment; in such a case, delivery is deemed paid upon unconditional encashment. Any setoff with presumable counterclaims is not permitted, unless such counterclaims are established by court order or are recognized by us. Incoming payments are credited to the earliest outstanding claim.
Retention of title: We will retain title to the delivered goods pending payment in full of the purchase price and of related interest and costs. Such retention of title also extends to the new objects created by processing our goods. If our goods are mixed or mingled with equivalent goods which do not belong to the buyer, we acquire the right of co-ownership to this product. Should the buyer have sold to third parties the goods delivered by us before payment in full, the purchase price to be paid by such third parties will be deemed assigned to us. Upon our request, buyer is obliged to notify the third-party debtor of the assignment. If the product is attached by a third party, buyer is obliged to immediately notify us thereof. Buyer shall bear the costs for proper storage and maintenance.
Liability and warranty: Buyer is obliged to inspect the goods we have delivered as long as they are still in the containers used for delivery immediately after their arrival and to immediately give notice of defects in writing. If the notice of defects is justified, we may, at our election, replace the defective product by an new one, repair the defect or repay part of the purchase price as claim to price reduction. We are released from this warranty obligation if others or the buyer changed, processed or attempted to repair the defects of the goods delivered by us. To perform the services necessary for the repair of the defects, buyer shall, upon our request, return to us the defective products. If a notice of defects turns out to be unjustified, buyer will reimburse all expenses incurred by us. All deliveries are made on the basis of the specifications transmitted to the buyer, this assurance does not release the buyer from inspecting the deliveries himself.
Place of performance, governing law, jurisdiction: Place of performance and exclusive place of jurisdiction for all claims arising in connection with the business relation shall be the competent court with subject-matter jurisdiction of the first district in Vienna. The contract is governed by and construed in accordance with Austrian law. These general terms and conditions of sale and delivery will also apply to all future transactions with the buyer, even if such transactions were not newly agreed.