GTC

General Terms and Conditions

of the Fachverband der Maschinen- und Stahlbauindustrie Österreichs (Trade Association of the Machine Building and Steel Construction Industry in Austria) of 1 January 2002.

These General Terms and Conditions have been prepared, on principle, for legal transactions between enterprises. Should they, by way of exception, be used as the basis for legal transactions with consumers in the intentions of  § 1 para. 1 Cl. 2 of the consumer protection act, Federal gazette (BGBl.) 49th issue/1979, they apply only insofar as they do not contradict the provisions of the first principal item of this act.

The UN Convention on Contracts for the International Sale of Goods (CISG) of 11. 4. 1980, Federal gazette 1988/96, is expressly excluded.

1. Preamble

1.1 These General Terms and Conditions apply insofar as the contractual parties have not expressly agreed something deviating in writing.

1.2 The following provisions for the delivery of goods apply analogous for services.

1.3 The Assembly Provisions of the Fachverband der Maschinen- und Stahlbauindustrie Österreichs (Trade Association of the Machine Building and Steel Construction Industry in Austria) apply for assembly work.

2. Conclusion of Contract

2.1 The contract is deemed as concluded when the vendor, after receipt of the order, has sent out a written order confirmation and this is not verifiably objected to by the buyer within 10 days.

2.2 Changes and supplements to the contract require the written confirmation by the vendor to be valid. Purchase conditions of the buyer shall be binding for the vendor only when these are approved separately by the vendor.

2.3 Where import and/or export licences or foreign currency authorizations or similar authorizations are required for the execution of the contract, the party responsible for the procurement must undertake all reasonable efforts to obtain the required licences or authorizations in good time.

3. Plans and documents

3.1 The specifications concerning weight, measurements, capacities, prices, services and similar contained in catalogues, brochures, newsletters, advertisements, illustrations and price lists, etc. are applicable only when express reference is made to these in the quotation and/or the order confirmation.

3.2 Plans, sketches, cost estimates and other technical documentation, which may also be part of the quotation, shall always remain the intellectual property of the vendor, in the same manner as samples, catalogues, brochures, illustrations and similar documentation. Any utilisation, copying, reproduction, distribution and handing-over to third parties, publication and presentation has to be allowed by the owner.

4. Packaging

4.1 In the absence of any deviating agreement
a) the specified prices are to be understood without packaging;
b) packaging will be of a customary nature to avoid damage to the goods on the way to the determined destination under normal transport conditions, will be at the expense of the buyer and will be taken back only upon agreement.

5. Transfer of risk

5.1 Unless otherwise agreed, the goods shall be deemed sold “ex works” (EXW) (readiness to pick-up).

5.2 Apart from that the INCOTERMS shall apply in the version valid on the day of conclusion of contract.

6. Period of delivery

6.1 In the absence of any deviating agreement the period of delivery shall begin with the latest of the points of time as specified in the following:
a) Date of order confirmation;
b) Date of fulfilment of all technical, commercial and financial prerequisites which are, according to agreement, the responsibility of the buyer;
c) Date on which the vendor receives a downpayment to be made before delivery of the goods and/or a payment guarantee is set-up or otherwise established.

6.2 The vendor shall be entitled to execute partial and advance deliveries.

6.3 When the delivery is delayed as a result of circumstances occurring on the part of the vendor, which represent a reason of exoneration in the intentions of Clause 14, an appropriate extension of the period of delivery shall be granted.

6.4 If the vendor has caused a delivery delay, the buyer may demand fulfilment or, under setting of a final deadline, may declare termination of contract.

6.5 If the period of grace provided in Clause 6.4 was not utilised through a fault of the vendor, the buyer shall be entitled, through written notification, to withdraw from the contract with regard to all goods which have not been delivered. The same shall apply for already delivered goods, which however, cannot be utilised in appropriate manner without the goods still outstanding. In this case the buyer shall have the right to reimbursement of the payments made for the goods not delivered or the goods which cannot be utilised. In addition, if the delivery delay was caused by gross negligence of the vendor, the buyer shall also be entitled to compensation of the justified expenditures it had to make until dissolution of the contract and which cannot be used further. The buyer must return already delivered goods, which cannot be used, to the vendor.

6.6 If the buyer does not accept the contractually provided goods at the contractually agreed location or at the contractually agreed point of time, and if the delay is not due to an act or omittance on the part of the vendor, the vendor may demand fulfilment or, with setting of an appropriate period of grace, withdraw from the contract. 

If the goods have been singled out, the vendor may store the goods at the expense and risk of the buyer. The vendor is also entitled to reimbursement of all justifiable expenditures, which it had to conduct in fulfilment of the contract and which are not included in the received payments.

6.7 Any claims of the buyer against the vendor, due to its default, other than those stated in Clause 6 are excluded.

7. Acceptance test

7.1 In as far as the buyer desires an acceptance test, this must be agreed with the vendor expressly in written form at the time of concluding the contract. Insofar as no deviating regulations are agreed, the acceptance test shall be carried out at the place of manufacture, resp. at  a location to be determined by the vendor and during normal working hours of the vendor.  The general practice of the respective branch of industry shall be decisive for the acceptance test.

The vendor must inform the buyer on time about the acceptance test, so that it may be present during the test, resp. may be represented by an authorised representative.
In the event that the item of delivery proves to be contrary to contractual agreements during the acceptance test, the vendor must rectify any and all faults immediately and produce the contractual state of the item of delivery. The buyer may demand a repeat of the acceptance test only in the case of major faults.

An acceptance record must be drawn up after the conclusion of the acceptance test. If the acceptance test has shown the design according to contract and the functional efficiency of the item of delivery, this fact shall be confirmed by both contractual parties. If the buyer or its authorised representative is not in attendance during the acceptance test despite on-time notification by the vendor, the acceptance record shall be signed by the vendor alone. The vendor shall provide the buyer in any case with a copy of the acceptance record. The buyer may not dispute the accuracy of the acceptance record even if it or its authorized representative were unable to sign this as a result of their non-attendance.

If nothing other has been agreed, the vendor shall bear the costs of the conducted acceptance test. However, the buyer shall bear any costs it or its authorised representative incurs in connection with the acceptance test, such as e.g. travel and living costs and expense allowances.

8. Price

8.1 The prices are deemed ex vendor’s works without shipping if not agreed otherwise.

8.2 The prices are based on the costs at the time of the quotation of the price, insofar as nothing else has been agreed. Should the costs change up to the time of delivery, these changes will be in favour of, or at the expense of the buyer.

9. Payment

9.1 Payments must be made in accordance with the agreed payment terms. Insofar as payment terms have not been agreed, one third of the price shall be due upon receipt of the order confirmation, one third at half the delivery time and the remainder upon delivery. Independent of this, the VAT contained in the invoice shall be paid at the latest 30 days after billing.

9.2 The buyer shall not be entitled to withhold payments due to warranty claims or other counterclaims not acknowledged by the vendor.

9.3 If the buyer is in default of an agreed payment or other service, the vendor may either insist on fulfilment of contract and
a) postpone the fulfilment of its own obligations until settlement of the payments or other services in arrears,
b) make use of an appropriate extension of the delivery time,
c) make the full outstanding purchase price due for payment,
d) insofar as there is no reason for exoneration in the intention of Clause 14, account default interest in the amount of 7.5 % above the respective basic interest rate of the European Central Bank (see EU Directive concerning countering of payment delay in business transactions of 29 June 2000),

or, after setting an appropriate period of grace, declare its withdrawal from the contract.
 
9.4 As further delay damages, the buyer must reimburse the vendor for the incurred dunning and operating costs.

9.5 In the event that the buyer has not rendered the owed payment or other service upon expiry of the period of grace in accordance with Clause 9.3, the vendor may withdraw from the contract by way of written notification. Upon demand by the vendor, the buyer must return any already delivered goods to the vendor and pay it compensation for the incurred depreciation of the goods, as well as re-imburse all justified expenditures which the vendor had to make for the execution of the contract. With regard to goods not delivered, the vendor shall be entitled to provide the buyer with the finished, resp. the started-on parts and to demand the corresponding share of the sales price.
 
9.6 The contractual parties are in agreement that the rights and obligation regulated in the contract shall not be influenced by the introduction of the Euro. Payment obligations, in particular the determined money values, shall be deemed as agreed in Euro as soon as the Euro is the only permissible currency. The conversion will be conducted in all cases on the basis of the officially determined conversion rate.  
 
There is agreement that the conversion to Euro shall not substantiate a right of cancellation or appeal nor a claim for compensation or change of contract.

10. Retention of title

10.1 The vendor shall retain title in the item of purchase until the full fulfilment of all financial obligations of the buyer. The vendor shall be entitled to display its ownership on the outside of the item of purchase. The buyer must fulfil the necessary formality to safeguard the retention of title. In the event of garnishment or other recourse, the buyer shall be bound to claim the vendor’s ownership and inform it immediately.

11. Warranty

11.1 The vendor shall be obliged, in accordance with the following provisions, to rectify any defect which impairs the serviceability and which is due to a fault of design, material or execution. The vendor shall also be responsible for defects of expressly stipulated properties.

11.2 This obligation shall apply only for such defects which have occurred during a period of one year with one-shift operation from the time of passing of risk, resp. in the case of delivery with erection from the completion of the assembly.

11.3 The buyer may make recourse to this Clause only when he notifies the vendor of the occurred defects immediately in writing. The assumption rule of § 924 ABGB (Austrian General Civil Code) shall be excluded. In the event that the defects are to be rectified by the vendor in accordance with the provisions of this Article, the vendor informed in such a manner must, according to its choice:
a) repair the faulty goods in situ;
b) have the defective goods or the defective parts returned to it for the purpose of rectification;
c) replace the defective parts;
d) replace the defective goods.

11.4 In the event the vendor has the defective goods or parts returned to it for the purpose of rectification or replacement, the buyer shall, if not agreed otherwise, accept the costs and risk of the transport. The return of the rectified or replaced goods or parts to the buyer shall, if not agreed otherwise, be at the costs and risk of the vendor.

11.5 The defective goods or parts replaced in accordance with this Clause shall be available to the vendor.

11.6 The vendor shall be liable to pay the costs for any fault rectification conducted by the buyer itself, only if it has provided its written approval. 

11.7 The warranty obligations of the vendor apply only to defects which occur under compliance with the intended operating conditions and during normal use. It does not apply, in particular, for defects which are due to the following: poor erection by the buyer or its authorised representative, poor maintenance, poorly conducted repairs or repairs conducted without the written approval of the vendor, or changes conducted by a person other than the vendor or its authorised representative, normal wear and tear.

11.8 For those parts of the goods which the vendor has purchased from the sub-contractor prescribed by the buyer, the vendor shall be liable only within the scope of the warranty claims it has vis-à-vis the sub-contractor.

 If goods are manufactured on the basis of design specifications, drawings or models of the buyer, the vendor’s liability shall not cover the accuracy of the design, instead that the execution was conducted in accordance with the specifications of buyer. In these cases the buyer shall indemnify the vendor against any possible infringement of protective rights.

The vendor will not provide warranty when taking over repair orders or in the case of alterations or conversions of old as well as third party goods, nor in the case of delivery of used goods.

11.9 From the start of the warranty period, the vendor will not provide any warranty which goes beyond that determined in this Clause.

12. Liability

12.1 It is deemed as expressly agreed that the vendor shall not indemnify the buyer against injury to persons, damage to goods which are not subject matter of the contract, for other damages and for loss of profit, provided that the circumstances of the individual case do not show that the vendor is guilty of gross negligence. The reversal of the onus of proof in accordance with § 1298 ABGB (Austrian General Civil Code) is excluded.

12.2 The item of purchase offers only such safety as can be expected on the basis of approval regulations, operating instructions, vendor’s regulations concerning treatment of the item of purchase – in particular with regard to any prescribed inspections – and other provided advice and references.

12.3 In the case of slight negligence on the part of the vendor, and provided that Clause 12.1 does not apply, the compensation will be limited to 5 % of the order amount, at maximum however 727,000 Euros.

12.4 All damage claims from defects to deliveries and/or services  - if the defect is not expressly acknowledged by the vendor – must be filed in court within one year after expiry of the contractually determined warranty period, otherwise the claims will lapse.

13. Consequential damages

13.1 Subject to provisions to the contrary in these provisions, the liability of the vendor vis-à-vis the buyer for production standstill, loss of profit, downtime, contractual losses or any other economic or indirect consequential damage is excluded.

14. Exoneration reasons

14.1 The parties shall be released in total or in part from the on-schedule fulfilment of contract if they are hindered by events of force majeur. Events of force majeur are exclusively events which are unforeseeable and unavoidable for the parties and which do not come from their sphere of influence. Strikes and industrial disputes are, however, deemed acts of force majeur.

The buyer hindered by an event of force majeur may, however, call upon the event of force majeur only when it hands over to the vendor immediately, at the latest however within 5 calendar days and by registered mail, a written statement  confirmed by the respective government department, resp. Chamber of Commerce of the supplier country about the cause, the effects to be expected and the duration of the delay.

In the event of force majeur the parties must undertake everything possible to remove, resp. reduce the difficulties and foreseeable damages and to inform the other party about this continuously. Otherwise they will become liable for damages vis-à-vis the other party. 

Dates or deadlines which cannot be met due to the effects of force majeur, will be extended at maximum by the duration of the effects of force majeur or, where necessary, by a period to be determined by mutual agreement.

If an event of force majeur lasts for more than four weeks the  buyer and vendor will seek a regulation for the processing effects by way of negotiation. If an amicable solution cannot be achieved, the vendor may rescind from the contract as a whole or in part.

15. Data protection

15.1 The vendor shall be entitled to store, transmit, revise and delete personal data of the buyer within the scope of the business transactions.

15.2 The parties agree to absolute secrecy concerning the knowledge they have gained from the business relations vis-à-vis third parties.

16. Place of jurisdiction, applicable law, place of fulfilment

16.1 The place of jurisdiction for disputes arising indirectly or directly from this agreement is the local Austrian court responsible for the vendor’s headquarters.  

The vendor may, however, also call upon the court responsible for the buyer.

16.2 The parties may also agree the responsibility of a court of arbitration.

16.3 The agreement is subject to Austrian law with exclusion of the Convention on Contracts for the International Sale of Goods (CISG) of 11. 4. 1980, Federal gazette 1988/96.

16.4 The place of fulfilment for delivery and payment is the registered office of the vendor, even if handover has been contractually agreed at another location.