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(1) The following General Terms and Conditions, in the version valid at the time the contract is concluded, apply exclusively to the business relationship between us and the customer. Deviating or supplementary terms and conditions of the customer shall not be recognized unless we expressly agree to their validity in writing. Our terms and conditions shall also apply exclusively where we carry out delivery to the customer without reservation while being aware of the customer's deviating terms and conditions.
(2) Our General Terms and Conditions apply only to entrepreneurs within the meaning of Sections 310(1) and 14 of the German Civil Code (BGB).
(3) Our General Terms and Conditions shall also apply to all future transactions with the customer.
(1) Our offers are always subject to change without notice unless otherwise agreed in writing. Cost estimates are non-binding. If the order constitutes an offer within the meaning of Section 145 BGB, we may accept it within two weeks. Orders placed by the customer become binding upon our confirmation in written or text form (including an invoice or delivery note).
(2) The scope of our delivery obligation is determined primarily by the corresponding declarations and by our order confirmation. Should the latter be missing, our offer shall be authoritative. Guarantees must be expressly agreed and designated as such in our order confirmation.
(3) Any technical application advice provided by us (in whatever form) does not release the customer from independently verifying whether the relevant products are suitable for the intended processes and purposes. The customer alone is responsible for the further use of the products supplied by us.
(1) The agreed delivery time begins only after full clarification of all technical questions, but not before our order confirmation has been sent. If the customer is contractually obliged to render advance performance (e.g., providing required information and/or goods, or supplying goods to be processed), the delivery time agreed with us shall not begin until the customer has fulfilled that advance performance. In the case of subsequent change requests by the customer, we reserve the right to amend the delivery date or delivery period.
(2) The delivery period is deemed to have been met if the shipment has left our plant within the agreed period or readiness for dispatch has been notified. The date of delivery shall be, at the latest, the day on which the delivery is made available to the customer.
(3) We are entitled to make partial deliveries to a reasonable extent.
(4) We shall not be liable for impossibility of delivery or for delivery delays caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. unforeseeable operational, traffic or shipping disruptions of any kind, fire damage, flooding, machine breakdowns, official measures, difficulties in procuring materials or energy, labor shortages, transport delays, lawful strikes and lockouts, or the absent, incorrect or untimely supply by our own suppliers) and for which we are not responsible. If, as a result of such events, delivery or performance is materially impeded or rendered impossible, and the disruption to delivery/acceptance lasts longer than 8 weeks, both parties are entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or performance periods shall be extended or postponed by the period of the obstruction plus a reasonable start-up period appropriate to the individual case. The assertion of further claims by the customer is excluded.
(5) If the customer falls into default of acceptance or culpably breaches any duties to cooperate incumbent on it, it shall be obliged to compensate us for any resulting damage, including any additional expenses. Furthermore, in this case the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer falls into default of acceptance or culpably breaches its duty to cooperate. After the fruitless expiry of a reasonable period set by us for acceptance of the goods, we are entitled to withdraw from the contract and to claim damages in lieu of performance.
(6) The customer must accept delivered items even if they have immaterial defects.
(1) Delivery is made ex works of the manufacturer. The customer bears the freight and shipping costs for inbound and outbound deliveries. On request, we will arrange a freight forwarder free of charge, whose engagement to carry out or organize the transport shall, by agreement, be made in the name and on the authority of the customer. We assume no liability in this connection.
(2) If the customer so wishes, the shipment will be insured at the customer's expense against theft, breakage, transport, fire and water damage.
(3) If dispatch is carried out by our own staff, any liability shall be governed by the provision under Section VI(9). In any event, the customer bears the risk of accidental loss or accidental deterioration during transport.
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) The risk of loss, accidental destruction and accidental deterioration of the goods passes to the customer at the latest upon handover of the goods to the freight forwarder, carrier or other third party designated to carry out the shipment (the commencement of loading being decisive).
(3) If dispatch is delayed for reasons for which we are not responsible, the risk passes to the customer from the time our notification that the goods are ready for dispatch is received by the customer. The same applies where the goods are to be collected by the customer itself. Upon notification of readiness for dispatch, the goods are deemed segregated.
(1) If the customer is a merchant (Kaufmann), Sections 377 et seq. of the German Commercial Code (HGB) apply to its duty to inspect and give notice of defects and to the consequences of late inspection and notice.
(2) We provide warranty, at our discretion, by remedy of the defect or free replacement delivery. The customer retains the right, in the event that remedy or replacement delivery fails, to reduce the purchase price or, at its option, to withdraw from the contract.
(3) Claims for defects require, among other things, that the customer has handled the delivery item with care in accordance with customary industry practice and, where applicable, in accordance with our specific instructions.
(4) The specifications agreed on the basis of the DIN tolerance and quality standards for dimensions, surface structure and surface finish apply to the externally recognizable properties of our products. The relevant DIN tolerance and quality standards form the basis for assessing the condition of the roller body.
(5) In the case of coating rollers for machines for which no dimensions are specified in the order, the original dimensions of the respective machine manufacturer are binding.
(6) Note on the storage of rollers: Roller coverings are storable without their structure changing materially. The following rules must be observed: – Storage should take place in crates, racks or shelving, on the journals or special fixtures and not on the elastomer covering, in order to avoid pressure marks on the roller surface. Storage should ideally take place in a cool, dry room, optimally at approx. 65% relative humidity and temperatures between +20°C and +30°C. – The surface of the roller coverings must be protected from direct sunlight or heat radiation, since sunlight causes the formation of ozone, which destroys the roller covering (surface). – Our special packaging paper ensures the necessary protection from light and should be left on the roller covering until shortly before use.
(7) The customer is responsible for ensuring that the roller bodies it provides are free of defects. In cases of doubt, a separate core inspection must be commissioned together with the order. As a general rule, we do not carry out balance testing or balance correction in connection with recoating orders, unless this has been expressly agreed separately. We assume no liability for defects attributable to faults in the roller supplied by the customer (e.g. imbalance or run-out errors). Manufacturing defects attributable to a roller supplied by the customer will be invoiced to the customer.
(8) In the course of the coating process, discoloration may occur on finished metal surfaces, such as roller journals, without impairing their function. Any liability for the discoloration described is excluded.
(9) Unless otherwise provided in these General Terms and Conditions, including the provisions below, we are liable for breaches of pre-contractual, contractual and non-contractual duties in accordance with the applicable statutory provisions. Liability for damages – on whatever legal grounds – applies in the case of intent and gross negligence. In the case of simple negligence, we are liable only: – for damages resulting from injury to life, body or health; – for damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract in the first place, and on whose observance the customer regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable damage typical for this type of contract.
To the extent that we are liable for damages in principle under the foregoing provisions, that liability is limited to damage that we foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or that we should have foreseen had we exercised reasonable care. Indirect damage and consequential damage resulting from defects in the delivered item are furthermore only recoverable insofar as such damage is typically to be expected when the delivered item is used as intended. The foregoing exclusions and limitations of liability apply to the same extent for the benefit of our officers, legal representatives, salaried staff, employees and other vicarious agents. The aforementioned limitations of liability do not apply where we have fraudulently concealed a defect or have assumed a guarantee for the quality of the delivered item. The same applies to claims under the Product Liability Act.
(10) Insofar as there is a defect in the purchased item for which we are responsible, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or delivering a replacement. The customer must give us the necessary time and opportunity to carry out any remedial work or replacement deliveries.
(11) We are liable for a material defect only if its cause already existed at the time risk passed. We are not liable for defects arising at the customer through operational wear and tear, nor for damage caused by excessive stress, unsuitable operating resources and/or improper handling at the customer's premises, or damage caused after delivery to the customer through mechanical, chemical or thermal influence on materials supplied by us. Furthermore, no claims for defects exist in the case of only immaterial deviation from the agreed quality or only immaterial impairment of usability.
(12) Further claims by the customer – on whatever legal grounds – are excluded. We are therefore not liable for damage not occurring to the delivered item itself; in particular, we are not liable for lost profits or other financial losses of the customer.
(13) In the event of a complaint recognized by us regarding a roller that had already been put into use and had provided a benefit, or that could have provided a benefit had it been used, a reasonable proportion of the sale price will be invoiced.
(14) The customer may assert warranty rights within a period of 12 months calculated from the statutory commencement of the limitation period; this does not apply to claims and rights for which the law mandatorily prescribes longer periods (e.g. Section 438(1) No. 2 BGB; Section 479(1) BGB; Section 634a(1) No. 2 BGB). Our liability for injury to life, body or health where we are responsible for the breach of duty remains unaffected, as does liability for other damage based on an intentional or grossly negligent breach of duty by us or our legal representatives or vicarious agents.
(15) Any further liability for damages beyond that provided for above is excluded, irrespective of the legal nature of the claim asserted.
(1) Unless the limitation of liability under Section VI(9) applies to claims arising from producer liability under Section 823 BGB for property damage, our liability is limited to the indemnification provided by our insurance. We are willing, upon request, to grant the customer access to our policy, and we undertake to keep the insurance in force until the expiry of the warranty obligation.
(2) Insofar as our liability is excluded or limited, this applies to the same extent for the benefit of our officers, legal representatives, salaried staff, employees and other vicarious agents.
(1) All deliveries are invoiced according to the price list valid at the time, plus statutory value-added tax. Our prices are “ex works” and do not include packaging costs. These are invoiced separately.
(2) Invoices are payable net within 14 days of the invoice date. Deduction of a cash discount requires a special written agreement. Payments are deemed made only once the amount is finally available in our account.
(3) If the customer does not settle an invoice issued to it by payment within 14 days of the due date, we are entitled to withhold outstanding deliveries. After expiry of the 14-day period, we may set the customer a grace period for payment, within which the customer must settle the outstanding amounts within 7 days of receipt of the notice of the grace period. If this grace period expires without result, in particular without the customer fully settling the amount owed, we are entitled to withdraw from the contract and/or to claim damages for non-performance.
(4) Set-off by the customer against counterclaims, or withholding of payments on account of such claims, is permitted only insofar as the counterclaims are undisputed or have been finally and bindingly established.
(5) The customer falls into default towards us upon exceeding the fixed due date without the need for a separate reminder, and owes default interest from that point on. We are entitled to withdraw from the contract if – the customer is in default of payment of the purchase price and the default continues for more than two weeks after receipt of a warning notice in which we have threatened or reserved the right to terminate the contract, or – for another reason relating to the customer's person, adherence to this contract cannot reasonably be expected of us, taking into account the circumstances of the individual case and the interests of both parties.
Furthermore, where one of the aforementioned grounds exists, we are entitled to demand immediate payment of all outstanding invoice amounts arising from the respective contractual relationship, including amounts not yet due. Our right to claim damages remains unaffected.
(6) If there are justified doubts as to the customer's solvency or creditworthiness, and the customer, despite a corresponding request, is not willing to pay in advance or to provide adequate security for the performance owed by it, we are entitled to withdraw from the contract, provided we have not yet rendered performance ourselves.
(7) Payment by bill of exchange or cheque requires our consent.
(8) We reserve the right to apply payments to settle outstanding and due invoice items, plus the respective default interest and costs. Settlement occurs in the following order: costs, interest, principal claim.
(9) Intra-Community supplies pursuant to Section 4 of the German VAT Act (UStG) may be carried out exempt from tax if the customer provides us with a VAT identification number in good time. If notification is not made in good time, the agreed prices are deemed net prices, and the customer is obliged to pay the applicable value-added tax in addition to the net price.
(1) The goods delivered by us (goods subject to retention of title) remain our property until full payment has been made, in particular until any bill of exchange or cheque has been honoured. The customer is entitled to process and resell the goods subject to retention of title in the ordinary course of business; this does not apply, however, if and to the extent that a prohibition on assignment concerning the claim for the delivery price has been agreed between the customer and any further purchaser. Pledging, transfer by way of security, or any other transfer to third parties is not permitted to the customer. The customer must notify us immediately of any seizures or other interventions by third parties concerning the goods subject to retention of title, so that we may bring an action under Section 771 of the German Code of Civil Procedure (ZPO). The customer is liable for all costs and damages incurred by us as a result of a breach of this duty. Insofar as the third party is not able to reimburse us for the judicial and extrajudicial costs of an action under Section 771 ZPO, the customer is liable for the resulting shortfall to us.
(2) The customer is obliged to handle the goods subject to retention of title with care; in particular, it is obliged to insure them adequately, at its own expense, against fire, water and theft damage. Insofar as maintenance and/or inspection work is required, the customer is obliged to carry this out in good time at its own expense.
(3) In the event of resale of the goods subject to retention of title, the customer hereby assigns to us in advance all claims in the amount of the final total of our invoice, including value-added tax, against its purchasers or against third parties – in the case of co-ownership, proportionate to our share of co-ownership – irrespective of whether the goods subject to retention of title were resold without or after processing. The same applies to other claims that replace the goods subject to retention of title or otherwise arise in connection with them, in particular claims under insurance contracts and claims arising from tort. We revocably authorize the customer to collect the claims assigned to us in its own name. Our right to collect the claim ourselves remains unaffected; however, we undertake not to collect the claim as long as the customer duly meets its payment obligations and does not fall into default of payment. In that case, we may require the customer to disclose to us the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.
(4) If the goods subject to retention of title are processed by the customer, such processing is carried out in our name and on our account as manufacturer, and we acquire direct ownership or – if the processing is carried out using materials from several owners, or if the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership occurs on our part, the customer hereby transfers to us, by way of security, its future ownership or – in the ratio mentioned above – its co-ownership of the newly created item. In all other respects, the item arising from the processing is subject to the same provisions as the goods delivered subject to retention of title.
(5) Insofar as we carry out work on items owned by the customer, and the customer thereby becomes the owner of the newly manufactured item pursuant to Sections 946 et seq. BGB, the customer undertakes to transfer to us a share of co-ownership in the item corresponding to the proportionate value of the work performed by us. Insofar as the item is in our possession, safekeeping is provided for the customer free of charge, without giving rise to additional obligations on our part.
(6) If the goods subject to retention of title are combined with other items to form a single item, or inseparably mixed, we acquire co-ownership of the new item in accordance with the ratio referred to in paragraph 4, sentence 1, at the time of mixing or combination. If the mixing or combination takes place in such a way that the customer's item is to be regarded as the principal item, it is deemed agreed that the customer transfers to us proportionate co-ownership of the combined item in the ratio referred to in paragraph 4, sentence 1. The customer holds sole ownership or co-ownership in safekeeping for us free of charge. We undertake to release the goods subject to retention of title, as well as any items or claims taking their place, insofar as their value exceeds the amount of the secured claims by more than 10%, or the nominal amount by more than 50%.
(1) The place of performance and, to the extent legally permissible, the exclusive place of jurisdiction for both parties is the registered seat of our respective supplying plant, unless another place of performance is expressly stated in our order confirmation. We are furthermore entitled, at our discretion, to bring legal action against the customer at the seat of its business or at the customer's principal place of business.
(2) These terms and conditions and all legal relationships arising from them are governed exclusively by the law of the Federal Republic of Germany, to the exclusion of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) Trade clauses are to be interpreted in accordance with the Incoterms in force at the relevant time.
(4) All customs and import duties of the country of destination, as well as all other fees, taxes and costs connected with the purchase contract, are borne by the customer.
(5) Should individual provisions of these General Terms and Conditions be or become invalid, this does not affect the validity of the remaining provisions. In the event that a provision of these General Terms and Conditions is invalid, the parties shall negotiate a replacement provision that comes as close as possible to the economic purpose pursued by the parties with the invalid provision and that has legally permissible content. The same applies to any gaps in these General Terms and Conditions.
(6) The customer acknowledges that the seller stores data from the contractual relationship pursuant to Section 28 of the Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing, and reserves the right to transmit the data to third parties (e.g. insurers), insofar as necessary for performance of the contract.
As at: October 2014
(1) The following General Terms and Conditions, in the version valid at the time the contract is concluded, apply exclusively to the business relationship between us (Sauer-Austria GmbH, Richard-Strauss-Straße 25, A-1230 Vienna, company register no. FN 125662 y, Vienna Commercial Court) and the customer. Deviating or supplementary terms and conditions of the customer shall not be recognized unless we expressly agree to their validity in writing. Our terms and conditions shall also apply exclusively where we carry out delivery to the customer without reservation while being aware of the customer's deviating terms and conditions.
(2) Our General Terms and Conditions apply only to entrepreneurs within the meaning of Section 1(2) of the Austrian Consumer Protection Act (KSchG).
(3) Our General Terms and Conditions shall also apply to all future transactions with the customer.
(1) Our offers are always subject to change without notice unless otherwise agreed in writing. Cost estimates are non-binding. If the order constitutes an offer within the meaning of Section 861 of the Austrian General Civil Code (ABGB), we may accept it within two weeks. Orders placed by the customer become binding upon our confirmation in written or text form (including an invoice or delivery note).
(2) The scope of our delivery obligation is determined primarily by the corresponding declarations and by our order confirmation. Should the latter be missing, our offer shall be authoritative. Guarantees must be expressly agreed and designated as such in our order confirmation.
(3) Any technical application advice provided by us (in whatever form) does not release the customer from independently verifying whether the relevant products are suitable for the intended processes and purposes. The customer alone is responsible for the further use of the products supplied by us.
(1) The agreed delivery time begins only after full clarification of all technical questions, but not before our order confirmation has been sent. If the customer is contractually obliged to render advance performance (e.g., providing required information and/or goods, or supplying goods to be processed), the delivery time agreed with us shall not begin until the customer has fulfilled that advance performance. In the case of subsequent change requests by the customer, we reserve the right to amend the delivery date or delivery period.
(2) The delivery period is deemed to have been met if the shipment has left our plant within the agreed period or readiness for dispatch has been notified. The date of delivery shall be, at the latest, the day on which the delivery is made available to the customer.
(3) We are entitled to make partial deliveries to a reasonable extent.
(4) We shall not be liable for impossibility of delivery or for delivery delays caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. unforeseeable operational, traffic or shipping disruptions of any kind, fire damage, flooding, machine breakdowns, official measures, difficulties in procuring materials or energy, labor shortages, transport delays, lawful strikes and lockouts, or the absent, incorrect or untimely supply by our own suppliers) and for which we are not responsible. If, as a result of such events, delivery or performance is materially impeded or rendered impossible, and the disruption to delivery/acceptance lasts longer than 8 weeks, both parties are entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or performance periods shall be extended or postponed by the period of the obstruction plus a reasonable start-up period appropriate to the individual case. The assertion of further claims by the customer is excluded.
(5) If the customer falls into default of acceptance or culpably breaches any duties to cooperate incumbent on it, it shall be obliged to compensate us for any resulting damage, including any additional expenses. Furthermore, in this case the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer falls into default of acceptance or culpably breaches its duty to cooperate. After the fruitless expiry of a reasonable period set by us for acceptance of the goods, we are entitled to withdraw from the contract and to claim damages in lieu of performance.
(6) The customer must accept delivered items even if they have immaterial defects.
(1) Delivery is made ex works of the manufacturer. The customer bears the freight and shipping costs for inbound and outbound deliveries. On request, we will arrange a freight forwarder free of charge, whose engagement to carry out or organize the transport shall, by agreement, be made in the name and on the authority of the customer. We assume no liability in this connection.
(2) If the customer so wishes, the shipment will be insured at the customer's expense against theft, breakage, transport, fire and water damage.
(3) If dispatch is carried out by our own staff, any liability shall be governed by the provision under Section VI(9). In any event, the customer bears the risk of accidental loss or accidental deterioration during transport.
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) The risk of loss, accidental destruction and accidental deterioration of the goods passes to the customer at the latest upon handover of the goods to the freight forwarder, carrier or other third party designated to carry out the shipment (the commencement of loading being decisive).
(3) If dispatch is delayed for reasons for which we are not responsible, the risk passes to the customer from the time our notification that the goods are ready for dispatch is received by the customer. The same applies where the goods are to be collected by the customer itself.
(1) If the customer is an entrepreneur (Unternehmer), Sections 377 et seq. of the Austrian Commercial Code (UGB) apply to its duty to inspect and give notice of defects and to the consequences of late inspection and notice.
(2) We provide warranty, at our discretion, by remedy of the defect or free replacement delivery. The customer retains the right, in the event that remedy or replacement delivery fails, to reduce the purchase price or, at its option, to withdraw from the contract.
(3) Claims for defects require, among other things, that the customer has handled the delivery item with care in accordance with customary industry practice and, where applicable, in accordance with our specific instructions.
(4) The specifications agreed on the basis of the ÖNORM tolerance and quality standards for dimensions, surface structure and surface finish apply to the externally recognizable properties of our products. The relevant ÖNORM tolerance and quality standards form the basis for assessing the condition of the roller body.
(5) In the case of coating rollers for machines for which no dimensions are specified in the order, the original dimensions of the respective machine manufacturer are binding.
(6) Note on the storage of rollers: Roller coverings are storable without their structure changing materially. The following rules must be observed: – Storage should take place in crates, racks or shelving, on the journals or special fixtures and not on the elastomer covering, in order to avoid pressure marks on the roller surface. Storage should ideally take place in a cool, dry room, optimally at approx. 65% relative humidity and temperatures between +20°C and +30°C. – The surface of the roller coverings must be protected from direct sunlight or heat radiation, since sunlight causes the formation of ozone, which destroys the roller covering (surface). – Our special packaging paper ensures the necessary protection from light and should be left on the roller covering until shortly before use.
(7) The customer is responsible for ensuring that the roller bodies it provides are free of defects. In cases of doubt, a separate core inspection must be commissioned together with the order. As a general rule, we do not carry out balance testing or balance correction in connection with recoating orders, unless this has been expressly agreed separately. We assume no liability for defects attributable to faults in the roller supplied by the customer (e.g. imbalance or run-out errors). Manufacturing defects attributable to a roller supplied by the customer will be invoiced to the customer.
(8) In the course of the coating process, discoloration may occur on finished metal surfaces, such as roller journals, without impairing their function. Any liability for the discoloration described is excluded.
(9) Unless otherwise provided in these General Terms and Conditions, including the provisions below, we are liable for breaches of pre-contractual, contractual and non-contractual duties in accordance with the applicable statutory provisions. Liability for damages – on whatever legal grounds – applies in the case of intent and gross negligence of a flagrant degree (“krasse grobe Fahrlässigkeit”). In the case of simple negligence, we are liable only: – for damages resulting from injury to life, body or health; – for damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract in the first place, and on whose observance the customer regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable damage typical for this type of contract.
To the extent that we are liable for damages in principle under the foregoing provisions, that liability is limited to damage that we foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or that we should have foreseen had we exercised reasonable care. Indirect damage and consequential damage resulting from defects in the delivered item are furthermore only recoverable insofar as such damage is typically to be expected when the delivered item is used as intended. The foregoing exclusions and limitations of liability apply to the same extent for the benefit of our officers, legal representatives, salaried staff, employees and other vicarious agents. The aforementioned limitations of liability do not apply where we have fraudulently concealed a defect or have expressly and in writing assumed a guarantee for the quality of the delivered item. The same applies to claims under the Product Liability Act.
(10) Insofar as there is a defect in the purchased item for which we are responsible, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or delivering a replacement. The customer must give us the necessary time and opportunity to carry out any remedial work or replacement deliveries.
(11) We are liable for a material defect only if the defect already existed at the time risk passed. We are not liable for defects arising at the customer through operational wear and tear, nor for damage caused by excessive stress, unsuitable operating resources and/or improper handling at the customer's premises, or damage caused after delivery to the customer through mechanical, chemical or thermal influence on materials supplied by us. Furthermore, no claims for defects exist in the case of only immaterial deviation from the agreed quality or only immaterial impairment of usability.
(12) Further claims by the customer – on whatever legal grounds – are excluded. We are therefore not liable for damage not occurring to the delivered item itself; in particular, we are not liable for lost profits or other financial losses of the customer.
(13) In the event of a complaint recognized by us regarding a roller that had already been put into use and had provided a benefit, or that could have provided a benefit had it been used, a reasonable proportion of the sale price will be invoiced.
(14) The customer may assert warranty rights within a period of 12 months calculated from the statutory commencement of the limitation period. Our liability for injury to life, body or health where we are responsible for the breach of duty remains unaffected, as does liability for other damage based on an intentional or flagrantly grossly negligent breach of duty by us or our legal representatives or vicarious agents.
(15) Any further liability for damages or under warranty beyond that provided for above – irrespective of the legal nature of the claim asserted – as well as any avoidance or adjustment of the contract on grounds of mistake or laesio enormis (“Verkürzung über die Hälfte”) are excluded. Furthermore, recourse claims within the meaning of Section 12 of the Austrian Product Liability Act (PHG) are excluded, unless the party entitled to recourse proves that the defect was demonstrably caused within our sphere and was culpably caused at least through gross negligence. The applicability of Section 933b ABGB is excluded.
(1) Unless the limitation of liability under Section VI(9) applies in respect of property damage, our liability is limited to the indemnification provided by our insurance. We are willing, upon request, to grant the customer access to our policy, and we undertake to keep the insurance in force until the expiry of the warranty obligation.
(2) Insofar as our liability is excluded or limited, this applies to the same extent for the benefit of our officers, legal representatives, salaried staff, employees and other vicarious agents.
(1) All deliveries are invoiced according to the price list valid at the time, plus statutory value-added tax. Our prices are “ex works” and do not include packaging costs. These are invoiced separately.
(2) Invoices are payable net within 14 days of the invoice date. Deduction of a cash discount requires a special written agreement. Payments are deemed made only once the amount is finally available in our account.
(3) If the customer does not settle an invoice issued to it by payment within 14 days of the due date, we are entitled to withhold outstanding deliveries. After expiry of the 14-day period, we may set the customer a grace period for payment, within which the customer must settle the outstanding amounts within 7 days of receipt of the notice of the grace period. If this grace period expires without result, in particular without the customer fully settling the amount owed, we are entitled to withdraw from the contract and/or to claim damages for non-performance.
(4) Set-off by the customer against counterclaims, or withholding of payments on account of such claims, is permitted only insofar as the counterclaims are undisputed or have been finally and bindingly established.
(5) The customer falls into default towards us upon exceeding the fixed due date without the need for a separate reminder, and owes default interest from that point on. We are entitled to withdraw from the contract if – the customer is in default of payment of the purchase price and the default continues for more than two weeks after receipt of a warning notice in which we have threatened or reserved the right to terminate the contract, or – for another reason relating to the customer's person, adherence to this contract cannot reasonably be expected of us, taking into account the circumstances of the individual case and the interests of both parties.
Furthermore, where one of the aforementioned grounds exists, we are entitled to demand immediate payment of all outstanding invoice amounts arising from the respective contractual relationship, including amounts not yet due. Our right to claim damages remains unaffected.
(6) If there are justified doubts as to the customer's solvency or creditworthiness, and the customer, despite a corresponding request, is not willing to pay in advance or to provide adequate security for the performance owed by it, we are entitled to withdraw from the contract, provided we have not yet rendered performance ourselves.
(7) Payment by bill of exchange or cheque requires our consent.
(8) We reserve the right to apply payments to settle outstanding and due invoice items, plus the respective default interest and costs. Settlement occurs in the following order: costs, interest, principal claim.
(9) Intra-Community supplies pursuant to Section 7 of the Austrian VAT Act 1994 (UStG 1994) may be carried out exempt from tax if the customer provides us with a VAT identification number in good time. If notification is not made in good time, the agreed prices are deemed net prices, and the customer is obliged to pay the applicable value-added tax in addition to the net price.
(1) The goods delivered by us (goods subject to retention of title) remain our property until full payment has been made, in particular until any bill of exchange or cheque has been honoured. The customer is not entitled to process or resell the goods subject to retention of title without our express written approval. Pledging, transfer by way of security, or any other transfer to third parties is not permitted to the customer. The customer must notify us immediately of any seizures or other interventions by third parties concerning the goods subject to retention of title, so that we may assert our ownership rights in the goods subject to retention of title, in particular by way of an action for release of attached property under Section 37 of the Austrian Enforcement Act (EO). The customer is liable for all costs and damages incurred by us as a result of a breach of this duty. Insofar as the third party is not able to reimburse us for the judicial and extrajudicial costs, in particular any costs of an action under Section 37 EO, the customer is liable for the resulting shortfall to us. The assertion of the retention of title constitutes a withdrawal from the contract only if we expressly declare such withdrawal.
(2) The customer is obliged to handle the goods subject to retention of title with care; in particular, it is obliged to insure them adequately, at its own expense, against fire, water and theft damage. Insofar as maintenance and/or inspection work is required, the customer is obliged to carry this out in good time at its own expense.
(3) In the event of resale of the goods subject to retention of title, the customer hereby assigns to us in advance all claims in the amount of the final total of our invoice, including value-added tax, against its purchasers or against third parties – in the case of co-ownership, proportionate to our share of co-ownership – irrespective of whether the goods subject to retention of title were resold without or after processing (paragraph 9.1 remains unaffected). The same applies to other claims that replace the goods subject to retention of title or otherwise arise in connection with them, in particular claims under insurance contracts and claims arising from tort. We revocably authorize the customer to collect the claims assigned to us in its own name. Our right to collect the claim ourselves remains unaffected; however, we undertake not to collect the claim as long as the customer duly meets its payment obligations and does not fall into default of payment. In that case, we may require the customer to disclose to us the assigned claims and their debtors, provide all information required for collection and for notifying the third-party debtor, hand over the relevant documents, and notify the debtors (third parties) of the assignment. The customer undertakes to make a corresponding bookkeeping note in its books, such that the note is visible on the relevant debtor account and on the open-items list, and such that an effective assignment of the claims arising from the resale of the goods subject to retention of title is achieved.
(4) If the goods subject to retention of title are processed by the customer, such processing is carried out in our name and on our account as manufacturer, and we acquire direct ownership or – if the processing is carried out using materials from several owners, or if the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership occurs on our part, the customer hereby transfers to us, by way of security, its future ownership or – in the ratio mentioned above – its co-ownership of the newly created item. In all other respects, the item arising from the processing is subject to the same provisions as the goods delivered subject to retention of title.
(5) Insofar as we carry out work on items owned by the customer, and the customer thereby becomes the owner of the newly manufactured item pursuant to Sections 415 et seq. ABGB, the customer undertakes to transfer to us a share of co-ownership in the item corresponding to the proportionate value of the work performed by us. Insofar as the item is in our possession, safekeeping is provided for the customer free of charge, without giving rise to additional obligations on our part.
(6) If the goods subject to retention of title are combined with other items to form a single item, or inseparably mixed, we acquire co-ownership of the new item in accordance with the ratio referred to in paragraph 4, sentence 1, at the time of mixing or combination. If the mixing or combination takes place in such a way that the customer's item is to be regarded as the principal item, it is deemed agreed that the customer transfers to us proportionate co-ownership of the combined item in the ratio referred to in paragraph 4, sentence 1. The customer holds sole ownership or co-ownership in safekeeping for us free of charge. We undertake to release the goods subject to retention of title, as well as any items or claims taking their place, insofar as their value exceeds the amount of the secured claims by more than 10%, or the nominal amount by more than 50%.
(1) The place of performance and, to the extent legally permissible, the exclusive place of jurisdiction for both parties is the registered seat of our respective supplying plant, unless another place of performance is expressly stated in our order confirmation. We are furthermore entitled, at our discretion, to bring legal action against the customer at the seat of its business or at the customer's principal place of business.
(2) These terms and conditions and all legal relationships arising from them are governed exclusively by the law of the Republic of Austria, to the exclusion of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) Trade clauses are to be interpreted in accordance with the Incoterms in force at the relevant time.
(4) All customs and import duties of the country of destination, as well as all other fees, taxes and costs connected with the purchase contract, are borne by the customer.
(5) Should individual provisions of these General Terms and Conditions be or become invalid, this does not affect the validity of the remaining provisions. In the event that a provision of these General Terms and Conditions is invalid, the parties shall negotiate a replacement provision that comes as close as possible to the economic purpose pursued by the parties with the invalid provision and that has legally permissible content. The same applies to any gaps in these General Terms and Conditions.
(6) The customer acknowledges that the seller stores data from the contractual relationship pursuant to Section 8(1)(2) of the Austrian Data Protection Act (Datenschutzgesetz, DSG) for the purpose of data processing, and reserves the right to transmit the data to third parties (e.g. insurers), insofar as necessary for performance of the contract.
As at: October 2016
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