General terms and conditions

GENERAL TERMS AND CONDITIONS OF DELIVERY
Friedrich Deutsch Metallwerk Gesellschaft m.b.H.

  1. Scope of contract and applicability
    1. Any and all orders and contract conclusions shall be exclusively subject to these general terms and conditions of delivery.
    2. Terms and conditions of the Purchaser are expressly excluded for the entire business relationship. Terms and conditions of the Purchaser that contradict our general terms and conditions of delivery shall also not apply if we have not expressly objected to them on a case-by-case basis; they shall also not apply if the terms and conditions of the Purchaser state their applicability as an express condition for contract conclusion.
    3. Any trade practices/customs deviating from these general terms and conditions of delivery shall have no legal validity.
    4. These general terms and conditions of delivery shall apply to the entire business relationship, i.e. any and all of our present and future deliveries and services, even if they have not been explicitly agreed again. We only conclude contracts subject to these general terms and conditions of delivery.
    5. Ancillary agreements, provisos, amendments or supplements to the order and mutually agreed deviations from these general terms and conditions of delivery must be agreed in writing; the same applies to any agreement to deviate from the written form requirement.
    6. If individual provisions of these general terms and conditions of delivery or other effective covenants are or become void, this shall not affect the validity of the remaining provisions and of the legal transaction that was concluded. The void provision shall be replaced by a valid provision or shall be interpreted in the manner that comes closest to the purpose and intent of the void provision.
    7. In regard to the business transactions and contracts to be concluded between us, the Purchaser declares that they are not a consumer, especially not within the meaning of the KSchG (Konsumentenschutzgesetz [Austrian Consumer Protection Act]). Should this not be correct in regard to a particular business case, the Purchaser shall be obliged to inform us thereof at the earliest opportunity and in all cases before conclusion of the contract; should he fail to do so, no legally binding contract is concluded.
    8. The Purchaser shall not have the right to legally assign or pledge any contractual rights, irrespective of their nature, to third parties or to dispose of them in any other way without our prior written approval.
    9. Installation of the delivered items shall be subject to the installation standards of the Professional Association for the Machine Engineering, Steel Construction, and Iron Construction Industries in Austria.
    10. If application of Austrian standards was agreed, these shall only apply if they do not deviate from these general terms and conditions of delivery.
    11. Our offers are non-binding.
  2. Placing and accepting orders (contract conclusion)
    1. Orders must be placed in writing to be legally valid and can also be placed by fax or email with secured electronic signature. Our order confirmation shall also be sent to the Purchaser in compliance with the formal requirements set out above. If these formal requirements are not complied with in individual cases, this shall have no effect on previous or future orders.
  3. Changes to an order and subcontracting
    1. After conclusion of a contract, the Purchaser shall require our written approval to make changes to his order – including limitations of the delivery item or scope of delivery. If changes are made without our consent to any order we accepted, we shall have the right to insist on compliance with the contract as concluded or to assert full interest in fulfilment including loss of profit.
    2. We shall have the right to subcontract professionally authorised third parties, either persons or companies, for any orders placed with us. We shall assume the same liability towards the Purchaser for any and all mistakes of any subcontractors as we would for our own services.
  4. Secrecy
    1. The contractual partners agree to treat conclusion of this agreement and its execution as confidential and to not feature the mutual business relationship in advertising materials before the other contractual partner has granted consent in writing.
    2. All documents such as models, templates, drawings, particulars of the product descriptions, the procedure, etc. that the contractual partners make available to each other must not be disclosed to third parties and must be stored in a manner that prevents third-party access wherever possible.
    3. The contractual partners mutually agree to treat any non-public commercial and technical matters they become aware of as a result of the business relationship as company secrets. This obligation must be extended to subcontractors and sub-suppliers accordingly.
    4. The contractual partners mutually agree to treat the personal information of the other contractual partner as confidential and to treat that information in accordance with the provisions of Austrian data protection law.
  5. Dimensions, weights, and quantities
    1. Images, drafts, blueprints, dimensions and weights specified in catalogues, offers, advertisements, brochures, etc. shall be approximations only and are subject to changes and deviations. Plans, drafts, and other technical documentation as well as templates, catalogues, brochures, images and similar shall always remain the intellectual property of the party supplying them, subject to full protection under pertinent legal provisions concerning duplication and competition.
  6. Fulfilment
    1. Unless otherwise agreed in writing, delivery shall always take place ex works.
    2. An accepted order shall be deemed completed by the Supplier:
      a) regarding delivery ex works: upon notification of the item being ready for shipping b) regarding delivery with agreed delivery: ba) if on the account of the Purchaser: upon completed loading at the delivery facility bb) if on the account of the Supplier: upon arrival of the goods at the agreed destination
    3. If shipping from the delivery facility is delayed due to no fault of the Supplier, the time of fulfilment shall be determined by the sending of the notification that the goods are ready for shipping.
  7. Transfer of risk
    1. The Supplier shall bear the risks associated with the goods that are to be delivered only within the delivery facility. As soon as the goods leave the delivery facility, all risks shall be transferred to the Purchaser, irrespective of the time of fulfilment (section 6.); the Purchaser must ensure due care and is, in the absence of other provisions, responsible for the necessary insurance cover at his own expense. The Supplier shall only arrange insurance cover if and insofar as this was agreed in writing.
    2. Any transport insurance requested by the Purchaser shall be invoiced separately. We do not guarantee a certain transport time.
    3. In case of unforeseen events, e.g. threat of war, start of armed conflicts, closure of waterways and other transport routes, strikes, and similar events, we reserve the right to invoice freight and insurance costs that are higher than agreed.
  8. Lieferzeit
    1. Die Lieferzeit beginnt erst nach endgültiger Klärung aller technischen und kaufmännischen, rechtlichen und finanziellen Lieferbelange zu laufen.
    2. Die Einhaltung der Lieferzeit ist von der Erfüllung jener Leistungen des Bestellers abhängig, die von ihm vereinbarungsgemäß vor Lieferung zu erbringen waren.
    3. Höhere Gewalt oder Umstände, die außerhalb der Einflussmöglichkeiten des Lieferanten oder seiner Unterlieferanten gelegen sind und die Erzeugung oder Ablieferung behindern, verlängern die Lieferfrist, ohne dass der Besteller hieraus irgendeinen Anspruch ableiten kann.
    4. Im Falle eines vom Lieferanten zu vertretenden Lieferverzuges kann der Besteller nur Erfüllung verlangen oder bei marktgängigen Waren unter Festsetzung einer angemessenen Frist zur Nachholung vom Vertrag zurücktreten. Der Rücktritt wird nur wirksam, falls der Lieferant die Nachfrist schuldhaft versäumt. Anderweitige unter welchem Titel auch immer erhobene Ansprüche sind ebenso wie ein Rücktritt des Bestellers bei Sonderanfertigungen ausgeschlossen.
  9. Delivery period
    1. Our prices are based on the costs at the time prices are quoted. If they change by the time of delivery, the difference shall be borne by or credited to the Purchaser.
    2. As regards contracts that were concluded without prices being specified, the prices shall be calculated based on the sales prices applicable on the day of delivery.
    3. All prices quoted by us – unless expressly stated otherwise – are gquoted excluding value added tax. Unless agreed otherwise, all prices apply ex works or ex warehouse of the supplier company, excluding packaging. Packaging shall, as is customary in trade, be paid for by the Purchaser and will only be taken back subject to a corresponding agreement.
    4. If no deviating payment dates and methods were agreed in the written order confirmation of the Supplier, 50% of the purchase price must be paid in cash upon acceptance of the order, the remainder when the goods are declared ready for shipping.
    5. It shall not be allowed to withhold payments due to warranty claims or other counterclaims of the Purchaser that are not recognised by the Supplier.
    6. If laws, regulations, or collective wage agreements cause labour costs to rise between conclusion of the contract and provision of the service or if material costs increase due to recommendations of the Joint Committee or as a result of changes in the world market price for raw materials, payable prices shall rise accordingly.
    7. Any and all bank charges are payable by the Purchaser.
    8. Offset rights of the Purchaser shall only apply in regard to recognised or legally determined counterclaims.
    9. Our sales prices do not include costs for delivery, assembly or installation. At the request of the Purchaser, we will, however, provide or organise these services or will commission subcontractors for them in return for separate payment. In this respect, costs actually incurred for transport or delivery, including an appropriate surcharge for organisation, will be invoiced, but at least the freight and carriage costs applicable or customary for the selected mode of transport on the day of delivery and the costs of any subcontractor we use. Installation work will be invoiced by time; deemed agreed in this regard is a customary man-hour rate plus travel costs and per diems.
  10. Retention of title
    1. We supply all goods subject to a retention of title; the goods shall remain our property until payment of all our claims under the business relationship with the Purchaser. The Purchaser agrees to arrange for registration of this retention of title with the land register before delivery on request of the Supplier.
    2. Asserting a retention of title shall only then constitute a withdrawal from the contract if we expressly declare withdrawal.
    3. When taking back goods, we shall have the right to invoice any transport and handling costs to the Purchaser.
    4. In the event of access to the goods that are subject to retention of title – especially distraint – the Purchaser agrees to notify the third party of our title of ownership and to immediately inform us of such access.
    5. The Purchaser shall bear the full risk for the goods that are subject to retention of title, especially the risk of destruction, loss or deterioration. He shall store all goods that are subject to retention of title on our behalf and on his own responsibility as well as any products or aggregates of things manufactured using the goods that are subject to retention of title.
    6. The Purchaser agrees to store the goods separately. The retention of title includes acknowledged balances insofar as we recognise claims against the Purchaser under current account (current account retention).
    7. The Purchaser shall only modify or process the goods that are subject to retention of title subject to the condition of us not incurring any obligations as a result.
    8. Irrespective of the share in value of our goods, we shall have the right to decide, in cases subject to clause 10.7., to hand over the product so produced to the Purchaser in return for payment of the entire outstanding balance or to take possession of the product so produced without compensation for its value.
    9. Any co-ownership that the Purchaser obtains from mixing or combining the goods that are subject to retention of title with other items, especially those of third parties, is transferred to us in advance by the Purchaser accepting the goods that are subject to retention of title.
    10. The Purchaser may only sell the goods that are subject to retention of title and any products resulting from modification or processing thereof subject to a retention of title and he must not limit our rights under such reservations through any dispositions regarding the goods (e.g. assignment as security or pledging).
    11. Actual or legal third-party access to the goods that are subject to retention of title as well as damage to them or loss thereof must be reported to us in writing immediately.
    12. The assignment must be entered into the business accounts of the Purchaser, especially into the list of outstanding items, and must be indicated for the buyer on delivery notes, invoices, etc.
    13. Claims against us must not be assigned without our express permission.
  11. Warranty
    1. The Supplier shall be liable for defects of his delivery, insofar as these do not have to be reported immediately by the recipient of the goods according to the law, in the form of having to either rework those parts ex works free of charge or, at his discretion, in the form of having to provide a new delivery thereof should the original delivery become unusable within six months – in the event of use during day shifts and night shifts within three months – of fulfilment (section 6) due to defective design or poor workmanship. In regard to serial items, the Supplier shall only assume liability in the case of complaints filed immediately after receipt of the goods, but within no more than eight days after shipping of the goods within the national territory and three weeks after shipping of the goods abroad.
    2. Such defects must be reported to the Supplier in writing immediately and the items in question must be sent to the Supplier free of freight costs and ancillary costs.
    3. The Supplier shall only assume liability for material defects if he should have been able to detect the damage using due diligence, but only to the extent of the warranty of his sub-supplier. Additionally, the Supplier shall only assume liability for any third-party items that are included in the delivery to the extent that he is covered by warranty.
    4. In the event of a delivery based on sample or template, warranty claims are excluded, including for hidden defects, if the delivered goods correspond to the sample or template. If a defect has its cause in the material provided by the Purchaser himself, no warranty applies.
    5. No liability is assumed for damage resulting from wear and tear caused by use as intended, poor maintenance, incorrect use or circumstances outside of normal operating conditions.
    6. If the Purchaser removes a defect within the warranty period, the Supplier shall only pay any costs incurred as a result thereof if he granted written permission for such removal of defects in advance.
    7. For as long as the Purchaser does not meet the agreed payment obligations, the Supplier shall not be obliged to remove defects. Nor shall the Supplier be obliged to remove defects if reworking or a replacement delivery by him has been made difficult by reworking undertaken at the unauthorised request of the Purchaser.
    8. In case of delivery and installation, the Supplier shall only assume liability if also operation in neutral and putting into operation are also executed by his own personnel immediately after installation is complete. In the event of delayed installation that the Supplier is not responsible for, his liability for defects shall commence in accordance with section 6.3.
    9. Liability as set out in the above provisions shall only apply towards the Purchaser. If a delivery is based on specifications, drawings or models of the Purchaser, he shall assume full liability towards the Supplier for any and all damage and legal consequences in regard to patent law. In case of such productions, the Supplier shall not be liable for the accuracy of the design, but only for execution in accordance with the specifications of the Purchaser.
    10. In all cases, the liability for defects of the Supplier shall always only include the removal of the defect he is responsible for and shall exclude any claims of the Purchaser beyond that, especially claims in regard to consequential damage. The original warranty period is not extended as a result of removal of defect.
    11. When accepting orders for repair or in the event of modifications or alterations to old or third-party facilities, the Supplier does not assume any warranty.
    12. Warranty claims shall expire if the defective parts were modified or repaired by third parties or by the principal himself.
    13. Transport damage must be noted on the consignment note and the delivery note and must be confirmed by the signature of the forwarder or the driver delivering the goods. If such confirmation is refused, the Purchaser has to prepare a detailed report on the damage that was determined, including information regarding time, name of the driver, etc. the Purchaser shall submit photocopies of these documents to us.
    14. If the review of the notification of defects shows that the case does not fall under the warranty provisions, we shall have the right to demand compensation for all costs we incurred, irrespective of their nature.
    15. The Purchaser shall provide proof of any defect that is present upon handover. Any legal assumption in this respect, especially the assumption set out in section 924 ABGB [Allgemeines bürgerliches Gesetzbuch, Austrian Civil Code], is excluded.
    16. Any recourse of the Purchaser in accordance with section 933 b ABGB based on warranty obligations he met himself shall only be possible within the agreed warranty period and subject to the scope of this contract.
    17. If the Purchaser continues to use or resells the defective product despite awareness of or despite having to be aware of the defect, he thereby waives his claims against us in respect of this defect. Insofar as we have to pay damages to the Purchaser subject to mandatory legal provisions or a contractual provision, the Purchaser shall provide proof of any and all legal requirements for the damage claim, especially our culpability. Damage claims of the Purchaser aimed at removal of defects by reworking or replacement can only be asserted after we are in default with fulfilment of the warranty obligations.
    18. The warranty period shall be neither extended nor suspended by a removal of defects or an attempted removal of defects; this shall require assertion of a warranty claim before a court or our written acknowledgement. An attempted removal of defects shall not constitute acknowledgement and shall therefore not result in an extension of the time limit. The same shall apply to any removal of defects undertaken as a token of goodwill, i.e. ex gratia.
  12. Damages
    1. Any damage claims against us are excluded in the event of minor negligence and also in the event of gross negligence, especially if these are located in the grey area between minor and gross negligence.
    2. Unless mandatory legal provisions specify otherwise, damage claims of any type shall become time-barred within 12 months of delivery, irrespective of the time at which the Purchaser became aware of them.
    3. Our liability for consequential damage, financial losses, loss of profit as well as damage of any other kind is excluded on principle, unless this liability applies as a result of mandatory legal provisions. In the event of any such alleged situations, we shall not be obliged to produce exculpatory evidence, but the Purchaser shall be; the same applies to any culpability on our part that gives rise to mandatory liability.
  13. Product liability
    1. The obligation to pay compensation for material damage under product liability law is excluded, unless the business transaction was concluded with a consumer in accordance with consumer protection legislation.
  14. Default of Purchaser
    1. If the Purchaser is in default on an agreed payment or any other service, he shall pay the Supplier interest on arrears corresponding to the interest and costs charged for open credit by major Austrian banks.
    2. Instead, if the goods have already been delivered and subject to granting of an appropriate grace period for the entire outstanding purchase price, the Supplier shall have the right to declare default and to demand payment of the residual debt or to demand return of the goods and to demand an optional payment consisting of reimbursement for any proportional loss of value of the goods in per cent and an option fee of 10% of their sales price; this amount shall be offset against any considerations that have already been received and that have to be returned to the Purchaser.
    3. If the goods have not yet been delivered, the Supplier shall have the right to declare withdrawal from the contract instead of collecting interest on arrears. In case of merchantable goods, he shall be paid an optional fee of 10% of the sales prices, subject to offsetting of any consideration already received; in case of non-merchantable goods, he shall also be reimbursed for the production costs he incurred in addition to the aforementioned amount, with the processed parts being available to the Purchaser.
    4. If we become aware of circumstances after conclusion of the contract that justify doubts regarding the creditworthiness of Purchaser, we shall have the right to withdraw from the contract, to demand advance payments or to make our delivery dependent on the provision of securities; clauses 14.1. to 14.3. shall apply mutatis mutandis.
  15. Privacy and copyright
    1. The customer agrees to us storing and processing the personal information that is included in the agreement as well as using automated means when executing this contract.
    2. Plans, drafts or other technical documents shall, under all circumstances, remain our intellectual property, as shall samples, catalogues, brochures, images and similar. The Purchaser shall not be granted any rights of use or exploitation rights thereto.
    3. The property right agreed in section 14.2. above shall not only apply to us but mutatis mutandis also in favour of the Purchaser.
    4. If a delivery based on templates, drafts or other specifications of the Purchaser violates third-party property rights, the Purchaser shall indemnify and hold us harmless against any and all claims.
  16. Place of performance and place of jurisdiction
    1. The place of performance for all obligations is the place of business of our company.
    2. The agreed place of jurisdiction for any and all disputes arising directly or indirectly from the contractual relationship is the place of business of our company. However, our company shall also have the right to bring action at the place of business of the contractual partner.
  17. Applicable law
    1. Unless regulated otherwise by the above general terms and conditions or any written agreements deviating from these, any and all contracts and legal relationships between us and the Purchaser shall be exclusively subject to Austrian law. Applicability of international conventions, such as the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG or UNCITRAL) as amended, or any similar conventions replacing it, is expressly excluded.
    2. The contractual language and negotiating language is German. Insofar as the contractual partners also use languages other than German in talks, correspondence or on other occasions, the German version shall take precedence and German shall be the sole negotiating language in any proceedings, especially in any arbitration proceedings.
    3. Insofar as we are willing to correspond or negotiate in the language of the Purchaser in individual cases, this shall not constitute a waiver of the covenants set out in the preceding clauses.