GENERAL TERMS AND CONDITIONS

 


§ 1 Scope of the agreement

  1. All our deliveries and services are subject to the following conditions. Purchase Conditions provided by the purchaser shall not be accepted. They will not be accepted if we do not contradict them further after we are notified of them. At the latest, these terms and conditions are accepted upon receipt of our goods and/or services by the buyer.
  2. These terms and conditions also apply to any and all future business with the buyer.
  3. These terms and conditions apply equally to an individual, a government-owned corporation, or any company, either publicly traded or privately held.



§ 2 Contract conclusion 
  1. Our offers are subject to change. Conclusions and other agreements including guarantees are binding only after our written confirmation.
  2. Mistakes in offers, catalogues, order confirmations, invoices and calculations (including spelling errors) are not binding, nor do they commit us to pay compensation. Information published by us in catalogues, brochures, drawings and promotional materials shall only be legally binding if explicitly referred to as such.
  3. We reserve the exclusive right of ownership, copyright and usage for offer- and order-related working drawings. The same applies to all other documents, plans or sketches made by us, in particular to static documents. It is not permitted to pass on such drawings to third parties. Rights violations entitle us to compensation claims.
  4. If we deliver forms and objects according to drawings, models or patterns that have been generated by the buyer, the buyer takes full responsibility that no industrial property rights will be infringed by the manufacture and supply of aforementioned forms and objects. If the rights of third parties are infringed, the buyer will exempt us from claims of third parties without delay.
  5. Should a third party enjoin us under reference to its associated property rights from manufacturing and supplying goods which were made according to drawings, models or samples furnished by the buyer, we are entitled to cease the production and delivery of such goods, and to demand compensation for any incurred costs, without being subject to the legal outcome. The buyer agrees to exempt us immediately from damage claims by third parties.
  6. Quotations and cost estimates are calculated without explicit agreement if associated with design or development work.
  7. Samples, drawings and other material related to your order may be destroyed six months after contract execution, unless otherwise agreed in writing with us.


§ 3 Prices and payment  
  1. Our prices are ex works, plus any eligible minimum order charges and/or applicable VAT on the delivery date. Prices are only valid for the offered and duly confirmed item quantities and the stated material and construction options. Additional services are to be paid for separately by the buyer.
  2. Payment of our invoices (net cash) is due within 30 days of invoice date, unless otherwise agreed in writing. Discount will only be granted on condition that all payment obligations have been met in previous deliveries. Any agreed cheque payment is subject to receipt, minus costs and expenses, with validity the day we can dispose of the proceeds.  In case of customer's delay in acceptance of delivery, full payment is due within 15 days following notification of readiness for shipment.
  3. We are entitled, contrary to any provisions of the buyer, to offset payments on previous debts of the buyer. Should any costs and interests have already incurred, we are entitled to offset payments on the costs first, then on the interests and finally on the principal claim.
  4. Depending on its nature and extent we are entitled to common securities for our claims, even if they are conditional or permanent.
  5. If date of payment is exceeded, 8% interest is payable, starting with the date of payment as per the default rate of the Austrian Civil Code (ABGB) § 1333 paragraph 2.
  6. The buyer has the right of retention and is entitled to set-off only if his claim is legally established or accepted by us without dispute.
  7. All our claims are due immediately if payment terms are not adhered to, or we become aware of circumstances which are likely to reduce the creditworthiness of the buyer. We also reserve the right to withhold outstanding deliveries against advance payment. If the buyer is in default on her/his payments, we are furthermore entitled to rescind the contract and claim damages. We may also prohibit the sale and processing of the delivered goods and demand the return or transfer of indirect ownership of said delivered goods at the expense of the buyer, revoking the collection authority in accordance with § 6 paragraph 7.  In the event of the aforementioned cases, the buyer henceforth authorises us to enter the buyer's premises and seize any delivered goods. Such seizure constitutes a withdrawal from the contract; however we reserve the right to further claims against the buyer, especially claims for damages.
  8. Concerning sales in foreign currency, the exchange rate risk is borne by the buyer, beginning with the contract conclusion. 


§ 4 Delivery deadlines, delivery dates 
  1. Delivery times and dates are only approximate. Our compliance with delivery times require the resolution of all commercial and technical issues between us and the buyer; and that the buyer has fulfilled all of her/his obligations such as the provision of necessary official certificates or permits, the transfer of necessary execution documents or any advance payments. Even the explicit agreement of a specific delivery date is subject to the right and timely delivery of our own supplies.
  2. Subject to any other agreement and provided consensus regarding delivery conditions is reached, delivery times begin on the day following the date of confirmation. Delivery times and dates refer to the time of dispatch from the factory.  If it is evident even before the time specified for the delivery date that the buyer has committed a fundamental breach of contract (or that she/he will commit it) then we are entitled, after fruitless expiry of a possible period of grace, to cancel the contract fully or in part, and if the buyer is responsible for the breach to demand compensation.
  3. Delivery times and dates will be extended (without prejudice to our rights under default) by the time by which any buyer is in default to us or does not fulfil participation obligations.
  4. We are entitled to make partial deliveries. The price is not affected.  Each partial delivery is regarded as an independent transaction.  If requested by the buyer, individual partial deliveries must be demanded and divided in such a manner that a contractual production and delivery is possible for us.  If the buyer does not demand or divide in such a manner, we are entitled, after an unsuccessful deadline, to withdraw from the contract and/or to claim damages.
  5. The delivery period will be extended accordingly in case of labour disputes, especially strikes and lockouts and the occurrence of unforeseen obstacles (in particular force majeure) that are beyond our control. This also applies if the circumstances occur with sub-contractors. If force majeure causes a final, permanent and irreparable impediment to performance, we are entitled to cancel the contract. Even if delivery deadlines are agreed, we are not liable for delays that occur due to unforeseen events in manufacture, during transport and/or due to failure or delay by a sub-contractor. If the buyer wants to accelerate the delivery and attempts a pick-up during the transport service, this happens on her/his account.
  6. If we are in default the buyer may withdraw from the contract if the goods are not ready for shipment after expiry of an appropriate period of grace (to be determined by the buyer).





§ 5 Shipment and transfer of risk 

  1. Goods which are reported ready for shipment must be retrieved immediately.
  2. Shipment is carriage forward ex works unless otherwise agreed. Packaging costs are charged.
  3. With the transfer to the shipper or carrier, but at the latest when leaving the factory or stock, the risk passes on to the buyer, even in case of delivery free domicile.

 




§ 6 Retention of title 

  1. All delivered goods remain our property (conditional goods) until all claims are settled especially claims on outstanding account balances which we are entitled to on whatever legal grounds.  This also applies if payments are made on especially designated deliveries. For bills of exchange or cheques payment is not valid before redemption without protest.
  2. Loading and processing of conditional goods are made for us as a manufacturer within the meaning of § 414, 415 and 371 of the Austrian Civil Code (ABGB), without committing ourselves. The processed goods are regarded as conditional goods within the meaning of paragraph 1. Concerning processing, combination and mixing of conditional goods with other goods by the buyer; we are entitled to joint ownership of the new goods, proportionate to the invoice value of the conditional goods against the value of the other goods. If our ownership is dissolved by combination or mixing, the customer thereby transfers to us the ownership which she/he is entitled to in the new goods, to the extent of the invoice value of the conditional goods and stores such goods free of charge.  Thus the resulting rights to joint ownership are considered as conditional goods within the meaning of paragraph 1.
  3. The buyer may sell the conditional goods only in the ordinary course of business to its common commercial terms, and as long as she/he is not in default (provided that she/he agreed with her/his customers a retention of title and the claims from the resale, pursuant to paragraphs 4 to 6, pass on to us). She/he is not entitled to pledge the conditional goods, nor use them as chattel mortgage, nor to any other disposals of the conditional goods.
  4. The claims of the buyer from the resale of the conditional goods are hereby assigned to us. They serve as a security in the same extent as the conditional goods.
  5. If the conditional goods are resold by the buyer together with goods not originally sold by us, the assignment of the claim from resale will be limited to our invoice value of the relevant constituent conditional goods.  If goods are sold in which we have joint ownership pursuant to paragraph 2, the claim is assigned in the amount of the joint ownership share.
  6. In the event the conditional goods are used by the buyer to fulfil an agreement for services, or an agreement for work and materials, the outstanding claims arising from this contract will apply to paragraph 4 and 5.
  7. The buyer is entitled to collect accounts receivable from sales according to paragraph 3 and 6 until we exercise our rights of revocation at any time. We will exercise the right of withdrawal only in the cases referred to in § 3 paragraph 7. The buyer is not entitled to assign the claims under any circumstances. At our request, she/he is obliged to inform his customers immediately of the assignment to us (if we do not do so ourselves) and to provide us with the information and documents necessary for collection of claims. The buyer is obliged to notify us immediately of any levy of execution of third parties against the conditional goods or the claims assigned in advance, and hand over all documents necessary for an intervention.  Any intervention costs will be borne by the buyer.
  8.  If the value of existing securities exceeds the secured claims by more than 10% we are obliged, at the request of the buyer, to release securities of our goods to this extent.
  9. In the event the reservation of title or the assignment (according to applicable law in the area where the goods are to be found) is not effective, the security that corresponds to the reservation of the respective title, or the respective assignment, will apply. If the involvement of the buyer is necessary, the buyer will take all measures required to establish and maintain such rights.  





§ 7 Liability for defects

  1. The buyer must examine all goods immediately upon delivery (to the extent possible in the ordinary course of business) and in the event a defect is discovered, must notify us in writing without delay.
  2. If the buyer fails to notify us of any defect, the delivered goods will be regarded as accepted, unless the defect was not recognizable upon inspection.
  3.  If such a defect is discovered later, we must be notified in writing immediately after the detection, otherwise the goods will also be regarded as accepted in consideration of this defect.
  4. The buyer must accept excess quantities to the extent of 10% of the individual items at contract price.
  5. Decisive for the contractual condition of the goods is the point in time at which the goods leave the factory.
  6. In case of defects the treatment and processing must be stopped immediately.
  7. As far as we are responsible for the defect of delivered goods, or the failure of our services, we are entitled to choose between the elimination of the defect and the supply of new goods, or to provide new services respectively  If the elimination of the defect (or the delivery of new goods/provision of new services) fails, or we are otherwise entitled to refuse further action, the buyer is entitled to statutory rights. Regularly, the buyer can be expected to accept at least two attempts to eliminate the defect. In case of an insignificant breach of duty, the withdrawal is excluded.
  8. If the buyer fails to grant us the opportunity to ascertain any defect, especially if she/he does not immediately make available the rejected goods or samples of it, all claims according to the defect are void.
  9.  If we are liable under § 8 of these conditions the warranty claims of the buyer will become time-barred in accordance with legal regulations. Furthermore, warranty claims will become time-barred in accordance with legal regulations if the defect of title consists of a material right of a third party entitling such third party to claim the surrendering of the goods, or any other right that is registered in the land register or a building or an object, which has been used, corresponding to its normal use for a building and has caused the defect of such building. Furthermore, warranty claims will become time-barred in accordance with legal regulations if we provide design services for a building. All other warranty claims will become time-barred after one year.





§ 8 Liability 

  1. We are liable for damages only in the event of intent and/or our own gross negligence, or the intent and/or gross negligence of our executives. Furthermore, we are liable for non-compliance of guarantees, in case of assumption of a procurement risk, in the event of culpable injury or death, and within the liability according to the Austrian Product Liability Act.
  2. We are liable to the merits for any culpable violation of essential contractual obligations, and for the gross negligence of auxiliary persons. According to this § 8 paragraph 2, the amount of our liability is limited to the compensation for actual damages.
  3. If our liability is excluded or limited this also applies to the personal liability of our employees, staff members, co-workers, representatives and agents.  





§ 9 Place of performance, jurisdiction and applicable law and 

  1. Place of performance and jurisdiction for both contractual parties is Vienna, Austria.
  2. For all legal relations between us and the buyer, the appropriate regulations governing legal relationships of domestic parties at our domicile apply, excluding the UN Sales Convention.



§ 10 Other 

  1. The building supervisory board responsible for the implementation of external quality control for building authority approved goods (and/or an agency which is designated by former supervisory board) is entitled to enter at any time during the hours of operation the service rooms, warehouses and construction sites of the buyer, without prior notice, and to take any action necessary following the area’s assessment.
  2. Goods that are not sold explicitly for export must not be transported unprocessed outside of the national territory.
  3. We agree to store personal data of our business partners and interested parties within the jurisdiction of the Austrian Federal Data Protection Act.
  4. If individual provisions of these conditions are or prove to be legally invalid in part or whole, the remaining provisions will remain legally binding. In such an event the parties hereby agree to enter into negotiations to replace the ineffective provision, with a provision satisfactory to both and approximate to the economic terms of the dissatisfactory provision. The same applies if any provision is found to be missing.

 

INFORMATIONSPLICHT LT. ECG
UND MEDIENGESETZ
COMPACFOAM GMBH, Resselstrasse 7-11, A -2120 Wolkersdorf im Weinviertel, TEL. +43 (0)2245 / 20 8 02, FAX DW 329
GESCHÄFTZWEIG: PRODUKTION UND VERTRIEB VON TECHNISCHEN KUNSTSTOFFEN / FIRMENBUCH-GERICHT: HANDELSGERICHT KORNEUBURG FN293805t / UID-NR. ATU63550614

EDITED BY N.E.S.P.I. | DESIGNED BY GOLIVER.INFO
EXIT
<<-
->>