General Terms & Conditions
(Hereinafter „General Conditions“) of Stubai ZMV GmbH (hereinafter „Company“) for all legal transactions between the Company and third parties (hereinafter „Contract Partners“) Status November 1993
I. (1) The Company concludes legal transactions (especially purchases and sales) with the Contract Partners on the exclusive basis of these General Conditions. Differing arrangements, or general or special conditions of a Contract Partner, apply only if they have been separately agreed in writing. (2) If the Contract Partner sends or has sent such conditions without having first made a separate agreement, they renounce all legal effects arising therefrom. (3) If the Contract Partner intends not to accept the Company‘s General Conditions, they shall in a separate letter make notification thereof, so that negotiations in this regard can be conducted between the Company and its Contract Partner. However, until a written statement has been made to the contrary, these General Conditions of the Company will apply. (4) These General Conditions remain valid as a whole even if any of their individual provisions are found to be legally ineffective(5) Any General Conditions of the Company which take effect between the Contract Partner and the Company apply to all future contracts concluded between these parties even if specific reference is not made to these conditions (6) The Company‘s employees are forbidden from repealing, supplementing or altering these conditions without the Company‘s authorisation (7) The Contract Partner shall not transfer his rights and obligations under a contract with the Company to third parties without the Company‘s written permission. (8) Contract rescissions, supplements and amendments must be in writing to be effective.
II. (1) Offers to the Company can be accepted only by means of a written declaration of acceptance or by actual fulfilment; the bidder is bound to these offers for 4 weeks from the time they are received by the Company. (2) Offers made by the Company are unequivocally non-binding. The Company is entitled to change or revoke its offers at any time, including after receiving a statement of the Contract Partner. Any contract award made by the Contract Partner obliges the Company only if it transmits a written order confirmation to the Contract Partner or actually undertakes fulfilment, regardless of its previous actions(3) Estimates made by the Company are always non-binding, and serve only to invite the Contract Partner to tender. Their creation is free of charge, unless the Contracting Parties previously agreed otherwise. Services which exceed the usual scope of a cost estimate, such as design work, construction plans, travel, etc., will be invoiced using the Company‘s normal calculation bases. (4) When the Company creates cost estimates, it is not obligated to consider order-specific circumstances of which it is not made aware. The Contract Partner shall inform the Company of all circumstances which might influence the scope of the work effort and
costs. (5) The information about the type, scope, features and prices of the merchandise or services, etc., which is contained in the cost estimates, brochures, circulars, catalogues, ads, illustrations, price lists, etc., is non-binding. (6) Unless otherwise agreed, prices for sales are given in net euros, without VAT, and include packaging in the warehouse A-6166 Fulpmes. They do not include loading, freight, insurance, customs, fees or other ancillary costs. An increase in production costs (wages, materials, administration, energy, altered forming devices, etc.) between the time of contract conclusion and its fulfilment by the Company entitles it to raise the prices accordingly. Orders without a price agreement will be invoiced according to the costs applicable on the day of invoicing, taking the production costs into consideration(7) Technical changes or deviations from plans and specifications of all types are to be accepted by the Contract Partner, as long as they do not run counter to the purpose he is pursuing.
III. (1) All commercial and technical documents created or handed over by the Company remain the property of the Company. Such documents may not be published, disseminated or otherwise used without the Company‘s written consent. In particular, such documents may not be made available to third parties. (2) The Company is entitled to demand at any time that all documents be returned, without providing grounds of the Contract Partner.
IV. (1) Unless a separate agreement has been made, it is agreed that the service or delivery will be „ex works (warehouse)“. If the merchandise from the Company is to be delivered to a specific location due to a separate agreement, the delivery to such location will not be deemed „carriage paid“ without an additional agreement. The Company may choose the means of transport at its discretion. It is also entitled to take out insurance for the Contract Partner‘s invoices without a separate order from the latter. The costs for this are not included in the price and can be settled when the insurance is concluded. (2) All risks are transferred to the Contract Partner at the latest upon fulfilment by the Company. This also applies to partial deliveries regarding the same. For delivery „ex works (warehouse)“, the date of performance is deemed that on which the Company notifies the Contract Partner that the goods are ready to be shipped. Otherwise, the risk is transferred to the Contract Partner (regardless of any agreed delivery clauses, Incoterms, etc.) if the merchandise leaves the Company‘s factory or warehouse.
V. (1) The delivery date is given as a calendar week within which performance must be provided, and applies „ex works (warehouse)“. It is binding only if expressly designated as such (2) If the Contract Partner is absent on the delivery date, or in default with the preparations necessary to implement the delivery, they are still deemed to have accepted the performance or delivery. This also applies to partial deliveries. (3) If a service or delivery is delayed because of a circumstance that was not the Company‘s fault, the period for performance or delivery will be reasonably extended without a separate statement from the Company being necessary, and without the Company being held responsible for any consequences from the delay whatsoever, even if the Company is already in arrears. If this makes filling the order unreasonably difficult, the Company is entitled to withdraw without becoming liable for compensation claims. If the execution of the contract is prevented by force majeure, the Company is exempt from their contractual obligations. In such a case, however, the Company is entitled to provide the performance or service after such prevention has ceased. (4) If the delay is the Company‘s fault, the Contract Partner is entitled to demand performance or declare their withdrawal from the contract after setting a reasonable grace period of at least six weeks. The Contract Partner shall submit this declaration when the grace period is set – in writing, unconditionally, and definitely. (5) The Company is in any case entitled to make compliance with the deadline for performance or delivery contingent on the receipt of agreed advance payment, prompt payment of other outstanding claims, clarification of open questions that have arisen subsequently, the availability of all necessary instructions, the fulfilment of all technical requirements, and the fulfilment of all other duties – without this incurring any consequences of default. (6) Damage claims based on default in delivery are generally excluded to the extent permitted by law, but for slight negligence in any case. (7) The Contract Partner shall at their cost obtain official authorisations and permits, or third-party confirmations, and make reports to the authorities. (8) Unless otherwise agreed in writing, the Company is entitled to make partial or advance deliveries, and to issue partial invoices accordingly. (9) The recipient of the merchandise must make a written report of any damage or loss on receipt, so that claims can be asserted toward the deliverer (e.g., carrier). Acceptance of the goods or invoice cannot be refused on the grounds of transport damage or shortcomings. (10) The merchandise produced by the Company will be both accepted and taken over after delivery only if expressly agreed. In this case, the Contract Partner shall bear the running costs incurred by both parties, unless otherwise agreed. (11) If the Contract Partner does not accept the contractual goods or services at the right place at the right time, the Company is also entitled to withdraw from the contract after setting a reasonable grace period. The Contract Partner shall be liable for all damages arising therefrom. In the event of imminent danger, the Company can sell the goods in the most optimal manner at the Contract Partner‘s expense, but without becoming liable to pay the Contract Partner compensation. The Company is also entitled to have the merchandise stored with a third party at the Contract Partner‘s expense. (12) All goods that are returned by the Contract Partner must be initialled by our field service in advance. A handling fee of 10% will be charged for all returned merchandise.
VI. (1) Unless otherwise agreed in writing, the payment is due 30 days from the invoice date; if payment is made within 14 days from the invoice date, a 2% discount is permissible as long as all due liabilities have been paid by this date. (2) Payments with cheque or bill of exchange are accepted only pending full discharge of the debt. The Contract Partner shall bear all fees and bank commissions incurred from transfers, or from creating or redeeming bills of exchange or cheques. (3) If a bill is protested or if recourse is taken in its regard, or if an invoice is not paid, all invoices are due immediately without the need to call them in explicitly. The same applies if the Contract Partner‘s financial circumstances worsen significantly (4) The delay in payment occurs by itself, without further request being necessary. If there is a default in payment, all of the Contract Partner‘s claims that have arisen (or might arise) from agreed contractual penalties are forfeited. (5) If there is a default in payment, default interest of 14% p.a. is agreed; any higher interest rate or loss by exchange must be compensated. (6) After the withdrawal from the contract takes effect, the Contract Partner shall immediately and at his expense return to the Company any goods that have already been delivered, pay compensation for any loss of value, and reimburse any expenditures the Company incurred while executing and rescinding the contract. To compensate for the damages accrued in this respect, the Contract Partner shall pay a contractual penalty of 25% of the gross invoiced amount without further verification, due immediately. The contractual penalty does not exclude the assertion of further damage. (7) The Contract Partner may not offset his claims against those of the Company.
VII. (1) Until the invoiced amount has been paid in full, including interest, costs and fees, and until all of the Contract Partner‘s current and future financial obligations related to the goods delivery (and to all other deliveries and services) have been fully met, the delivered goods will remain the unrestricted property of the Company. The Contract Partner shall at his expense and of his own volition take all actions necessary to establish and maintain the retention of title, depending on the warehouse location. (2) The goods subject to retention of title may be sold or pledged only with the express consent of the Company, and in no case after payments have been stopped. In this case, the Contract Partner shall notify his buyer of the Company‘s retention of title. Regardless of this, if these goods are resold, the Contract Partner hereby irrevocably offers to assign all receivables incurred thereby to the
Company, to its satisfaction and pending full discharge of the debt. The Company can accept this offer of transfer at any time, without temporal restriction. The Contract Partner shall bear all related fees and costs. (3) Furthermore, the Contract Partner is not entitled to handle or process the delivered goods or combine them with other items until all financial obligations have been fulfilled. Otherwise, the Company is entitled to sole ownership to the items resulting from such handling, processing and combining. (4) If the delivered goods are attached or otherwise levied upon, the Contract Partner shall notify the Company thereof immediately and at his expense take all measures to safeguard the Company‘s right of ownership. If the goods subject to retention of title are not taken out of service by the Company, it may have them stored at the cost and risk of the Contract Partner. The Contract Partner shall reimburse the Company for all expenses arising in connection with the assertion of its property. (5) Taking back the delivered goods is not to be equated with withdrawing from the contract, unless the Company expressly declares this to be the case.
VIII. (1) Unless special agreements have been made, a warranty period of 6 months will apply from the time the risk is transferred. For replacement parts and improvements, the warranty period will amount to 3 months. In any case, warranty claims expire within 6 months of the date on which a timely complaint is made. (2) Notice of visible defects or missing parts using a registered letter must arrive at the Company without delay, but at the latest within 8 days after the beginning of the warranty period – and for hidden defects, within 8 days after their discovery – and any handling must be discontinued immediately, failing which the warranty will be rejected and the goods will be deemed unreservedly and properly accepted without defect (3) After the Company has received legally effective notification about a defect, it may meet its warranty obligation at its discretion as follows: a. Provide improvement at the Company‘s premises or another location it designates, after the Contract Partner has sent over the goods; b. Replace the defective goods which have been transferred to the Company‘s ownership, or c. Replace the defective parts of the goods which have been transferred to the Company‘s ownership thereby. If the aforementioned measures are not implemented without defect, or at all, despite warnings or setting a reasonable grace period, the Contract Partner is entitled to a price reduction; if agreement on the scope of the price reduction cannot be reached, or if the defect is substantial and irremovable, he is entitled only to the right of conversion. The Company is not affected by any other obligations within the scope of the warranty. (4) The Contract Partner shall bear the costs accumulated in accordance with Para. (3) of this item, except the shipping costs for replacement goods or replacement parts. (5) The Company shall make notification of the deadline for improvement or replacement by at least 5 days in advance. If the Contract Partner is absent on this date for reasons for which he is responsible, or if he makes the improvement or replacement more difficult or impossible, he is deemed to have waived his warranty claims. (6) The Company‘s warranty is excluded if: the Contract Partner has not complied with the Company‘s instructions or operating conditions; the defect was caused by the Contract Partner or third parties; these parties handled or repaired the goods themselves, or had them handled or repaired; the Contract Partner has not provided ample opportunity to perform repairs; or as long as the Contract Partner has not fulfilled his obligations – especially regarding payment. Furthermore, the warranty is excluded for consumables and wear parts. Also, the warranty applies only to defects which arise during normal use under compliance with the respective operating conditions. (7) The scope of the warranty does not provide for any claim against the Company for reparation or compensation of any type whatsoever (e.g., follow-up costs, costs for relocation and exchange, loss of prospective profits, freight and access costs, etc.)
IX. (1) In the event of damages, the Company shall be liable for intent or gross negligence. Liability is excluded for slight negligence; so is compensation for consequential damage, pecuniary losses, loss of interest, and damages arising from third-party claims toward the Contract Partner. (2) In the event of gross negligence, the liability for damages is limited to 10 times the net invoice amount for the delivered goods in any case. (3) If any of the Company‘s conditions for assembly, commissioning and use are not complied with, any damage compensation is excluded. (4) Liability for damages according to the Product Liability Act and other comparable standards is excluded, regardless of the legal system from which they originate, unless this would contradict mandatory legal provisions. The Contract Partner shall oblige all his buyers to comply with this disclaimer benefiting the Company and to pass this duty on down to the last user, and shall prepare documentation verifying that this has been done. Within the internal relationship, the Contract Partner shall bear all third-party claims based on product liability; in particular, the Contract Partner shall immediately indemnify and hold harmless the Company if claims are made against him. The Company assumes no liability for products or product information put into circulation by the Contract Partner. (5) In the course of marketing the Company‘s products, the Contract Partner shall ensure that the procedure for transmission can be demonstrably established, especially regarding names and addresses of purchasers, the type of product, and the sales date. The Contract Partner shall also make his employees aware, on an ongoing and verifiable basis, about all information and instructions which the Company delivers with its products (e.g., regarding statutory provisions and state mandates). This also applies to the Contract Partner‘s buyers; the Contract Partner shall therefore thoroughly inform and advise his buyers accordingly, through appropriate instructions given to his sales personnel. The Contract Partner shall notify the Company if he becomes aware of any defects in the Company‘s products or product information, shall monitor to ensure that all product information, laying and setting work, possible applications, etc., regarding the Company‘s products conform with the current state of science and technology, and if there are any discrepancies shall inform the Company immediately and keep the products from being marketed. (6) The Contract Partner shall keep all documents, deeds and verifications for at least 10 years from the time they are brought onto the market or passed on, and return them in their entirety on request.
X. (1) The place of performance for all deliveries and payments is A-6166 Fulpmes, even if the transfer actually takes place somewhere else (2) For all contracts concluded between the Company and its Contract Partner, and all claims arising from the legally effective existence or non-existence of these contracts, it is agreed that substantive Austrian law will apply. The Company remains free to expressly renounce the application of Austrian law in writing. In the case of such renunciation, the law is deemed agreed, at the Company‘s discretion, that either is applicable in the country in which the Contract Partner has his registered office, or that, due to the regulations of international private law, is applicable in the country in which judicial litigation over the disputed claim is being or will be conducted. (3) For all legal disputes arising from a contract, the court having jurisdiction ratione materiae for A-6166 Fulpmes is agreed as the exclusive place of jurisdiction. However, the Company can also sue the Contract Partner in another domestic or foreign place of jurisdiction. (4) Within the course of EDP, all data and data of the Contract Partner relevant to the business relationship will be stored, taking into account the Data Protection Act. All packages delivered to you are completely released from obligation via the ARA licensee number 2616.
All former prices are rendered invalid by the issuance of this list of prices ex works.
The prices are SUBJECT TO CHANGE and NON-BINDING. From a net amount of €200 free destination, the delivery is made free domicile. Up to a net amount of €200, shipping costs amounting to €4.30 will be invoiced. Up to a net amount of €50, a processing fee amounting to €10 will be invoiced.
Mistakes, typesetting and printing errors, and possible production-based deviations in colour and weight excepted.