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I. Validity
The deliveries, services and offers of our company are exclusively based on these terms and conditions of business; we do not accept opposing terms or a client's terms that depart from our terms and conditions of business even if we do not explicitly disagree with those. Other terms and conditions apply only if they are explicitly accepted by us in writing.
These terms and conditions constitute a framework agreement for all further legal transactions between the contracting parties.
II. Conclusion of a contract
All offers and price lists are non-binding and subject to change. Contracts shall be concluded only after we have issued a written confirmation of order or delivery or despatch of goods. All other agreements or subsidiary agreements made later shall be effective only after we have confirmed these in writing. Our staff are not authorised to issue legally binding statements on our behalf if we have not issued specific authorisations to this effect.
III. Prices
All prices stated by us, if not specified otherwise, are without value added tax. Any alteration in labour costs due to collective agreement regulations or statutory regulations or in-house accounts or changes in other cost units that are relevant for the calculation, or costs incurred to provide the service, such as costs of material, energy, transportation, out-sourced work, funding, etc. authorise us to raise our prices accordingly. The client is not entitled to any right of withdrawal or enforceability of a lapse for this reason. All prices are without auxiliary expenses when there is no other written agreement on this subject. The cost of packaging, dispatch, customs and other services will be invoiced separately.
IV. Delivery
Scheduled and agreed upon delivery dates will be met as far as possible, but are only approximate dates and not binding. Delays in delivery do not authorise the client to withdraw from the contract or enforce any guarantee claims, raise claims concerning contestation of errors, or claims to damage. We are authorised to undertake partial or advance deliveries and invoice these.
Interruptions of operations or occurrences of force majeure outside our sphere of influence, especially delays in delivery and similar occurrences on the part of our suppliers, authorise us to either prolong the term of the contract or withdraw from the contract because of the unfulfilled part of the contract, under exclusion of any guarantee claims, claims concerning contestation of errors or claims to damage. This also applies when the incidents occur at a time when we are in default of deadlines.
By demonstrating our willingness to despatch the goods to our client, but at the latest when the goods depart from our warehouse - in the event of direct delivery this shall apply for the time after departure of the goods from our supplier's warehouse - the client shall bear the risk of price and service, independent of any separate price agreement separately made for the delivery. If the goods ready for despatch cannot be sent for some reason (due to no fault of ours) we are authorised to store the goods at the client's expense and risk and at our own discretion; by doing so the goods will be considered to have been delivered for all practical purposes.
V. Terms of payment, Default, Contractual exclusion of set-off, Foreign shipment
Our invoices - including invoices for partial delivery - are payable in full within ten days after date of issue, without discounts or other deductions. Bills of exchange or checks shall be accepted only on separate agreement. We reserve the right to dedicate incoming payments to several outstanding claims as we deem appropriate.
In the event of a client's default of payment we are released from all further services and service obligations, and are authorised to retain outstanding deliveries or services, or demand advance payments or sureties. Moreover, irrespective of culpability the client is obliged to pay default interest of 1% per month; we are authorised to claim additional interest at usual bank rates. The client is also obliged to reimburse the reminder fee and expenses of collection. In particular, he is obliged to pay, at maximum, the expenses of the debt collection agency which result from the ordinance of BMwA concerning the maximum rates that may be imposed by debt collection agencies. If we issue a reminder the client is obliged to pay the sum of 10 Euros per issued reminder.
If the client's financial circumstances change significantly or if circumstances that would reduce the credit-worthiness of the client become known after conclusion of the contract, all claims shall be subject to immediate payment. In this case further deliveries shall be provided only on advance payment.
The client is debarred from any kind of retention or set-off based on counter-claims. In case of consumer transactions this does not apply to the retention and set-off of claims legally associated with the client's obligation or those accepted by us.
In case of export transactions the client is obliged to bear the full cost of the necessary export and customs duties as well as other permits, etc. We do not issue any type of warranty or guarantee for the permissibility of exporting the purchased goods. Furthermore, the client must return to us all original export and customs documents, failing which he/she is obliged to pay value added tax that may be payable. Furthermore, in case of foreign shipments our delivery shall be subject to the issuance of an irrevocable documentary letter of credit at a bank named by us, which can be utilised on presentation of the shipment papers or the freight forwarding company's certificate of receipt.
VI. Reservation of proprietary rights:
We reserve proprietary rights on all goods delivered by us until complete payment of the purchase price or wages, including interest and additional expenses, regardless of the legal grounds - this includes previous transactions. For an ongoing account, the reserved proprietary rights will also serve as a surety for our outstanding balance claim. The assertion of proprietary rights does not signify withdrawal from the contract and does not suspend the client's obligations, particularly in respect of payment of the due amount.
The client is authorised to pass on his expectant right with regard to the object of purchase in the course of his business operations but is not authorised to hypothecation or chattel mortgage.
The client must notify us immediately of any seizure or other encroachment of his property by a third party. The client is obliged to bear the cost and conduct the measures to eliminate the encroachment, particularly the cost of intervention proceedings, etc.
The reservation of proprietary rights also covers all manufactures resulting from processing. In case of processing, connection, or mixture of our goods with other materials we acquire co-ownership of the products resulting thereof, in appropriate proportional measure of the created added value.
The client surrenders all claims resulting from the sales of goods for which we are entitled to proprietary rights - if applicable, amounting to the proportionate value of our co-ownership - as assurance and settlement. The client is obliged to inform us of the name and address of his purchaser, the existence and amount of the claims resulting from resale, as well as notify the respective purchaser of the assignment of his claim. Furthermore, the client is obliged to render visible in his business accounts, in an appropriate manner, the assignment of this claim to us. We are authorised to notify the client's purchaser at any time about the assignment.
The purchaser assigns to us all sums of money received by the purchaser in the course of cash sales of goods which are subject to our proprietary rights; the amount he assigns to us shall be the claims we are entitled to from the delivery of these goods until this point in time. We instruct the client at this early point in time to put these amounts aside and reserve them for us.
If the client fails to meet his obligations or ceases to make his payments the entire remaining sum shall be payable even if drafts of a different payment date are ongoing. In this case we are entitled to demand restitution of the object of purchase under exclusion of any right of retention. After acceptance of the object of purchase we may, at our discretion, sell the object of purchase and credit the earned revenue - after deducting 20% for re-selling expenses - to the still existing obligations of the client or take back the object of purchase at the invoiced price after deducting any depreciation in value and charge the client a rental (at the usual rate) for the length of time during which the delivered products were in the client's possession.
VII. Guarantee, Damages, Product liability
1. Combined provisions for consumer transactions and transactions not subject to § 1 KSchG (Consumer Protection Law):
The guarantee lapses immediately when the client himself or any person authorised by the client introduces changes or conducts repairs on the delivered object without our written consent. In the event of a complaint the client is obliged to initially accept the goods, unload, and store them appropriately.
For damages inflicted upon our client in the course of processing the transaction, excluding personal damage during consumer transactions, we are liable at the most for the value of the goods ordered or job assigned to us only in the event of our own gross negligence or the gross negligence of authorised persons working on our behalf.
Assignation of guarantee or damage claims etc. is not permitted.
Before connecting or transporting EDP products and prior to installation of computer programs the client is obliged to adequately save the existing data on the computer system; otherwise he will be responsible for lost data and all damages associated with it.
Guarantee for software exists only for the concurrence of the software with the specifications agreed upon at the time of conclusion of the contract, provided the software is used in accordance with the terms of installation and the terms and conditions for use. As the occurrence of software errors cannot be excluded, we provide no guarantee for its faultless condition or that it will function without interruption or error.
2. Furthermore, the following shall apply for transactions not subject to § 1 KSchG (Consumer Protection Law):
The client must assert his claims by providing a written notice of defects immediately after receipt of the delivery, at the latest within three days after delivery under exclusion of all else; however, notices of defect do not authorise the client to withhold invoiced amounts or parts of it.
The guarantee period is six months and will neither be prolonged nor interrupted by attempts to improve the condition; this also applies to partial deliveries. The client must provide evidence of the deficiencies in the delivered goods at the time of handing over.
We bear no liability for consequential harm caused by a defect, cited as part of any claim for damages. For those goods which we have acquired from sub-suppliers we shall provide a warranty only within the scope of our warranty claims towards the supplier. For the products delivered by us we provide a warranty only for the fact that they possess the usual required characteristics of products of this type available in the market. For any further characteristics, particularly those in public statements - such as those mentioned in advertisements or data printed on the products -we provide a warranty only if these characteristics have been guaranteed in writing by us during the assignment of the order. For equipment, spare parts and apparatuses, the client is authorised to enforce warranty claims only for those deficiencies that concern functional efficiency and not merely the external appearance of the object. Any warranty obligation exclusively concerns the defective parts of the apparatus, but not the working hours and the transportation costs required to remedy the defects.
We decide entirely on our own whether the warranty claims shall be fulfilled by exchange, improvement, reduction of price or transformation.
In the event of re-sale of the delivered goods by the client, all warranty claims towards us shall lapse; the right to recourse pursuant to § 933 b ABGB shall not exist.
The presence of mild or gross negligence must be proven by the claimant. The period of limitation for damage claims is three years from the delivery and passing of risks (refer to item IV. Delivery on this point).
The client will have no recourse receivable pursuant to § 12 of the Product Liability Law .
VIII. Cancellation of Contract
In case of default of acceptance or for other important reasons such as the client's bankruptcy or the court's rejection of bankruptcy due to lack of assets, and in case of default of payment on the part of the client we are entitled to cancel the contract without prejudice to other claims for damage.
IX. Choice of Law / Jurisdiction
As part of our contractual relations, their processing, termination or resulting disputes, the client and we agree to the application of Austrian law. The use of the UN Convention on Contracts for the International Sale of Goods and similar international agreements is excluded. Should any provisions of these conditions and/or other agreements be or become invalid, the validity of the remaining provisions of the contract will not be affected thereby. The contracting parties are obliged to replace the invalid provision with a new one which approximates the purpose of the invalid provision as closely as possible.
If the subject of business is not a consumer transaction, the court of jurisdiction in Linz/Austria is the responsible local court to make decisions concerning any disputes arising from this contract. However, we are authorised to institute legal proceedings and file suits according to our choice at other courts as well if a different court of jurisdiction is applicable.
X. Place of jurisdiction
The seat of our company in Linz/Austria is agreed upon as the place of jurisdiction for payments and deliveries, independent of any individual agreement about the site of payment/delivery and/or acceptance of any transportation costs.
XI. Data protection, Change of address and Copyright
The client consents to our storing and processing, by computer assistance, also the personal data contained in the purchase contract for fulfilment of this contract.
The client is obliged to notify us of changes in his residential or business address as long as the legal transaction of the services that are part of this contract has not been entirely fulfilled by both parties. If notification is not provided, statements will be deemed to have been received by the client if they have been sent to the last given address.
Plans, drawings or other technical documents as well as samples, catalogues, brochures, illustrations, etc. will always remain our intellectual property; the client shall receive no utilisation or exploitation rights of any kind with regard to these.
XII. Software
If the object of service/purchase includes software components or computer programs we grant the client a non-transferable and non-exclusive right of utilisation at the agreed upon site of installation.
In the event of loss of all claims of guarantee and claims for damage the client is not authorised to duplicate, alter, or render accessible the software to third parties or utilise it for other purposes than those agreed upon or its generally designated purpose. In the event of actions in opposition to these conditions the client must indemnify and hold us harmless also in respect of any claims of third parties.
The client shall select and specify the software offered by us. The client must also ensure that the software is compatible with the technical conditions on site, and is responsible for the use of the software and the results achieved with it.
Software produced on an individual basis shall be exclusively based on the specification sheet agreed upon by the contracting parties with regard to performance, special functions, hardware and software requirements, requirements for installation, conditions for use, and operation. The information needed for the production of individual software must be provided by the client prior to conclusion of the contract.
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