General terms and conditions of business - ecoforst GmbH
1. Validity: All transactions with us are based on our terms and conditions, unless otherwise agreed in individual cases and written down. Deviating conditions of the buyer, which are not expressly acknowledged in writing by us, are not binding for us. Counter-confirmations of the buyer with reference to his terms and conditions of business and purchase are hereby contradicted. These general terms and conditions are an integral part of every offer and every contract with us. A legally binding relationship of ecoforst shall only come into existence by the company’s confirmation of the offer or the company’s signature of the contract.
2. Offers: Our offers are always non-binding. Orders are considered accepted only if they have been confirmed by us in writing. Technical and design deviations from descriptions and information in brochures, catalogues and written documents as well as model, design and material changes in the course of technical progress remain reserved, and do not constitute grounds for any claims against us.
3. Plans and documents: We reserve all rights of ownership and copyright to plans, sketches and other technical documents as well as to cost estimates, drawings, samples, catalogues, brochures, illustrations and the like. Any use, duplication, distribution, publication and demonstration may only take place with the express consent of the owner.
4. Prices: All prices are ex works net prices, without packaging, unless otherwise expressly agreed in writing. Price increases due to an increase in production costs (material or purchase prices, wages, customs duties, freight rates, exchange rates, taxes, bank rates, etc.) between order and delivery shall be borne by the buyer. All ancillary costs of the opposite contract, such as financing costs, costs for a possible land-book-securing of the purchase price claim, court and legal fees, costs of a legal auxiliary intervention, fees, interest and the like shall be borne by the buyer. In the case of all amounts to be claimed by the seller against the buyer, in particular all ancillary charges and subcontractors subject to the taxation, value added tax shall be additionally taken into account in the statutory amount, unless expressly agreed in writing that the value added tax is already included in the amount to be paid.
5. Delivery and delivery time: Our written acceptance of order shall govern the scope of the delivery. Additional agreements and modifications require written confirmation from us. The dates and periods specified by us are non-binding, unless expressly agreed otherwise in writing. All delivery dates are subject to the correct and timely self-delivery. All delivery dates are subject to the correct and timely self-delivery. They commence on the day of our order confirmation, but not before all details of execution have been clarified, and are extended by the time the buyer is in default, without prejudice to our rights in the event of customer default. Part deliveries are permitted. Delivery and service delays due to force majeure and events that make delivery significantly more difficult or impossible, such as material procurement difficulties, breakdowns, labour disputes, official orders, etc., even if they occur at our suppliers or their subcontractors, we are not responsible even for bindingly agreed deadlines and dates. You entitle us to postpone the delivery or the service for the duration of the hindrance plus a reasonable start-up time or to partially or completely withdraw from the contract, because of the unfulfilled part of the contract. We are otherwise in default only if the buyer has granted an additional period of grace of at least two months. In the event of the delay in delivery for which we are responsible or the impossibility of performance for which we are responsible, claims in particular for damages of any kind are excluded, unless we or our vicarious agents have acted intentionally or through gross negligence. Insofar as we carry out assembly and commissioning on behalf of the buyer at his customer’s premises, the buyer is liable for all resulting costs. This is also applicable in the event that commissioning is delayed for reasons for which the customer of the buyer is responsible. The buyer is also responsible for the fact that all conditions are met by the customer, which allows the assembly and commissioning. We reserve the right to change the design and shape during the delivery time. The information given in the descriptions of performance, weights, operating costs, speeds etc. should be considered approximate. We explicitly reserve the right to withdraw from the contract in the event that we become aware of circumstances pertaining to the buyer’s economic situation after order confirmation and before delivery, by which our claim does not appear to be sufficiently secured.
6. Transfer of risk and acceptance: The risk of accidental loss is transferred to the buyer no later than at the time the delivery is dispatched to the buyer, even if partial deliveries are made or if we provide other services, e.g. the shipping costs, or transportation and delivery, are taken over. We are entitled, yet not obliged, to insure the shipment against theft, breakage, transport, fire and water damage as well as other risks at the buyer’s expense. The buyer has to provide for the necessary insurance protection of the shipment against theft, breakage, transport, fire, water damage etc. itself. At the latest with the dispatch of the delivery, the object of purchase in the sense of § 6 product liability law was transferred into authority of disposal to the buyer and thus brought into circulation. If the shipment is delayed at the request of the buyer, the risk passes to him with the notification of readiness for dispatch, whereby all related expenses for us – of whatever kind – (storage fees, possible maintenance of the equipment) must be borne by the buyer. The buyer shall accept the delivered goods even if they demonstrate minor defects without prejudice to his warranty rights.
7. Warranty and guarantee: We guarantee that our services, state of the art and our products are free of manufacturing and material defects. The warranty period is 12 months. Excluding any further liability, we provide a warranty for one year or 1000 operating hours. The warranty begins with the date of dispatch of the delivery; the shipment is delayed at the request of the customer, with the notification of readiness for shipment. The buyer must notify us in writing of any defects immediately, but no later than one week after receipt of the product. In the event of notification of the buyer that the products do not correspond to the warranty, we can request at our discretion that the buyer keeps the damaged part or device and a service technician will be sent by us to the buyer to repair the items. If the buyer demands that the warranty works be completed at a specific location, then we can satisfy this requirement, whereupon parts under warranty are not charged, whereas travel and transport expenses are to be paid at the standard rate. We do not accept any responsibility for damage caused by the following reasons:
> unsuitable use> faulty installation or commissioning by the buyer or third parties> natural wear and tear> faulty or negligent handling> unsuitable operating materials> replacement materials> defective construction work> chemical, electrochemical or electrical influences, unless they are due to our fault. Any changes or repairs made improperly by the buyer or third parties without our permission shall exclude our liability for the resulting consequences. The buyer must give us the opportunity and the time needed for all improvements and replacement deliveries that seem necessary to us at our discretion after notification of the defect otherwise we are released from liability for defects. The buyer has the right to remedy the defect himself or have it repaired by a third party, and to demand reimbursement of the necessary costs from us only in urgent cases that endanger the operational safety and to avoid disproportionate damage, if and insofar as we are notified immediately in writing or if we delay repairing the defect. Further claims of the buyer are excluded, especially any claim to a compensation for damage which did not occur on the object of delivery itself. The object of purchase only offers the level of safety that can be expected as a result of approval regulations, operating instructions and seller’s regulations concerning the handling of the object of delivery (operating manual), especially with regard to the specified checks, and other instructions given. If the delivered goods have a defect that is proven to be a result of incorrect implementation of the agreed construction, because of material defects of the defective parts, the buyer must pay appropriate remuneration for the duration of usage. The guarantee given by us does not include the normal wear and tear or normal deterioration, which originate from reckless or abnormal use, improper application of equipment parts for installation or use, improper maintenance (which includes insufficient lubrication and maintenance) changes made by the buyer or the seller, repairs, extensions, assemblies, or other measures undertaken by the buyer or by unauthorised third parties, not using original parts of the manufacturer or every other circumstance, on which the seller does not have an influence. Replaced parts must be sent to us immediately at the expense of the buyer. The guarantee given by us is applicable only to the buyer and it cannot be transferred to a third party without express consent. Expenses for assembly and travel are not covered by the guarantee given by us and must be reimbursed fully. It is expressly agreed that we are under no obligation whatsoever to pay any compensation to the buyer or a third party for injury to persons or damage to property, standstill or other losses or loss of profit which may result from defects or from the use of the object of purchase.
8. The buyer’s right of withdrawal and other liability of the supplier: The buyer can withdraw from the contract if complete performance becomes impossible for us prior to the transfer of the risk. The same applies in case of incapacity. If there is a delay in performance, the buyer has the right to withdraw if and insofar as he gives us a reasonable grace period of at least two months; with the explicit statement that after this period is over he will refuse to accept performance and we failed to comply with the grace period. If the impossibility arises during the default of acceptance or due to the fault of the buyer, then the buyer remains obliged to provide consideration. Furthermore, the buyer has the right to withdraw if we allow a reasonable grace period granted to us for the improvement or replacement delivery, with respect to a defect for which we are responsible in terms of the delivery conditions through our fault, to expire unproductively whereby the period in our favour must be at least 2 months. The buyer has a right to withdraw even in other cases of our failure to improve or provide a replacement delivery, whereby the grace period to be granted to us here in writing must be at least 2 months and the buyer accepts three repair attempts by us. For every repair attempt, the agreed minimum period is valid for setting the grace period. All further claims of the buyer, especially for exchange, cancellation or reduction as well as replacement of damaged parts of any kind and for damage that has not occurred on the object of delivery itself, are excluded. This exclusion of liability shall not apply in case of intent or gross negligence.
9. Retention of title: We reserve the ownership of the delivered goods till the complete payment of all the accounts receivable due to us, irrespective of the legal grounds. Retailers may sell goods in the course of normal business operations. With every order, the retailer assigns his claims against his customers to us at our invoice amount in advance. In cases where third parties access the goods subject to our reservation of title, especially in case of seizure, the buyer must inform these third parties that the goods are our property and he must notify us in writing. The buyer bears the intervention costs and commits to bear the costs of legal representation and costs for a potential intervention. If the buyer fails to send us an immediate written notification in case of access by the third party to the delivered goods, he shall bear all the costs incurred to us in connection with that of any kind, and he shall be liable for all the damages resulting from it. A dealer appointed by us also assumes this obligation jointly. Repossession and seizure of goods subject to our retention of title shall not constitute withdrawal from the contract.
10. Withdrawal of the buyer: If the buyer withdraws from the contract without justification then he is obligated to pay at least a compensation amounting to 30 % of the contract value, without a detailed statement. Our right to assert further claims for compensation of damages (full amends – loss of profit, etc.) remains unaffected.
11. Payment terms: Unless agreed otherwise in writing, the purchase price has to be paid by the buyer as follows:
1. 1/3 of the purchase price at the time of signing of the contract
2. 2/3 before the goods are delivered, whereby the 2/3 amount must also be paid by the buyer upon partial deliveries.
The buyer is obligated to provide us an irrevocable bank guarantee of a bank of our choice after signing the contract with the second partial amount of 2/3 of our total receivables. In case of default in payment and violation of any other contractual provision, the deadline is missed, which additionally entitles us to withdraw from the contract immediately from the due date of the total sum. Set-off of alleged counterclaims of the buyer against us with purchase price instalments or a right of lien against us is not permitted. If the buyer is in default of payment or even just a partial payment, we have the right to charge default interest at normal bank rates from the respective date. The buyer is obligated to pay 12% default interest on the total receivables in case of delay by all means. We have the right to demand advance payments or security.
12. Place of performance and place of jurisdiction: According to § 104 JN both contract parties agree expressly that the place of performance is Tragöß and independent of the amount in dispute the jurisdiction of the district court of Leoben shall apply. This jurisdiction is applicable for all direct and indirect disputes arising from the present contractual relationship, for which the applicability of Austrian law is agreed expressly. Austrian law applies under exclusion of the United Nations Convention on Contracts for the International Sale of Goods. However, the seller reserves the right to settle disputes arising from this contract according to the free choice, as per the Rules of Arbitration and Conciliation of the International Chamber of Commerce by one or several judges appointed in accordance with the said rules, which is final and binding for both contract parties, or to file a complaint against the buyer at his place of business.
13. Written form and other provisions: Amendments, modifications and verbal statements made by employees and staff members of our company must be in writing in order to be effective. Any waiver of this requirement of written form must also be in writing for additional agreements to be effective. Claims of the buyer from the sales contract can be assigned only with express written approval by us. If the provisions of these general terms and conditions become ineffective, or violate the present or the future mandatory law, the decision on whether all the present general terms and conditions become invalid because of it is made solely and exclusively by us. If we declare that the remainder of this agreement is binding then the invalid provisions must be replaced with legally valid provisions that come closest to the invalid provisions.