Terms and Conditions

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Terms and Conditions

1. Applicability

1.1   These general terms and conditions shall apply to legal transactions between companies, namely to the delivery of goods and, mutatis mutandis, also to the provision of services. With regard to software, the terms and conditions of the software issued by the Austrian Association for the Electrical and Electronics Industries shall primarily apply; with regard to installations, the installation terms and conditions of the Austrian Power Current and Light Current Engineering Industry and/or of the Austrian Electrical and Electronics Industry for Electrical Equipment used in Medicine (the latest versions are available here: www.feei.at).
1.2   Deviations from the terms and conditions set forth in 1.1 shall only be effective when made known in writing by the Vendor.

2. Offer

2.1   The Vendor's offers shall be deemed to be non-binding.
2.2   Offer and project documents may not be copied or made available to third parties without the approval of the Vendor. Their return may be requested at any time and shall be returned to the Vendor immediately if the order is placed elsewhere.
3. Contract formation
3.1   The contract shall be deemed to have been concluded if, upon receipt of the order, the Vendor sends a written order confirmation or a delivery.
3.2   The information contained in catalogues, brochures and the like as well as other written or oral statements shall only be relevant insofar as the order confirmation expressly refers to them.
3.3   Subsequent amendments and additions to the contract shall require written confirmation to become valid.

4. Prices

4.1   The prices are ex works or ex warehouse of the seller excluding VAT, packaging, loading, disassembly, redemption and proper recycling and disposal of waste of electrical and electronic devices for commercial purposes for the purposes of the Waste Electrical Devices Ordinance. Any fees, taxes or other charges are incurred in connection with the delivery shall be borne by the Purchaser. If the delivery is agreed to include delivery, this, together with any transport insurance requested by the Purchaser, shall be invoiced separately, but shall not include unloading and carriage. The packaging shall only be taken back by express agreement.
4.2   In the event of order which deviates from the overall offer, the Vendor reserves the right to amend the price correspondingly.
4.3   The prices are based on costs at the time of the first price offer. Should these costs have increased by the time of the delivery, the Vendor shall be entitled to adjust the prices correspondingly.
4.4   For repair orders, the services deemed to be expedient by the Vendor shall be provided, and invoiced on the basis of the expenses incurred. This shall also apply to services and additional services whose expediency only becomes apparent during the execution of the order, which shall not require specific notification to the Purchaser.
4.5   The cost of preparing repair offers or for expert valuations shall be indicated to the Purchaser in the invoice.
4.6   The cost of delivering items which do not originate from the 2018 product catalogue or are non-stock items shall be billed to the Purchaser in the invoice at a cost of € 20.00.

5. Delivery

5.1   The delivery period shall start on the latest of the dates given below:
a) The date of order confirmation
b) The date of completion of all technical, commercial and other conditions attributable to the Purchaser;
c) The date on which the Vendor receives a due payment or security deposit before delivery of the goods.
5.2   Regulatory and other permits required for the construction of facilities by third parties shall be obtained by the Purchaser. If such permits are not obtained in a timely manner, the delivery period shall be extended accordingly.
5.3   The Vendor shall be entitled to perform and invoice for partial or preliminary deliveries. If delivery on call is agreed, the goods shall be deemed to have been called at the latest 1 year after the order.
5.4   in the event of the occurrence of circumstances which are unforeseeable or beyond the control of the Parties, such as for example all instances of force majeure, which hinder compliance with the agreed delivery period, this shall in any case be extended for the duration of these circumstances; this shall in particular include armed conflict, official interventions and prohibitions, transport and customs delays, transport damage, power and raw material shortages, labour disputes as well as default by any major, difficult to replace sub-contractor. The aforementioned circumstances shall also permit an extension of the delivery period if they occur with sub-contractors.

6. Transfer of risk and place of performance

6.1   Use and risk shall be transferred upon departure of the delivery ex works and/or ex warehouse of the Purchaser, and irrespective of the pricing agreed for the delivery (e.g. carriage paid, CIF inter alia). This shall also apply if the delivery occurs as part of an installation or if transportation is performed or organised and directed by the Vendor.
6.2   All deliveries shall be made freight forward and sent by parcel post. In case that delivery is performed by the Vendor, the following shall apply: € 19.00 shall be charged for a delivery in Austria below a goods net value of € 500.00. All deliveries above this value shall be delivered free. The Purchaser will be charged an additional € 20.00 in the invoice for the cost of third-party deliveries.
6.3   For services, the place of performance shall be the location where the service is provided. The risk for a service or an agreed partial service shall be transferred to the Purchaser upon its provision.
6.4   Notice of apparent defects in the delivered good are only permissible if the defects are noted in the consignment note; the same applies to transport damage. Notification must be made immediately in writing. Hidden defects must be reported to us immediately (at the latest within 5 working days) after discovery. Complaints cannot be asserted later. 
6.5   The unloading and carriage of the goods into the building is the responsibility of the Customer. Any specific requests such as Express despatch, Avis or specific delivery times shall be subject to a surcharge.
6.6   Except where otherwise agreed, the packaging shall be charged at cost.
6.7. Returns Stock items (see note above product tables in the price list) may only be returned in new condition and by prior agreement. Articles which are purchased or produced specifically to customer requirements cannot be returned. The following processing costs will be charged: 20% of the order value or a minimum of € 25.- as compensation for costs incurred plus postage or shipping costs if the delivery is carriage-paid.

7. Payment

7.1   For initial deliveries and provided that no other payment terms have been agreed, the deliveries shall be performed solely against pre-payment and/or cash on delivery. Please refer to the following for individual agreements which differ from the above:
> Your deal discount agreement
> Your currently valid offer
7.2   For partial invoicing, the corresponding partial payments shall become due upon receipt of the respective invoice. This shall also apply to invoice amounts which arise due to re-deliveries or other agreements relating to the original contractual amount, irrespective of the payment terms agreed for the main delivery.
7.3   Payments shall be made without any discount by the Vendor in the agreed currency. Any possible acceptance of a cheque or cash shall always be on account. All interest and charges associated therewith (such as collection and discount expenses) shall be borne by the Purchaser.
7.4   The Purchaser shall not be entitled to withhold or deduct payments due to warranty claims or other counterclaims.
7.5   A payment shall be deemed to have been made on the date on which it becomes available to the Vendor.
7.6   Where the Purchaser defaults on an agreed payment or other service under this or any other transaction, the Vendor may, without prejudicing any other rights:
a) suspend the performance of their own obligations until said payment or other performance has been made, and claim an appropriate extension of the delivery period,
b) make due all open calls on this or other transactions and charge interest for these amounts from the respective due dates to an amount of 1.25% per month including VAT, insofar as the Vendor does not provide evidence of costs which go beyond this. In any case, the Vendor shall be entitled to invoice for litigation costs, and in particular reminder costs and attorney's fees.
7.7   Allocated discounts or bonuses shall become due upon the timely performance of full payment.
7.8   The Vendor shall retain ownership to all goods supplied by them until full payment of the invoiced amounts including interest and costs. The Purchaser hereby assigns to the Vendor, in order to secure the purchase price claim, their claim to the onward sale of reserved goods, even if these are processed, mixed or blended. The Purchaser shall be empowered to dispose of the goods subject to reservation of title for further sale with deferral of the purchase price only under the condition that he notifies the second purchaser of the assignment of security or notes the assignment in their ledger. Upon request, the Purchaser shall make known to the Vendor the assigned claim as well as the debtor thereof, make available all information and documents required for the collection of the debt, and notify the third-party debtor. In case of seizure or other claims, the Purchaser shall be obliged to indicate ownership by the Vendor and notify the latter immediately.

8. Warranty and responsibility for defects

8.1   The Vendor is, in compliance with the agreed payment terms and in accordance with the following provisions, obliged to remedy every defect affecting functionality which exists at the time of transfer and which is due to a defect in the design, the materials or their implementation. No warranty claims may be derived from information in catalogues, brochures, advertising and written or oral statements which are not included in the contract.
8.2   The warranty period shall be 12 months, provided that no specific warranty periods have been agreed for individual delivery items. This shall also apply to delivery and service items which are associated with a building or ground and land. The warranty period shall start at the time of the transfer of risk referred to in 6.
8.3   Any warranty claim shall require the Purchaser to have notified in writing the defects within 14 days, and the notification to have reached the Vendor. The Purchaser shall prove the existence of the defect within the specified period, and in particular make available to the Vendor the documents and/or data available to them. In the event of a defect covered by the warranty in accordance with 8.1, the Vendor shall, at their own choice and at the place of performance, remedy the defective goods and/or the defective part thereof or have them sent for repair, or make a suitable reduction in price.
8.4   All expenses arising in connection with the remedying of the defect, such as installation and disassembly, transport, disposal, travel and travel time) shall be borne by the Purchaser. For warranty work performed on their premises, the Purchaser shall provide the necessary assistance, lifting equipment, scaffolding and sundries, etc., free of charge. Replaced components shall become the property of the Vendor.
8.5   Where an item is manufactured by the Vendor on the basis of design information, drawings, models or other specifications provided by the Purchaser, the liability of the Vendor shall only extend to their correct execution.
8.6   The warranty shall not cover defects which arise from assembly and installation which are not performed by the Vendor, insufficient tooling, non-compliance with the installation requirements and usage conditions, overloading of the parts beyond the limits stipulated by the Vendor, negligent or incorrect handling and use of inappropriate operating materials; this shall also apply to defects which are attributable to materials provided by the Purchaser. The Vendor shall also not be liable for damage attributable to third parties, atmospheric discharges, overloading and chemical influences. The warranty shall not cover the replacement of parts which are subject to natural wear. The Vendor shall not be responsible for the sale of used goods.
8.7   The warranty shall be immediately voided in case that, without the written approval of the Vendor, the Purchaser themselves or a third party not expressly authorised by the Vendor makes changes or repairs to the supplied items.
8.8   Claims in accordance with § 933b ABGB shall in any event lapse upon expiry of the period stipulated in 8.2.
8.9   Provisions 8.1 to 8.8 shall also apply mutatis mutandis to any responsibility for defects on other legal grounds.
8.10  Dimensions, weights and assurances of characteristics shall be provided as precisely as possible, but are not however binding and do not constitute a definitive assurance of characteristics. The user of these products must at their own responsibility determine their suitability for the intended purpose, or obtain assurances thereof from ETHERMA. We retain the right without prior notification to our customers, to make changes to materials or processing methods.

9. Withdrawal from the contract

9.1   A precondition for the withdrawal of the Purchaser from the contract is that insofar as no specific arrangement has been made, a delivery delay which is attributable to the gross negligence of the Vendor or the unremedied expiry of a set appropriate period of grace. The withdrawal shall be notified by means of a registered letter.
9.2   Irrespective of their other right, the Vendor shall be entitled to withdraw from the contract,
a) If the performance of the delivery and/or the start of the performance of a service is impossible or further delayed, despite their setting of an appropriate period of grace on grounds, for grounds attributable to the Purchaser,
b) Where concerns arise over the solvency of the Purchaser and the latter fails, upon request by the Vendor, either to make pre-payment or provide an adequate security deposit prior to delivery, or
c) Where the extension to the delivery period due to the circumstances mentioned in 5.4 exceeds a total of more than half of the originally agreed delivery period, but amounts to at least 6 months.
9.3   The withdrawal may also be explained on the above grounds for a due part of the delivery or service.
9.4   If the assets of a party to the contract are involved in insolvency proceedings or a request to start insolvency proceedings is refused due to insufficient assets, the other party to the contract shall be entitled to withdraw from the contract without setting a grace period.
9.5   Without prejudicing claims for damages by the Vendor including litigation costs, services or partial services already provided shall be invoiced and paid for in accordance with the contract in the event of withdrawal. This shall also apply where the delivery or service has not yet been transferred to the Purchaser as well as for preparatory work performed by the Vendor. The Vendor shall also be entitled to request the return of items already delivered.
9.6   No other consequences of the withdrawal shall be entertained.
9.7   The admissibility of claims for laesio enormis, error and frustration of the basis of the contract by the Purchaser shall not be entertained.

10. Disposal of waste of electrical and electronic devices

10.1  The Purchaser of electrical and electronic devices for commercial purposes, who is domiciled in Austria, shall undertake the obligation to fund the sampling and processing of the electrical and electronic devices for the purposes of the Waste Electrical Devices Ordinance in case that they themselves are the user of the electrical and electronic device. Where the Purchaser is not the end-user, they shall bind the financing obligation in full by agreement upon their customer and document this for the Vendor.
10.2  The Purchaser, who is domiciled in Austria, shall ensure that the Vendor is provided with all information in order that the Vendor is in a position to fulfil their obligations as manufacturer/importer, specifically in accordance with §§ 11 and 24 of the Waste Electrical Device Ordinance and the Waste Management Act.
10.3  The Purchaser, who is domiciled in Austria, shall be liable to the Vendor for all damage and other financial losses which the Vendor incurs due to the missing or faulty performance of their financial obligation as well as other obligations in accordance with 10. by the Purchaser. The burden of proof for the performance of this obligation shall be on Purchaser.
11. Liability of the Vendor
11.1  The Vendor shall only be liable for damages beyond the scope of application of product liability law insofar that their intent or gross negligence is proven in accordance with the statutory requirements. The Purchaser's liability for minor negligence, compensation for subsequent damages, net economic loss, loss of profits, failure to achieve savings, interest losses and damages due to claims by third parties shall not be entertained.
11.2  Non-compliance with the conditions for installation, commissioning and use (e.g. contained in operating instructions) or official permit conditions shall void any claim for compensation.
11.3  If contractual penalties are agreed, claims which go beyond the respective title shall not be entertained.
11.4  For all damages without gross negligence or intent, our maximum liability for an order amount of up to 250,000 Euro is 12,500 Euro; for an order amount exceeding 250,000 Euro, a maximum of 5% of the order amount but limited to 250,000 Euro.

12. Industrial property rights and copyright

12.1  Where an item is manufactured by the Vendor on the basis of design information, drawings, models or other specifications provided by the Purchaser, the Purchaser shall indemnify and hold them blameless against any infringement of property rights.
12.2  Design documents, such as plans, sketches and other technical documentation as well as patterns, catalogues, brochures, drawings, etc. shall remain the property of the Vendor and are also subject to the relevant statutory provisions governing copying, imitation, competition, etc. in 2.2. These may not be copied, or made available to third parties without written permission.

13. General

In case that an individual provision or one of these General Trading Conditions should be infeasible, the effectiveness of the remaining provisions shall remain unaffected. The infeasible provision shall be replaced with a valid provision which comes as close as possible to the stated aim.

14. Jurisdiction and applicable law:

The competent court at the domicile of the Vendor shall have sole jurisdiction over decisions relating to all disputes arising from the contract - including those relating to its existence or non-existence. The contract shall be subject to Austrian Law and exclude referral rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.

No responsibility is taken for the correctness of this information. Alterations, errors and typographical errors reserved.

Photographs: Fotolia.de

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