1.1 All deliveries and other services effected by ourselves, and all payments made to us, shall be exclusively governed by following Terms of Delivery and Payment. In all other regards, Austrian laws and regulations shall apply. If any business terms of the Ordering Party’s are at variance with these General Terms of Delivery and Payment, we shall only be bound by such divergent terms if we have expressly recognised the same by letter or by telefax.
1.2 In taking delivery of the goods and/or service, the Ordering Party acknowledges the exclusive applicability of our Terms of Delivery and Payment.
2.1 Our offers are without engagement and subject to alteration, unless the offer makes express mention of a period of engagement. Documents pertaining to our offers – such as drawings, illustrations, samples and patterns, and dimensional, weight, performance and consumption data – contain or themselves constitute only approximate data and are not deemed to be specially agreed characteristics unless otherwise provided. We retain the right to effect modifications for engineering reasons.
2.2 We reserve the proprietary rights and copyright to all cost estimates, drawings, pictures and other documents; these may neither be disclosed to any third party nor used for the purposes of any third party.
3. Acceptance of the order; supplementary agreements
Acceptance of an order, and any undertakings or supplementary agreements made by our employees, as well as amendments and alterations of any kind, shall not be binding upon us until we have issued written confirmation by letter, telefax or e-mail.
4. Price and payment conditions; offsetting
4.1 All prices quoted by us are, unless otherwise is expressly noted, VAT excluded.
4.2 Prices are always the list prices valid on the date of delivery. They are ex-works prices (EXW [Incoterms in the latest version]), exclusive of packaging, insurance, loading at the factory and value-added tax; the packaging will not be taken back.
4.3 Payments are to be made net cash, without any deduction and free of charges, within 14 days of the invoice date. It shall be for us to decide which claims or partial claims of the Ordering Party’s may be offset against such payments.
4.4 If any changes in order execution are necessitated by circumstances where risk is borne by the Ordering Party, then this latter shall bear all additional costs thereby incurred.
4.5 If the payment period is exceeded, we shall be entitled to charge default interest at a rate of ten percentage points above the applicable base rate announced by the Austrian National Bank, plus the collection costs, such amounts to total at least 12% p.a. of the overall claim. This is without prejudice to any further consequences of default in payment.
4.6 It is inadmissible for the Ordering Party to withhold payments or to offset these against our claims.
4.7 Where the Ordering Party holds claims against ourselves, we are entitled to offset these against our own claims against the Ordering Party, at any time.
4.8 Where the Ordering Party holds claims against ourselves, we are entitled to offset these against our own claims against the Ordering Party, at any time.
5. Performance, shipping and default
5.1 The delivery period commences with the mailing oft he order confirmation note.
5.2 Delivery or performance periods are extended for the duration of any unforeseen impediments lying outside our sphere of influence, such as stoppages, major personnel outages, unlawful strikes, delays in supplies of essential raw materials or components or the like, as well as by circumstances where risk is borne by the Ordering Party, to the extent that these impediments and/or circumstances are of material relevance to the failure to meet the deadline. Impediments and/or circumstances of this nature also annul the consequences of a default for which we would otherwise be liable, for the duration of such impediments; any contractual penalty obligations which may have been agreed for specific instances shall entirely cease to apply. Immediate notification is to be given of the beginning and end of such impediments. We are entitled to terminate the contract, in whole or in part, if such impediments should occur. In this case, unless the Ordering Party proves gross negligence on our part, damages claims from the Ordering Party shall be inadmissible.
5.3 If agreed delivery or performance deadlines, or deadlines that have been extended in accordance with 5.2 above, are exceeded by more than four weeks, the Ordering Party shall be entitled to terminate the contract, having granted us at least 14 days’ extra time by notice given to us in a registered letter. Unless the Ordering Party proves gross negligence on our part, damages claims from the Ordering Party shall be inadmissible in this case.
5.4 In cases where we have undertaken to effect shipping, the mode and route of shipping shall be for us to decide. Goods are always shipped at the Ordering Party’s risk and expense. We shall only be liable for damage if gross negligence is proven on our part. We shall only take out transport / breakage insurance by order and for the account of the Ordering Party.
5.5 We are entitled to effect part-deliveries.
5.6 If shipping is delayed due to circumstances where risk is borne by the Ordering Party, then this latter shall bear all resulting additional costs, such as those for storage at our factory, but with a minimum monthly charge of 0.5% of the invoice amount. In such a case we shall also be entitled to grant the Ordering Party a grace period of at most 14 days, and if this period should expire to no avail, we shall then be entitled, at our own discretion, either to make alternative arrangements regarding the article(s) to be delivered and to effect delivery to the Ordering Party within a suitably extended period of time, or to terminate the contract and claim damages for breach of contract. In this latter case, we are entitled, without having to furnish any particular proof, to require 10% of the remuneration for the intended delivery as indemnification. Where appropriately substantiated, we can also claim compensation for any damage over and above this amount.
5.7 In the case of goods ordered on call, or ordered for production with no shipping instructions, delivery must be taken within three months. If this time limit elapses unused, then 5.6 shall apply analogously.
6. Passage of risk
6.1 Risk shall pass to the Ordering Party as soon as the articles have left our factory. The same shall also apply to part-deliveries or in cases where we have undertaken to bear the shipping charges or to perform delivery.
6.2 If there is any delay in dispatching or delivering the shipment for reasons for which we are not liable, the risk shall pass to the Ordering Party as soon as it has been notified that the consignment is ready for delivery.
7. Retention of title; rescission
7.1 We shall retain title to the article(s) delivered until our purchase-price claims, and all other claims that we have – on whatever legal grounds – against the Ordering Party, have been settled in full.
7.2 The Ordering Party is only permitted to re-sell the article delivered – even if this has been joined to other items or subjected to processing – in the course of its company’s regular business operations. However, this permission is precluded if the resulting claims are assigned to third parties or are the subject of an assignment prohibition, or if the Ordering Party is insolvent or in default with the performance of its contractual obligations. No other manner of disposition whatever is permitted to the Ordering Party. In the event of distrainment, confiscation or other disposition by third parties, the Ordering Party is to notify us hereof immediately. Our legal expenses incurred in connection with the enforcement of our title are to be borne by the Ordering Party.
7.3 The Ordering Party assigns to us even now its claims and other rights from the re-sale, rental or leasing of the article delivered, even if this latter has been joined together with other items or subjected to processing; the Ordering Party shall make an entry to this effect in its books. If the article delivered is sold or placed into the hands of a third party for such party’s use together with other items (regardless of whether or not it has been joined to any such items or subjected to processing), then the receivables claim shall only be assigned up to the amount of the purchase price owed to ourselves. This is without prejudice to any further damages claims.
7.4 The Ordering Party is only entitled to collect the claims and to assert the other rights to the extent that it has met its payment obligations towards us and is not insolvent.
7.5 If the Ordering Party should act contrary to the terms of the contract – in particular by being in arrears with payment or with any other contractual obligation, and/or by being insolvent – we shall be entitled, at our own discretion, either to terminate the contract without granting any grace period or, while leaving the contract in force, to take back the article delivered or to forbid it to be used. We shall also be entitled to sell the taken-back article in the open market; after deduction of a handling fee of 10% of the proceeds thus realised, the remainder will be debited from the total of our outstanding claims against the Ordering Party. Pending return of the article in the event of our terminating the contract, we shall charge the Ordering Party a usage fee of 5% of the original value of the article, unless the actual diminution in its value is even greater.
8.4 In cases where we do give warranty, we shall – at our own discretion and within a reasonable period of at least 4 weeks’ duration – either exchange the defective article itself, or its defective components, for a defect-free article or defect-free components, or remedy the defect(s), or grant the Ordering Party a reasonable reduction in price, or (unless the defect in question is a minor one) cancel the contract. The warranty period is not prolonged by the exchange of the item or of parts or components belonging to the item. If, however, the remainder of the warranty period – including that part of the period during which our warranty is limited to free provision of the requisite materials in accordance with Point 8.3 – lasts for less than three months, then the warranty period for the exchanged items, parts or components shall be extended to three months. The items, parts or components thus exchanged shall become our property. We shall not refund the costs for any actual or attempted remedying of a defect by the Ordering Party or by any third party.
8.5 The provisions of § 924 phrase 2. of the Austrian civil Code (ABGB) are expressly excluded here in relation to an entrepreneur.
8.6 To the extent that is necessary and may reasonably be expected of the Ordering Party, the object of delivery or performance, or the defective part(s) thereof, are to be dispatched or shipped to us immediately at our request, at the Ordering Party’s risk, failing which any and all warranty obligation on our part shall become void.
8.7 The Ordering Party is not entitled to withhold payments on account of warranty claims or other counter-claims not recognised by ourselves.
8.8 Warranty claims from the Ordering Party are excluded if the installation work has not been performed properly and in accordance with the relevant Standards, and in particular if was not carried out by licensed contractors; if any corrective maintenance or other work has been performed on the object of delivery or performance without our consent; if it has been improperly operated or used, or operated despite its protective features being faulty, or taken out of the contract territory without our consent, or used contrary to our instructions or for purposes for which it is not intended; and, moreover, where defects are attributable to foreign object damage, chemical influences, the conduct of third parties or to force majeure; the same applies in respect of natural wear-and-tear.
8.9 Our warranty is also excluded in cases where we have been contracted to carry out repair-orders, to alter or modify used items, or to supply such items.
8.10 Finally all warranty claims shall be excluded if the Ordering Party installs third-party components or replacement parts in our delivery items or services provided by us which have not been expressly recommended by us prior thereto.
9. Damages and product liability
9.1 Our liability shall be limited to deliberate act and extremely gross negligence. The liability for slight and simple gross negligence, the compensation for consequential damages and financial loss, not realised savings, loss of interest and damages arising from third partee are excluded. Damage actually incurred, and, moreover, to a maximum overall amount not exceeding the total order value. Furthermore, claims of this type may only be enforced at law if asserted within six months of the damage in question becoming known.
9.2 The above provisions shall not apply for body and health damages caused by us. The limitation of liability shall not apply to privat customers (consumers) in case of slight negligence.
9.3 In the event that we are taken to law by a third party where we have produced and delivered in accordance with the drawings, designs, models or other documents provided by the Ordering Party, the Ordering Party shall indemnify and save us harmless.
9.4 When using the goods delivered by ourselves, the Ordering Party is obliged to painstakingly observe all safety regulations, technical rules, installation regulations, operating instructions and user manuals. Only authorised skilled personnel to operate the equipment. Any liability for damages which could have been avoided by following the written operating and installation instructions and general warnings, is excluded. The liability for product errors, according to the regulations of the product liability law (Produkthaftungsgesetz) for material damage incurred by an entrepreneur is excluded.
9.5. Any liability for damage caused by the installation or use of third-party components or replacement parts with our delivery items, which have not been verifiably and expressly recommended by us, shall be excluded.
10. Consent to data protection
Client shall agree that Böck GmbH may collect, process and use personel data (such as name, address, email address), if applicable also by commissioning a service provider, for the purpose of sending information regarding products and services of any kind (e.g. by post, email, newsletter and more). A dissemination to externals in excess thereof shall not occur (excluded are legal or judicial obligations to provide information). The consent may be objected at any time in writing via e-mail or postal mail.
11. Final provisions
11.1 The place of performance for deliveries, other services and payments, and the sole place of jurisdiction, shall be Linz, Austria. However, we shall also be entitled to go to law against the Ordering Party at the court which has “in-rem” and territorial jurisdiction under the relevant regulations for the Ordering Party’s commercial domicile or place of residence.
11.2 The Ordering Party is aware that in international commerce, it is common practice that an agreement regarding the place of jurisdiction can also be entered into, in a formally effective manner, as a result of tacit acquiescence or non-reaction to a confirmatory business letter such as an order confirmation note containing a pre-printed reference to the place of jurisdiction.
11.3 Legal disputes arising out of the contract are to be governed by Austrian law and by the commercial practice prevailing at the place of performance. The UN Convention on Contracts for the International Sale of Goods, on the other hand, shall not be applicable (Austrian Federal Gazette 1988/96).