General Terms & Conditions of Contract & Purchase
§ 1 Scope of Application
1. These Terms and Conditions of Contract and Purchase shall apply to all orders of goods and – by analogy – to services of our contractors. Our future orders shall be subject to these Terms and Conditions of Contract and Purchase, as amended from time to time, even if we did not send them again to the contractor or incorporated them by reference.
2. By accepting or carrying out the order, the contractor irrevocably and unconditionally acknowledges the applicability of these Terms and Conditions of Contract and Purchase. Any deviating contract terms of the contractor are expressly excluded. These shall be valid and will become part of a contract only if we have expressly acknowledged them in writing; however, counter-signing a confirmation of order or delivery notes or invoices and the like, which contain a reference to the contractor’s terms and conditions, shall, in any event, not be sufficient.
3. Should individual terms of these Terms and Conditions of Contract and Purchase be invalid, this shall not affect the validity of the remaining terms and the contracts concluded on the basis thereof. The invalid term shall be replaced by a valid term that closest reflects the meaning and purpose of the invalid term,
§ 2 Orders
1. Our orders shall be duly signed by the contractor at the relevant place of the copy of our order form. This shall also apply if our order is based on a quote submitted by the contractor. Any deviation from our order shall be permitted only with our previous written consent and shall otherwise be invalid. Only our descriptions, drawings, technical delivery terms and approved samples which may be disclosed in the order or otherwise disclosed to the contractor shall be relevant for the carrying out, type and nature of our order.
2. Prior to the contractor’s acceptance of our orders, we shall be bound by our orders only pending their written revocation, which can be issued after expiry of three days after sending the order to the contractor, and the contractor shall not be entitled to any claims whatsoever against us. If the contractor submitted to us a quote after our request, he shall, in any event, be bound by that quote 30 days after we have received the quote.
3. Our order shall be deemed tacitly accepted, acknowledging these Terms and Conditions of Contract and Purchase, unless we have received a written notice to the contrary within 14 days after the order date stated in the order.
4. Notwithstanding the foregoing, the contract shall be concluded also by the contractor accepting our order and these Terms and Conditions of Contract and Purchase by delivering the goods ordered.
§ 3 Prices
The prices stated in our order are exclusive of VAT and shall be unchangeable fixed prices. Except where agreed otherwise, they shall include packaging and shipment costs. We may return packaging to our contractor.
§ 4 Delivery
1. The goods delivered shall be accompanied by detailed technical descriptions of their functions and by instructions on their installation and use as well as by certificates, test confirmations, etc. These documents must be in German, easily understandable for lay persons and ensure that the goods can be smoothly handled (installed, (further) processed).
2. The goods delivered shall be packed fail-safe and in a manner to protect them against any damage and corrosion during transport and any further transport, if any, and to allow repeated reloading, if any, during transport as well as longer storage. The contractor acknowledges that the packaging shall be particularly suitable to sufficiently protect the goods also in case they are further transported to third countries under difficult transport conditions.
3. Agreed delivery deadlines and dates shall be strictly complied with. Agreed delivery deadlines shall commence on the date of our order or, if we reserved the right to call off the goods, upon issuance of our call-forward notice; in this event, the goods may, in any event, not be delivered before we have called them off.
4. The contractor may make partial deliveries only with our prior express written consent.
5. If the contractor can foresee that he cannot comply with the agreed delivery deadlines and dates, he shall immediately inform us in writing, stating the reasons and the probable duration of the delay. This shall not affect the contractor’s responsibility for timely performance of the contract.
6. In case of the contractor’s default, we may, at our election, demand performance of the contract and compensation for damage due to delayed performance or immediately rescind the contract – without granting a grace period – and demand damages for non-performance. The contractor acknowledges that any delay in the performance of his service may result in a delay in the performance of a major overall service which we have to provide to third parties. Any damage resulting therefrom shall be covered by damage due to delay of performance as defined herein.
§ 5 Shipment – Transfer of Risk
1. The costs for the transport as well as the transfer of risk shall be subject to the Incoterm stated in our order. If our order does not state any Incoterm, the contractor shall deliver the goods “free domicile”.
2. Irrespective of the trade term agreed in paragraph 1, the goods shall be delivered to us in proper packaging which is suitable for transport and complies with our standards and conditions which we have disclosed to the contractor.
§ 6 Warranty
1. The contractor shall be liable for the expressly or implicitly ensured properties according to the laws. The contractor shall be particularly liable that the goods delivered by him comply with the technical maximum standard on the date of delivery and are made of high-quality raw materials. He shall also be liable that the documents attached to the goods (§ 4 (1)) comply with the requirements referred to in § 4 (1).
2. We are released from the statutory responsibility to immediately inspect the goods delivered or the service provided and to immediately give notice of both hidden and identifiable defects, if any; the provisions of Sections 377 et seq. Commercial Code (HGB) shall not be applicable. A note, if any, on a delivery note confirming acceptance shall only refer to the quantity of the goods delivered, to the extent this is visible despite the packaging and is not deemed to confirm the faultless condition of the goods. In addition, any payment we have made shall not be deemed to acknowledge the faultless condition of the goods delivered.
3. If the goods delivered by the contractor are further transported and/or resold by us, the warranty period shall commence only upon delivery to our customer, even if the goods delivered by the contractor are further transported or resold in another than the original packaging. Written notices of defects we have issued as well as any attempted rectification and/or replacements by the contractor shall interrupt the warranty period and any guarantee period the contractor may have granted.
4. If the goods the contractor delivered to us are defective, we may, at our election, in particular request the contractor to replace the defective goods by faultless goods or we may rectify or procure a rectification by third parties of the defective goods or we may refuse to accept the entire delivery or defective parts thereof and return them at the contractor’s cost and expense or we may demand a reduction of the price or rescind the contract. This shall not affect any other statutory rights.
§ 7 Liability
1. The contractor shall be liable for any damage, in particular also for consequential damage, indirect damage and lost profit which he or his servants have incurred from insufficient performance or otherwise in connection with the performance of our order. We will not accept any exclusion or restriction of the contractor’s liability. We are not obliged to send any warning notices whatsoever to the contractor.
2. If we satisfy compensation claims of third parties which result from any damage which was caused by defects of the goods delivered by the contractor, inaccuracies or incompleteness of the documents enclosed to the goods (§ 4 (1)), insufficient or improper packaging (§ 4 (2)) or through other defective services of the contractor, we are entitled to assert a recourse claim against the contractor if and when the cause of damage lies within the contractor’s control. This recourse claim shall include all costs we incurred from third injured parties asserting compensation claims.
3. The contractor will appropriately support us from the beginning in the defense of such claims to the best possible extent, in particular by providing relevant information and joining the proceedings initiated against us as intervener on our side. If the contractor fails to fulfill this obligation, he may not resort to these defenses in recourse proceedings.
4. As regards the services provided by the contractor and/or related services, the contractor shall compensate any damage within the meaning of the Product Liability Act, and he shall hold us harmless and indemnify us for and against all product liability claims asserted by third parties. In addition, the contractor shall compensate other damage caused by deliveries made and services provided by him and he shall hold us harmless and indemnify us for and against all claims of third parties in this respect.
§ 8 Invoices and Payment Terms
1. Invoices shall be separately mailed to us in two copies immediately after dispatch of the goods or provision of the service, quoting our order number and our employee handing the order. Invoices shall be issued to us in compliance with the VAT Act. Except where we gave written notice to the contractor to the contrary, invoices shall be addressed to:
Slavonia Baubedarf Gesellschaft mbH
Hauffgasse 3-5, 1110 Vienna
2. Unless otherwise agreed in writing, we will settle invoices subject to a 3 % cash discount within 21 days after receipt of the invoice or net within 60 days after receipt of the invoice.
3. If we fail to make timely payment, the contractor’s compensation claim shall not exceed the amount of interest at an annual rate of 4 % related to outstanding amount. The contractor shall not be entitled to any further damages, interest, rescission, retention or other claim, whether based on our default in payment or on any other grounds.
4. The contractor may not set off his claims against our claims or retain services, except where claims were established by a court or acknowledged by us.
§ 9 Retention of Title and No Assignment
1. Title to the goods the contractor delivered on the basis of our order will transfer to us upon transfer of the risk. We will not acknowledge any retention of title of the contractor or third parties.
2. The contractor may not assign or pledge claims which are based on an order we have placed.
§ 10 Data Processing
The contractor agrees that we will store, transfer and process his data which we have become aware of in the course of our business relationship.
§ 11 Confidentiality
Any business information the contractor becomes aware of in the course of our business relationship shall not be disclosed to third parties for an unlimited period of time. The contractor shall assign this obligation also to his employees and upstream suppliers.
§ 12 Applicable Law, Place of Performance, Place of Jurisdiction
1. The legal relationships with us shall be exclusively governed by and construed in accordance with Austrian law, to the exclusion of the UN Sales Convention and the provisions of International Private Law.
2. Place of performance for all obligations arising from our relationship with the contractor shall be Vienna.
3. Place of jurisdiction for all disputes arising directly or indirectly from our relationship with the contractor shall be Vienna – Inner City. However, we are also entitled to refer disputes to another court having jurisdiction for the contractor.