Sale and delivery
Issued November 2009
1. Our terms and conditions shall apply for all present and future business transactions between us and the customer. They shall be agreed as valid no later than acceptance of the goods or service on the part of the customer. We herewith expressly reject deviating terms and conditions of the customer, also for future business transactions. They shall be binding for us only insofar as we confirm them explicitly in any conference written. The ineffectiveness of a clause or part thereof shall not influence the effectiveness of the remaining part.
2. Our quotations shall be without engagement. Cost estimates and freight charges shall not contain any fixed prices. Quotation documents may not be made accessible to third parties. Quotations and agreements of our employees, contractual additional agreements, provisos, changes and additions shall be valid only with our written confirmation and shall be subject to proper and punctual self-delivery.
3. The goods shall be delivered in a condition and in packaging customary to the trade. In the case of purchase according to a pattern or sample the characteristics of the pattern or sample shall not be guaranteed. We accept on principal no liability for the suitability of the delivered goods for the purposes intended by the buyer, nor for losses of any kind that may arise as a result of the treatment, processing or use of the product in a broader sense.
Further treatment or processing shall take place at the risk of the buyer. Before the further treatment or processing the buyer shall test the suitability of the material for the intended use. If it omits this test, or does not test to the necessary extent, or fails to notify deficiencies immediately the goods shall count as accepted. The purchased item shall offer only the level of safety that can be expected on the basis of licensing regulations, operating instructions, rules provided by the works making delivery in respect of handling the delivered item (operating manual) – in particular with regard to the stipulated testing – and other advice given in accordance with the current state of science and technology. We shall not be responsible for the issuing of official permissions. The customer shall give assurance that it will comply with the safety and environmental protection regulations. It shall be agreed that there will be no duty to substitute in accordance with product liability law BGBl. 99/1988 of 12 Feb. 1988 and no product liability claims deriving from other terms for material and consequential losses suffered by an enterprise as the result of deficiencies of the product.
4. The delivered quantity shall be determined at our discretion by a method customary in the trade and shall be binding. Deliveries smaller or larger than the quantity purchased customary in the trade shall be accepted as fulfillment of the contract. We shall have the right to partial performance to a reasonable extent. Quality shall be defined by the data ascertained by the dispatching office. Acceptance of the goods by the customer/carrier/transporter shall be proof of quantity, fault-free packaging and loading. Our deliveries shall basically be free domestic dispatch warehouse (EXW). Even if transport by a third party is wished for by the customer, delivery shall be free carrier domestic dispatch warehouse (FCA). In cases of doubt deliveries designated explicitly as carriage paid (CPT) shall not include the costs of unloading at the place of delivery. The buyer is expressly informed that we shall not arrange any carrier or transport insurance. Increased freight charges occurring after closure of contract, duties, taxes and other official charges shall always be borne by the buyer. The customer shall agree in advance to any price increases arising in the course of partial deliveries or as a result of higher transport costs or additional costs.
5. An increase in the stated price shall be allowed if our own costs increase (e.g. increased material costs, increased import duties and taxes). If the price increase amounts to more than 35% the customer shall by means of a written declaration within 2 weeks of receiving notification of the price increase be able to withdraw from the contract in respect of the quantities not yet accepted. In the case of a reduction in the quantity accepted the valid sliding price shall apply for the accepted quantity.
6. In the case of foreign currency transactions not conducted in euros, changes in the exchange rate after closure of contract shall be credited or debited to the customer.
7. Only delivery dates/times that are confirmed in writing shall be binding on us. All delivery dates/times shall be subject to the condition that transport routes and means of transport are available to the required extent and shall be accepted as met if the goods leave the point of dispatch such as to arrive punctually at the recipient after the normal transport time. Force majeure, hindrances to acceptance or performance in the subcontractor, production or transport sector or other circumstances and incidents outside our sphere of influence shall release us from the affected contractual obligations for the duration of the disturbance; we shall not be obligated to make subsequent deliveries. If the quantities of goods available to us are insufficient to satisfy all buyers we shall have the right to make equivalent reductions in all our delivery obligations and we shall be released from all delivery obligations beyond this. In all these cases – even if we are already in arrears – we shall have the right to deliver with a corresponding delay including a reasonable run-up time. In addition, if delivery dates are exceeded by more than 4 weeks we shall have the right at our discretion to withdraw partly or wholly from the contract immediately or later. After the elapse of 4 weeks the buyer shall be able to set us a reasonable period of grace with the condition that it will refuse delivery after expiry of this time limit. After expiry of this period of grace without result, the buyer shall be entitled to withdraw from the contract by means of a written declaration or, in the case of delayed delivery for which we are liable, to claim damages for non performance in accordance with Point 10.
8. Notification of deficiencies and other complaints must be registered in writing immediately after arrival of the goods, otherwise wrong goods shall also count as accepted. In the case of the punctual and justified notification of deficiencies we shall at our discretion provide a replacement, remedy or complete the deficiency, or reduce the purchase price. The complaint about a delivery or service shall not entitle the customer to refuse further deliveries from the same or a different contract. The customer shall cooperate with us in respect of delivery and shall inform us in good time of circumstances that will make delivery difficult, e.g. poor access, long hose distance.
9. The customer must unload the goods immediately and properly. If we assist with unloading this shall take place without legal obligation and at the risk of the customer. The risk of accidental deterioration of the goods shall be transferred to the customer when these have been made ready for collection, at the latest on loading into the means of transport. We shall not be obligated to inform the customer explicitly that the goods are ready. If delivery/collection is delayed for reasons for which the customer is responsible, the customer shall carry the costs of storage and the risk of deterioration of the item. Delayed acceptance on the part of the customer shall entitle us to claim damages on grounds of non performance or to withdraw from the contract, also without a period of grace.
10. Insofar as claims can be made against the seller at all, it shall be liable only in cases of its own gross negligence or intent, even in the case of the delivery of wrong goods. We shall be liable only for direct losses and not for consequential losses due to deficiencies. Every replacement shall be limited to the amount of the buying-in value of the respective (part) delivery. The seller shall in no case accept liability of any kind for the performance of a carrier or freight forwarder or their subcontractors, even if these were contracted by the seller. Apart from this, the liability for vicarious agents shall be limited to the careful selection of same.
11. The buyer shall have no right to set off claims made by it against our debt claims unless these are recognised by us or have been authorised by law; it shall waive the substantiation of a right of retention. We shall return securities lodged only insofar as these exceed our debt claim totals by more than 50% upon demand.
12. We shall retain the title of ownership to all goods delivered by us until complete payment of all debt claims deriving from the business relationship with the buyer. The buyer shall be obligated to make this known to third parties in an appropriate way and also to push this through in the case of resale, which until complete payment of the purchase price shall be permitted only with our written consent. In any case the buyer shall already now assign to us all rights deriving from and to the goods subject to our reservation of title. This assignment shall be accepted by us. Moreover, the customer shall not be permitted to assign the debt claims assigned to us to third parties, in particular by means of a framework or global assignment.
13. Payments shall be made net cash within 14 days of date of invoice. In the event of default in payment, we shall charge interest for delayed payment to the amount of 15% p.a. plus bank and exchange expenses, other costs incurred, our own fixed reminder charges and all costs associated with the bringing in of a collection agency at the rates charged by same. Payment to our representatives shall clear the debt only if these are authorised to collect payment and the payment is made against a receipt issued by us. We shall have the right to use your payment to clear the oldest of your debts, even if you have specifically allocated said payment. A payment shall not be recognised as made until we can dispose over the amount. If we accept bills of exchange or cheques, this shall be only for purposes of payment and subject to discounting possibilities against immediate payment of all expenses. We shall not be obligated to the punctual presentation of bills of exchange or cheques. In the event of default in payment all rebates, discounts, payments by instalment and other preferential treatment shall be cancelled. If the customer fails to meet its payment obligations, in particular if it stops making payments or a cheque is dishonoured, or if other circumstances become known that cast doubt upon the creditworthiness of the customer, we shall have the right to set the entire remaining debt as due, even if we have accepted cheques/bills of exchange; we shall also have the right to demand payment in advance or securities; and we shall be able to wholly or partly retain or refuse deliveries, not only from the contracts affected but also from other contracts, and to demand payment in advance for the deliveries.
14. If nothing different has been agreed liquid chemicals shall be delivered in containers bearing a deposit. The deposit on containers shall be invoiced separately and – regardless of the conditions of payment for delivery of the goods – shall be due immediately and without deduction including VAT on the deposit containers. The containers shall be subject to our deposit conditions, which the buyer of the goods herewith takes note of and agrees to. We shall not be obligated to inspect containers provided by the customer for suitability, in particular cleanliness. We shall not be liable for losses or deficiencies arising as a result of damaged or otherwise unsuitable containers. In this respect the customer shall also indemnify and hold us harmless against third parties.
15. In the sense of the Chemicals Act BGBl. 326/87 in the version currently in force we sell our goods exclusively for commercial use.
16. Within our business relationship we shall record personal data acquired concerning customers and shall pass this on if necessary to our parent company and its subsidiaries, and to the authorities.
17. Place of fulfilment shall be Vienna for both parts. Legal venue shall be agreed as the technically responsible court for the 1st municipal district of Vienna. Austrian law shall apply. In respect of the clauses (EXW, FCA, CPT) contained in our terms and conditions, or others which may be used, reference shall be made to Incoterms 2000, whereby the original text of the German translation by the international chamber of commerce in Paris shall apply. It shall herewith be agreed that legal provisions with applicability limited by law to qualified business persons shall apply to non and partly qualified business persons. To the extent that binding law prevents the use of individual terms (consumer protection law) these shall be replaced by such terms that regulate the situation as far as possible in our favour in the sense of the invalid terms and are compatible with same.
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