The printed conditions of sale and delivery apply to all current and future contracts, agreements, contractual relationship and pre-contractual relationship, statements or any other legally relevant fact or real circumstances of Ing. A.F. Baeder Ges.m.b.H. (hereafter also referred to „supplier“).
Deviations are only effective if they have been confirmed by the supplier in writing. General terms and conditions, contract templates, purchasing conditions, service conditions or comparable regulations of the purchaser, third parties or references to such regulations of the purchaser or third parties do not apply even without the express objection of the supplier. The purchaser is aware that the supplier delivers, sells or contracts exclusively under these terms and conditions of sale and delivery.
Changes and additions must be in writing. The same also applies to a departure from the written form requirement. Written form means a registered letter or a fax.
II. Conclusion of the contract
The supplier's first offer is considered to be a request to make an offer to the purchaser and does not bind the supplier. The contract is only concluded when the purchaser places an order and the supplier subsequently accepts the order. The purchaser is bound to his order for a period of 21 calendar days or a longer service period specified by him or up to a later delivery or service date. Order confirmations are to be checked immediately by the purchaser to ensure that the content is correct. Any deviations from the order must be reported in writing within 7 days at the latest, otherwise the deliveries and services contained in the order confirmation are irrefutably deemed approved by the partner.
An offer is subject to the relevant statutory provisions of the supplier at the time the contract is concluded, unless otherwise agreed in this agreement. In case the purchaser desires modifications of design and/or workmanship within the scope of what is technically feasible or acceptable to the supplier, the supplier shall submit an amended offer pertaining to the effects of such modifications, in particular with respect to increased or reduced cost or to the date of delivery. The acceptance of the first (partial-) delivery by the purchaser shall be an acceptance of this extended offer.
If, after the order has been accepted, it turns out that the financial circumstances of the purchaser are so bad that the claims of the supplier are endangered, or if circumstances become known that permanently reduce the purchaser’s creditworthiness, the supplier is entitled to perform its own work until the consideration has been received or refused. The supplier can also prohibit the resale of the goods delivered subject to retention of title and demand their surrender. In addition, the supplier is entitled to withdraw from the contract and claim damages.
If, after the order has been accepted, the costs for the supplier for the delivery of the item (see III.) have increased by more than 5 percent, for whatever reason, the supplier is entitled to pass on the resulting additional costs to the purchaser. Costs include all costs in connection with the delivery item, in particular, but not exclusively, delivery costs, material costs, manufacturing costs, personnel costs, etc.
The contract with the purchaser shall be concluded subject to the correct and timely delivery by the supplier’s subcontractors depending on the fact that a congruent legal transaction has been concluded with the subcontractor and the supplier is not responsible for the failure of delivery. The purchaser shall be informed immediately, if services are not available. There upon, the supplier shall return the quid pro quo without delay as far as it was already paid.
All declarations of the purchaser (order acknowledgements, purchase orders, objections etc.) shall be made in writing and must be confirmed by the supplier in written form (see I.3.).
III. Delivery item
The supplier delivers the product in accordance with the written contract content. Another or more extensive (beyond) quality of the product shall only be deemed agreed if it was explicitly confirmed by the supplier in writing. The supplier is entitled to have services performed by subcontractors.
The supporting documentation (i.e. illustration, manuals) delivered with the goods may not always correspond with them, especially if, at the purchaser´s request, the supplied goods deviate from the goods usually delivered by the supplier.
Representations in the documentation are not assurances of quality or guarantees. Particular guarantees or qualities of the goods shall be designated as such and shall be confirmed by the supplier in writing. Without this written confirmation, advertising or other public statements do not result in any obligation on the part of the supplier.
IV. Collaboration duties of the Purchaser
The purchaser shall name a person of contact who will serve as an authorized representative to the supplier.
During the pre-contractual negotiations the supplier shall immediately be informed, as soon as circumstances will arise within the environment of the purchaser that may lead to a break-off of the pre-contractual relationship (e.g. cancellation of budget, short-term change or suspension of the project).
The purchaser is obliged to provide the supplier with all necessary documents and information for the proper execution of the delivery or the purchase and to take all necessary measures in a timely and complete manner.
If the purchaser does not fulfill his duty to cooperate on the agreed dates or to the intended extent, the services provided by the supplier are nevertheless deemed to have been provided in accordance with the contract / properly and free of defects, despite possible restrictions.
V. Delivery, Delivery time and time for the provision of Service
The delivery date and time for delivery shall be agreed in writing. The time for delivery shall only commence at the moment of contract. If the contract is amended subsequently, then the previous delivery date and / or time for delivery is cancelled. In this case the supplier and the purchaser shall agree upon a new date for delivery.
The compliance with agreed dates and deadlines for deliveries as well as the compliance with the duty to cooperate and the provision of documents and permits are requirements. The supplier is not obliged to check these documents, permits and approvals for their completeness and accuracy.
If the supplier waits for the collaboration or the information of the purchaser, or if he is otherwise prohibited from the implementation without negligence or intention, the time for delivery and time for the provision of services is considered as extended during the period of prevention plus during an adequate period after the prevention has ended.
The delivery deadline is deemed to be met, if the delivery item has left the supplier s plant before the aforementioned deadline or if the supplier has notified the readiness for shipment.
Partial deliveries are permitted to the extent that they are reasonable for the purchaser.
In the event of the shipment being entirely or partly delayed at the request, or on the initiative of the purchaser, the following regulation shall be applicable: The purchaser shall be charged, beginning one week after the purchaser or carrier has been advised that the goods were ready for shipment, all costs caused by delay, in particular the storage costs, but not less than 0,5 per month of the invoice value of the goods transported, unless the purchaser should evidence that the loss has been smaller. This shall also be applicable, if the purchaser or carrier entrusted by the latter should refuse the goods to be transported in another way that can be expected from him other than the manner that had been agreed upon. The supplier shall be entitled, however, to dispose of the goods to be delivered in another way and to supply the purchaser within an appropriately extended period if an adequate grace period granted for taking delivery has expired without result.
The supplier is in default only after having received a reminder. All reminders and deadlines set by the purchaser must be in writing in order to be effective (see I.3.). Any set grace period must be reasonable, but at least 14 days long.
If the delivery dates specified by the supplier are exceeded by 14 days, the purchaser is entitled, after granting a further grace period of at least 14 days, to withdraw from the contract by means of a written declaration. All other claims in this context, in particular claims for damages of any kind, are excluded, unless it is a firm deal within the meaning of § 919 ABGB. If the order is a firm deal, the purchaser must inform the supplier of this in writing at the beginning and the supplier must confirm this in writing. If the specified delivery times for an entire order are exceeded only in part, the agreement shall apply with the proviso that a withdrawal is only permissible with regard to the partial delivery that has not occurred within the grace period. Operational disruptions and events of force majeure (e.g. war, terrorist attacks, import and export restrictions, and industrial disputes) entitle the supplier to extend the deadlines or to cancel the delivery obligation to the exclusion of claims for damages.
The purchaser may not refuse to accept deliveries due to minor defects. Other rights in this context, in particular rights of retention, are excluded.
VI. Passing of risk, acceptance
The risk passes to the purchaser as soon as the goods have been dispatched or picked up. The risk of accidental loss or accidental deterioration of the goods is transferred to the purchaser at the latest when the purchaser is in default of acceptance or payment. At the request and expense of the purchaser, the supplier will insure the deliveries against the usual transport risks. If the delivery is delayed due to the responsibility of the purchaser or if the delivery is delayed on account of the purchaser´s default of acceptance for other reasons, the risk shall pass to the purchaser. The purchaser is obliged to accept the delivery item immediately upon receipt of the delivery item or upon receipt of the notification of readiness to another contact named by the purchaser. The purchaser has to compensate for all disadvantages that arise from a delay in acceptance (see especially V.6.).
VII. Prices, Payment, Set-Off
The agreed prices are, with the exception of the cases provided in II. Point 4, fixed prices and are stated in euros and are ex works plus the applicable statutory sales tax, excluding packaging and insurance.
Unless expressly agreed otherwise in writing, the fixed price does not include any additional costs such as freight, transport and travel costs, expenses or other costs. If the supplier has taken over the assembly, the fixed price also does not include the additional costs listed above.
Invoices are issued individually for each delivery or service. No discount is granted.
Unless otherwise agreed in writing, the purchaser is obliged to pay the agreed fee within 30 days of the invoice date without any deduction. The supplier may also, however, make delivery conditional upon simultaneous Matching Payment (for instance cash on delivery or bank direct debiting service) or on pre-payment, especially if no business relation has yet existed between the purchaser and the supplier, if delivery is to be made to a foreign country or if there is a high risk of late payment.
If the payment period is exceeded, the supplier is entitled to charge default interest of 9.2 above the base rate. In the event of default, all reminder, collection and legal costs are to be reimbursed, including those for out-of-court enforcement steps. The supplier reserves the right to claim further damages.
The purchaser is only entitled to withhold payments or to offset them against counterclaims if his counterclaims are undisputed or have been legally established by a court. The purchaser may not assign his claims or claims arising from or in connection with this contract to third parties.
As far as the purchaser has to pay his payment obligation in partial amounts or, in exceptional cases, a deferral of the purchase price owed in writing, it is irrevocably agreed that if only one installment or partial payment is not paid in due time, all outstanding partial services become due immediately without setting a further grace period. Suppliers can immediately be asserted in court without granting a further grace period.
VIII. Obligation of examination and of issuing complaints in case of disaccord regarding the goods of purchase
With regard to all deliveries and services of the supplier, the purchaser has an obligation to examine and notify in accordance with §§ 377ff UGB; this also includes documentation (e.g. operating and assembly instructions).
In the event of any other ineffectiveness, complaints must always be made in writing by the purchaser with a precise description of the contractual deviation to the supplier.
Verbal notifications are only effective if the supplier gives the purchaser a written confirmation of this.
The complaint is delayed if the purchaser's contact person or the purchaser himself does not notify the supplier in writing of the recognizable defects immediately after the delivery item has been handed over and the parts that are the subject of the complaint are presented. Defects that are not recognizable despite proper inspection are to be reported in writing immediately after they have been discovered, quoting the supplier's delivery note, in the event of any other loss of entitlement and fictitious approval within 7 calendar days at the latest. The statutory warranty provisions apply to consumer transactions.
IX. Warranty, Compensation
In general, the supplier accepts in accordance with the following rules justified warranty claims by the purchaser on all parts of the delivery, that are applied in writing within one year after delivery of the product to the purchaser, but at the latest within one year of first registration of the vehicle to the supplier. Claims made to the supplier after this period are excluded. The prerequisite for the claim is that the assembly has been carried out properly or in accordance with the supplier's assembly instructions by an authorized specialist company. The legal regulation of § 924 2nd sentence ABGB remains unaffected.
Any kind of mechanical destruction excludes a claim against the supplier. Claims that are related to defects in wear parts or their repair costs, as well as claims in connection with defects that are due to material defects, material fatigue or claims in connection with exposures of the product or individual parts to unusual physical, chemical, mechanical or other influences (e.g. acids, alkalis, temperatures outside the range from minus 40 ° C to plus 80 ° C, leaking transport goods, chemical cleaning agents or their consequences, UV radiation outside the UV Directive ISO 4892T2) are excluded.
Claims in connection with defects in parts that the supplier himself has purchased can only be made against the supplier to the extent that he is entitled to against his supplier. In such a case, the supplier is entitled to reject a claim by assigning his claim against his supplier.
If the purchaser or a third party improperly makes changes or repairs without the prior consent of the supplier, the supplier is not liable for the resulting consequences and no claims can be made if parts of the supplier are assembled with third-party parts.
It is up to the supplier to decide whether a replacement or an improvement (= repair) is to be made.
Claims beyond the claims mentioned in this section (IX.) as long as they were not caused by the supplier intentionally or at least grossly negligently, in particular claims for damages, claims for compensation for lost profit, compensation for consequential damage caused by defects, compensation for mere pecuniary damage, contestation of errors of any kind, claims due to the reduction of more than half as well as recourse claims according to § 933 b ABGB are excluded.
In all cases, claims of any kind can only be made if the defective old parts are presented to the supplier with the associated delivery note.
Only after receiving and checking these parts and the delivery note will the supplier make a corresponding decision on the claims asserted by the purchaser.
X. Retention of Title
The supplier retains ownership of the delivered products until all claims to which he is entitled from or in connection with the business relationship have been fulfilled.
The purchaser is entitled to process or connect the goods of the supplier with other products within the due course of the purchaser´s business. By way of security for the supplier’s claims set forth in point 1 the supplier shall acquire joint ownership of the created products as a result of such processing or connection. The purchaser hereby transfers such joint ownership to the supplier already now. As an ancillary contractual obligation, the purchaser shall store the goods to which the supplier has retained title free of charge. The amount of the supplier’s joint ownership share shall be determined by the ratio between the value of the goods delivered by the supplier and the value of the product created by processing or connection at the time of such processing or connection.
The purchaser is entitled to resell the items that are subject to retention of title or co-owned by the supplier in the ordinary course of business against cash payment or with forwarded retention of title. The purchaser assigns to the supplier already now all claims in full together with all ancillary rights to which the purchaser is entitled to from the further sale of the goods, irrespective of whether the product has been further processed or not. The assigned claims shall act as security for the supplier’s claims set forth in point 1. The purchaser shall be entitled to collect the assigned claims. The rights of the purchaser in this point 3 can be revoked by the supplier, if the purchaser fails to duly comply with his contractual duties towards to the supplier, in particular, if the purchaser is in default of payment. These rights shall also cease without any express revocation, if the purchaser suspends payments for more than merely a temporary period.
At the request of the supplier, the purchaser must immediately inform in writing to whom he has sold the products owned or co-owned by the supplier and what claims he is entitled to from the resale.
The purchaser is not entitled to any other disposal of the items of the supplier that are subject to retention of title or co-ownership or of the claims or claims assigned to the supplier. The purchaser must notify the supplier immediately of any pledging, seizure or other legal impairment of the items or claims belonging to the supplier in whole or in part. The purchaser shall bear the entire costs, which have to be expended in order to cancel the attachment of the supplier’s retained property or security by third parties and to re-create the goods insofar as it is impossible to retrieve it from the third parties.
In the event of default in payment or any other culpable breach of essential contractual obligations by the purchaser, the supplier is entitled to demand the surrender of the items that are subject to retention of title or co-owned. If he makes use of this right, the contract is only withdrawn if the supplier expressly declares this.
If the purchaser files a petition for insolvency proceedings to be commenced, the supplier is entitled to withdraw from the contract and demand the immediate return of the delivered goods. If the value of the security existing for the supplier exceeds the amount of the supplier’s claims by over 10 at the aggregate, the supplier shall, at the purchaser’s request, release security to this extent at his choice.
XI. Further liability
Unless expressly stipulated in IX. or otherwise, demands on liability of this agreement shall be excluded for whatever reason, unless mandatory law to the contrary is provided. This exclusion of liability shall explicitly be applicable to damages not resulting from the delivered goods themselves. The supplier is only liable for damages and reimbursement of frustrated expenses in the event of intent or gross negligence on the part of the legal representatives or vicarious agents.
The exclusion of liability in point 1, shall not be applicable to damages resulting from the takeover of certain guarantees or risks of procurement, as well as from deadly injuries, bodily harm or other injuries to health. The exclusion of liability in point 1 shall also not concern the mandatory liability laid down in the Austrian Statute of Liability for goods or any other coercive liability, as well as the infringement of essential contractual duties. The damages for a breach of material contractual duties are, however, limited to foreseeable damage typical for the type of contract. In addition, there are other liabilities, in particular the replacement of consequential damage caused by a defect, the replacement of mere financial loss and the right to compensation for lost profit.
In any case, the purchaser is responsible for providing evidence of such damage.
Claims for damages shall become time-barred within twelve months.
Liability under the Product Liability Act is excluded in any case if the error results from compliance with a legal provision, if the properties of the product cannot be recognized as an error according to the state of the art in science and technology, if the supplier has manufactured a faultless raw material or a partial product and the fault was only caused by the design of the product or by instructions from the supplier. Furthermore, the supplier is not liable if he has placed the product on the market, but informs the purchaser of the manufacturer or importer or the person who has delivered the product to the purchaser within a reasonable period of time.
The purchaser is obliged to observe all warning notices, instructions for use and other product declarations etc. originating from the supplier and to make them known to the end user in their complete and current version. The notification must be made in writing as far as possible, using the relevant illustrative material (product description, etc.) from the supplier.
Contractual objects, documents, suggestions, documentation, etc. are the intellectual property of the supplier and may not be reproduced and / or made available to third parties. If no contract is concluded or a contract has ended, they must be returned by the purchaser or verifiably deleted and may not be used either by the purchaser or by third parties.
During the pre-contractual relationship or during the performance of contract and in relation to the purchaser, all rights affecting the goods, particularly the extensive copyright including all objects, data, and information handed over to the purchaser, exclusively shall rest in the supplier, even if the rights have accrued from co-operation with the purchaser or from the purchaser´s instructions. This shall expressly be applicable to patentable inventions, resulting within the scope of the supplier during the contractual or pre-contractual relationship. The documentation delivered with the goods is also subject to the copyright.
The supplier is entitled to name the purchaser as a reference purchaser along with the key points of the contract (project type, number of parts supplied, etc.) after the contract has been concluded for marketing purposes and to include him in a reference list.
The supplier and the purchaser agree to first strive for an amicable solution when asserting rights and obligations.
Should any provision of this agreement be or become ineffective, invalid or unenforceable, or should the contract contain a loophole, this shall not affect the validity of the rest of the agreement. The ineffective, invalid or unenforceable provision will be replaced by a provision that comes as close as possible to the purpose intended by the contracting parties with the defective provision.
Vienna is the place of performance for all deliveries and payments, even if the delivery takes place at a different location as agreed.
It is agreed that the competent court in Vienna will be responsible for all legal disputes arising between the supplier and the purchaser. The supplier can at any time, at his own discretion, appeal to another court competent for the purchaser.
Austrian law applies exclusively, excluding the provisions of the UN Sales Convention and excluding the reference norms of Austrian international private law. The contract language is German.
If the purchaser is a consumer, any more favorable provisions of the KSchG that are mandatory for consumers remain unaffected by these delivery conditions. In this case, the relevant provision in the delivery conditions is superseded in the absolutely necessary area, but remains otherwise.
The English version of these Terms shall be for convenience purposes only. In cade of any inconsistencies, the German version shall prevail.
Status as of 2014
Ing. A.F. Baeder Ges.m.b.H.