GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
AVI ALPENLÄNDISCHE VEREDELUNGSINDUSTRIE GESELLSCHAFT M.B.H.
1 SCOPE OF APPLICATION AND ACCEPTANCE OF ORDERS
The following conditions apply to all deliveries and services. Any existing, conflicting general terms and conditions of the other contracting party are ineffective if the deviations from the general terms and conditions of sale and delivery described here have not been expressly agreed upon in writing. In general, deviating agreements must be in writing to be effective.
All orders require our written confirmation to be binding. Subsequent changes or cancellations of orders that have already been confirmed also require our written consent. Notifications by fax or e-mail meet the requirement of the written form.
All confirmations on our part are subject to sufficient security options for the risk of default.
2 SHIPPING AND TRANSFER OF RISK
Unless otherwise agreed in writing, our deliveries are made EXW in accordance with the version of the INCOTERMS valid on the day the contract is concluded.
3 DEFAULT OF DELIVERY OR DEFAULT OF ACCEPTANCE
If the delivery is delayed due to circumstances for which AVI is not responsible, the delivery period will be extended by the period during which these delaying circumstances last.
In the event of a default of delivery of more than 2 weeks for which we are to blame, the buyer can either demand performance after the reasonable grace period set by him has expired or withdraw from the contract by setting a mutually agreed reasonable grace period.
If the buyer does not accept the contractually provided goods at the contractually agreed location or at the contractually agreed time, we are entitled to insist on the fulfilment of the contract or to withdraw from the contract after setting a grace period of 14 days and to resell the goods to a third party. Claims for damages beyond this remain unaffected.
The prices are based on the list prices and discounts valid on the day of delivery unless fixed prices have been expressly agreed upon. Prices are only binding for us if they have been agreed upon and/or confirmed in writing.
Payments are to be made in accordance with the terms of payment, which have to be agreed upon in writing. Unless otherwise agreed, in the case of a purchase on account, payment is due immediately upon receipt without deduction of a discount.
The buyer is not entitled to withhold or offset payments due to warranty claims or other counterclaims not recognized by us in writing. The buyer expressly waives the objection according to § 1052 ABGB (General Civil Code of Austria).
In the event of a default in payment, we are entitled, after setting a 14-day grace period, to demand the return of the goods immediately and to collect them without prior notice, with the buyer having to bear all the costs incurred.
In the event of a default in payment, the statutory interest for default will be charged at the applicable rate. In any case, the buyer must compensate us for the dunning and collection costs incurred as further damage caused by the delay.
6 RETENTION OF TITLE
All goods delivered by us remain our property until all financial obligations of the buyer have been paid. If the buyer defaults on his payment obligations or if insolvency proceedings are applied for or opened against his assets, we are entitled to demand the surrender of the reserved goods, to collect them and/or to collect claims assigned as security. In the event of distraint or other claims, the buyer undertakes to assert our right of ownership and to notify us in writing without delay. The buyer is also obliged to reimburse us for all costs in connection with enforcing our retention of title (e.g. costs for picking up the goods) or any proceedings that may be necessary to enforce our right of ownership to these goods (e.g. costs of the proceeding to nullify the distraint).
If the buyer acquires sole ownership of the goods that were delivered to him under retention of title through processing or combination, he already transfers co-ownership to us according to the ratio of the value of the reserved goods to the other goods at the time of processing or combination. In these cases, the buyer must store this new item, which is also to be regarded as reserved goods within the meaning of these terms and conditions, free of charge and with the care of a prudent businessman. The value of the goods subject to retention of title is the gross invoice amount.
If AVI’s ownership expires as a result of connection or combination, the buyer transfers the ownership rights to which he is entitled to the new item to the extent of the invoice value of the reserved goods and stores them for us free of charge.
The claims from the resale of the reserved goods are already assigned to us together with all securities that the buyer acquires for the claim. They serve as security to the same extent as the reserved goods.
Defects must be reported in writing and substantiated within a reasonable period of time. The provision of § 377 UGB (Corporation Code of Austria) and the related case law shall apply as agreed between the parties. If the buyer does not immediately give us the opportunity to inspect the goods complained about, he loses his rights from the material defect. Defects are primarily remedied by us by improving or replacing the goods complained about. Only if this is impossible or involves disproportionate effort, is there the possibility of a price reduction or cancellation of the contract. The warranty period is 6 months from delivery, whereby the burden of proof always lies with the buyer. Defects in individual items only entitle the customer to reject the entire delivery if the entire shipment is unusable due to the nature of the defect.
Requested or guaranteed properties within the meaning of § 922 ABGB (General Civil Code of Austria) must be expressly documented in writing as such guarantees, otherwise we will not assume any liability for such properties.
In any case, our liability is limited to the foreseeable, contract-typical damage at the time the contract was concluded. Otherwise, our liability is excluded, in particular for consequential damage caused by defects.
Unless otherwise agreed, contractual claims that the buyer has against us in connection with the delivery of the goods become time-barred one year after delivery.
9 FORCE MAJEURE
In cases of force majeure, neither party will be responsible for breach of their contractual obligations. In particular, labour disputes and all circumstances independent of the party’s will, such as war, uprising, confiscation, embargo, lack of means of transport, machine breakdown, general lack of supplies, restrictions on energy consumption, earthquake, fire and other natural disasters are to be regarded as force majeure.
10 PLACE OF PERFORMANCE, APPLICABLE LAW, WRITTEN FORM AND JURISDICTION
The place of fulfilment of any obligation is Graz, Austria.
For all disputes arising directly or indirectly from this contract, the exclusive jurisdiction of the court in Graz responsible for the registered office of the seller AVI is agreed upon. In this case, Austrian substantive law shall apply, excluding the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods of April 11, 1980 (“UN Sales Convention”). However, the seller AVI can also appeal to the court responsible for the buyer, whereby the substantive law of the buyer’s country shall apply, excluding the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods of April 11, 1980 (“UN Sales Convention”). In addition, the contracting parties can mutually agree on arbitration by an arbitral tribunal.
Verbal agreements are only binding for us if they have been confirmed in writing; deviations from this regulation can only be made expressly and in writing.
The invalidity of individual clauses in our terms of sale and delivery does not affect the effectiveness of the remaining clauses. Instead of the void clause, a provision should be applied that comes particularly close to the void clause.
11 DATA PROTECTION
Please see Data Protection Declaration.
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Version January 2019