Terms of Sale, Delivery and Payment of Sensorik Austria GmbH
1. Scope of Application
The following conditions shall apply to all our offers and contracts concerning the shipment of products and rendering of other services. They shall be regarded as the only valid contractual conditions and override other provisions unless they are explicitly offered or confirmed by us in writing. Commercial terms and conditions of the Buyer which deviate from our conditions shall not be applied.
The legal relationship between us and the Buyer shall be governed by Austrian law. The provisions of the Uniform Law on the International Sale of Goods and the Convention on Contracts for the International Sale of Goods shall not be applied unless they are in line with our conditions.
2. Offer and Conclusion of Contract
All our offers shall be subject to change.
Orders that have been placed shall be binding on us on the condition that they have been confirmed by us in writing or that the goods have been supplied and an invoice has been issued. In addition, side-agreements and changes shall only be effective if they have been made in writing.
In the event of agreed supplies on approval (delivery of samples) the purchase shall be regarded as concluded and the goods as approved by the Buyer, unless the Buyer announces its rejection within four weeks of delivery, returning the goods at the same time. The Buyer shall bear the cost of the return shipment; we may charge repair and/or maintenance costs incurred by the Buyer for goods that were supplied by us in flawless condition.
We shall reserve the right to correct mistakes or errors in our order confirmations and bills. The same shall apply to technical or design changes of the goods ordered provided they do not impair their function or value to any considerable extent. If they result in considerable changes in price or deadlines to the detriment of the Buyer, the Buyer shall have the right to withdraw; however, this provision shall not apply if the mistake or error must have been obvious to the Buyer.
We are entitled to all rights of ownership and copyright exploitation as regards cost estimates, drawings and other documents; they shall not be made accessible to third parties and shall be returned upon request if the contract is not concluded or terminated early.
3. Obligation to Supply and Delivery Period
As a rule, our obligation to supply shall be fulfilled at the location of our company. The day of delivery shall be the day of dispatch of the goods or, if dispatch is delayed for reasons not caused by us, the day on which the readiness to dispatch is notified.
Partial shipments shall be allowed and shall be regarded as separate shipments as regards payment and the lodging of complaints.
Dates and deadlines for the shipment of goods or rendering of services shall only be binding if we have confirmed them as binding and if this confirmation has been given in writing. The fulfilment of preliminary contractual duties on the part of the Buyer shall be a prerequisite for their observance. Agreed delivery terms shall commence on the day the order has been confirmed; they shall be postponed accordingly by the period required by the Buyer to submit the documents to be supplied and/or for any open technical questions to be clarified.
If we are unable to keep agreed dates or meet agreed deadlines because of unforeseen events such as measures caused by industrial disputes or considerable business disruptions which occur in our company or in a supplier’s company, upon our notice the Buyer shall agree on a reasonable new date or deadline and shall not derive any rights from such delay; this provision shall also apply if the event takes place during a delay that has already occurred.
If we default on the shipment of goods or the provision of services, the Buyer shall grant a reasonable grace period before asserting the rights arising from the default. After the expiry of a grace period that has been granted in vain the Buyer may either withdraw from the contract, excluding further claims, if this has been announced by the Buyer upon granting the grace period, or the Buyer may request compensation for default if damage has been done to the Buyer as a result of our default. For each full week following the expiry of the grace period this compensation shall amount to ½%, but not more than 5% of the value of those parts of the shipment which on account of the default cannot be used in accordance with the provisions of the contract.
If the dispatch of completed components is delayed for reasons caused by the Buyer, we may charge costs incurred as a result of storage, usually 0.5% of the invoice amount per month that has started, commencing 2 weeks after notification of readiness to dispatch. After the expiry of a reasonable deadline that has been set in vain we shall also be entitled to dispose of the products to be supplied in some other way, and to provide the Buyer with new supplies after a reasonable period.
If orders on call are not called within the contractual deadline, upon its expiry we shall be entitled to charge the goods and dispatch them at the same time, or proceed in accordance with Item 3.6. If a contractual deadline has not been agreed upon, we shall be entitled to these rights when one year has
passed after the conclusion of the contract.
The prices indicated in our offers, price lists, order confirmations and invoices shall be ex-works prices plus VAT in the respective amount valid at the time of dispatch.
Packaging and forwarding charges shall be calculated separately. No packaging material shall be taken back.
Our prices shall be based on the costs incurred at the time of the conclusion of the contract. If our material or wage costs, freight costs to be borne by us, as well as the prices of our suppliers increase before the time of delivery, we shall have the right to increase our prices; this shall not apply, if the contractual date of delivery (Item 220.127.116.11) falls on a day within four months of the conclusion of the contract.
5. Terms of Payment
Our invoices and shipments shall be payable 30 days after the date of the invoice free at point of payment indicated, other invoices shall be paid immediately, unless other provisions have been laid down by us in writing. Cash discounts shall only be allowed on the conditions indicated in the respective invoice, however, no discount shall be granted if bills of exchange are used.
Decisive for the punctual payment of amounts that are not paid in cash shall be the date on which the amount is credited to our account.
Cheques or bills of exchange shall be accepted only on account of payment of our invoices; our previous consent shall be obtained in cases where bills of exchange are used. The Buyer shall bear all costs connected with bills of exchange/drafts and cheques. We shall not be held liable for the timeliness of protesting a bill. If a bill of exchange or check is not cashed by the Buyer after the respective invoice receivable falls due, the Buyer shall also default on the payment of the invoice receivable.
Counterclaims of the Buyer may only be offset against our due claims if they have been declared legally effective or if they have been acknowledged by us in writing.
Payments may only be withheld because of deficiencies in the contractual shipment or service which have been reprimanded by the Buyer in a legally effective manner.
6. Passing of the Risk, Dispatch, Return Consignment
The risk of accidental perishing, loss or deterioration of the parts shipped shall pass to the Buyer as soon as the shipment leaves our company; even if we have accepted other services such as shipping costs or delivery. This shall also apply to the delivery of samples (Item 2.3).
If dispatch is delayed for reasons caused by the Buyer, the risk shall pass to the Buyer as soon as the Buyer has been notified of the readiness for dispatch.
Dispatch shall always be effected upon request of the Buyer. We shall have the right but shall not be obliged to take out transport insurance at the expense of the Buyer.
Goods which have been delivered in a flawless condition can only be taken back after we have given our previous written consent. As a rule, the credit note for returned goods shall be issued by deducting a fee for the acceptance of returned goods in the amount of 20% of the value of the commodities, with the exception of samples delivered (see Item 2.3). Regardless of the fee for the acceptance of returned goods, the Buyer shall bear the risk and cost of returning the goods as well as any repair and/or maintenance costs incurred.
If our shipment has a defect and if a notice of defects has been issued in good time, the Buyer may demand warranty within a period of twelve months calculated from the date of the passing of the risk, in so far as deficient parts shall be mended or replaced by us according to our equitable discretion. If the notice of defects proves to be justified, we shall bear the cost for the repair or replacement, including dispatch and reasonable costs for disassembly and assembly; in so far as such costs are incurred by the Buyer, we shall not pay for them beyond the amount indicated by the Buyer in advance.
If mending or replacing the product is not possible or if it leads to unreasonably high costs, we may withdraw from the contract.
The Buyer shall give us reasonable time and opportunity for examining the defects indicated in the notice of defects and for carrying out the improvements or replacements and inform us of the anticipated disassembly and assembly costs that will be incurred by him; if he refuses to do so, we shall be released from the warranty.
Our warranty shall not include inappropriate or incorrect use, chemical, electrical or climatic influences not provided for in the contract, a defective assembly or the wrong putting into operation by the Buyer or third parties, natural wear and tear, excessive exposure, faulty or negligent treatment, unless they are our fault.
If the Buyer or third parties carry out changes or corrective maintenance improperly and without our approval, the resulting consequences shall not be covered by our warranty.
The Buyer may withdraw from the contract or reduce the consideration, if in the case of a defect a reasonable grace period granted to us for repair or replacement turns out to be impossible or if such an attempt has failed twice.
Further claims of the Buyer beyond those indicated in Items 7.1 and 7.6 shall be ruled out, in particular compensation claims for consequential damage; in so far as our liability is not based on intention or gross negligence. As regards the lack of warranted characteristics, we shall only pay damages in so far as the warranty was intended to avoid the damage that occurred.
8. Reservation of Title
We shall remain the owner of the goods supplied until all our receivables resulting from the business relationship with the Buyer have been fully settled (conditional goods). Bills of exchange and cheques shall only be regarded as payment if we are released from liability for them. The allocation of individual receivables to current account or the striking of a balance and their acknowledgement shall not cancel the reservation of title.
Any treatment or processing of goods shall be carried out on our behalf by excluding the Buyer from acquiring ownership, without any obligation for us. The processed commodity shall serve to secure our accounts receivable in the amount shown on the invoice for the conditional goods.
If the Buyer processes our goods or combines and mixes them with other goods that do not belong to us, and develops them into something new, we shall have the right to co-own the new product at the ratio of the value of the conditional goods to the other processed and/or added goods at the time of processing and/or combination. The same provisions that apply to conditional goods shall also apply to the new product resulting from such processing or combination, it shall be regarded as a conditional commodity within the meaning of these provisions.
The Buyer shall be entitled and authorised to resell our conditional commodities (Items 8.1-8.3) only in the ordinary course of business and on its usual conditions provided that the receivables according to Item 8.5 actually pass to us. If the Buyer is in default of payment, this authorisation may be
revoked. The Buyer shall not have the right to dispose of the conditional goods in any other way, in particular the Buyer shall not be entitled to pledge or transfer the conditional goods as a collateral.
The Buyer shall already now assign the accounts receivable from a resale of the conditional goods to us, no matter whether the conditional goods are resold without further processing or after further processing or whether they are resold to one or several Buyers. The assigned accounts receivable serve as a security for all our outstanding bills from the business relationship in the amount of the value of the conditional goods sold in the individual case. If the conditional goods are sold by the Buyer together with other goods that do not belong to us, the assignment of the receivables from the resale shall apply in the amount of the value of the conditional goods. The value of the conditional goods shall be determined on the basis of our invoice value. The assignment in advance according to this provision shall cover the balance claim of the Buyer against its buyer; Item 8.1, third sentence shall apply accordingly to the extended reservation of title.
The Buyer shall have the right to collect accounts receivable from the resale prior to our revocation which may be announced at any time.
If the total value of the collateral provided on our behalf exceeds the total of our accounts receivable by more than 20%, we shall – upon request of the Buyer – be obliged to release or re-assign the excessive collateral; we shall reserve the right to select the accounts receivable to be released.
We shall be informed by the Buyer without delay of any impairment by third parties of our rights to the conditional goods or to the accounts receivable assigned to us, particularly of impairments caused by law enforcement measures.
The assertion of rights concerning the reservation of title shall not be regarded as a withdrawal from the contract.
9. Default of Payment
If the Buyer defaults on the payment of a considerable amount or if the Buyer’s financial and liquidity situation has deteriorated to a substantial extent (e.g. protest of a cheque or bill of exchange, slowdown of payment flow, institution of insolvency proceedings), we may immediately declare all our accounts receivable to be due and payable by the Buyer, regardless of terms of payment granted or drafts discounted on account of payment.
In the event of default of payment or insolvency on the part of the Buyer (Item 9.1) we shall be entitled to withdraw from all contracts concluded with the Buyer that have not yet been fully performed.
Even if there is no withdrawal from the contract and setting of a deadline, in the event of default of payment by the Buyer we shall have the right to demand our conditional goods (Item 8) back and keep them together with outstanding supplies until all our receivables have been fully settled.
For the damage caused by default we may charge interest without special proof in the amount of open account interest customary in banking or, according to our discretion, in the amount of 4 % above the bank rate of the Austrian National Bank; this shall not exclude the raising of further claims for damage caused by default.
10. Further Rights of Withdrawal and Liability
The Buyer may withdraw from the contract, if it becomes ultimately impossible for us to perform the entire delivery or render services prior to the passing of the risk; the same shall hold true, if in carrying out an order of articles of a similar type it becomes impossible to effect performance of a
part of the shipment, and the Buyer has a legitimate interest in refusing partial shipment, otherwise the Buyer may reduce the consideration accordingly. If impossibility of performance occurs during an acceptance delay or through the fault of the Buyer, the Buyer shall remain obliged to execute consideration.
We, for our part, may withdraw from the contract in whole or in part, if in the case of unforeseen events (Item 3.4) or on account of considerable changes in the ability to deliver, pricing terms or quality of the goods of our suppliers it is no longer possible to execute the delivery in a due manner,
or if it is not justified from the economic point of view provided we have explained the situation to the Buyer without delay after we have realised the scope of the matter. The Buyer may not raise claims for damages in connection with such a withdrawal.
Our liability shall be exclusively governed by the provisions laid down in these terms.
All other claims of the Buyer that go beyond the scope indicated shall be ruled out, in particular claims against us and our performing and vicarious agents for the compensation of damage of any kind, including damage that has not been done to the delivery items themselves, no matter what the legal reason may be, such as fault at the time of concluding the contract, violation of contractual ancillary duties or unlawful act; unless the liability to pay damages is based on intention or gross negligence.
Our product liability shall be excluded, unless the law provides that it is not possible to be released from this liability in individual cases. The Buyer, on the other hand, undertakes to fully inform all persons whom the Buyer enables to use the product or to whom the Buyer resells the product, about the instructions for operation, safety rules and warnings handed over to the Buyer or of which the Buyer has been made aware, and to ensure that such obligation devolves upon the purchasers.
11. Data Protection
In so far as we save data of the Buyer within the ordinary course of business, we shall treat them in accordance with the Data Protection Act (DSG).
As of February 2010