General Terms and Conditions of Business (“GTC”)Terms and Conditions of Sale and Delivery
of Semloc GmbH, Klammstraße 12, 6330 Kufstein, FN 507954 t
1 Validity of the General Terms and Conditions (“GTC”)
1.1 Contracts concluded between Semloc GmbH (hereinafter also referred to as “Supplier”) and the orderer of work, purchaser or customer (hereinafter also referred to as “Customer”), in particular purchase contracts, contracts for work and services or other commissioned services (commissioning, assembly, etc.) shall be governed exclusively by the following terms and conditions,
assembly etc.) shall be governed exclusively by the following General Terms and Conditions.
1.2 The Customer submits to the validity of these GTC. If the supplier has a longer business relationship with the customer, these GTC shall apply even if their validity is not specifically referred to. These GTC shall also apply to all ancillary work associated with the performance of the service. The GTC shall also apply to subsequent orders, even if they are not separately agreed orally or in writing. Verbal agreements with the supplier shall only be effective if they are confirmed in writing by the supplier.
1.3 Any provisions deviating from these GTC, in particular those contained in the Supplier’s order confirmation or in separately negotiated contracts, shall take precedence over the GTC. General terms and conditions or forms of the customer shall in no case become part of the contract.
1.4 If the Customer is a consumer within the meaning of Section 1 (1) (2) of the Austrian Consumer Protection Act (KSchG), the mandatory provisions of the KSchG shall replace the provisions of the GTC. However, the remaining provisions of these GTC shall remain unaffected.
2 Conclusion of contract
2.1 Communications of the Supplier – also upon request of the Customer – are subject to change without notice, even if prices, dates and other technical specifications are communicated therein; technical information or solution proposals of the Supplier are just as without warranty as descriptions, samples or specimens. The same shall apply if the Supplier issues only a provisional order confirmation on the basis of an order placed by the Customer.
2.2 The contract shall be concluded upon the Supplier’s order confirmation sent to the Customer or, in the absence thereof, upon execution of the delivery to the Customer. In any case, the contract shall also be concluded without the transmission of an order confirmation if the Customer accepts the Supplier’s offer in writing or signs the Supplier’s written order template.
2.3 If the order confirmation signed by the customer deviates from his order, the order confirmation shall prevail in case of doubt.
3.1 If the order confirmation does not contain any specifications, ex works delivery (according to Incoterms) shall be deemed agreed.
3.2 Even if the supplier is contractually responsible for the delivery of the goods, the place of performance shall remain the supplier’s works or the delivery warehouse expressly named in the order confirmation.
3.3 Agreed deliveries require that the delivery road is passable by heavy goods vehicles. Even if the supplier undertakes the delivery as agreed, the customer shall bear all transport and packaging costs (delivery charge).
3.4 The goods shall also be deemed to have been delivered if they are not immediately called off by the customer within a period of 7 working days after the supplier has notified the customer that the goods are ready for dispatch.
3.5 The goods shall be insured against damage and loss in transit only upon written order of the Customer at the Customer’s expense.
3.6 The Customer is obliged to check the delivery for correctness and completeness immediately upon handover, but within 4 working days at the latest. The Customer shall lose the right to invoke a lack of conformity of the Delivery if it fails to inspect the Delivery or if it fails to give written notice of a lack of conformity immediately after the point in time at which it could have recognized such lack of conformity if it had inspected the Delivery properly, stating the exact details thereof.
3.7 Externally visible transport damage must be reported immediately upon receipt of the goods and the nature and extent thereof must be notified to the supplier in writing without delay or noted in detail on the delivery bill or consignment bill on site and countersigned by the supplier to confirm the notice of defect.
3.8 The risk of accidental loss or damage shall pass to the customer upon notification of readiness for shipment or in accordance with the applicable clause of the Incoterms.
4 Taking back of goods
In the event of goods being taken back, we shall be entitled, without prejudice to further claims, to charge any manipulation charges incurred in the amount of 15%. The costs of returning the goods shall be borne by the customer. If the goods are returned freight collect, we are entitled to retain a corresponding contribution.
- default of acceptance
5.1 The customer shall be obliged to accept the delivery at the place of performance and, if applicable, in accordance with the Incoterms clause agreed in the contract. The assertion of claims for delivery in breach of contract or the fact that the customer was not in a position to inspect the delivery shall not entitle the customer to refuse or postpone acceptance.
5.2 If the Customer is in default of acceptance (in particular due to non-acceptance after notification of the Supplier’s readiness for shipment), the goods shall be stored at the Customer’s expense and risk either (i) at the Supplier’s or at a third party’s premises or (ii) shipped to the Customer. If the goods are stored at the Supplier’s premises, the Supplier shall be entitled to charge a fee equivalent to that of a public warehouse. The Supplier shall only be liable for the deterioration or loss of the goods stored with him in case of intent or gross negligence. This shall not affect the rights of the supplier within the meaning of §§ 373 ff UGB.
5.3 If the Customer does not accept the goods in whole or in part, the Supplier may (i) withdraw from the contract after setting a grace period of 14 days and/or (ii) claim damages for non-performance, in which case the Supplier shall be entitled to claim, without proof of damage and fault, 30% of the respective order amount and, in addition, also compensation for the damage actually incurred, including lost profit. The same shall apply if the contract is cancelled for other reasons for which the supplier is not responsible.
6 Force majeure
Force majeure and other unforeseeable hindrances or hindrances beyond the Supplier’s control, such as industrial disputes, traffic disruptions, etc., as well as accidents for which the Supplier or its sub-suppliers are not responsible shall release the Supplier from its obligation to deliver for the duration of their effects, even if they have occurred at one of the sub-suppliers; in this case, the Supplier shall not be affected by any consequences of default.
7 Delivery dates
7.1 All delivery dates and delivery periods are non-binding and are subject to unforeseeable events and hindrances. Delivery periods shall commence (i) upon receipt by the Customer of the Supplier’s order confirmation or (ii) in the absence of an order confirmation, upon notification by the Customer of the Supplier’s readiness for shipment. If the Supplier’s offer accepted by the Customer or the Supplier’s written order submission or the order confirmation sent to the Customer already contains a delivery date instead of a delivery period, the latter shall apply and take precedence over the provisions in (i) and (ii). If an agreed delivery date or an agreed delivery period is exceeded by more than 6 weeks or if goods are delivered in smaller quantities within this period, the Supplier shall be in default and the Customer shall set a grace period of at least 6 weeks for the delayed goods. In case of fruitless expiry of this additional delivery period, the customer may withdraw from the contract if he has given notice of withdrawal with the setting of the additional delivery period.
7.2 Delivery periods set in motion according to item 6.1 shall be interrupted by the circumstances listed below and shall only continue after the reason for interruption has ceased to exist: breach of the customer’s duty to cooperate or other breaches of contract by the customer under this or another contract, suspension, interruption or delay by the upstream supplier in supplying the supplier, technical breakdowns in production and transport facilities and all cases of force majeure according to item 5.
7.3 If one of the reasons mentioned in item 6.2 lasts longer than two months, both the Supplier and the Customer shall be entitled to terminate the Contract by unilateral written declaration. The Customer shall not (no longer) have this right (i) if it is responsible for the interruption or (ii) if the Supplier has notified the Customer of the cessation of the impediment and announced the delivery within a reasonable period.
8 Partial Deliveries
Unless expressly agreed otherwise, the Supplier shall be entitled to make partial deliveries which shall be accepted and paid for by the Customer. Withdrawal from the contract or any other termination of the contract shall not cancel the contract concerning the partial deliveries already made, unless the reason for withdrawal from the contract or termination of the contract also covers the partial deliveries already made.
9 . Warranty
9.1 The supplier warrants that the delivery corresponds to the quality specified in the order confirmation.
9.2 If the order confirmation does not contain any information on the quality of the goods or if the delivery is made without an order confirmation, the Supplier warrants that the goods are of the quality specified in the offer or in the Supplier’s written order template, or, in the absence of an offer or a written order template, that the goods are of a quality or performance which is customary for goods of the same type at the place of manufacture and which can also reasonably be expected by the Customer.
9.3 Descriptions of goods in an advertisement or in other public statements do not constitute a description of the quality of the goods. If the customer has received a sample, the goods shall be as agreed if they correspond to the sample.
9.4 Deviations in dimensions, weight or quality are permissible within the scope of the agreed standards or the standards existing in the Supplier’s country. The same shall apply to the usual tolerances in the determination of quantities according to arithmetical principles.
9.5 For goods designated as inferior quality, such as “second choice”, the warranty shall be limited accordingly to the characteristics to be expected according to the special marking of the goods.
9.6 No warranty shall be given for deviations in the color nuances of the goods due to production and material.
9.7 For the determination of the conformity with the contract and the beginning of the warranty period, the point in time of the delivery or acceptance according to point 3 or – in case of shipment – the point in time of the handover to the first carrier shall be decisive; this shall also apply if the shipment is carried out by the supplier. In any case, the warranty period of goods delivered to customers shall correspond to the period granted by the manufacturer of the goods to the supplier and of which the customer has been informed; a remedy of defects shall not lead to its extension.
9.8 If a timely notice of defect has been given and the lack of conformity of the goods with the contract has been proved by the customer, the supplier shall be entitled to remedy the lack of conformity within a reasonable period of time by remedying the defect in the delivery (improvement) or by replacement delivery (exchange). Travel expenses shall not be reimbursed by the Supplier even if they are incurred by the Customer in connection with a warranty claim. This applies both in cases in which the supplier carries out the improvement or the exchange of the goods and if the customer carries out these measures himself, even if justified. If the improvement or replacement is impossible or involves a disproportionately high effort for the supplier, the customer can only demand the cancellation of the contract. A claim for reduction of the price is excluded. The supplier is entitled to make several attempts at improvement. The customer is only entitled to return goods with the written consent of the supplier. In all cases, this will be credited with a maximum of 90% of the actually paid remuneration. The customer shall bear the transport costs incurred as well as the transport risk.
9.9 If the Supplier is responsible for the lack of conformity, the Customer may claim damages only in the form of improvement or replacement. If such improvement of the delivery or replacement is impossible or involves a disproportionate effort, the customer may claim damages in money only if the supplier itself is guilty of intent or gross negligence. Compensation for consequential harm caused by a defect is also only permissible under this restriction.
9.10 The warranty claim shall expire in case of modification, processing or improper handling of the delivered goods. The Supplier shall not be liable for any costs incurred by the Customer or a third party commissioned by the Customer to remedy defects without the prior written consent of the Customer.
9.11 The application of the special right of recourse according to § 933b ABGB is excluded.
- declarations of the manufacturer
10.1 Warranty declarations of the manufacturer of the goods, even if passed on by the supplier, shall only substantiate claims against the manufacturer.
10.2 The Supplier shall not be liable for the correctness of information on handling, operation and use, insofar as such information is contained in brochures, technical descriptions or other instructions; such information shall be the responsibility of the manufacturer or the importer, in the case of the importer, insofar as the Supplier is not also the importer.
- compensation for damages
11.1 The Supplier shall only be liable for damages due to a breach of the obligation assumed under the contract or an obligation existing under the law if it is guilty of intent or gross negligence. The burden of proof for this lies with the customer; the same applies to compensation for consequential harm caused by a defect.
11.2 Excluded are claims for compensation of lost profit as well as claims for compensation of expenses for business interruption, loss of production or indirect damage due to the delivery of goods not conforming to the contract.
11.3 The contract concluded between the parties does not contain any protective obligations in favor of third parties. This shall also apply if it is foreseeable that a third party will be the recipient of the performance or that a third party will come into contact with the goods.
11.4 The claim for damages shall expire in any case upon the processing of the delivery or its resale without the supplier having been given the opportunity to examine the lack of conformity with the contract.
10.5 Insofar as the Supplier provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of performance owed by it, this shall be done free of charge and to the exclusion of any liability.
12 Product Liability
12.1 Excluded from the limitations provided for in item 10. is the non-mandatory liability for defective products, insofar as a human being is injured, killed or suffers damage to health as a result.
12.2 The liability for property damage resulting from a product defect, namely for all companies involved in the production, import and distribution, is excluded. The customer undertakes to transfer this exclusion of liability also to his customers. Recourse claims in the sense of the legal regulations determined according to the preceding paragraph are excluded, unless the person entitled to recourse proves that the defect was caused in the sphere of the supplier and was at least caused by gross negligence. Recourse claims of the customer against the supplier (in particular according to § 12 PHG) are excluded.
13 Prices and Terms of Payment
13.1 Unless otherwise agreed, the Supplier’s prices shall be ex works or ex the delivery warehouse specified in the offer, in the Supplier’s written order template or in the order confirmation sent to the Customer, excluding packaging, transport insurance, freight and assembly costs. All prices are in Euro, excluding the statutory value added tax. Deliveries and services not included in the prices will be charged according to actual material and time expenditure. For the delivery of very small quantities, surcharges shall be made to compensate for the additional expenditure.
13.2 The supplier reserves the right to demand payments on account or advance payments from the customer – even before the delivery is carried out.
13.3 Taxes, contract fees, export and import duties as well as implementation fees, customs and customs charges, official commission fees and the like shall be borne by the Customer.
13.4 The Supplier’s prices are based on the wage and material costs applicable at the time of the order confirmation; if these increase between the time of the conclusion of the contract and the execution of the order, the Supplier shall be entitled (i) to pass on these increases to the Customer or (ii) to withdraw from the contract. The same shall apply in case of other increases due to taxes, customs duties or transport tariffs which cannot be influenced by the Supplier.
13.5 All prices shall be based on the date of the offer submitted by the Supplier to the Customer or the date of the Customer’s signing of the written order submission. In the absence of an offer or a written order template or the order confirmation sent by the Supplier to the Customer or in the absence of an order confirmation, the price valid at the end of the previous month prior to delivery shall apply.
13.6 If the Delivery is to be made more than two months after the conclusion of the Contract or if the Delivery takes place later than two months after the conclusion of the Contract for reasons beyond the Supplier’s control (i.e. in particular for the reasons mentioned in Clause 5), the Supplier may request the price shown in the price list at that time instead of the price originally determined. The Supplier shall be entitled to an adjustment of the price until delivery (i) in the event of a change in the exchange rates and (ii) in the event of additional costs caused by an incomplete load, complication or hindrance of the freight and transport conditions and (iii) in the event of a change in the transport route due to circumstances for which the Supplier is not responsible and (iv) in the event of a change in the freight charges, taxes, customs duties and fees, insofar as the Supplier has carried out the shipment (item 3) itself. The adjustment of the price shall be made in accordance with the change in these cost components and in proportion to their share in the price.
13.7 Payments may be made with debt-discharging effect only to the paying agent(s) designated in the invoice; payments to agents or deliverers shall not release the Customer from its payment obligation. The Supplier’s invoices shall be due for payment without deduction at the time of delivery, but in any case upon receipt of the invoice. The due date shall occur irrespective of whether the customer has had the opportunity to inspect the delivery or whether he claims defects and damages to the delivery. If delivery is made in parts, the Supplier shall be entitled to issue partial invoices. The Supplier shall be entitled to demand advance payments or security for payment.
13.8 The Customer shall only be entitled to cash discounts if these have been expressly agreed in writing. Discounts from partial invoices already paid shall become invalid in the event of default with further partial invoices or the total invoice.
13.9 If there are several due claims, payments by the customer shall be credited against the oldest claim in each case. In relation to the individual claims, the costs associated with the collection of the claim shall be repaid first, then the interest and finally the principal. Any deviating dedication of the payment by the Customer shall be invalid.
13.10 In the event of a delay in payment for which the Customer is responsible, interest on arrears shall be paid in the amount of 9.2% above the base interest rate. In addition, the Supplier shall be entitled to demand the termination of the contract in whole or in part.
13.11 Without the written consent of the Supplier, the Customer shall not be entitled to settle its payment obligation by offsetting it against other claims or to withhold payment for any reason whatsoever.
14 Retention of title
14.1 All goods and deliveries shall remain the property of the Supplier until they have been paid for in full. In addition, the Supplier shall retain title to its goods (even if these specific goods have been paid for) until all claims arising from the business relationship have been paid; the claims shall also include all ancillary claims.
14.2 If the claims arising from the delivery are included in a current invoice, the retained title shall secure the highest outstanding balance.
14.3 Should the retention of title expire, the ownership of the goods shall pass to the Supplier upon processing, blending or mixing, who shall accept the transfer of ownership. In this case, the customer shall remain the custodian free of charge.
14.4 If goods subject to retention of title are resold by the customer, its purchase price claim shall take the place of the retained title. This claim shall be assigned to the supplier at the time it arises. The supplier acquires ownership of incoming funds in the form of the title of possession by the customer. The Customer shall note the fact of this assignment in its books and on the outgoing invoices and notify the recipient of the goods thereof.
14.5 The Customer shall adequately insure the goods subject to retention of title against fire, theft, damage by third parties, floods as well as mudslides or shall be liable for the damage. He shall assign to the Supplier the claim under the insurance contract and notify the insurer thereof. The customer is prohibited from establishing contractual security interests in the goods subject to retention of title. If the goods subject to retention of title are subject to execution, the customer shall notify the executing body of the third-party ownership and inform the supplier thereof within 24 hours at the latest.
14.6 If the Customer is in default of payment with respect to the remuneration secured by the retention of title, the Supplier shall be entitled to take possession of the goods subject to retention of title at any time, even if the contract has not yet been terminated (right of repossession).
- credit notes
Credit notes are created with the aid of EDP and provided with consecutive numbers and date. It is agreed that credit notes are valid for 3 years from the date of issue. Credit notes submitted late shall be forfeited.
16 Place of performance, place of jurisdiction, applicable law
16.1 The place of performance for delivery and payment shall be the Supplier’s registered office, even if the handover takes place at another location as agreed.
16.2 In the event of disputes arising from these GTC or a contract concluded with the supplier or relating to the violation, dissolution or invalidity of the GTC or the contract, including disputes about the existence or non-existence of the present GTC or a contract with the supplier, the contracting parties agree on the exclusive jurisdiction of the competent court in Kufstein, Austria. Notwithstanding the foregoing, the Supplier shall be entitled, at its option, to bring an action against the Customer before the ordinary court having subject-matter jurisdiction according to the Customer’s registered office.
16.3 All questions of interpretation of these GTC or of all contracts concluded by the Supplier with the Customer shall be governed exclusively by formal and substantive Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and other conflict-of-law rules.
17.1 Should individual provisions of these GTC be invalid, this shall not affect the remaining content of the GTC. If there are any gaps, the contracting parties undertake to agree on a provision that comes as close as possible to the economic result of the invalid provision.
17.2 The assignment of claims of the Customer shall require the written consent of the Supplier in order to be effective. For its part, the Supplier shall be entitled to assign its claims.
17.3 Acts or omissions of the manufacturer, the upstream supplier or the carrier shall not be attributable to the Supplier.
17.4 The Customer gives its consent to its data being stored and processed by the Supplier with the aid of automation.
17.5 The Customer gives its consent that an inquiry may be made to the trade credit registry of the Kreditschutzverband von 1870. Furthermore, he agrees that in the event of his default of payment all data shall be transmitted to the Warenkreditevidenz and made accessible to third parties by the latter.
17.6 Plans, sketches and other technical documents as well as brochures, catalogs, visual material, samples and the like shall remain the intellectual property of the supplier. This shall also apply if they are available online. Any utilization, duplication, publication or distribution shall require the express prior written consent of the Supplier. In the absence of such consent and in the event of even one of the aforementioned types of use, the Supplier shall be entitled to demand a one-time amount of 25% of the planning or production costs or the cost estimate sum, irrespective of whether or not the infringed work is a work under the German Copyright Act (UrhG).