General Terms and Conditions of Supply and Payment of SHERPA Connection Systems
§ 1 Validity of the terms and conditions
Our following terms and conditions of supply and payment apply to all supplies, even if they are not expressly agreed in future contracts. The purchaser’s terms and conditions of procurement shall not apply towards us. We hereby contradict order confirmations or other confirmations from the purchaser making reference to its terms and conditions of business or procurement. Deviating agreements shall only be effective if we expressly confirm them in writing. Written form shall not only serve securing of evidence, but also precondition for effectivity.
§ 2 Quotation and conclusion of contract
A quotation shall be non-binding for us unless expressly agreed to the contrary. Declarations of intent made by representatives, oral or telephone agreements shall only become valid with our express written confirmation. Contracts shall only become effective with our written order confirmation.
§ 3 Supply and dispatch
Delivery dates expressly designated as prospective delivery dates in our order confirmation shall be non-binding. If a prevention lasts for longer than three months due to unforeseeable delays in delivery, the purchaser shall be entitled to withdrawal with a view to the part of the contract not yet fulfilled following setting of a suitable period of grace with a threat of rejection. Insofar as we are in arrears due to non-compliance with periods or dates which have been agreed bindingly, a claim to damages on the part of the purchaser has been ruled out to the extent that our arrears are not based on gross negligence or malice aforethought. The purchaser shall be liable for the consequence of incorrect and incomplete information and for transmission errors in calling. The purchaser shall owe damages in case of rejected, delayed, later or otherwise difficult acceptance, unless we are answerable for the incorrect acceptance.
Supply shall be at the purchaser’s risk. Both in transport with our or rented vehicles and also in transport by haulage contractors or freight forwarders, the risk shall pass to the purchaser as soon as the goods are lifted from the ground for the purpose of loading into the transport vehicle. If transport becomes impossible through no fault of ours, the risk shall pass as early as notification of readiness to supply to the purchaser.
§ 4 Prices and payment
Statements of prices in price lists or catalogues shall be under the reservation of a change of price, which need not be announced beforehand.
Whole packaging units, as shown in catalogues or separate price lists or forms, shall be sold. If whole packaging units are broken, we reserve the right to charge a breaking lump-sum of EUR 13.00 per box or EUR 50.00 per pallet (excl. VAT). Breaking shall generally not be possible for set articles and large packages.
As a matter of principle, the prices stated in our order confirmation plus the value added tax valid at the time of the performance shall be decisive. Our prices are understood ex warehouse Frohnleiten, if not expressly agreed to the contrary. Transport costs shall be charged to the purchaser. All payments shall only be deemed made on the day on which we can dispose of them. If the purchaser is in arrears with payment, we shall be entitled to charge default interest to the amount of 4% p.a. above the discount rate of the Raiffeisen Banks at the time in question, albeit no less than the amount of 8%. All payments, part payments, credits etc. shall be offset in accordance with § 1415 et seqq., Austrian General Civil Code.
Deductions of discount shall only be justified if they have been expressly agreed and confirmed on the part of the management.
In arrears in payment, payment difficulties, honouring of bills and cheques not on schedule, initiation of bankruptcy or composition proceedings against the customer’s assets, all debts shall become due for payment immediately, also receivables owed, for example also acceptance of bills. Rebates, discounts or special terms and conditions etc. shall then not be applicable to all invoices not yet paid.
Overdueness of an invoice shall entitle to making all items due for payment. In arrears in payment or payment difficulties, all debts shall become due for payment immediately.
The basic date for the calculation of all payment and discount periods shall exclusively be the date of invoicing (“invoice date”).
The Fees Amendment Act of 2012 and the EU Directives of 2013 have equated invoices on paper with electronic invoicing (e.g. by e-mail) since 01.01.2013. Approval of electronic transmission of our outgoing invoices shall be given by returning the order confirmation or by implied action.
Invoicing shall take place following supply and shall be dependent on the time of acceptance of the goods by the customer. Delayed documents (e.g. invoices) or those not received shall not entitle to an extension of the payment or discount periods (explanation: upon receipt and acceptance of the goods by the customer, the agreed service shall be deemed rendered and entitle to a claim to the agreed consideration).
If purchase quantities agreed in framework contracts are not fulfilled in the agreed period, all bonus claims of the purchaser shall be forfeited. The remaining purchase quantity resulting from the framework agreement shall be purchased by the purchaser within 2 months. Offset of this purchase of the remaining purchase quantity to a different agreement has been ruled out as a matter of principle.
Agreed customer bonuses or other reimbursements shall be settled within 3 months of the end of the term of the agreement substantiating the claim. The 3-month period shall commence on the first day of the month following the end of the agreement substantiating the claim. Bonus settlements shall exclusively be reimbursed as a credit of goods.
All agreements shall be concluded subject to a positive check of creditworthiness. In the sense of speedy handling, the purchaser declares its willingness to active participation in such a check of creditworthiness. If bank payment by means of direct debit has been agreed as payment term, it shall be done according to the contractual agreement. For risk customers with whom an agreement for debiting of the receivables by means of direct debit has been made, we reserve the right to collect the claim resulting therefrom against the purchaser immediately before supply by means of a direct debit.
Deviations from the valid general terms and conditions of supply and payment shall require written form without exception, cogently presupposing legally valid signing by the contracting parties.
§ 5 Retention of title, current account balance clause (business relations clause)
We reserve ownership to the goods until all claims against the purchaser from the business relations, including claims originating later, also from contracts concluded simultaneously or later, have been settled. This shall also apply if individual or all claims have been incorporated in a current account and the balance has been drawn and acknowledged. In the event of pledging and other interventions by third parties against the goods or the final product, the purchaser shall make reference to our ownership. In addition, it shall be obliged to inform us without delay of the possibility of the pledging or other interventions against the goods or the final product.
In the event of pledging, the purchaser shall transmit the pledging record to us without delay in order to assure us that the pledged object is identical with the conditional commodities or the final product supplied by us. All due costs of the intervention shall be charged to the purchaser
In the event of payment arrears by the purchaser, in particular cessation of payments, application for opening of bankruptcy and judicial or extrajudicial composition proceedings against the purchaser’s assets, we shall be entitled to demand immediate return of the goods which have not yet been resold. In such a case, we shall additionally be entitled to demand assignment of the purchaser’s claims to return against third parties. For all disputes, Austrian law and Graz as place of jurisdiction are agreed.
§ 6 Product liability
SHERPA Connection System is not the manufacturer of the goods traded, but purely an intermediary. Claims from product liability for products manufactured within the EU are therefore to be made directly with the producer. The data of the producer in question shall be notified within the statutory period following the report of all and any incident of damage if product liability damage occurs. SHERPA Connection System shall support the purchaser to the extent possible when making product liability claims. To the extent that products are made outside the European Union and imported into the EU by SHERPA Connection System, product liability claims shall be handled via SHERPA Connection System.
§ 7 Application of law - place of jurisdiction
The contracting parties agree application of substantive Austrian law for all legal transactions concluded in accordance with these terms and conditions of business. For all disputes from said contracts, competence of the court factually competent in Graz shall be agreed, independent of the registered office of the enterprises involved.