GENERAL TERMS OF DELIVERY
issued by the Austrian Electrical and Electronic Manufacturers' Association (FEEI)
1. scope of application
1.1 These General Terms and Conditions shall apply to legal transactions between companies, namely to the delivery of goods and, mutatis mutandis, to the provision of services. For software, the Software Terms and Conditions published by the Professional Association of the Austrian Electrical and Electronics Industry shall apply with priority, for assemblies, the Assembly Terms and Conditions of the Austrian Heavy Current and Light Current Industry or the Assembly Terms and Conditions of the Austrian Electrical and Electronics Industry for Electromedical Technology (the current versions are available at www.feei.at).
1.2 Any deviations from the terms and conditions stated in item 1.1 shall only be effective if accepted in writing by the Seller.
2.1 Offers of the Seller shall be deemed to be subject to change without notice.
2.2 All offer and project documents may neither be reproduced nor made accessible to third parties without the Seller's consent. They may be reclaimed at any time and shall be returned to the Seller without delay if the order is placed elsewhere.
3 Conclusion of Contract
3.1 The contract shall be deemed concluded when the Seller has sent a written order confirmation or a delivery after receipt of the order.
3.2 The information contained in catalogs, brochures and the like as well as other written or oral statements shall only be authoritative if they are expressly referred to in the order confirmation.
3.3 Subsequent amendments and additions to the contract shall require written confirmation in order to be valid.
4.1 Prices are ex works or ex Seller's warehouse and do not include VAT, packaging, loading, disassembly, return and proper recycling and disposal of waste electrical and electronic equipment for commercial purposes as defined in the Ordinance on Waste Electrical Equipment. If fees, taxes or other charges are levied in connection with the delivery, these shall be borne by the Buyer. If the delivery is agreed upon with delivery, then this as well as a transport insurance desired by the buyer is separately charged, does not contain however the unloading and carrying. Packaging will only be taken back by express agreement.
4.2 In case of an order deviating from the total offer, the Seller reserves the right to change the price accordingly.
4.3 The prices are based on the costs at the time of the initial price offer. Should the costs increase by the time of delivery, the Seller shall be entitled to adjust the prices accordingly.
4.4 In the case of repair orders, the services identified by the Seller as expedient shall be provided and invoiced on the basis of the expenses incurred. This shall also apply to services and additional services whose expediency only becomes apparent during the execution of the order, whereby no special notification of Buyer shall be required for this purpose.
4.5 The expenses for the preparation of repair offers or for appraisals shall be charged to the Buyer.
5.1 The delivery period shall commence on the latest of the following dates:a) Date of confirmation of orderb) date of fulfillment of all technical, commercial and other requirements incumbent upon the Buyer;c) date of receipt by the Seller of any advance payment or security to be made prior to delivery of the goods.
5.2 Official approvals and any approvals of third parties required for the execution of installations shall be obtained by Buyer. If such approvals are not obtained in time, the delivery period shall be extended accordingly.
5.3 Seller shall be entitled to make and invoice partial or advance deliveries. If delivery on call has been agreed, the goods shall be deemed to have been called at the latest 1 year after the order.
5.4 If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as all cases of force majeure, which impede compliance with the agreed delivery period, the latter shall be extended in any case by the duration of such circumstances; these include in particular armed conflicts, official interventions and prohibitions, transport and customs clearance delays, transport damage, energy and raw material shortages, labor disputes as well as the failure of an essential supplier who is difficult to replace. These aforementioned circumstances shall also entitle to an extension of the delivery period if they occur at subcontractors.
5.5 If a contractual penalty for delay in delivery was agreed between the contracting parties at the time of conclusion of the contract, it shall be paid in accordance with the following provision, whereby any deviation from this provision in individual points shall not affect its application in other respects: A delay in performance demonstrably caused by the sole fault of the Seller shall entitle the Buyer to claim a contractual penalty of not more than 1⁄2 %, but not more than 5 % in total, of the value of that part of the relevant total delivery which cannot be used as a result of the untimely delivery of an essential part, provided that the Buyer has suffered damage in this amount. Further claims from the title of delay are excluded.
6 Transfer of risk and place of performance
6.1 Unless otherwise agreed, delivery of the goods shall be deemed to have been sold FCA Ziersdorf, Austria in accordance with INCOTERMS® 2010.
6.2 In the case of services, the place of performance shall be that specified in the written order confirmation, secondarily that where the service is factually performed by the Seller. The risk for a service or an agreed partial service shall pass to the Buyer upon its performance.
7.1 Unless payment terms have been agreed, 1/3 of the price shall be due upon receipt of the order confirmation, 1/3 at the half-way point of delivery and the remainder upon delivery. Irrespective of this, the sales tax included in the invoice shall in any case be paid no later than 30 days after invoicing. In the event of the opening of insolvency proceedings against the assets of the Buyer or the rejection of an application for opening of insolvency proceedings for lack of assets, deliveries shall only be made against cash in advance.
7.2 In the case of partial offsetting, the corresponding partial payments shall be due upon receipt of the respective invoice. This shall also apply to offsetting amounts resulting from subsequent deliveries or other agreements exceeding the original final amount, irrespective of the payment terms agreed for the main delivery.
7.3 Payments shall be made without any deduction free Seller's payment office in the agreed currency. Any acceptance of a check or bill of exchange shall always be on account of payment only. All interest and expenses in connection therewith (such as collection and discount charges) shall be borne by Buyer.
7.4 The Buyer shall not be entitled to withhold or set off payments due to warranty claims or other counterclaims.
7.5 A payment shall be deemed to have been made on the day on which the Seller can dispose of it.
7.6 If Buyer is in default with an agreed payment or other performance under this or other legal transactions, Seller may, without prejudice to its other rightsa) suspend performance of its own obligations until such payment or other performance has been effected and claim a reasonable extension of the delivery period,
b) declare all outstanding claims from this or other legal transactions due and payable and charge interest on these amounts from the respective due date at the rate of 1.25% per month plus value-added tax, unless the Seller proves costs exceeding this rate,c) in the event of qualified insolvency, i.e. after two delays in payment, fulfill other legal transactions only against advance payment. In any case, the Seller shall be entitled to charge pre-litigation costs, in particular reminder fees and attorney's fees.
7.7 Discounts or bonuses granted shall be conditional upon the timely performance of full payment.
7.8 The Seller retains title to all goods delivered by him until full payment of the invoice amounts plus interest and costs. The Buyer hereby assigns to the Seller, as security for the Seller's purchase price claim, its claim arising from a resale of goods subject to retention of title, even if such goods have been processed, transformed or mixed. In the event of a resale with deferral of the purchase price, the Buyer shall be entitled to dispose of the goods subject to retention of title only on condition that it notifies the secondary purchaser of the assignment by way of security at the same time as the resale or notes the assignment in its business records. Upon request, the Buyer shall disclose to the Seller the assigned claim together with its debtor and provide all information and documents required for the collection of the claim and notify the third-party debtor of the assignment. In the event of seizure or other claims, the Buyer shall be obliged to point out the Seller's right of ownership and to notify the Seller without delay.
8 Warranty and Liability for Defects
8.1 The Seller shall be obliged, subject to compliance with the agreed terms of payment, to remedy in accordance with the following provisions any defect impairing the functionality which exists at the time of handover and which is due to a defect in design, material or workmanship. No warranty claims may be derived from statements in catalogs, brochures, advertising literature and written or oral statements which have not been included in the contract.
8.2 The warranty period shall be 12 months in single-shift operation, unless the extension of the warranty period is claimed. This shall also apply to delivery and service items that are firmly connected to a building or land. The warranty period shall commence at the time of the transfer of risk in accordance with clause 6.
8.3 Extension of the warranty period:In case of product registration on our homepage, the end customer receives a total warranty of 2 years in single-shift operation.In case of product registration with additional insurance, the warranty is increased to 3 years in single-shift operation.The warranty extension can only be carried out by the end customer for a maximum of 30 days from the date of purchase. Calculated from the date of the purchase contract or the invoice date (documents must be uploaded), the free warranty extension (optional additional insurance) is valid under the following conditions:Cost coverage: In case of warranty extension, the following costs will be covered for a total of 2 years (optionally 3 years with additional insurance): Material, Working timeThe packaging and transport costs to the place of fulfillment of the warranty are to be borne by the customer and are not covered by the warranty.In addition, upon product registration, the warranty for the following components is granted for 5 years in single-shift operation: main transformer, output reactor, *secondary rectifier.
8.4 Warranty LimitationNon-reproducible software errors and parts subject to mechanical aging or natural wear are excluded from the warranty (e.g., wire feed unit, wire feed rollers, wire feed spare/wear parts, workpiece leads, electrode holders, connecting and extension cables, power and control cables, plugs, torch spare/wear parts, solenoid valves, wheels, coolant, etc.).
8.5 Reimbursement of costs in case of alleged warranty claimIf warranty claims are asserted by the customer and it turns out during the inspection of the product by SBI or by the commissioned sales or service partner that there was no defect or that the conditions of the warranty claim are not met for another reason, SBI is entitled to charge a service fee to compensate for the transport and inspection costs in the amount of a maximum of 10% of the purchase price. 10% of the purchase price, if the customer grossly negligently or intentionally disregarded the fact that there was no defect or that the conditions of the warranty claim did not exist for another reason.
8.6 For improved or replaced parts the warranty period shall start anew, but shall in any case end 6 months after the expiry of the original warranty period.
8.7 If delivery or performance is delayed for reasons beyond the Seller's control, the warranty period shall commence 2 weeks after the Seller's readiness to deliver or perform.
8.8 The warranty claim requires that the Buyer has notified the Seller in writing within a reasonable period of time of the defects that have occurred and that the Seller has received the notification. The Buyer shall prove the existence of the defect within a reasonable period of time, in particular by providing the Seller with the documents or data available to him. In the event of a defect covered by warranty pursuant to Section 8.1, the Seller shall, at its option, repair the defective goods or the defective part at the place of performance or have the defective goods or part sent to it for repair or make a reasonable price reduction.
8.9 All ancillary costs incurred in connection with the rectification of defects (e.g. for installation and removal, transport, disposal, travel and travel time) shall be borne by the Buyer. For warranty work at the Buyer's premises, the necessary auxiliary personnel, lifting equipment, scaffolding and small materials etc. shall be provided free of charge. Replaced parts shall become the property of the Seller.
8.10 If goods are manufactured by the Seller on the basis of design data, drawings, models or other specifications provided by the Buyer, the Seller's liability shall extend only to execution in accordance with the conditions.
8.11 Excluded from the warranty are defects resulting from arrangement and assembly not carried out by the Seller, inadequate equipment, non-observance of the installation requirements and conditions of use, overloading of the parts beyond the performance specified by the Seller, negligent or incorrect handling and use of unsuitable operating materials; this shall also apply to defects resulting from material provided by the Buyer. The Seller shall also not be liable for damage caused by actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not apply to the replacement of parts subject to natural wear and tear. In case of sale of used goods, the Seller shall not assume any warranty.
8.12 The warranty shall expire immediately if the Buyer himself or a third party not expressly authorized by the Seller makes changes or repairs to the delivered items without the Seller's written consent.
8.13 Claims according to § 933b ABGB (Austrian Civil Code) shall become statute-barred in any case upon expiry of the period specified in clause 8.2.
8.14 Provisions 8.1 to 8.12 shall apply mutatis mutandis to any liability for defects on other legal grounds.
9 Withdrawal from the contract
9.1 The prerequisite for the Buyer's withdrawal from the contract shall be, unless a more specific provision has been made, a delay in delivery due to gross negligence on the part of the Seller and the unsuccessful expiry of a reasonable grace period set. The withdrawal shall be asserted by registered letter.
9.2 Irrespective of its other rights, the Seller shall be entitled to withdraw from the contract,
a) if the execution of the delivery or the start or continuation of the service is impossible for reasons for which the Buyer is responsible or is further delayed despite the setting of a reasonable grace period,
b) if doubts have arisen as to the Buyer's ability to pay and the Buyer, at the Seller's request, neither makes advance payment nor provides suitable security prior to delivery,
c) if the extension of the delivery period due to the circumstances mentioned in clause 5.4 amounts to more than half of the originally agreed delivery period, but at least 6 months, ord) if the Buyer does not or not properly fulfill the obligations imposed on him by clause 13.
9.3 Withdrawal may also be declared with respect to an outstanding part of the delivery or service for the above reasons.
9.4 If insolvency proceedings are instituted against the Buyer's assets or if an application for the institution of insolvency proceedings is rejected for lack of sufficient assets, the Seller shall be entitled to rescind the contract without granting a grace period. If this withdrawal is exercised, it shall take effect immediately upon the decision that the company will not be continued. If the company is continued, a withdrawal shall only become effective 6 months after the opening of insolvency proceedings or after the rejection of the application for opening for lack of assets. In any case, the contract shall be rescinded with immediate effect unless the insolvency law to which the Purchaser is subject precludes this or if the rescission of the contract is indispensable to avert serious economic disadvantages to the Seller.
9.5 Notwithstanding the Seller's claims for damages including pre-litigation costs, in the event of rescission, any services or partial services already rendered shall be settled and paid for in accordance with the contract. This shall also apply insofar as the delivery or service has not yet been taken over by the Buyer as well as for preparatory actions performed by the Seller. In lieu thereof, the Seller shall also be entitled to demand the return of items already delivered.
9.6 Other consequences of the withdrawal are excluded.
9.7 The Buyer shall not be entitled to assert claims on grounds of laesio enormis, error or cessation of the basis of the contract.
10 Disposal of waste electrical and electronic equipment
10.1 The Buyer of electrical and electronic equipment for commercial purposes, who is domiciled in Austria, assumes the obligation to finance the collection and treatment of waste electrical and electronic equipment within the meaning of the Ordinance on Waste Electrical Equipment (Elektroaltgeräteverordnung) in the event that he himself is the user of the electrical and electronic equipment. If the Buyer is not the end user, he shall transfer the financing obligation in full to his customer by agreement and shall document this to the Seller.
10.2 The Buyer, who is domiciled in Austria, shall ensure that all information is made available to the Seller in order to be able to fulfill the Seller's obligations as manufacturer/importer, in particular pursuant to §§ 11 and 24 of the Ordinance on Waste Electrical Equipment and the Waste Management Act.10.3 The Buyer, who is domiciled in Austria, shall be liable to the Seller for all damages and other financial disadvantages incurred by the Seller due to the Buyer's failure to fulfill or insufficient fulfillment of the financing obligation as well as other obligations pursuant to Section 10. The burden of proof for the fulfillment of this obligation shall be on the Buyer.
11 Liability of the Seller
11.1 The Seller shall be liable for damages outside the scope of application of the Product Liability Act only to the extent that intent or gross negligence can be proven against it, within the scope of the statutory provisions. The Seller's total liability in cases of gross negligence shall be limited to the net order value or to EUR 500,000, whichever is lower. Per claim, Seller's liability shall be limited to 25% of the net order value or EUR 125,000, whichever is lower.
11.2 Liability for slight negligence as well as compensation for consequential damages, pure financial losses, indirect damages, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, loss of profit, savings not achieved, loss of interest and damages from third party claims against the Buyer are excluded.
11.3 In the event of non-compliance with any conditions for assembly, commissioning and use (such as contained in operating instructions) or the official approval conditions, any compensation for damages shall be excluded.
11.4 If contractual penalties have been agreed, any further claims under the respective title shall be excluded.
11.5 The provisions of Clause 11 shall apply conclusively to all claims of Buyer against Seller, irrespective of the legal basis and title, and shall also apply to all employees, subcontractors and sub-suppliers of Seller.
12 Industrial Property Rights and Copyright
12.1 If goods are manufactured by the Seller on the basis of design data, drawings, models or other specifications of the Buyer, the Buyer shall indemnify and hold the Seller harmless in the event of any infringement of industrial property rights.
12.2 Design documents such as plans, sketches and other technical documents, as well as samples, catalogs, brochures, illustrations and the like, shall always remain the intellectual property of the Seller and shall be subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. Point 2.2 shall also apply to execution documents. 13.
13 Compliance with Export Regulations
13.1 Buyer shall comply with the applicable provisions of national and international (re-)export regulations when passing on the goods delivered by Seller and related documentation to third parties, irrespective of the manner in which they are made available or the services provided by Seller, including technical support of any kind. In any case, when passing on the goods or services to third parties, he shall comply with the (re-)export regulations of the Seller's country of domicile, the European Union and the United States of America.
13.2 If required for export control inspections, Buyer shall, upon request, immediately provide Seller with all necessary information, including information on the final recipient, final destination and intended use of the goods or services.
If individual provisions of the contract or of these provisions should be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid one which comes as close as possible to the intended purpose.
Instructions and manuals: If required, we will send you the requested available documents in printed form within 4 weeks.
15 Jurisdiction and Law
Any disputes arising from the contract - including disputes about its existence or non-existence - shall be settled by the competent court at the head office of the Seller, in Vienna by the competent court of the district court Innere Stadt. The contract shall be governed by Austrian law to the exclusion of the conflict of laws rules. The application of the UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
16 Reservation clause
The Seller's performance of the contract shall be subject to the proviso that no obstacles due to national or international (re-)export regulations, in particular no embargos and/or other sanctions, stand in the way of performance.
Edition February 2023