Orders placed are subject exclusively to these general terms and conditions; if conditions are found to be missing, the law shall apply.
Differing conditions of sale and delivery of the contractor shall only be binding upon the customer where these are expressly acknowledged in writing.
2. Order acceptance
Acceptance of the order and agreement with these conditions of purchase are indicated by returning a signed copy of the order within three days.
If the copy is not returned, but the order is fulfilled or fulfilment commenced, the order shall be deemed accepted under the conditions stipulated herein.
3. Delivery or performance deadline
a. The term of delivery or performance begins on the date shown on the separately issued order letter. If no term of delivery or performance is agreed, delivery must take place without delay.
b. If there is a risk of delivery or performance being delayed, the customer is to be notified immediately and in writing, stating the reasons why.
c. Delivery or performance made in advance of the agreed delivery or performance date is only permitted with the consent of the customer. In any event, this must not result in any disadvantage for the customer. In particular, the payment term (point 12b) shall not commence before the agreed delivery or performance date.
4. Delivery and performance, shipping, acceptance and insurance
a. The delivery or performance and the shipping always take place free from all expenses at the cost and risk of the customer at or to the place of use or installation specified by the customer. COD shipments will not be accepted by the customer. The customer is to be sent a shipping notification at the same time as dispatch. The shipment is to include a delivery note in duplicate indicating the order number of the customer.
b. The contractor shall bring the delivered objects at its own risk and expense to the rooms (storage places) designated by the administration (site management) of the customer, where it shall set them up or store them accordingly. If the customer exceptionally provides labour to assist with the unloading, it is entitled to invoice the contractor for the associated costs. Deliveries will be accepted by the customer only by prior appointment and only on working days between 8.00 am and 4.00 pm (until 1.00 pm on Fridays). Deliveries outside these times may be rejected by the customer.
c. The delivered objects are to be handed over to the customer’s appointed officer at the place of destination. The quantity of objects will be accepted upon their arrival at the place of destination where possible, but their quality can only be inspected during processing or use. If the delivery is accepted by a third party, this shall not indicate the transfer or risk and ownership.
d. The contractor must have the deliveries or services properly insured against damage of all kinds at its own expense. The contractor must provide the customer with proof that this insurance has been taken out and in the event of insured instances shall cede the claims arising under these insurance policies to the customer at the customer’s request. If the contractor does not provide the customer with immediate proof of having taken out such insurance, the customer is entitled to take out this insurance at the expense of the contractor after having set an additional period of one month to no avail.
e. If the delivery involves technical equipment or innovative products, the operating personnel of the customer are to be trained free of charge (the dates of this training are to be arranged by the customer or its agent). If the delivery involves equipment that is to be installed by third parties, at least 2 copies of the required installation plans (including all connections, any base moulding, etc.) are to be enclosed with the offer or order confirmation.
f. If the delivery is to be dispatched to a third party that further processes the delivery on behalf of the customer, a copy of the delivery note is to be enclosed with the delivery and two additional copies sent to the issuing office.
g. For deliveries or services from abroad, the labels are to be applied in the German language. The operating instructions or instructions for use and manuals are to be prepared in the German language.
5. Packaging: Problem substances
a. The risk and costs of the packaging are in principle borne by the contractor. The contractor is further obligated to draw the transporter of the goods’ (e.g. haulier) attention to properties to be observed onboard the mode of transport until the point of handover, such as protection against frost, seaworthy packaging, etc. If the customer exceptionally covers the costs of packaging, the costs are to be charged to the customer and shown separately in the invoice. The contractor shall also bear the risk for the consequences of faulty packaging in this case. Moreover, the customer is entitled to return the packaging material and request a credit for it. Deposits will not be accepted by the customer.
b. The contractor must always dispose of the packaging material, transport aids and the like as well as all delivered objects or remains of such delivered objects to be assessed as “special waste” in accordance with their intended use either itself at its own risk and expense or take back the same for the purpose of disposal. If the contractor does not comply with this obligation, the customer shall be entitled to have the disposal performed by a third party at the risk and expense of the contractor (ARA).
6. Delay, withdrawal and contractual penalty
a. If the delivery or performance is delayed or if the delivery or performance is contrary to the contract, the customer - without prejudice to further claims - is entitled to withdraw from the contract either immediately or by setting a further deadline of 14 days, as well as to make covering purchases to the encumbrance of the contractor or to demand a price reduction or to insist on performance of the contract.
b. In the event of delay, the customer is further entitled to demand a contractual penalty instead of performance of the contract to a maximum of 5% of the total order sum or in addition to the late performance a contractual penalty of 1 ‰ for each working day of delay up to a maximum of 5%. The customer is also entitled to collect further damages as well as the contractual penalty if it accepts a late delivery or performance.
c. If the late delivery also results in customer making late delivery to the principal, the contractor shall hold the customer harmless in respect of its obligation to pay a penalty.
d. These rights are also accorded the customer if the contractor is not encumbered with any debt (poss. upstream suppliers). However, if the delay happens as a result of force majeure, the contractor is released from the obligation to pay the contractual penalty and compensation if it notifies the customer of these circumstances without delay.
7. Transfer of risk
a. The risk always transfers to the customer only when the contractor passes the delivery or service to the authorised agent of the customer (point 4 c), this agent inspects the delivery or service at the place of destination and accepts it as being in order and the contractor has also flawlessly fulfilled all ancillary obligations, such as providing the required certificates, descriptions, operating instructions etc.
8. Warranty, guarantee and retention
a. The supplier guarantees the correctness of the delivery or service in accordance with the customer’s specifications. If the specifications or requirements of the customer do not meet the intended purpose of use, or if doubts exist about the suitability of the requested services or deliveries for the specified purpose of use, or if certain information is missing for the proper execution of the delivery or service, the contractor shall have a duty of inspection and notification in accordance with its position as a specialist contractor. They must always meet the general and specific standards applicable in Austria, e.g. on employee protection or the recognised rules of the technology, etc. The regulations on the carriage of hazardous goods and on special waste as well as special storage and operating regulations are to be observed. To this extent, the contractor is also obligated to exercise care and provide information in respect of the customer.
b. The warranty period is the same length as the period to be granted to the principal by the executing company plus one month. The warranty period begins on the day of the unreserved acceptance of the delivery or service by the principal. The contractor shall replace faulty goods with non-faulty goods immediately upon the request of the customer and at its own risk and expense. The customer is always entitled to remedy faults at the expense of the contractor even without setting a further deadline, without this impeding its claims under warranty.
c. If the production of test areas (guarantee fields) has been agreed (ÖNORM DIN 55928 Part 7, EN ISO 12944 – 7,8), the following shall apply:
The guarantee fields must be clearly labelled so that they are easy to locate at all times. A written record is included of their creation, which is consensually authored and signed by the participating companies, or is acknowledged in the absence of the contractor, despite the contractor having been notified in good time. The respective condition of the guarantee field forms the exclusive proof for the guaranteed properties of the material.Should faults occur on the consensually created guarantee fields during the agreed warranty period and on the remaining coating, the full cost of remedying the fault, especially the necessary cost of materials and labour, is to be borne by the material supplier. If faults occur across the entire surface within the warranty period without the guarantee fields exhibiting faults, the costs of remedying the fault will be borne in full by the customer.
d. The contractor guarantees freedom from faults during the warranty period. If improvements are sought and made, the warranty period for all improved areas shall commence from the beginning. If the setting of a grace period is required, a grace period of 14 days is deemed appropriate. Moreover, statutory warranty provisions apply.
e. If the order total exceeds the amount of EUR 14,534.57 (S 200,000.00) incl. value added tax, the customer is entitled to retain a security of 5% of the order total until expiry of the warranty period (point 8 b) in order to cover warranty claims and claims for compensation. The security can be released to the contractor upon issue of a liability note written in the German language for the amount of the agreed security with a period up until the expiry of the warranty period. With the guarantee declared in the liability note, the bank (savings bank) undertakes to remit the amount contained therein within 3 working days from receipt of the request from the customer, waiving any objection arising from the underlying legal relationship.
However, the customer only accepts liability notes issued in euro (EUR) from banks established in the European Economic Area, in which it is stipulated that Austrian law is to be applied to any legal disputes arising from the declaration of liability. Even such liability notes may be rejected without indication of the reasons why.
f. In the event of late delivery or performance, the warranty is to be extended accordingly.
g. The consumption per square metre of the coating structure specified in the inquiry or order and the stipulated layer thickness per quality of coating is to be confirmed by the contractor.If the consumed amount is shown to have been significantly exceeded (at least 5 percent), the contractor is obligated to make the missing quantity available for free and without delay. It must also hold the customer harmless for all consequences of the delay that may arise for this reason.
9. Compensation and product liability
a. Claims to compensation and recourse are in any event available to the customer undiminished. Exclusions of liability and the obligation to associate exclusions of liability with purchasers are not agreed.
b. If the delivered goods of the used material exhibit defects in the context of the product liability regulations and the customer is consequently held at fault, the contractor shall fully indemnify the customer.
c. The contractor undertakes to provide the customer with complete, but easy-to-understand instructions for use, to store all necessary documents, to monitor the product precisely and furthermore, as required, to recall all faulty goods at its own expense, to issue the manufacturer’s documents without delay and to render all conceivable assistance, as well as to name the producer or importer within 14 days.
10. Trade mark rights
a. The agreed price paid covers the purchase of the statutory trade mark rights, especially patents, to the extent that their purchase is required for the customer to enjoy the free use and onward disposal of the object of delivery.
b. If licences are necessary, they are to be procured by the contractor. The customer may use inventions of the contractor made during execution of the order.
c. The contractor shall fully indemnify the customer in the event of the infringement of third-party trade mark rights in connection with the ordered delivery or service.
11. Cancellation conditions
a. Until the goods are dispatched by the contractor, the customer is entitled to cancel an order in full or in part without this permitting any claims to be brought against the customer.
b. The customer is to be notified of the intended date of dispatch not later than three days prior to the planned dispatch and arrival of the goods at the planned place of use.
12. Price and payment conditions
Unless agreed otherwise, the following payment conditions apply:
a. All prices are fixed prices. Sales tax (VAT) is always to be indicated separately in compliance with all formal requirements of § 11 UStG 1972 in the prevailing version. The prices apply in accordance with point 4) free to the place of installation or use (Incoterms 1990).
b. All payments are to be paid net within a 30-day test period plus a payment period of 60 days upon receipt of invoice or other document triggering the payment term. The customer is entitled to deduct a discount in the amount of 3% for payments made within 14 days of the end of a 30-day test period. The payment periods begin subject to point 3 c) with the day of the transfer of risk (point 7) under the further condition that the customer receives an invoice corresponding to its conditions. If the compliant invoice arrives at the customer after the transfer of risk, the payment periods shall only commence upon receipt of the invoice. Non-compliant invoices shall not trigger the payment periods.
c. Invoices for processing products shall only be paid on time on the condition that the payments of the common principal are received. A delay to the payment by the common principal entitles the customer to extend terms of payment by the same extent.
d. In the event of the bankruptcy or compensation of the common principal, payment shall only be made in the amount of the respective bankruptcy or compensation rate.
e. The customer shall make payments only be means of interbank transfer.
a. Invoices are to be sent to the customer within 14 days of the transfer of risk (point 7) in triplicate showing the order number of the customer and the bank account of the contractor.
14. Contract acceptance - assignment
a. The order may not be passed to other contractors for execution in full or in part without the written consent of the customer. For purchase agreements, the contractor may avail itself of a supplier.
b. The contractor cannot effectively cede its claims in respect of the customer.
15. Place of performance, legal venue and applicable law
a. The place of performance of the payments under this agreement is the registered office of the customer.
b. Austrian material law is to be applied to any legal disputes arising from the agreement.
c. The sole jurisdiction for all disputes related to the agreement is the court responsible for the registered office of the customer. However, the customer is entitled at its option to also bring complaints arising from the agreement before the court that is materially and locally responsible for the state in which the contractor has its registered office or domicile in accordance with the relevant legal provisions.
d. In case of disputes, the contractor is not entitled to withhold or suspend its contractual services.
a. The order number of the customer is always to be clearly displayed on all papers intended for the customer, such as invoices, credit notes, loading bills, waybills, dispatch and delivery notes, sections of accompanying addresses, etc.
Apart from the order number, the letter reference of the preceding correspondence is to be quoted in the correspondence.
b. The contractor is to make use of the German language in all correspondence, especially in the product description.
VERBAND ÖSTERREICHISCHER KORROSIONSSCHUTZUNTERNEHMEN
BUNDESINNUNG DER MALER / WIRTSCHAFTSKAMMER ÖSTERREICH
WIEDNER HAUPTSTRASSE 63, A-1045 WIEN, POSTFACH 354
PHONE 0222 / 50105 – 3241, FAX 0222 / 50206 – 284
ALLGEMEINE SPARKASSE OÖ, SORT CODE 20320,
ACCOUNT NO. 3210 03210 2