General Terms and Conditions of Business (GTCB)
(Terms and Conditions of Sale and Delivery)
1. Scope and validity
1.1. These General Terms and Conditions of Business (GTCB) alone govern all orders and contracts concluded.
1.2. No orders or agreements shall be binding unless the unrestricted validity of our GTCB is confirmed by the orderer in writing, by telefax or by e-mail with a secure electronic signature.
1.3. All terms and conditions of business of the orderer are hereby expressly excluded with respect to the transaction in question and the entire business relationship. Any terms and conditions of business of the orderer which conflict with our GTCB shall not apply even if we have not expressly objected thereto and even if the validity of the orderer’s terms and conditions is stipulated therein as an express condition for the conclusion of the contract in question.
1.4. Any commercial practices or customs at variance with these GTCB shall not be valid.
1.5. These GTCB shall apply to the entire business relationship, i.e. to all our present and future deliveries and services, even if the parties do not separately agree on the GTCB once again. We hereby declare that we contract exclusively on the basis of these GTCB.
1.6. Any collateral agreements, reservations, modifications or additions to the order and any variation from these GTCB by way of exceptional, mutual agreement must be made in writing as must any arrangement deviating from the requirement for the written form.
1.7. Should any provisions of these GTCB or other contractual arrangements be or become invalid, the validity of the remaining provisions and the concluded legal transaction shall not be affected thereby. Any invalid provision is to be replaced by a valid provision or so construed that it most closely approximates the spirit and purpose of the invalid provision.
1.8. The orderer hereby declares with regard to the transactions and contracts to be concluded with us that the orderer is not a consumer, particularly not in the meaning of the Austrian Consumer Protection Act. Should this not be the case in any business transaction, the orderer shall be obliged to notify us thereof as early as possible, and in all cases before the contract is concluded; otherwise, the contract concluded shall not be in legal force or effect.
1.9. Without our prior written approval, the orderer shall not be entitled to validly assign or pledge contractual rights of any type whatsoever to third parties or to agree on any other disposals thereof.
2. Issuance and acceptance of orders (conclusion of contracts)
2.1. Orders must be made in writing, but may also be issued by telefax or by an e-mail with a secure electronic signature. Our order confirmation must also be received by the orderer in compliance with the above formalities. If this formal requirement is not observed in any specific case, this shall not have any effect on past or future transactions.
2.2. If the orderer does not receive our written order confirmation within three weeks of dispatch, the orderer shall be entitled to rescind the order issued to us. If we have not received any rescission declaration in compliance with the formalities set forth in Paragraph 1 above, we shall be entitled to continue to accept the order as valid.
2.3. Reference is hereby made to § 1 and to the provisions therein concerning the validity of our GTCB as part of the contract. Should the orderer not accept the contents of these GTCB or parts thereof, then he must notify us thereof within eight days of receipt of our order confirmation in the form prescribed in § 2.1. If no such notice is provided by the orderer within this period, our GTCB shall be deemed to be validly accepted as part of the contract and the contract happens to be based on our GTCB.
3. Modification of orders and subcontracting
3.1. After the contract has been concluded, the orderer shall be entitled to change his order (e.g. restrict the subject or scope of delivery) only with our written consent. Should changes be made to the order without our consent, we shall be entitled to insist on the adherence to the contract as concluded or to demand full compensation, including any lost profit.
3.2. We shall be permitted to subcontract the orders issued to us to professionally qualified third parties. For all misperformances by subcontractors, we shall be liable to the orderer as for our own performances.
4. Maintenance of secrecy
4.1. Each party hereby agrees to treat confidentially the conclusion of the contract and the performance thereof and not to refer in advertising material to the mutual business relations without obtaining the prior written approval of the other party.
4.2. No documents (e.g. models, samples, drawings, details of the product specifications or of the process) may be made available to third parties, and all must be so kept as to exclude any access by third parties.
4.3. The parties hereby mutually agree to treat as trade secrets all non-public commercial and technical matters of which they become aware through the business relationship. This obligation must also be imposed on subcontractors.
4.4. Each party hereby mutually agrees to treat confidentially the personal data of the other party in accordance with the provisions of the Austrian Data Protection Act.
5.1. Unless otherwise agreed in any specific case, the delivered volume may deviate from the ordered volume by plus or minus 10%. The orderer must accept commercially customary excess or short lengths. Part-deliveries may be made.
5.2. Call-off orders must be scheduled and taken over within six months, unless otherwise agreed in writing. After expiration of the call-off period or if the orderer does not make use of a call-off within six months after a contract is concluded, we shall be entitled after establishing a grace period of two weeks, at our discretion, to demand immediate acceptance and payment of the merchandise or to rescind the contract and to demand full compensation, including any lost profit due to non-performance.
5.3. Any delay in delivery of more than two weeks verifiably caused by our gross negligence or intentional action shall entitle the orderer to claim a maximum contractual penalty of 0.5% for each completed week of delay up to a maximum of 5% of the value of that portion of the relevant overall delivery which cannot be used as a result of the untimely delivery of a significant portion, provided the orderer has incurred damage in this amount. Further claims based on default shall be excluded.
5.4. We shall not be obliged to execute performance until the orderer has met all the obligations necessary for such execution, particularly all technical and contractual details, preliminary work and preparatory measures.
5.5. If the orderer fails to meet a duty incumbent upon him to cooperate or fails to do so in due time (e.g. to present drawings, hand over data or order material), then the originally agreed delivery date shall be replaced by that date which we specify to the orderer after he has fulfilled its duty to cooperate within an appropriate and reasonable time frame or, if this does not occur, by a reasonably extended deadline.
5.6. If we are prevented from delivery by disruptions in our own course of business or that of our suppliers which could not be averted by the exercise of reasonable diligence, or by events beyond our control, e.g. risk of war, outbreak of hostilities, acts of terror, closure of maritime and other transport routes, work stoppages or similar events, the delivery period shall be reasonably extended. If delivery is not possible within a period which can be reasonably expected of us, then our delivery duty shall lapse. Any compensation or other claims of any type whatsoever shall be excluded in such cases.
5.7. If the orderer fails to accept the merchandise as agreed (“default in acceptance”), we shall be entitled after an ineffectual grace period of 14 days to store the merchandise on our premises, for which we shall charge at least 0.5% of the gross invoice amount for each initiated month of storage. We shall have the option, however, to store the merchandise with a warehouse keeper at the orderer’s cost and risk. Risk shall pass to the orderer at the outset of the default in acceptance. The due dates of our invoices shall not be postponed as a result of any default in acceptance; such invoices must, rather, be paid promptly. In addition to our right to insist on performance of the contract, we shall be entitled to rescind the contract, after establishing a further grace period of two weeks, and to sell the merchandise to another buyer. For each event of default in acceptance, we shall be entitled to full compensation, including compensation for any lost profit, and particularly for the difference arising from an alternate sale.
5.8. The orderer must take or instigate in due time all measures necessary to import the merchandise underlying the delivery contract into the country of the orderer, e.g. the orderer must procure import licenses and currency permits. If the orderer becomes aware of facts impeding the import of the merchandise, the orderer must inform us thereof without delay. If the procurement of the necessary import documents is called into question, we shall be entitled to rescind the contract after establishing a further grace period of two weeks and to demand full compensation.
5.9. With regard to deliveries in member states of the European Union, the orderer shall be obliged to specify a value added tax identification number when ordering. If the orderer fails to specify such number or does so incorrectly, we shall be entitled to demand compensation for the damage incurred by us as a result. This shall also apply if the orderer fails to provide us for delivery ex works with the necessary confirmation on the transport and final destination of the merchandise. The defense of contributory negligence shall be excluded; in particular, we shall not be obliged to check the accuracy of the value added tax identification number specified to us or to have such checked.
6. Rescission of contract (advance payment, collateral)
6.1. In addition to the other causes contained in these GTCB for this purpose, we shall be entitled to request an advance payment or collateral or to rescind the contract in the event of the following circumstances:
6.1.1. If we become aware after concluding a contract of circumstances which justify doubts about the creditworthiness of the orderer, we shall be entitled to rescind the contract, demand advance payments or make our delivery contingent on the provision of collateral. This shall also apply if due claims are not paid despite a written payment reminder. In the event of rescission, the orderer shall have no claims due to non-performance. We shall, however, be entitled in the event of any rescission of contract for the aforementioned reasons to offset any advance performances previously rendered by us and to demand full compensation, including any lost profit.
6.1.2. In the event of default in acceptance or other good cause, e.g. the initiation of insolvency proceedings concerning the assets of the orderer (composition, bankruptcy or dismissal of bankruptcy due to a lack of assets), as well as in the event of default in payment by the customer, we shall be entitled to rescind the contract to the extent that it has not yet been fully performed by both parties. In the event of rescission, we shall have the option of demanding flat-rate compensation of 30% of the gross invoice amount or compensation of the actually incurred damage, including any lost profit. In the event that the customer is in default of payment, we shall, in addition to the rights set forth in § 6.1.1, be released from all further performance and delivery obligations and shall be entitled to retain any remaining outstanding deliveries and services.
6.2. Provided that no transaction for delivery at a fixed point in time has been agreed, the orderer shall be entitled to rescind the contract in the event that we are in default in delivery by more than 14 days after establishing a reasonable grace period of at least 20 working days, if we fail to meet our delivery obligation at the end of the such grace period. In the events of § 5.6, the orderer shall be entitled to rescind the contract after establishing a grace period of five weeks.
6.3. If the orderer rescinds the contract or requests the rescission thereof without being entitled to do so, we shall be free to insist on performance of the contract or to approve the rescission thereof. In the latter event, the customer shall be obliged, at our choice, to pay flat-rate compensation in the amount of 30% of the gross invoice amount or the actually incurred damage, including any lost profit. The right of courts to reduce damages is hereby excluded.
7. Prices and payment
7.1. Our prices shall be based on the costs on the closing date of the contract.
7.2. Unless expressly stated otherwise, the prices quoted by us shall not include value added tax.
7.3. Should wage costs change due to provisions in collective agreements in the industry or to employment contracts concluded within the company or should other costs necessary for calculating relevant cost items or for rendering the service (e.g. costs of materials, energy, transport, third-party labor or financing) change, we shall be entitled to offset these cost increases based on our original price calculation with corresponding, reasonable mark-ups. We shall only be entitled to such mark-ups, however, if the agreed delivery is first made four months after the conclusion of the contract without any negligent delay on our part.
7.4. Unless otherwise agreed, packing and freight costs shall be borne by the orderer. Packaging such as reels, cylinders and drums shall be charged in full. The price charged shall be refunded in full when empty packaging material is returned in flawless, clean and reusable condition, without any residue, free of charge to the delivery works. If the parties have agreed on returnables, then these must be returned within six months of the invoice date at the latest. After this period and the establishment of another grace period of two weeks, we shall be entitled to invoice the value of the empties. Disposable packaging shall not be taken back.
7.5. Tool costs shall be charged separately; the orderer shall not acquire any rights to the tools.
7.6. Any cash discount commitments shall be subject to the settlement of all due claims. We shall only accept bills of exchange on account of performance after agreeing with the orderer to do so. The orderer shall bear all charges.
7.7. The orderer shall bear all bank charges.
7.8. The orderer may only set off our claims with recognized or valid counter-claims.
7.9. Our sales prices shall not include any shipping, assembly or set-up costs. At the orderer’s request, however, we shall render, organize or delegate these services to subcontractors in return for separate payment. The costs actually expended for transport or shipping plus a reasonable mark-up for administrative costs — though at least the normal freight and transport fees of the selected means of transport or those freight and transport fees applicable on the delivery date and the costs of any subcontractors — shall be invoiced. Assembly work shall be charged on an hourly basis, whereby the hourly rate per person common in the industry plus any travel costs and daily allowances shall be deemed to be agreed.
8. Freight conditions, passage of risk, place of performance
8.1. Unless otherwise stipulated in writing, deliveries shall be made ex works in the meaning of Incoterms 2000. Irrespective of the agreed pricing, the risk shall in principle pass to the orderer when the merchandise leaves the works or has been reported to the orderer as ready for shipping.
8.2. This shall also apply when the transport is carried out, instigated or organized by us. Any transport insurance requested by the orderer shall be charged separately. We assume no warranty for any particular transport times.
8.3. In unforeseen events (e.g. risk of war, outbreak of hostilities, acts of terror, closure of maritime and other transport routes, work stoppages and similar events), we hereby reserve the right to charge freight and insurance costs higher than the agreed costs.
9. Retention of title
9.1. All merchandise delivered by us shall be subject to retention of title and shall remain our property until full payment of all our claims resulting from the business relation.
9.2. Assertion of the retention of title shall only constitute a rescission of the contract if expressly declared by us.
9.3. When taking back merchandise, we shall be entitled to charge the orderer for any transport and handling costs.
9.4. In the event that third parties intervene with respect to the reserved merchandise, particularly in the form of commercial liens, the orderer hereby agrees to refer to our title and to notify us thereof without delay.
9.5. The orderer shall bear the full risk for the reserved merchandise, particularly the risk of loss or deterioration. The orderer shall keep all reserved merchandise and all products developed and assets constructed using the reserved merchandise in custody for us on its own responsibility.
9.6. The orderer hereby agrees to store the merchandise separately. The retention of title shall extend to the recognized balance insofar as we book claims against the orderer to a current account (current account reservation.)
9.7. The orderer may only process the reserved merchandise if we do not thereby accrue any obligations.
9.8. Irrespective of the prorated value of our merchandise, we shall be entitled under the circumstances set forth in § 9.7 to provide the orderer with the product produced in such manner in return for payment of the total outstanding balance or to accept such product as our property without compensation for the value.
9.9. Title to any co-ownership accruing to the orderer from the commixture or combination of the reserved merchandise with other things, particularly those of third parties, is hereby transferred and made over to us in advance upon the receipt of the reserved merchandise.
9.10. The orderer may only sell the reserved merchandise and the items resulting from the processing thereof subject to a retention of title and may not impair our reserved rights by disposing of the merchandise in any way (e.g. pledges or assignment by way of security.)
9.11. Any actual or legal intervention by third parties with respect to the reserved merchandise or any damage to the reserved merchandise or the loss thereof must immediately be notified to us in writing.
9.12. The orderer hereby assigns to us in advance, on account of payment, all its claims against third parties arising through the sale or processing of our merchandise, until the definitive payment of all outstanding claims. The orderer must notify us upon request of the names of its buyers and inform them of the assignment.
9.13. The assignment must be entered on the orderer’s books, particularly in the list of outstanding items, and made evident to the buyer on delivery slips, invoices, etc.
9.14. If the orderer is in default with its payments to us, the sales proceeds received by the orderer must be separated and the orderer must keep these proceeds in trust exclusively for us or in our name.
9.15. Any claims against insurers are hereby assigned to us in advance up to the limits stipulated by § 15 Austrian Insurance Agreement Act.
9.16. Claims against us may not be assigned without our express approval.
9.17. If the value of the collateral extended to us exceeds our claim by more than 20%, we shall release collateral of our choice at the orderer’s request.
10. Default in payment
10.1. In the event of default in payment, we shall be entitled to deny authorization to resell, reprocess or otherwise use the reserved merchandise with immediate effect and to demand the surrender or return thereof at the orderer’s expense.
10.2. If the orderer fails to pay as agreed, the orderer shall be in default without need of a written payment reminder.
10.3. Payments shall be deemed to be rendered on the day on which we can dispose over the amount.
10.4. Cash discounts, bonuses and other payment rebates shall require separate agreement. In the event of default in payment, even default in partial payments from the current overall business relationship, these types of agreed cash discounts and other rebates shall lose effect with respect to all still unsettled or unpaid transactions.
10.5. If the orderer is in default in payment, all our existing claims against the orderer shall be due for payment, irrespective of any previously accepted bills of exchange or any previously granted payment periods. The orderer may no longer sell merchandise owned or co-owned by us and shall be obliged to provide collateral. The authorization to collect claims assigned to us shall no longer be valid. This shall also apply in the event of legitimate doubts about the orderer’s creditworthiness. Reference is hereby made to the preceding provisions, particularly in § 6 (Rescission of contract.)
10.6. Irrespective of the commercial lien to which we are entitled by law, the orderer hereby grants us a lien on the material provided to us to execute the order and the claims arising in lieu thereof in order to secure all present and future claims from the business relation with the orderer. If the orderer is in default in payment or default with a credit, we shall be entitled to realize the pledged material at the current prices on the London Metal Exchange or, if the material is not listed there, at the German market price in a private sale.
10.7. In the event of default in payment, we shall be entitled to demand default interest at a rate of 8% above the respectively applicable three-month Euribor rate or, at minimum, 12% per year.
10.8. In the event of default, the orderer hereby agrees to compensate us for the collection costs incurred by us, provided that such costs serve for purposes of expedient legal prosecution, whereby we shall not be obliged to involve a collection agency before instigating legal action.
11.1. All compensation claims against us shall be excluded in cases of minor negligence and even the case of any gross negligence on the borderline between minor and gross negligence.
11.2. Recourse claims in the meaning of § 12 Austrian Product Liability Act shall be excluded unless the orderer or person entitled to the recourse proves that we were responsible for the defect or at least that it was caused by our gross negligence.
12.1. The orderer must inspect the delivered merchandise immediately after arrival and notify us of any detected defects without delay. The notice of obvious defects must be made immediately after delivery. The notice of any other defects must be made within two weeks of delivery at the latest, provided that no earlier complaint was possible despite careful inspection (e.g. due to complicated inspection procedures.) The merchandise must in all cases be inspected and defects notified prior to any processing, commixing or combining with other things; notice must be transmitted to us with a precise description of the detected defects by registered letter and telefax or by electronic means (e-mail.) In addition to such notice, we must simultaneously be sent a sample of the merchandise which is the subject of the complaint. Should the above procedures not be observed, all warranty and compensation claims of the orderer shall be forfeited.
12.2. In the case of deliveries rendered in accordance with samples or models, all warranty claims due to hidden defects shall be excluded, provided that the delivered merchandise corresponds to the sample or model. No warranty shall be applicable if a defect is caused by material provided by the orderer itself.
12.3. Any transport damage must be noted on the bill of lading and delivery slip and must be confirmed by the signature of the shipping agent/transport company and/or the driver delivering the merchandise. Should such confirmation be refused, the orderer must prepare an exact record of the detected damage, specifying the time, name of the driver, etc. The orderer shall transmit photocopies of these documents to us.
12.4. In a warranty case, we shall be entitled, at our discretion, to render the merchandise compliant with the contract or to provide a defect-free replacement, free of cost and freight charges, to the agreed place of delivery in return for the defective merchandise, which shall become or remain our property. After three unsuccessful attempts to subsequently improve the merchandise or render a replacement delivery within a reasonable period, the orderer may rescind the contract or reduce the purchase price. Any further claims, particularly to compensation of damage due to consequential defects and other compensation, shall be excluded, except in the case of intentional action or gross negligence on our part or compulsory liability under the Austrian Product Liability Act.
12.5. If a review of the defect notices reveals that no warranty case exists, we shall be entitled to demand compensation for all expenses of any type incurred by us.
12.6. The orderer must prove that a defect existed upon delivery of the merchandise. Any legal presumption made in this regard, particularly that in § 924 Austrian Act on General Terms and Conditions of Business, is hereby excluded.
12.7. Pursuant to § 933b Austrian Act on General Terms and Conditions of Business, the orderer may only take recourse for warranty duties fulfilled by the orderer itself within the agreed warranty period and within the scope of the contract.
12.8. If the orderer uses or sells the defective product despite having known or been in a position to know about the defect, the orderer shall simultaneously declare to us its waiver of any claims related to such defect. Insofar as we must render compensation claims to the orderer based on compulsory provisions of law or contract, the orderer must prove all legal prerequisites for the compensation claim, particularly our own fault. Compensation claims of the orderer aimed at remedying the defect through improvement or exchange may only be asserted if we are in default with the performance of the warranty claims.
12.9. If the orderer alleges the existence of a defect, any resulting claims, particularly claims due to warranty or compensation, may only be asserted if the orderer proves that the defect existed at the time the merchandise was delivered; this shall also apply within the first six months of delivery of the merchandise.
13. Assertion of warranty and compensation claims
13.1. The warranty period shall be six months from the delivery date or, in the event of default in acceptance, from the date of the occurrence of the default.
13.2. The warranty period shall neither be extended nor interrupted through the remedy of defects or attempts to remedy defects; such an extension or interruption shall require the assertion of the warranty claim before the courts or our written acknowledgement. Attempts to remedy defects shall not represent an acknowledgement and shall not lead to any extension of the period. This shall also apply to ex gratia remedies of defects, i.e. remedies made without any recognition of a legal duty to do so. With respect to partial deliveries, the warranty period shall commence when the part is delivered and/or handed over.
13.3. Unless otherwise stipulated by mandatory provisions of law, all forms of compensation claims shall lapse 12 months after the delivery date, irrespective of when the orderer obtains knowledge thereof.
13.4. Our liability for consequential and pecuniary damage, lost profit and damage of any other type is hereby generally excluded, unless such liability exists under provisions of mandatory law. In the event of such alleged states of affairs, the orderer and not ourselves shall bear the burden of exonerating himself or proving any fault establishing mandatory liability.
14. Data protection and copyright
14.1. The customer hereby approves the electronic storage and processing by us of the personal data contained in the contract in the performance of the contract.
14.2. Plans, sketches or other technical documents shall remain intellectual property, as shall samples, catalogues, brochures, illustrations, etc. The orderer shall not receive any rights whatsoever to use or exploit such works.
14.3. The property right agreed in § 14.2 above shall apply not only in favor of ourselves but also by analogy in favor of the orderer.
14.4. In the event that third-party property rights are infringed by deliveries made in accordance with documents, drawings or other specifications of the orderer, the orderer shall indemnify us and hold us harmless against all claims.
15. Place of performance, jurisdiction
15.1. Our company’s registered office, currently at Muthgasse 36, A-1194 Vienna, Austria, shall be the place of performance for all obligations.
15.2. The exclusive place of jurisdiction for all disputes from contracts concluded with the orderer or regarding the origination and validity of the covenants concluded, including these General Terms and Conditions of Business, shall be our company’s registered office, currently in Vienna, Austria.
15.3. We shall be entitled but not obliged to assert all claims against the orderer and other disputes from contracts concluded with the orderer before an arbitral tribunal competent in Vienna, namely the International Arbitral Center of the Austrian Federal Economic Chamber in Vienna in accordance with the rules of arbitration and conciliation applicable to such proceedings, ousting the jurisdiction of courts of law. The orderer hereby submits to the aforementioned arbitral tribunal, the decision of which shall be final and binding upon both parties, except for the appeal options stipulated by mandatory law.
16. Choice of law
16.1. Austrian law shall be exclusively applicable to all contracts and legal relations between us and the orderer. The applicability of international conventions, such as the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG or UNCITRAL), as amended, or similar conventions applicable in lieu thereof, is hereby expressly excluded.
16.2. German shall be the language of contract and negotiation. Insofar as the parties avail themselves during meetings, in correspondence or on other occasions of the language of the orderer or another language, the German wording shall prevail, and German shall be the exclusive language of deliberation in any proceedings, particularly in any arbitral proceedings.
16.3. Insofar as we are prepared in any specific case to correspond or negotiate in the orderer’s language, this shall not lead to any waiver of the covenants stipulated in the preceding paragraphs.
Gebauer & Griller Kabelwerke GmbH
Vienna/Austria, September 2006