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Condições gerais de entrega e pagamento
All deliveries and other services effected by ourselves, and all
payments made to us, shall be exclusively governed by the following
Terms of Delivery and Payment. Insofar as provisions may be found to be
missing therefrom, the General Terms of Delivery of the Austrian
Electrical and Electronic Industries shall apply in a subsidiary manner;
for the rest, the law of Austria applies. Any business terms of the
Purchaser’s that are at variance with the above shall only be valid if
we expressly acknowledge the same in writing, by letter or by telefax.
In taking delivery of the goods and/or service, the Purchaser
acknowledges these Terms of Delivery and Payment to the exclusion of its
own terms and conditions of business.
1. Offers
1.1 Our offers are without engagement and subject to alteration,
unless the offer makes express mention of a period of engagement. Where
not otherwise agreed, documents pertaining to our offers – such as
drawings, illustrations and dimensional, weight, performance and
consumption data – are not deemed to be specially agreed
characteristics. We retain the right to effect modifications for
engineering reasons.
1.2 We reserve the proprietary rights and copyright to all cost
estimates, drawings and other documents; these may neither be disclosed
to any third party nor used
for the purposes of any third party.
2. Acceptance of the order
2.1 An order is not deemed to have been accepted until it has been
confirmed by us in writing, either by letter or by telefax. Promises or
sub-agreements made by our staff, and any amendments and alterations –
of whatever kind – are only valid if they have been confirmed by us in
writing, either by letter or by telefax.
2.2 Articles sent on approval and sampled offers shall be deemed to have
been approved if they are not returned within eight days.
3. Price and payment conditions; set-off
3.1 The price is always the list price valid on the date of the
delivery. The prices are ex-works, exclusive of packaging, loading and
value-added tax. Packaging will not be taken back.
3.2 Payments are to be made net cash, without deductions and within 30
days of the invoice date. It shall be for us to decide which claims or
partial claims of the Purchaser’s may be offset against such payments.
3.3 Expense and additional costs resulting from changes in the order for
which the Purchaser is responsible are to be borne by the Purchaser.
3.4 If the payment deadline is exceeded, we shall charge penal interest
at a rate of 4% above the base-rate (within the meaning of § 1 Section
1 BGBl I 1998/125)
obtaining at the time in question, plus the collection costs, such
amount to be at least 10% p.a. of the total claim. This is without
prejudice to any further consequences of default in payment.
3.5 It is inadmissible for the Purchaser to withhold / set off payments
against counter-claims of the Purchaser’s which are contested by
ourselves.
3.6 For factory services (installation, repairs, maintenance and other
such work), we shall charge the hourly rates and materials-prices
applicable upon completion of such factory services; travel and waiting
times are counted as working hours. For overtime, night-time, Sunday and
bank-holiday working, our applicable surcharges will be invoiced. Travel
expenses and daily and overnight allowances will be invoiced separately.
4. Performance, shipping and default
4.1 The delivery period commences with the mailing of the order
confirmation note, while the installation or repair period commences
when the machine is handed over. On no account, however, shall this
period start to elapse sooner than 14 days after the time when the
Purchaser furnishes us with those documents (e.g. engineering drawings,
plans etc.), permits or approvals which it is responsible for procuring
or when it makes the advance payment required of it. In any event, the
delivery
deadline is deemed to have been met if the article to be supplied has
left the factory prior to the expiry of the delivery period, or if, by
this date, we have provided notification of our readiness to deliver.
4.2 These periods are suitably extended by unforeseen impediments – of
whatever kind – lying outside our sphere of influence, e.g. by factory
stoppages, industrial conflicts, delays in supplies of essential raw
materials or components and the like, or by circumstances on the
Purchaser’s side, provided that these impediments and/or circumstances
are of material relevance to the failure to meet the deadline.
Impediments of this nature also annul the consequences of a default for
which we would otherwise be liable, for the duration of such
impediments. Immediate notification is to be given of the beginning and
end of such impediments. We are entitled to terminate the contract, in
whole or in part, if such impediments should occur. In this case, damage
claims from the Purchaser shall be inadmissible.
4.3 If agreed deadlines, or deadlines that have been extended in
accordance with the previous sub-clause, are exceeded by more than four
weeks, the Purchaser shall be entitled to terminate the contract, having
granted us at least four weeks’ additional time by notice given to us
in a registered letter. In this case, damage claims from the Purchaser
shall be inadmissible.
4.4 If the Purchaser incurs a loss from a delay for which we are liable,
then it shall be entitled to compensation amounting to 0.5% per whole
week – up to a maximum of 5% – of the value of that part of the
delivery which cannot be used in time or for its intended purpose as a
result of the delay. For other services, the compensation shall be 5% of
the remuneration. However, this liability for damages shall only apply
to us in cases of gross negligence. Any damage claims going beyond the
above shall not be admissible. Moreover, any claim for damages in
consequence of delays on the part of our subcontractors shall also be
inadmissible.
4.5 Goods are shipped at the Purchaser’s risk and expense. The
shipping mode and route are for us to decide, any liability being
excluded. We shall only take out
transport insurance by order and for the account of the Purchaser.
4.6 We are entitled to effect part-deliveries.
4.7 Our compliance with the delivery period shall be contingent upon the
Purchaser having fulfilled its contractual obligations in all pending,
still-to-be-completed
business transactions.
4.8 If shipping is delayed for reasons for which the Purchaser is
liable, then the Purchaser shall bear all resulting additional costs, in
particular any storage expenses incurred where the shipment has to be
stored at our factory, but with a minimum monthly charge of 0.5% of the
invoice amount. We shall also be entitled to grant the Purchaser a grace
period of at most 14 days, and if this period should expire to no avail,
we shall then be entitled, at our own discretion, either to make
alternative arrangements regarding the article(s) to be delivered and to
effect delivery to the Purchaser within a suitably extended period of
time, or to terminate the contract and claim damages for breach of
contract. In this latter case, we are entitled, without having to
furnish any particular proof, to seek 10% of the contract remuneration
for the intended delivery as indemnification. Where appropriately
substantiated, we can also claim compensation for any damages over and
above this amount.
4.9 For factory services (Point 3.6 above), the Purchaser is to provide
us with the necessary equipment and auxiliary materials (e.g. winches,
rails, electricity etc.) in good time and at no charge, even if
installation is included in the price or if a flat-rate price has been
agreed for this. Any building work needed in preparation for the
installation must be completed prior to the arrival of our installation
technicians. Furthermore, the Purchaser must take all safety precautions
needed for the protection of persons and property. We accept no
liability for the ancillary personnel needed, or for the requisite
equipment and auxiliary materials.
5. Passage of risk
5.1 The risk shall pass to the Purchaser as soon as the article(s)
for delivery has/have left our factory; the same is true of partial
shipments or in cases where we have undertaken to perform extra services
such as the shipping charges (carriage), site-erection or installation.
5.2 If there is any delay in dispatching the shipment for reasons for
which we are not liable, the risk shall pass to the Purchaser upon its
being notified that the
consignment is ready for delivery.
6. Retention of title, rescission
6.1 We retain title to the article(s) delivered until all the claims
that we have – on whatever legal grounds – against the Purchaser
have been paid in full.
6.2 The Purchaser is only permitted to re-sell the article delivered –
even if this has been subjected to processing – within the context of
the regular business operations that it carries on for this purpose.
However, this permission is precluded if the resulting claims are
assigned to third parties or are the subject of an assignment
prohibition, or if the Purchaser is insolvent or in default with the
performance of its contractual obligations. No other manner of
disposition is permitted to the
Purchaser whatever. In the event of distrainment, confiscation or other
disposition by third parties, the Purchaser is to notify us hereof
immediately. Our legal
expenses incurred in connection with the enforcement of our title are to
be borne by the Purchaser.
6.3 The Purchaser assigns to us even now its claims and other rights
from the re-sale, rental or leasing of the article delivered, even if
this latter has been joined together with other items or subjected to
processing; and the Purchaser shall make an entry to this effect in its
books. If the article delivered is sold or placed into the hands of a
third party for such party’s use together with other items (regardless
of whether or not it has been joined to any such items or subjected to
processing), then such assignment shall only apply up to the amount of
the purchase price owed to ourselves. This is without prejudice to any
further damages claims.
6.4 The Purchaser is only entitled to collect the claims and to assert
the other rights to the extent that it has met its payment obligations
towards us and is not insolvent.
6.5 If the Purchaser should act contrary to the terms of the contract
– in particular by being in arrears with payment or with any other
contractual obligation, and/or by being insolvent – we shall be
entitled, at our own discretion, either to terminate the contract
without granting any grace period or, while leaving the contract in
force, to take back the article delivered or to forbid it to be used. We
shall also be entitled to sell the taken-back article privately; after
deduction of a handling fee of 10% of the proceeds thus realised, the
remainder will be debited from the total of our outstanding claims
against the Purchaser.
6.6 If we should opt to terminate the contract, the Purchaser shall pay
a monthly usage fee of 5% of the original value of the article
delivered, for the period from the passage of risk until the return of
the article. If the diminution in value is greater than the total usage
fee paid, the Purchaser shall also reimburse the difference.
6.7 Insolvency shall be presumed:
if bankruptcy, composition or other insolvency proceedings are
instituted against the Purchaser, or if a petition for the institution
of such proceedings is dismissed on the grounds that the assets will be
exhausted by costs; or
if, in the 60-day period preceding the due date of our claim, the
Purchaser has failed to pay more than three other claims of ours
promptly and in full, and in response to our written demand (presented
by letter or by telefax), has neither made any down-payment nor
presented any usable security (especially bank guarantees).
7. Warranty
7.1 The following warranty provisions only apply where a FRONIUS
warranty agreement has not already been signed with the Purchaser.
7.2 We give no warranty for customary deviations in size, weight or
quality (or as tolerated by ÖNORM or DIN standards), and also no
warranty for information given regarding the suitability of the
article(s) to be delivered for the purpose contemplated by the
Purchaser, or for any other particular purpose.
7.3 Any defects in articles delivered must be reported immediately upon
being discovered, as a written complaint sent by letter or by telefax,
quoting the number and
date of the order confirmation note, of the delivery note or of the
invoice and the serial and order numbers, otherwise the goods shall be
deemed to have been approved. The complaint must set out which delivered
items are affected by the defects, what the defects consist of in
detail, and under what concomitant circumstances these defects occurred.
Every single defect must be exactly described. Any costs which we incur
as a result of unjustified complaints or complaints that are otherwise
at variance with the conditions of use are to be refunded to us.
7.4 We shall only warrant correct functioning of a machine whose
components were not all supplied by ourselves if we have undertaken –
notwithstanding the provision of certain components by the Purchaser or
by third parties – to manufacture the machine as a whole, and if the
faulty functioning in question is not attributable to incorrect and/or
incomplete information from the Purchaser.
7.5 The warranty is always 12 month; this also applies to deliveries of
items deemed to be immovable, and to services performed on items which
are – or which are deemed to be immovable. The warranty period
commences with the passage of risk (point 5 of business terms) and
covers for the first year following the date of sale (except torches and
spare parts on which you are getting 6 month warranty after sale) the
warranty shall cover the hours’ labour (as per target-time catalogue)
needed to effect the repair, as well as necessary materials and any
travel expenses* and travelling-time allowances* (max. 200 km and max. 3
hours per warranty event).
From the second year onwards, the warranty shall only cover the
materials needed to effect the repair. Price reductions and liability
for any consequential damages shall be excluded. The warranty also
excludes defects attributable to the equipment’s not being set up and
installed by the Seller, to inadequate facilities, non-
compliance with the installation requirements and conditions of use,
overloading of the parts beyond the maximum level stated by the Seller,
negligent or otherwise improper handling, of to the use of unsuitable
operating material. The above exclusions apply equally to defects
attributable to any Purchaser supplied materials. The Seller shall also
no be liable for any damage that is attributable to third-party actions,
atmospheric discharge, overvoltage or chemical influences. The warranty
does not apply in respect of replacement of parts subject to natural
wear-and-tear.
* This provision regarding travelling-time and travel-expense costs
shall only apply in respect of machines weighing > 30 kg.
7.6 In cases where we do give warranty, we shall – at our own
discretion and within a reasonable period of at least 4 weeks’
duration – either exchange the defective
article itself, or exchange its defective components for defect-free
ones, or remedy the defect(s) or give the Purchaser a credit note to
reflect the diminution in value. The warranty obligation is not
prolonged by the exchange of defective articles or parts. Any parts thus
exchanged shall become our property. We shall not refund the costs for
the remedying of any defect by the Purchaser or by any third party.
7.7 If we opt to remedy the defect or to exchange the defective article
or any defective parts thereof, we shall bear the costs of the
replacement article or the spare parts, as well as the pertinent
shipping costs.
7.8 On our demand, the delivered article or individual components
thereof are to be returned to us immediately, at the Purchaser’s risk
and expense, failing which any and all warranty obligation on our part
shall become void.
7.9 The Purchaser is not entitled to withhold payments on account of
warranty claims or other counter-claims not recognised by ourselves.
7.10 Our warranty is excluded in cases where the operating instructions
published by ourselves, and any installation or operating instructions
to be provided by the Purchaser, have not been observed, or if the user
has not been obligated to observe such instructions; if any repair or
other work has been performed on the delivered article without our
consent; if the delivered article has been taken out of the contract
territory without our consent, or if it has been used contrary to our
instructions, or for purposes for which it is not intended.
7.11 Warranty is also excluded where we have carried out repair orders,
altered or modified old or third-party-manufactured articles, or
supplied used articles.
8. Damages and product liability
8.1 Any and all further claims of the Purchaser or third parties –
especially claims for any type of damages – are excluded, unless the
aggrieved party can prove that the damage was deliberately or grossly
negligently occasioned by ourselves. Such claims can only be enforced
within six months of the damage becoming apparent, and in any case no
later than two years after the passage of risk (Point 5.).
8.2 For those parts of the delivered article that we sourced from
subcontractors, we shall only be liable to the extent provided in our
own rightful warranty claims against the subcontractors.
8.3 If the delivered article was manufactured by us on the basis of
engineering-design data, drawings or models from the Purchaser, then we
shall not be liable for the correctness of the engineering design, but
only for ensuring that the item was manufactured in accordance with the
Purchaser’s specifications.
8.4 In the event that we are taken to law by a third party where we have
produced and delivered in accordance with the drawings, designs, models
or other documents provided by the Purchaser, the Purchaser shall
indemnify and save us harmless.
8.5 Our liability to pay damages for property damage by reason of the
applicable product liability legislation, including all rights of
recourse, is excluded. When using the machines and other articles
delivered by ourselves, the Purchaser is obliged to painstakingly
observe all safety regulations, technical rules, installation
regulations, operating instructions and user manuals, and in particular
all regulations applying to the electrical engineering field, and to
allow only authorised skilled personnel to operate the equipment.
8.6 The Purchaser must impose the disclaimer and the obligations as per
the previous sub-clause upon its customers, and must require these
customers to impose this disclaimer and these obligations upon their own
customers in turn.
8.7 The Purchaser also undertakes to notify us immediately of any
liability events and to make all the necessary documents available to
us.
8.8 The Purchaser shall give us prior written notice of any intended
modifications to the article delivered, or to its mode of operation, and
permit unrestricted
investigations by persons appointed by ourselves, failing which the
Purchaser shall forfeit all warranty (or separately agreed guarantee)
and damages claims.
9. Reconsignment of goods
Whether the Purchaser is entitled to reconsign parts to the Vendor
for crediting, and if so to what extent, may be seen from the “FRONIUS
Conditions on the Reconsignment of Parts to FRONIUS for Crediting”.
10. General provisions
10.1 The place of performance for deliveries and supplies, and the
sole place of jurisdiction, shall be Wels, Austria. However, we shall
also be entitled to go to law against the Purchaser at the court which
has “in-rem” and territorial jurisdiction under the relevant
regulations for the Purchaser’s commercial domicile or place of
residence.
10.2 Legal disputes arising out of the contract are to be governed by
Austrian law and by the commercial practice and trade usage applicable
at the place of performance. UNCITRAL trade law, on the other hand,
shall not be applicable (BGBl 1988/96).
10.3 The Purchaser may only assign its rights under the contract if it
has received our written consent.
10.4 The Purchaser hereby authorises us to carry out name checks in the
land register(s) in the contract territory, and shall provide us upon
our demand with a written authority to request copies and notices from
the register of persons in the land register, pursuant to § 5 Section 4
first sentence of the Austrian “Grundbuchsumstellungsgesetz” (Land
Register Computerisation Act, abbreviated “GUG”).
11. Special provisions for computer programs supplied with other
products or separately
In the case of computer programs, whether provided jointly with other
deliveries or separately, these Terms of Delivery and Payment shall only
apply to the extent that the following provisions do not deviate
therefrom.
11.1 Scope of utilisation
11.1.1 The Purchaser may only utilise the program on one machine at a
time; it is up to the Purchaser to decide which machine the program will
be utilised on. “Utilisation of the program” is taken to mean any
permanent or temporary, complete or partial duplication (copying) of the
program by means of the computer’s saving, loading, executing or
displaying the same for the purposes of running the program and
processing the data contained in the program. The Purchaser is also
entitled to
perform such actions for the purpose of observing, investigating and
testing the program. The Purchaser is not entitled to duplicate the user
manual.
11.1.2 The Purchaser may only modify or edit the program to the extent
necessary for utilisation according to the agreed terms, for interfacing
the program with other programs and/or for error correction. Trade
names, trademarks, copyright notices and other notices regarding the
reservation of rights which are contained within the program may not be
altered and must be carried over in any modified or edited versions of
the program. Any decompilation of the program code going beyond the
statutory provisions is prohibited.
11.1.3 The Purchaser may make a back-up copy of the program, provided
that this is necessary for ensuring future availability for use. If the
program is one with a built-in anti-copying safeguard, then in the event
of damage to the original, the Purchaser will be provided with a
replacement copy of the program in exchange for the original data
carrier.
11.2 Passing on the program package to a third party
11.2.1 The Purchaser may pass on the program package, in its original
condition and in its entirety, to a third party, but must then
contractually bind this third party to
observe all obligations towards ourselves arising from the handing over
of the program package. This right does not include the right to pass on
copies and
part-copies of the program package, or modified or edited versions or
copies and part-copies of such versions.
11.2.2 When the program package is passed on to a third party, the right
to utilise it also passes to this third party, who thus enters into the
contract in substitution for the Purchaser, whereupon the Purchaser’s
utilisation rights terminate.
11.2.3 Upon passing on the program to a third party in this way, the
Purchaser shall immediately and completely destroy all copies,
part-copies and back-up copies, as well as any modified or edited
versions of the program and any copies, part-copies and back-up copies
made thereof.
11.2.4 The above provisions also apply where the program is passed on
(lent) in a merely temporary manner. Rental of the program package or of
parts thereof is not permitted.
11.2.5 Where a user passes on the program package to a subsequent user,
this latter substitutes (in contractual terms) for the previous user; in
this case the above
provisions shall then apply analogously.
11.3 Further rights
11.3.1 All further rights are reserved for ourselves. This does not
affect the Purchaser’s exploitation rights either to its own programs
that are developed or operated using the provided program according to
the agreed terms, or to any other results which the Purchaser achieves
through its use of the provided program.
11.3.2 When a new program version becomes available, the Purchaser is
entitled to exchange the originally provided program package for a new
version of the program package at our listed update price; the exchange
applies to the program package in its entirety, as originally acquired
by the Purchaser. Upon exchanging the old version for the new, the
Purchaser loses its entitlement to utilise the old (i.e. exchanged)
program package. The obligation to destroy, as per Point 11.2.3 above,
shall apply analogously.
11.4 Warranty
11.4.1 The Purchaser acknowledges that it is not possible to develop
computer programs in such a way that these will be fault-free under all
conditions of use.
11.4.2 We warrant that the program provided will fulfil the agreed
functions and has the properties which are expressly warranted in the
contract. Any and all warranty shall be contingent upon utilisation in
accordance with the contract.
11.4.3 We also warrant that the original program is properly recorded on
a tested data carrier. Pre-installed programs are excepted from this
provision.
11.4.4 Any defects in the program must be notified to us immediately;
otherwise the program shall be deemed to have been approved.
11.4.5 The warranty period shall always be twelve months. This period
shall commence upon the delivery of the program package.
11.4.6 If the delivered program package is unusable (11.4.2) or
defective (11.4.3), we shall exchange it for a new one with the same
title. If this, too, should prove to be unusable or defective and are we
unable to restore it to serviceability at reasonable expense and within
a reasonable (at least 4-week long) period, then the Purchaser can
either demand a price reduction or withdraw from the contract. In the
latter case, Point 11.2.3 shall apply analogously. We shall not refund
the costs for the remedying of any defects by the Purchaser or by any
third party.
11.4.7 We give no warranty going beyond the foregoing, and in particular
warrant neither that the program provided will meet the special
requirements of the Purchaser or user, nor for modified or edited
versions of the program (Point 11.1.2), unless the Purchaser can prove
that there is no connection whatever between the defects and the
modifications or edits. The Purchaser shall bear the sole responsibility
for the selection, installation and utilisation of the programs and for
the results intended to be achieved therewith.
11.5 Liability for damages
11.5.1 Any and all further claims of the Purchaser or third parties –
especially claims for any type of damages, namely for indirect or
consequential damages – are excluded, unless the aggrieved party can
prove that the damage was deliberately or grossly negligently occasioned
by ourselves. Even then, we shall still not be liable for
indirect damage.
11.5.2 In all other respects, Point 8 shall apply analogously.
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