General Terms and Conditions
These General Conditions of Sale and Delivery shall constitute an integral part of all legal transactions with us which refer to the sale and supply of goods or other services on our part. Any contractual conditions deviating from our General Conditions of Sale and Delivery shall only apply when and in so far as expressly acknowledged by us in writing in the individual case and only for that business for which the contractual conditions of the customer or other provisions were accepted. Confirmation of orders shall in no case be deemed acceptance of deviating contractual conditions.
2. Offers and conclusion of contract
Any recommendation, information or other statement issued upon introduction of a business relation shall solely serve as non-obligatory estimate in order to assist the customer in its decision making process and shall in particular not oblige us to enter a contract.
Same our offers shall always be made without obligation on our side and shall only become binding upon issue of our written order confirmation. We shall be entitled to confirm or reject customer orders within a period of 20 days from receipt thereof. The customer shall be bound to its order during this period. The customer may only with our explicit written permission change an order accepted by us.
All documentation, technical drawings and other documents established by us in course of the offering process or of a later business relation shall always constitute our sole intellectual property; any transfer on or grant of access to third parties shall be strictly prohibited, else the customer shall be liable for damages.
3. Product specification, samples and probes, warranties
Unless otherwise agreed the characteristics of the goods shall be those as set out in the product specification.
Features of samples and probes shall only be binding if expressively agreed as characteristics of the goods.
Specifications as to characteristics and wear of goods shall only be warranted if as such agreed and specified.
Our oral and written advice with respect to the use of the goods shall be non-binding, also in relation to any third parties’ intellectual property rights, and shall not relieve the customer from own examination of the goods supplied by us as to their suitability for the intended process and purpose. Any liability on our part in that respect shall be limited to malicious intent and gross negligence, and any monetary compensation shall be limited to the amount of the net invoice value of the delivery which gave rise to the damages.
The agreed prices are based on the manufacturing costs at the time of written order confirmation. Upon change of the material prices, wages, customs, duties or taxes we reserve the right to adjust the prices to the cost structure at the time of delivery. In the event of a price increase the customer may terminate the contract within 14 days from receipt of the notification of the price increase.
The prices shall only apply for the agreed volumes. Supplements will be charged for lower quantities.
If offers are made in currencies other than Euro, we retain the right to modify prices to reflect exchange rate fluctuations which occur up to the date of delivery.
Place for fulfilment of all deliveries of goods and supply of services shall be our registered offices in Austria, where all our present and future claims arising from contracts with the customer are to be fulfilled. Besides, all deliveries shall be made pursuant to the commercial terms agreed upon within the individual contract, which shall be interpreted in line with the INCOTERMS in the version as applicable at the date of conclusion of the contract.
7. Delivery dates, late delivery, Acts of God
We shall be entitled to exceed agreed delivery dates by up to 8 days by means of written notice to the customer, without the customer being entitled to any measures whatsoever as a result of the delay.
If agreed delivery dates are exceeded beyond the above period (late delivery) the customer - save for Acts of God - shall only be entitled to withdraw from the contract. Such withdrawal may only be made upon a reasonable grace period of at least 4 weeks. Further claims of the customer, in particular claims relating to damages, shall be limited to cases of malicious intent and gross negligence. The monetary value of such claims shall in any case be limited at the most to the net invoice value of the goods affected by the delay in delivery.
Tool break, late delivery or failure to deliver on the part of our suppliers, shortage of workers, energy or raw materials, strikes, lockouts, disruption to traffic, regulations or orders issued by public authorities and all other occurrences and circumstances beyond our reasonable control (Acts of God) shall release us from the obligation to effect delivery for the duration of the disturbance and to the extent of its effect. If delivery is such delayed by more than 3 months, the customer, upon expiry of a reasonable notice period, may withdraw from the contract; provided, however, that the customer shall be obliged to accept delivery at the agreed price of any parts already completed at this point in time. The customer in such cases shall without exception be prevented from claiming damages.
In the event the customer should fail to fulfil its obligations, or if circumstances become known in connection with the customer which give rise to justified doubt as to whether the customer in future will fulfil in a timely and proper manner its obligations, we shall without prejudice to further claims be entitled to cancel granted payment terms, to cease with immediate effect deliveries and call due all outstanding monies and other claims or to make further deliveries dependent upon pre-payment or granting of other securities.
8. Damages during transport
Claims in respect of damages during transport must be raised by the customer within the particular terms applicable directly with the forwarding agent with a copy to us.
9. Observance of legal provisions
Unless otherwise agreed in the individual case, the customer shall be responsible for observance of legal and authoritative provisions regarding import, transport, storage and use of the goods.
10. Payment, late payment
Irrespective the place of hand over of the goods or documents, our registered offices shall be the place for fulfilment of all payment obligations by the customer.
In the event of late payment interest shall be charged; if invoices are made in EURO the interest rate shall be 8 percentage points above the current 3-months EURIBOR and if invoices are made in another currency the interest rate shall be 8 percentage points above the current discount rate of the national bank of that country whose currency was used for invoicing. Any higher interest charges for which we become liable are to be reimbursed by the customer. All reminder and collection fees in connection with late payment shall be borne by the customer.
Bank transfer charges and fees for documents against payment or documentary credits shall be borne by the customer.
Any prohibition of assignment made by the customer shall not apply to us.
11. Retention of title
Each delivery shall remain our property until all payments relating to the delivery have been made, including subsidiary costs such as interest and expenses. The customer shall store goods subject to retention of title separately and in a proper manner and provide for appropriate insurance thereof.
The customer may process or sell deliveries in the normal course of business; provided, however, that pledging of the goods or offering as security shall only be permitted upon our prior written approval. Our retention of title shall also extend to the products which result from further processing. If our deliveries are processed or joined to or mixed with other material, we shall obtain joint ownership in the product which thus arises in the proportion of the value of the goods supplied by us to the value of the other material. In all such cases the customer shall be deemed custodian of the goods. He shall participate in all measures which may be necessary or useful for protection of our property. If third parties assert or wish to assert rights over the goods subject to retention of title, the customer shall inform us accordingly without delay, else being liable for damages.
The customer already now assigns to us all claims from the sale of goods with are subject to retention of title on our part. The customer undertakes to inform us on the name and address of his customers as well as on the receivables resulting from the sales. The customer shall in addition be obliged to note the assignment in his accounts and, upon our request, deliver evidence thereof by means of an appropriate certified document. We shall be entitled to inform at any time the respective customers of such assignments. The customer, until revocation by us, may collect claims assigned to us in his own name but for our account; provided, however, that our exclusive right to the claims shall not be affected in any way whatsoever. The customer may not assign claims from the onward sale of goods subject to retention of title to third parties.
Such assignment would in any case not affect our status in any way.
Our warranty shall commence as of the moment when risk in respect of the delivered goods passes to the customer and shall end 12 months hereinafter. In respect of goods which we are solely reselling as traders we shall only warrant freedom from defects to the extent we may raise corresponding claims against our suppliers.
The customer shall immediately inspect every delivery for defects. Recognizable defects must be notified to us in writing within 8 days of receipt of the goods; other defects must be notified in writing immediately upon discovery, but in any event within the warranty period, else any warranty shall be excluded. If the customer should fail to notify a defect or if the goods delivered are processed by the customer or mixed or combined with other items, the delivered goods shall be deemed accepted without reservation. Issuance of a complaint neither shall release the customer from his payment obligations, nor shall it justify refusal by the customer of further deliveries from the subject or another contract. Inappropriate handling, storage or processing of the goods delivered will result in foreclosure of all claims whatsoever against us. If a defect is acknowledged by us, we may at or discretion either take back the goods delivered at the agreed price or provide for substitute goods upon return of the original goods or remedy the defect on our own. We shall reimburse the customer for remedy of defects by its own only upon our previous consent hereto.
We shall only be liable for consequential damages affecting persons or plant and equipment (in particular damages as a result of interruption to business) to the extent that the defect is due to malicious intent or gross negligence on our part. Furthermore, the amount of compensation shall be limited to the net invoiced value of the delivery affected by the defect.
13. Product liability
Liability for damages to property resulting from a faulty product, which the customer suffers as an entrepreneur, shall be excluded. Recourse with us by the customer for a faulty delivery shall be limited to malicious intent and gross negligence. The customer, else being liable for damages, shall impose this waiver in our favour same also on any of his customers.
Limitation of our product liability shall same apply to goods and packaging.
Rebookings or cancellations can only by considered when sent in written form. In the case of cancellation, our company is entitled to charge a cancellation fee depending on the stage of completion, without prejudice to the assertion of an additional compensation or payment in accordance with § 1168 ABGB (Civil Code of Austria).
Cancellation of products from the standard range can be canceled free of charge up to one week prior shipment (Attention: Customer specific products are excluded; see below). Habich GmbH reserves the right to charge a cancellation fee of 10% of the order value in case of cancellation at short notice (less than one week). In the case of a completed preparation of the shipment, 25% of the order value, but at least the full calculation of the incurred, directly attributable shipping costs.
Therefore, the claims in individual cases may be more than the aforementioned 25% of the order value.
Customer specific products:
Customer specific products will be manufactured on demand only. Once the production process of such items has been started we invoice 100% of the order sum in case of cancellation. In case of cancellation before start of production, the procedure is identical to that for standard articles
15. Off set
The customer may off set against our claims solely with counter claims either uncontested or binding assessed.
16. Governing law
All contracts and deliveries shall be governed by, and construed in accordance with, Austrian law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11th April 1980.
If any of the provisions of our General Conditions of Sale and Delivery shall be held to be invalid such invalidity shall not affect any other provision hereof.
17. Legal venue
All disputes arising out of or in connection with the contractual relationship shall be settled by the competent courts at our registered offices; provided, however, that we are free to institute legal proceedings also with any another competent court.
If deliveries are made to countries outside the European Union, all disputes arising with the customer shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber by one or more Arbiters appointed in accordance with these rules. The language of the arbitration shall be German, the venue shall be Vienna. The customer, pursuant to Para 598 (2) of the Austrian Code of Civil Procedure, shall waive the application of Para 595 (1) figure 7 of the said Code.
Notifications and other statements made to us shall be effective only upon receipt thereof. In the event a certain term needs to be observed, the statement must be received by us within such term.
19. Contract language
If the customer should have received these General Conditions of Sale and Delivery also in a language version another than the language of the contract (the contract language), this shall have been done only for purpose of better understanding. In the event of any interpretation discrepancies the contract language version shall be binding.