general terms and conditions
general condition of sale and delivery
These general conditions of delivery are intended for legal transactions with entrepreneurs. If, in exceptional cases, they are used for legal transactions with consumers within the meaning of section 1 para. 1 (2) of the Consumer Protection Act (§ 1 Abs. 1 Ziffer 2 Konsumentenschutzgesetz), they shall only apply insofar as they do not conflict with the provisions of part I of this act.
Unless expressly agreed otherwise, our general terms and conditions as disclosed to the other party shall apply to the contract. The other party to the contract agrees that in case of it using own terms and conditions, our general terms and conditions shall prevail when in doubt, even if the other party’s conditions remain undisputed.
Actions that we take related to the performance of the contract shall not be deemed as an approval of contractual provisions that deviate from our General terms and conditions. Deviations and supplements made by the buyer shall be only valid with our explicit confirmation.
Within the scope of current business relations, the general terms and conditions specified below shall apply to future purchases, even if not specifically agreed in the future.
Our offers are subject to change. The contract shall only be concluded upon the dispatch of a written order confirmation by us.
The buyer has to check the content of our written order confirmation and has to reject discrepancies immediately.
If offers are submitted to us, the offeror shall be bound thereto for 14 days from receipt of the offer. We shall be bound to our offer for a period of 30 days from its date of issue.
3. protection of plans and documents
Plans, sketches and other technical documents as well as brochures, catalogues, samples and similar remain the intellectual property of the contractor. Any use of such plans or documents, in particular the dissemination, reproduction and publication requires the explicit approval of the contractor.
4. order modification
Unless agreed otherwise, modifications of orders or additional orders may be charged at reasonable prices. In addition, a sufficient extension of the delivery period shall be granted.
Modifications and deviations in the execution of an order are permissible on our part if they are necessary for technical reasons.
5. prices (purchase price; compensation)
Unless expressly quoted otherwise, all prices quoted by us are exclusive of VAT. For billing purposes statutory VAT will be added to these prices. Prices shall apply ex seller's warehouse. Delivery, unloading, loading and return of packaging shall be agreed separately, unless such taking back of packaging is regulated by separate statutory provisions. We shall be entitled to invoice the customer for the work we perform, according to its actual occurrence and the expenses incurred by us, upon submission of the corresponding documents. Such invoices shall be settled without deduction within 3 days of receipt.
Should the labour costs change due to collective agreements in the industry or due to internal business transactions or other costs necessary for the provision of the goods and services, such as costs for material, energy, transport, subcontracted work, financing etc., we shall be entitled to adjust the prices accordingly.
All prices agreed or quoted by us correspond to the current calculating situation and shall be valid for a minimum of 1 months.
For orders amounting to less than EUR 300 (plus statutory VAT) transport costs will be charged at cost.
While we will endeavour to comply with delivery schedules, delivery deadlines shall not be binding.
We shall be entitled to perform full or partial deliveries, unless single delivery has been agreed.
In the event of delayed deliveries, we shall not be liable for damages, nor shall the buyer be entitled to a full or partial cancellation of the order.
Events of force majeure and interruption of operations including lack of raw materials, equipment failure, and shortage of workforce (also due to disease and war) shall release us from the agreed deadlines as well as from the obligation of complete delivery. We shall also be entitled to extend delivery deadlines if the aforementioned circumstances occur with suppliers.
If without our fault goods ready for shipment cannot be dispatched, or if the buyer rejects their shipment or acceptance, we shall be entitled to store the goods at the buyer's expense, and the delivery shall be deemed to be completed. The agreed terms of payment shall remain unaffected by this provision.
7. terms of payment
Payment of the purchase price/compensation for work shall be effected within a period of 30 days from receipt of the invoice. For payments within 7 days a 2% cash discount may be deducted.
If the customer even only once fails to effect a partial payment within the agreed period for the cash discount, it shall lose its right to the cash discount not only regarding the abovementioned late partial payment, but also with regard to any subsequent payments. Discount deductions shall be accepted exclusively within the scope and on the basis of a written agreement.
Payments shall be deemed to have been made on the day on which we can dispose the invoice amount without loss. We reserve the right to modify our terms of payment with respect to individual customers.
8. default interest
Even if the customer is not at fault for delayed payment, we shall be entitled to charge default interest amounting to 1,5% per month. This provision shall not impair any claims for compensation for any further damage.
Moreover, in the event of delayed payment the customer undertakes to reimburse us for any collection chares and reminder fees, as far as they are necessary for appropriate prosecution; in particular, it undertakes to reimburse at most the remuneration due for the services of the collection agency as specified by the Regulation of the Austrian Federal Ministry for Economic Affairs regulating the maximum charges of collection agencies. If the creditor handles the dunning itself, the debtor undertakes to pay EUR 10 for each reminder plus EUR 5 every six months for keeping records of the debt.
In addition, all other damages, in particular damages in terms of higher accrued interest on our credit accounts as a result of the non-payment, shall be indemnified regardless of fault for the delayed payment.
If the buyer is in default with the payment of an invoice, all of his obligations to us shall be due immediately. After granting a grace period of 10 days, the default of payment shall entitle us to withdraw from any ongoing contracts, even if they have been partially performed.
9. bearing the risks
If the sale has been agreed ex manufacturer's works or ex our warehouse, the risk shall pass to the buyer upon the contract goods being placed at its disposal.
If the buyer is in default of acceptance, the risk shall pass to it anyway. In the event of such default of acceptance, we shall also be entitled either to store the goods on our premises, charging EUR 5 for every commenced calendar day of storage while at the same time insisting on the performance of the contract, or, having granted a reasonable grace period, to withdraw from the contract and commercialise the goods otherwise; in this case a contractual penalty amounting to 20% of the amount invoiced shall be deemed agreed.
10. retention of title
The goods shall remain our property until full payment of the purchase price/compensation for work has been effected, and/or until the expiration of any bills of exchange and cheque commitments.
The buyer undertakes to protect goods under retention of title against any decrease of value and adequately insure them at its own expense against fire and theft. As long as the retention of title exists, the buyer shall be prohibited from pledging or assigning the property as security, and resale shall be permitted exclusively to resellers in the ordinary course of business and on condition that the reseller receives payment from its customer or makes a reservation that the property shall pass to the customer only after the latter has met its payment obligations.
In the event of the goods being seized or confiscated, we shall be notified thereof forthwith by registered letter with notice of delivery; besides, the enforcement officer and the pledgee that initiated the seizure or confiscation shall be informed forthwith of our extended retention of title.
In the case of the resale of goods for which payment has not been received, the buyer's claim against the third party shall be assigned to us at the time of its origin without additional need for any special act of assignment. At our request, the buyer shall at any given time provide us with a precise statement of the claims assigned to us and notify its customers of said assignments. We shall be entitled to collect such claims in our own name and to use the incoming amounts to satisfy our still outstanding total claim.
If goods are withdrawn due to the retention of title, our original purchase price claim including ancillary costs shall persist to its full extent, reduced by the value of the withdrawn goods.
In the event of resale, retention of title shall extend to the proceeds therefrom, even if there has been no assignment of the claim in our favour. The entire proceeds shall remain our property even if commingling with our customer’s other funds has occurred in the meantime.
In the event of insolvency, assertion of our retention of title shall not require any prior notice of rescission.
11. place of performance
Place of performance for delivery and payment shall be our registered office at Geibelgasse 14-16, 1150 Vienna, even if the delivery as agreed has been carried out at another place.
12. warranty and notice of defects
The warranty period for movable property shall be 24 months, unless special warranty periods apply to individual delivery items.
A defect shall exist, if the delivered product or the performed service does not show the generally usual or expressly agreed features. This defect must be existing at the time of delivery or performance.
In the event of a remediable defect, the warranty shall be fulfilled exclusively through remedying the defect free of charge within a reasonable period; unrecoverable defect, failed repair attempt or delay of repair shall, depending on the type of defect, give rise to a claim for cancellation of sale or reduction of the purchase price, unless the seller makes use of its right to deliver replacement goods that are free of defects.
He goods shall be inspected forthwith after delivery. Defects discovered shall be disclosed forthwith, but not later than 7 days after delivery, by informing the seller of the kind and extent of the defect by registered letter. Notice of hidden defects shall be given forthwith after their discovery. If notice of defects is not given or not given in due time, the goods shall be deemed approved. The assertion of warranty or damages claims as well as the right to avoidance on the ground of error due to defects shall be excluded in such cases.
The existence of a defect shall not entitle the buyer to remedy the defect itself or have it remedied by third parties, but rather the seller shall be given the opportunity to remedy the defect within reasonable time.
For the remedying of defects, products delivered by us shall be sent to us free of carriage charges. We will not bear any costs related to the defect, such as assembly, disassembly, travelling time, penalties or any other compensation.
The warranty shall not extend to natural wear and tear or damage occurring after the transfer of risk due to faulty or negligent treatment, excessive use, unsuitable operating material, faulty construction work or due to special external influences that were not provided for by the contract. If the buyer or third parties carry out alterations or repair work improperly, these and the ensuing consequences shall not be covered by warranty.
Any work and deliveries performed under warranty shall not extend the original warranty period of parts not affected thereof.
Compensation claims of the buyer shall be excluded in cases of slight negligence. The burden to prove gross negligence shall lie with the aggrieved party. Claims for compensation shall become time-barred 2 years after provision of the service or delivery.
14. product liability
Any recourse claims of the contracting parties or third parties against us based on "Product Liability" within the meaning of the Austrian Product Liability Act (Produkthaftungsgesetz) shall be excluded, unless the party entitled to recourse proves that the fault originated within our sphere of responsibility and was at least caused by gross negligence.
15. prohibition of assignment
Claims against us shall not be assigned without our prior written consent.
Offsetting with any kind of counterclaims against our claims shall be excluded, unless such counterclaims have been recognised by us or established by a court.
17. place of jurisdiction, applicable law
Austrian substantive law shall apply. The applicability of UN Law on International Sale of Goods (CISG) shall be excluded. The contract language is German.
The place of jurisdiction for all disputes arising directly or indirectly from the contract shall be the competent Austrian court at the seller’s registered office. However, the seller shall be entitled to invoke any other court. Should, for any reason, any of the provisions stated above become ineffective or void or be declared non-binding, the validity of the remaining provisions shall remain unaffected. In such case, both contracting parties undertake to replace the ineffective provision with a valid provision whose content comes closest to the economic purpose of the ineffective provision.
If there is any inconsistency or conflict between the German and English versions of these General Terms and Conditions, the German version shall prevail.
status as of November 2015
(All previous general or company-specific conditions of sale and delivery hereby shall lose their validity.)
LIBERDA Antriebstechnik GmbH
1150 Wien, Geibelgasse 14
Tel +43 1 895 32 44, Fax +43 1 895 32 44 20