Terms and conditions

TERMS AND CONDITIONS

TERMS AND CONDITIONS OF PURCHASE

To be applied to all contractual relations between entrepreneurs, juridical persons under public law and public-law special funds (hereinafter referred to as “Supplier”) and Gebrüder Becker Austria GmbH.

I. AUTHORITATIVE TERMS AND CONDITIONS

Our terms and conditions of purchase are authoritative for the contract with the supplier and shall become an integral part of the contract. Conflicting or deviating terms and conditions of the supplier shall not become an integral part of the contract and shall have no legal validity, even if we do not oppose them in individual cases. They shall apply only if we have declared our explicit consent to them. Our terms and conditions shall also apply to future contracts with the supplier until such time as these terms and conditions are replaced by new terms and conditions of Gebrüder Becker Austria GmbH.

II. ORDERS

We place orders and delivery call-offs exclusively in written form (letter, e-mail, telefax, etc.). Each order must be confirmed immediately stating the prices and delivery dates. Order, material and drawing numbers must be quoted in all correspondence; we accept no responsibility for delays in processing caused by the supplier’s failure to comply with this requirement.

III. DELIVERY DATE, LATE DELIVERY AND CONTRACTUAL PENALTY

The delivery date stated in the order is binding. If the supplier recognizes that he is unable to fulfil his contractual obligations or to do so on time, he must inform us immediately in writing, stating the reasons and the new delivery date; this shall not affect his obligation to adhere to the deadline. Liability of the seller in case of late delivery shall be in accordance with the statutory provisions. If delivery is not made on the agreed date or within the agreed period, the supplier shall be liable for the damage resulting from the delay. In the event of default on the part of the supplier, we are entitled to demand payment of a contractual penalty of 0.2% of the gross order amount of the overdue items for each full or part working day of the delay, at least however 50.00 € and at the most 5% of the gross order amount of the overdue items. Farther-reaching or other statutory claims shall remain unaffected; the contractual penalty must be credited against these.

IV. OVER-DELIVERY

Over-deliveries require our prior, written consent. In the event of failure to comply with this requirement, we shall return any goods over-delivered freight collect.

V. DELIVERY LOCATION, PASSING OF RISK, PACKING AND INSURANCE

In the absence of any written agreement to the contrary, delivery shall be for the risk and account of the supplier to the place of destination indicated by us (DAP as per Incoterms 2010), including packing and insurance. The supplier undertakes to take out the necessary insurance in his own name.

VI. NOTIFICATION OF DEFECTS

We are required to notify the supplier of defects to the delivery immediately they are detected within the scope of proper business procedures. As such, the supplier hereby renounces the objection of late notification of defects.

VII. TERMS AND CONDITIONS OF PAYMENT

All invoices received between 1st and 15th of a month will be paid on the last day of the month with deduction of 3% cash discount or net on 15th of the following month. All invoices received between 16th and the end of a month will be paid on 15th of the following month with deduction of 3% cash discount or net on the last day of the following month. We are entitled to rights of offsetting and withholding in the statutory scope.

VIII. LIABILITY FOR DEFECTS AND STATUTE BARRING OF THE DEFECT CLAIMS

The supplier shall assume a warranty of at least three years on the goods. With goods which we sell on to third parties, the warranty period shall end at the earliest two months following the date on which we have fulfilled the claims of the third party, at the latest, however, five years following delivery of the goods to us. We are entitled to the full statutory warranty claims; we are initially entitled to demand removal of the defects or replacement delivery by the supplier at our discretion. Given the presence of defects which we can rectify ourselves through minor additional work (e.g. burr removing/cleaning/ sorting), we shall be entitled to rectify the defect by way of substitute performance without prior consultation with the supplier. The supplier is obliged to compensate us for the expense incurred as a result. This expense shall be at least 3.00 €/piece. We reserve the right to demonstrate higher expense. The supplier shall not be required to reimburse any expense in excess of 10.00 €/piece for this minor additional work carried out by us.

IX. RETENTION OF TITLE/PROVISION OF MATERIALS/TOOLS/CONFIDENTIALITY

If we provide parts to the supplier, we shall retain title to these. Processing or conversion by the supplier will be carried out for us. If our conditional commodity is processed with other items not belonging to us, we shall acquire joint ownership of the new item in the ratio of the value of our item (purchasing price plus VAT) to the other items processed at the time of processing. If the item provided by us is mixed inseparably with other items not belonging to us, we shall acquire joint ownership of the new item in the ratio of the value of the conditional commodity (purchasing price plus VAT) to the other items mixed at the time of mixing. If the mixing is carried out such that the supplier's item is to be regarded as the main item, it shall apply as agreed that the supplier shall transfer pro-rata joint ownership to us. The supplier shall keep the items under our sole or joint ownership for us. He must mark the items, under our sole or joint ownership as per the above rulings, visibly and permanently with the inscription “Gebrüder Becker Austria GmbH”. In other respects, our General Terms and Conditions for Tools shall apply in extension. We shall acquire sole ownership of tools, moulds, models etc. - produced by the supplier for us on the basis of our plans or standards - upon their completion and payment, at the latest, however, upon commencement of their use for the manufacture of the parts ordered by us. We shall retain title to tools provided. The supplier must mark the tools under our ownership visibly and permanently with the inscription “Eigentum GBA” (Property of GBA). The supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. He is obliged to insure the tools belonging to us at replacement value against fire, water and theft and at his own expense. At the same time, the supplier hereby assigns to us henceforth all damage claims from this insurance. We hereby accept the assignment. The supplier is obliged to carry out any necessary servicing and inspection work on our tools as well as all maintenance and repair work in good time at his own expense. He must notify us immediately of any disturbances; in the event of him culpably failing to do so, claims for damages shall remain unaffected. The tools must be kept for us for at least 10 years. Even after 10 years, the tools must only be destroyed with our prior, written consent. In other respects, our General Terms and Conditions for Tools shall apply in extension.

Samples, models, drawings, moulds, illustrations, calculations and other documents or tools related to the goods which are under our ownership and are located on the supplier’s premises, must be returned to us immediately at any time upon request. The supplier shall be liable for any loss of these.

The supplier is obliged to treat all illustrations, drawings, calculations, and other documents and information received as strictly confidential. They must only be disclosed to third parties with our explicit consent. The obligation to maintain secrecy shall also apply following winding up of the present contract; it shall expire if and in so far as the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents handed over has become general knowledge. In other respects, our General Terms and Conditions for Tools shall apply in extension.

If the security interests, to which we are entitled on the basis of our retention of title to the parts provided by us, exceed the purchasing price of all our conditional commodities, not yet paid, by more than 10%, we shall be obliged, upon request by the supplier, to release the security interests at our discretion.

X. FUTURE DELIVERIES OF REPLACEMENT PARTS

If the supplier makes repeated or ongoing deliveries to us, he undertakes to ensure our supply with replacement parts for a further ten years after ending of production of an item supplied to us, or to inform us sufficiently early of the discontinuation of production that we have the opportunity of effecting a switchover or of placing a covering order.

XI. CONTRACTUAL RIGHT OF WITHDRAWAL

In the event of a significant deterioration in the economic position of the supplier subsequent to conclusion of the contract or if, following conclusion of the contract, we learn that the supplier is insolvent, over-indebted or that there is a threat of insolvency, if the supplier files an application for the opening of insolvency proceedings or if insolvency proceedings are opened against the supplier’s assets, we shall be entitled to withdraw from the contract. The supplier is obliged to inform us immediately of any significant deterioration in his economic position. In particular, he is obliged to inform us of insolvency, imminent insolvency or over-indebtedness immediately and before filing the application for insolvency. If such notification is not possible prior to filing of the application for insolvency, he must inform us of this immediately following filing of the application for insolvency.

XII. APPLICABLE LAW, PLACE OF PERFORMANCE AND PLACE OF JURISDICTION

In the absence of any agreement to the contrary, exclusively Austrian law shall apply. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Place of performance and place of jurisdiction is the registered office of Gebrüder Becker Austria GmbH. We are also entitled to initiate judicial proceedings at the supplier’s general place of jurisdiction.

XIII. SEVERABILITY

Should provisions of these terms and conditions and/or of the agreements made be or become invalid, the validity of the other provisions shall remain unaffected. The contracting parties are obliged to replace the invalid ruling with a legally admissible ruling that corresponds as closely as possible to the economic result of the invalid ruling.

TERMS AND CONDITIONS OF SALE

The following terms and conditions apply to the contractual relationships, unless otherwise agreed upon in writing. Adverse or differing terms and conditions, such as in orders or on order forms, only apply if explicitly acknowledged by us in writing. Also if we do not contradict explicitly, they are not binding for us without our acknowledgement. The same applies when we deliver all or part of the purchased goods or accept any payments.

I. QUOTATION, SCOPE OF SUPPLY

1. Our quotations are not binding. The contract will only be concluded when we issue a written order confirmation.
2. The scope of delivery is determined by our written order confirmation. Side agreements and amendments have to be acknowledged by us in writing.

II. PRICES AND PAYMENT

1. The prices are valid ex works Wiener Neudorf, exclusive of packaging, carriage, payment of customs duty, customs duties, dues, postage and insurance. The actual statutory VAT has to be added to the prices.
2. The purchaser is entitled to withhold payments and to set-off with counterclaims only inasmuch as his counterclaims are uncontested or have become res judicata.
3. Bills of exchange and cheques are only accepted on account of performance.

III. DELIVERY DATES

1. The delivery time is a result of agreements between the contractual parties. Their adherence require the clarification of all commercial and technical questions between the contractual partners, as well as the timely and proper fulfilment of the purchaser’s cooperation duties.
2. The adherence of delivery dates is subject to our suppliers’ correct and punctual delivery to us.
3. In case of events which we are not accountable for, and which also include strikes and lockouts, the delivery dates will be rescheduled accordingly, as far as such events provably and significantly affect the manufacturing and delivery of the goods. The same applies if the event occurs while already being delayed.
4. The delivery dates are ex works.
5. If the supplier is delayed due to reasons which he is accountable for, the purchaser can claim for compensation of the damage caused by the delay. In case of minor negligence by the supplier, this entitlement is limited to 5 % of the value of that part of the total delivery which due to the delay cannot be used in time or as contractually agreed.
6. If the delayed supplier is granted a reasonable period of time for fulfilment by the purchaser – considering the statutory exceptions – and the supplier does not meet the deadline, the purchaser is entitled to withdraw from the contract and/or claim for compensation pursuant to the statutory provisions. There is no need to set a deadline in case the whole performance becomes definitely impossible for the supplier before the transfer of risk. The purchaser is also entitled to withdraw from the contract if one part of the fulfilment of an order becomes impossible, and if he has a justified interest to refuse also the still possible partial delivery. If this is not the case the purchaser has to pay the contractual price that accounts for the partial delivery. The supplier’s liability is limited to the contractually typical and reasonably predictable damage. In case of any intentional breaches of contract this limitation of liability does not apply.
7. If the inability occurs during the default of acceptance, and the supplier is not accountable for this in terms of intention/gross negligence, or the purchaser is solely or mainly responsible for these circumstances, he remains obliged to counter-performance.

IV. PASSING OF RISK AND TAKING DELIVERY

1. In any case, the risk passes to the purchaser on dispatch of the goods at the latest, also in the event of partial deliveries.
2. If the dispatch is being delayed due to circumstances the purchaser is accountable for, the risk passes to the purchaser as soon as the supplier is ready for dispatch. However, on request and behalf of the purchaser and at his cost, we are obliged to effect the insurances he demands.

V. RETENTION OF TITLE

1. We reserve ownership of the merchandise until all outstanding debts resulting from the business relationship with the purchaser are being paid. The purchaser is not allowed to pawn the merchandise or pledge it as security. He has to inform us immediately in case of seizure or attachment or other disposition by any third party.
2. If the purchaser breaches the contract, especially if he delays payment, the supplier is entitled to retrieve the merchandise after a reminder and the purchaser is obliged to return it. The assertion of title retention or the pledge of the merchandise by the supplier are not deemed a withdrawal from the contract.
3. The purchaser is obliged to take good care of the goods. In particular he is obliged to insure them sufficiently at his own cost and at original value against damage caused by fire, water and theft. If maintenance and inspection services are required, the purchaser has to get these done in time at his own cost.
4. If the purchaser combines any goods supplied by us with other parts to one single object, it is deemed to be agreed that the purchaser transfers proportional ownership to us and that he keeps the object for us in custody.
5. All claims of the purchaser arising from reselling the goods subject to retention of title will be assigned to us in final amount of the invoice (including value-added tax) of our claim. The purchaser remains authorized to collect the assigned claims. Our right to collect the claims ourselves remains unaffected. However, we bind ourselves not to collect any claims as long as the purchaser meets his payments from the received proceeds without delay, and especially when there is no application for opening of insolvency proceedings or cessation of payment. If this is the case, we may demand from the purchaser to inform us about the assigned claims and their debitors, to give us all the information needed for collection, to deliver the corresponding documents and to inform the debitors (third parties) about the assignment.

VI. WARRANTEE

1. The purchaser is obliged to check the delivered goods for apparent defects which are easily noticeable to an average customer. Apparent defects have to be reported to the supplier in writing within 10 days after delivery of the goods. Defects which become apparent at a later date have to be reported by the purchaser to the supplier in writing within 10 days after discovery.
2. The warrantee does not apply for any damage which results from any of the following causes: Unsuitable or improper use, faulty assembly or incorrect putting into operation by the purchaser or third parties, normal wear and tear, incorrect or neglectful handling, unsuitable operating material, substitute material, deficient construction works, unsuitable building ground, chemical, electro chemical or electrical influences unless they result from our own fault.
3. If the merchandise shows a defect which the supplier is accountable for, the purchaser has the right to claim for a subsequent fulfilment of the contract free of charge. At the supplier’s discretion the subsequent fulfilment will be effected either by rectification or replacement with faultless merchandise.
4. If the defect cannot be remedied within a reasonable period of time, or if the subsequent fulfilment has to be regarded as failed due to other reasons, the purchaser has the choice to either claim for a reduction of the purchase price or he can withdraw from the contract. A subsequent fulfilment of the contract may be regarded as failed only if the supplier was given a reasonable chance of rectification or replacement delivery without achieving the requested success.
5. The supplier excludes any other liability for breaches of duty due to minor negligence, as far as these do not affect contractually essential duties, damage to life, body or health, warranties or entitlements based on product liability law. The same applies for breaches of duty by other persons employed in performing the obligation.
6. The level of our duty of replacement is limited to the contractually typical and reasonably predictable damage. This limitation of liability is not valid if the damage was caused through our own or our executive staff’s serious fault.

VII. WARRANTEE PERIOD

The duration of the warrantee period is 12 months, calculated from the transfer of risk. This time is a period of limitation and – unless there are mandatory statutory provisions – it is valid for all claims based on the defectiveness of the merchandise or the faultiness of the performance.

VIII. SUPPLIER’S RIGHT OF WITHDRAWAL

1. The contract will be adjusted adequately in case of events beyond the supplier’s control according to paragraph III of these terms and conditions, provided the events change significantly the commercial relevance or the scope of performance or if they have a considerable impact on our operations, furthermore in case the performance subsequently turns out to be impossible. If this is commercially untenable we are entitled to withdraw from the contract as a whole or in part.
2. Such a withdrawal does not entitle the purchaser to claim for compensation. If we want to exercise our right of withdrawal, we are obliged to notify the purchaser immediately after realization of the occurrence, even if an extension of the delivery time was originally agreed with the purchaser.

IX. PLACE OF FULFILMENT, PLACE OF JURISDICTION, APPLICABLE LAW

Place of fulfilment for all mutual obligations arising from the delivery transaction, and place of jurisdiction for all disputes related to the delivery transaction and to the process deciding claims arising out of a cheque or a bill of exchange is exclusively Wiener Neudorf. All contracts including foreign business transactions are governed by Austrian law.