General terms and conditions of business, delivery and payment (GCB) of Trafomodern Transformatorengesellschaft m.b.H., Industriestraße II/11, A-7053 Hornstein
1. Conclusion of contract and application
1.1. The present General Terms and Conditions of Business, Delivery and Payment shall constitute an integral part of every quotation and every contract unless explicitly agreed otherwise in writing in individual cases. Any terms and conditions of the Purchaser which provide otherwise shall be invalid.
1.2. The status of the present General Terms and Conditions of Business, Delivery and Payment corresponds to the date shown below. It is however always the version of the General Terms and Conditions of Business, Delivery and Payment in existence at the time of confirmation of the order and posted on the homepage of TM´s website (www.trafomodern.com) which are valid here.
1.3. Any agreements which are concluded verbally shall be subject to the written confirmation of TM to attain validity.
1.4. Quotations issued by TM shall be without obligation unless agreed otherwise. A contract shall not come into being until after confirmation of the order by TM.
1.5. TM explicitly reserves the right to make changes to the technical or visual design or to technical or visual details without informing the Purchaser in advance provided that the technically relevant characteristics of TM‘s products are not modified by such changes.
2.1. The prices charged by TM always consist of a product price (basic price) and an additional material surcharge (copper surcharge). Quotations, price lists and all written documents of TM always indicate the product price. The additional material surcharge depends on the weight of copper in the product and is calculated as follows: If the copper price is lower than 1.53 euros/kg, no material surcharge will be applied. If the copper ingot price exceeds the level of 1.53 euros/kg, TM will apply a material surcharge corresponding to the mean price (MK price) for the previous month. The copper weight (Cu factor) is indicated by TM in its catalogues, quotations, price lists and on its website. The copper price (MK price) applicable in each case is indicated by TM on its website. The reference date for determination of the material surcharge shall be the date on which the order was placed.
Material surcharge = (mean price for the previous month in euros/kg – 1,53 euros/kg) * Cu-factor
2.2. Unless agreed otherwise, the prices agreed shall be fixed prices, while the material surcharge will be subject to fluctuation every month.
2.3. Unless stated otherwise, prices are quoted ex works or ex warehouse (EXW, Incoterms 2000) of TM in Hornstein including packaging ang loading but excluding value-added tax. Where fees, taxes or other dues are charged in conjunction with delivery, they shall be borne by the Purchaser. Where delivery including shipment has been agreed, a separate charge shall be made here, in addition to any transport insurance required by the Purchaser, albeit not including unloading and transfer. Packaging shall only be taken back where explicitly agreed.
2.4. Where the order diverges from the overall quotation, TM reserves the right to adjust its prices accordingly.
2.5. Prices shall be based on the costs applicable at the time of the first quotation. Should there be a change in charges or other third-party costs included in the agreed price after conclusion of the contract or should such costs subsequently come about, TM shall be entitled to adjust its prices to a corresponding degree. Such charges and third-party costs might for example involve the updating of a collective agreement or other costs incurred for provision of the service such as charges for material, energy, shipment, third-party work, financing. etc..
3. Terms of payment
3.2. Payment shall be effected in such a manner that TM is able to dispose of the sum on the due date. The costs of the payment transaction shall be for the Purchaser´s account. Set-off shall then be subject to the existence of a valid declaration of set-off, i. e. where the claim and counterclaim are valid, of the same nature and both due at the time of set-off. Moreover, no special prohibition on set-off shall exist. The Purchaser may claim a right of retention only where the service forming the subject of the quotation does not comply with the contract in terms of quantity or quality or where improvement is requested following the supply of defective goods.
3.3 Any discounts must be agreed separately with TM in writing, with explicit reference. They are indicated in the invoice issued by TM. Agreements other than those indicated in TM´s invoice (e.g. verbal agreements) shall be invalid. The discount period shall be specified in calendar days (not in working days). It should be noted here that the discount period shall commence on the date of TM´s invoice and not the date of receipt of the invoice or the goods by the customer. To take advantage of the discount, payment may be effected only by means of bank transfer so that TM is able to avail itself of the sum on the date of expiry of the discount period. Where means of payment other than bank transfer are used (e.g. cash, cheque), the entitlement to the discount shall be automatically forfeited.
4. Fulfilment of delivery, delivery periods and dates
4.1. The delivery period shall commence with the date of the order confirmation issued by TM and shall apply only where all details of the order are clarified in good time and all obligations of the Purchaser (e.g. provision of material, etc.) are fulfilled in a timely manner.
4.2. The obligation of delivery shall be subject to the reservation of correct and timely self-supply unless such incorrect or delayed delivery has been caused by TM.
4.3. Instances of force majeure shall entitle TM to defer delivery for the duration of the impediment and a lead-in period of reasonable length. This shall likewise apply where such events coincide with an existing delay. Force majeure shall include measures involving currency or trade, political and other governmental acts, strike, lockouts, interruption of service not caused by TM (e.g. fire, machine failure, shortage of raw material or energy), obstruction of traffic routes, delays in import/customs clearance, as well as all circumstances not caused by TM which significantly impede or render impossible delivery and performance. It is immaterial here whether such a situation is experienced by TM or a subsupplier. Where in consequence of the above-mentioned events performance of the contract can no longer be reasonably expected of TM, TM may annul the contract without the granting of an additional period of grace.
4.4. TM shall be entitled to effect and charge for partial or advance delivery. Where delivery on call is agreed, the goods shall be deemed to have been called at the latest one (1) year after ordering. Advance deliveries shall be accepted by the Purchaser within reasonable limits.
4.5. Compliance with delivery dates/periods shall be determined by the date of dispatch ex works or warehouse. They shall be deemed to have been observed with issue of a notice of readiness for shipment where it is not possible to dispatch the goods in a timely manner through no fault on the part of TM.
4.6. Where the Purchaser is in default of acceptance and the goods accidentally perish, TM shall be released of its obligation of performance but shall retain the right to counter-performance. Moreover, the duty of care owed to the goods by TM shall be reduced from occurrence of said default so that TM shall henceforth be merely liable for gross negligence. In consequence of the creditor´s delay in accepting performance TM shall hold a right of deposit at the Purchaser´s expense (10 euros per calendar day or part thereof) with debt-discharging effect. In the event of default of acceptance TM may refuse to further uphold its willingness to perform and withdraw from the contract after having granted an additional period of grace of reasonable length and utilise the goods elsewhere; in such case a contractual penalty amounting to 0.5 % of the invoiced amount per day shall moreover be deemed to have been agreed from provision until expiry of the additional period of grace. The contractual penalty shall not exceed 20 % of the invoiced amount.
5. Partial delivery, continuous delivery and transfer of risk
5.1. TM always effects delivery ex works (Incoterms 2000: EXW). Where otherwise agreed, the route and means of transport shall be determined by TM, in addition to the forwarding agent and carrier to be used in each case.
5.2. Where shipment via the intended route, to the intended destination or within the intended period become impossible through no fault on the part of TM, TM shall be entitled to effect delivery by another route or to another destination, whereby the additional costs incurred thereby shall be borne by the Purchaser. The Purchaser shall be given the opportunity to comment in this regard beforehand.
5.3. The benefit and risk shall pass to the Purchaser on provision of the goods at the works or on departure of the consignment from the works or warehouse, irrespective of the invoicing term agreed for delivery (e.g. carriage paid, DIF, CPT, DDP, etc.). The rules laid down in Incoterms 2000 shall not be valid here, even where agreed in writing. This shall also apply where delivery takes place in the framework of assembly or when shipment is carried out or organised and managed by TM.
6. Taking-back of goods
6.1. The Purchaser shall not be entitled to demand that TM take back goods which have been acquired by the Purchaser. This shall in particular be excluded in the case of customer-specific goods.
6.2. Where TM agrees by way of exception to take back goods on the basis of goodwill (e.g. standard products which TM can utilise elsewhere), TM shall refund the Purchaser 80 % of the price of the goods and retain 20 % of this price (however, a minimum of 20.00 euros) to cover the administrative costs incurred thereby.
7. Reservation of title
TM shall reserve the title to all goods supplied by TM pending complete payment in full of the invoice amounts plus interests and costs.
The Purchaser shall hereby assign to TM his claim from any resale of goods subject to reservation of title in order to safeguard its claim to the purchase price, including where same has undergone processing, and undertakes to make a note to this effect in his accounts and invoices. On request the Purchaser shall inform TM of the assigned claim including its debtor, shall make available all information and documents required for his claim collection and inform the third-party debtor of such assignment. In the event of seizure or other availment to the Purchaser shall be obliged to make reference to the title held by TM and to notify the latter immediately.
8. Notification of defects and warranty
8.1. No warranty claims can be derived from information contained in catalogues, brochures, advertising materials and written or verbal statements which are not included in the contract. Only the written text of the quotation and confirmation of order shall be valid in this instance.
8.2. TM shall be obliged according to the following provisions to rectify any defect impairing functionality in existence at the time of handover which can be attributed to a defect in design, material or workmanship.
8.2.1. Defects observed in goods must be reported in writing without delay, not later than 14 days following delivery. Failure to immediately provide written notification of the defects shall render warranty claims null and void. Defects which are not discovered within this period despite even the most meticulous inspection may be reported in writing on discovery, whereby any processing of same shall cease immediately. The notification of defects shall include the following information so that TM can ensure correct handling of the claim:
• Order number for the delivery
• Description of the defect and the date/time of its discovery
• Suggestion by the Purchaser of how to proceed with the claim
• Clear and informative photographs of the defect or damage
• Any additional facts relevant to the defect/claim.
8.2.2. Following a justified notification of defect within the deadline TM may at its preference either effect improvement of the goods forming the subject of complaint or replace same with goods free from defect. Should improvement prove impossible or where TM is in default with improvement/replacement and fails to effect same even with the granting of an additional period of grace, the Purchaser shall be entitled to demand a price reduction or - where a major defect is involved - redhibition (cancellation of the contract). The Purchaser shall however hold a right of redhibition only in the case of a major defect and where TM fails to improve or replace the goods within a reasonable period or time.
8.2.3. TM shall provide an identical warranty for the improvement and substitute delivery as for the original delivery or performance.
8.3. Should the defect manifest itself within three months following handover of the goods, TM shall furnish proof that the goods were free from defect on handover. At the end of this three-month period the Purchaser must furnish proof that the defect was in existence at the time of handover.
8.4. The warranty period shall be 12 months unless special warranty periods are agreed for individual delivery items. This shall also apply to items forming the subject of delivery or performance which are permanently affixed to a building or landed property or which have otherwise undergone further processing. The warranty period shall commence at the time of the transfer of risk according to item 5.3 of the General Terms and Conditions of Business, Delivery and Payment. Claims according to Section §933b ABGB (Austrian Civil Code) shall in all cases expire by limitation at the end of the period specified in this clause.
8.5. All additional service charges associated with rectification of the devect (e.g. for installation and removal, shipment, disposal, travel expenses/time) shall borne by the Purchaser. Auxiliary personnel, lifting gear, scaffolding and incidentals, etc. required for the performance of warranty work at the Purchaser´s premises shall be provided free of charge. Any replaced parts which are not anyway subject to the reservation of title shall become the property of TM. Where goods are manufactured by TM according to design data, drawings, models or other specifications of the Purchaser, the liability of TM shall include operational execution only.
8.6. The warranty shall exclude such defects which cannot be attributed to TM but result from the configuration and installation brought about by the Purchaser, inadequate facilities, failure to comply with installation requirements and conditions of use, overloading of parts so exceeding the capacity specified by TM, negligent or improper treatment and the utilisation of unsuitable operating materials; this shall likewise apply to defects which can be attributed to material furnished by the Purchaser. Nor shall TM be liable for any damage resulting from actions or third parties, atmospheric discharge, overvoltages and chemical effects. The warranty shall not cover the replacement of parts subject to natural wear and tear. TM accepts no liability with the sale of used goods.
8.7. The warranty shall immediately become null and void where modifidation or repair is made to the supplied objects by the Purchaser himself or a third party not explicitly authorised by TM without the written consent of TM.
8.8. The present provisions shall also apply mutatis mutandis whenever a guarantee is given for defects on other legal grounds.
9. Compensation for damage, liability and product liability
9.1. TM shall be liable for damage beyond the scope of the Austrian Product Liability Act only where TM is proven to have acted with intent or gross negligence, within the framework of the statutory provisions. Liability for slight negligence, compensation for consequential damage and financial loss, failure to achieve savings, loss of interest and of prejudice ensuing from third-party claims against the Purchaser shall be excluded. Unless shorter periods are specified by the statutory provisions, all claims of the Purchaser shall be enforced by legal action within three (3) years from the transfer of risk or shall be forfeited.
9.2. This item shall be governed by the Austrian Product Liability Act.
10. Intellectual property rights and copyright
10.1. Where goods are manufactured by TM based on design data, drawings, models or other specifications of the Purchaser, the Purchaser shall hold harmless and indemnify TM for possible violations of property rights.
10.2. Working documents such al plans, drawings and other technical documents as well as samples, catalogues, brochures, diagrams, etc. shall in all cases remain the intellectual property of TM and as such are subject to the relevant statutory provisions in respect of reproduction, imitation, competition, etc.
10.3. All quotation and project documentation, drawings and drafts, as well as samples, models, printing blocks and other auxiliary materials provided by TM shall remain the intellectual property of TM and may not be used without its written consent; TM may ask for same to be handed back at any time, whereby they must be returned to TM at once if the order is placed elsewhere. The order and all information, documentation etc. relating to the order constitute trade secrets of TM and must be treated as confidential. On request, all such documents, data and copies of thereof must be either handed back to TM or destroyed and must also be erased from any hardware.
11. Data processing and data protection
11.1. TM uses a modern data processing system in which corporate data is already registered and stored at an early stage, i.e. first contact with (potential) business partners. "Corporate data" shall in this context for example mean contact persons of any nature, the name of the company, addresses and contact data as well as executives and company organs (managing director, managers, etc.) as well as other relevant company data (VAT ID number, ARA licence number, etc.). Business partners communicating with TM explicitly consent to the storage of this data and its use by TM for in-house analysis and marketing without having granted prior approval.
11.2. TM shall ensure the confidentiality of such data irrespective of the circumstances in which it came to the notice of TM. TM guarantees that misuse of this data is excluded where this is within TM´s control.
12.1. Should individual provisions of the present contract or these provisions be invalid, this shall not affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision which comes as close as possible to the purpose intended thereby.
12.2. All agreements, subsequent amendments, additional or subsidiary agreements etc. must be made in writing to attain validity, thus also including the original or secure signature. A telefax shall also be deemed to satisfy this requirement for the written form. E-mails shall only be deemed to do so where there exists not merely a single e-mail but a sequence of e-mail correspondence documenting the conclusion of agreements, amendments, additional or subsidiary agreements etc.
13. Place of performance, legal venue and applicable law
13.1. Unless otherwise agreed, the place of performance shall be the plant of TM in Hornstein. The court having jurisdiction as regards the subject matter at TM´s principal place of business (currently A-7000 Eisenstadt) shall hold sole jurisdiction for the settlement of all disputes arising in conjunction with the contract.
13.2. Austrian law shall apply subject to the exclusion of the rules of referral. The application of the UNCITRAL convention of the United Nations concerning contracts governing the international sale of goods shall be excluded. It is agreed that the contractual language shall be the language used for correspondence, whereby, in case of any doubt, German shall be considered as the contractual language.
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