General Terms and Conditions

 der Steinbach VertriebsgmbH, FN 179106t, Aistinger Straße 2, A-4311 Schwertberg

(Version Februar 2016)

 

1. Application of the terms and conditions

1.1 Contracts entered into between Steinbach VertriebsgmbH, entered in the company register of the Regional Court and Commercial Court of Linz under FN 179106t (hereinafter also referred to as the "Supplier") and the commissioning party, purchaser or client (hereinafter also referred to as the "Customer"), particularly contracts for work and services, purchase agreements or other services provided on the basis of an order, including in particular consultancy services or initial operation on the respective Customer's premises or installation services, are subject exclusively to the terms and conditions set out below (hereinafter also referred to as the T&Cs).

1.2 By signing the order confirmation, the Customer consents to the application of these T&Cs. If the Supplier has a long-standing relationship with the Customer, or if the Customer issues follow-up orders, these T&Cs also apply, even if their application is not expressly referred to. These T&Cs likewise apply to all ancillary services associated with the provision of the service and other ancillary services. The T&Cs also apply to follow-up orders, even if they are not agreed separately, either verbally or in writing, or based on an order or order confirmation. Verbal agreements with the Supplier are only effective if confirmed in writing by the Supplier.

1.3 Provisions in the order confirmation of the Supplier or in separately negotiated contracts which conflict with or amend these T&Cs take precedence over the T&Cs. Under no circumstances do the Customer's terms and conditions or forms become part of the contract, irrespective of whether the Supplier is aware of them or has expressly rejected their application.

1.4 If the Customer is a consumer within the meaning of the German Consumer Protection Act, reference will be made to this in the individual clauses.

 

2. Formation of the contract

2.1 Communications from the Supplier are always non-binding, even if prices, dates and other technical specifications are contained therein, technical information and the proposed solutions of the Supplier are likewise given without guarantee, as are the descriptions, samples or prototypes represented in the public statements of the Supplier. The same applies where the Supplier issues a provisional order confirmation only for an order from the Customer.

2.2 The contract comes into being upon receipt by the Supplier of the order confirmation signed by the Customer. Any changes or additions by the customer which occur after the contract has been agreed are void with respect to the Supplier, even if not expressly rejected by the Supplier.

2.3 If the order confirmation signed by the Customer deviates from the Customer's order, then in case of doubt the order confirmation applies, provided the Customer is not a consumer.

2.4 If the product dimensions according to the order change, the additional costs incurred will be invoiced to the customer.

 

3. Delivery

3.1 If the order confirmation signed by the Customer does not contain any details, then delivery ex-works (as per Incoterms 2000) will be deemed to have been agreed.

3.2 A precondition of any agreed deliveries is that the street to be delivered to is suitable for heavy goods vehicles to travel on.

3.3 The goods are also deemed to have been delivered if they are not immediately picked up by the delivery date following notification of readiness for dispatch by the Supplier.

3.4 The goods are packed in the standard manner. Packaging material will only be taken back or refunded if this has been agreed in writing.

3.5 The goods will only be insured against transport damage, loss or breakage at the written request of the Customer and at the Customer's expense. The Customer is obliged to check the delivery immediately upon handover, and in any case no later than within 5 working days. The Customer loses the right to appeal against a breach of contract in the delivery if it fails to make this check immediately, or if it does not immediately complain of a breach of contract immediately after the point at which the Customer could have identified it, in writing and providing exact details of the breach of contract.

3.6 Externally identifiable transport damage must be immediately notified on receipt of the goods and the type and extent of the damage notified to the Supplier immediately.

3.7 The second and third sentence of section 3.5 do not apply if the Customer is a consumer.

 

4. Default of acceptance

4.1 If the customer defaults on acceptance (particularly for failure to pick up after notification of readiness for dispatch), the goods will be stored either on the Supplier's or a third party's premises at the expense and risk of the Customer. If stored on the Supplier's premises, the Supplier is entitled to demand a fee matching that of a public warehouse. The Supplier is only liable for the deterioration or destruction of goods stored with it in the event of intent or gross negligence. This does not affect the rights of the Supplier within the meaning of Paragraphs 373 f of the Austrian Commercial Code.

4.2 If the Customer does not accept the goods in whole or in part, the Supplier may (i) rescind the contract following the setting of a grace period of 14 days and/or (ii) seek compensation for non-performance, in which case the Supplier is entitled to seek 30% of the respective order value, without proof of damage or loss and to the exclusion of any court-ordered reduction in the value, and to seek reimbursement of the actual damage suffered, including lost profits. This applies in particular to goods custom-made for the Customer or adapted at the Customer's request. The same applies where the contract is cancelled for other reasons for which the Supplier is not responsible.

 

5. Force majeure

5.1 Force majeure and other impediments which are unforeseeable or cannot be influenced by the Supplier, such as industrial disputes, actions by the public authorities, traffic disruptions, interruptions to the energy supply and the like, as well as accidents for which neither the Supplier nor the Supplier's supplier are responsible, release the Supplier from the obligation to supply for as long as their effects last, including if they happen to the Supplier's supplier or that supplier's supplier.

5.2 If the impediment lasts for more than two months or if it can be recognised from the start that it will last for more than two months, both the Supplier and the Customer are entitled to rescind the contract. However the Customer's right of rescission is excluded as soon as the Supplier informs the Customer that the impediment has been lifted and has notified delivery within a reasonable period. If the delivery becomes impossible due to the impediment specified, the Supplier's obligation to supply ceases.

 

6. Delivery dates

All delivery dates and periods are approximate and apply subject to unforeseeable events and impediments. Should an agreed delivery date be exceeded by more than 6 weeks, the Supplier is deemed to be default and the Customer must set an extended deadline for delivery of at least 6 weeks. If this extended deadline is missed, the Customer may rescind the contract provided it has informed the Supplier of the rescission when setting the extended deadline for delivery. Delivery periods do not start to run before the date of receipt by the Supplier of the Customer's written order confirmation. It is extended by any period which is required thereafter to clarify details or for the provision of official permits which the Customer is required to obtain or renew; the same applies if provision of the service was made dependent on the provision of a down payment or of security for payment by the Customer. Where the Supplier is not shipping the goods itself, notification of readiness for dispatch determines whether the delivery is on time.

 

7. Partial deliveries

Unless otherwise specifically agreed, the Supplier is permitted to make partial deliveries, which must be accepted by the customer and paid for. The Supplier is further entitled to deliver before the agreed delivery date. Rescission of the contract or any other dissolution of the contract for whatever reason does not revoke the contract in respect of partial deliveries already made, unless the reason for the rescission of the contract or dissolution of the contract also includes the partial deliveries already made.

 

8. Warranty

8.1 The Supplier guarantees that the delivery will be of the quality set out in the written confirmation order signed by the Customer.

8.2 If the written confirmation order signed by the Customer does not contain any details in this regard, then an average, standard quality having regard to the practices at the place of production of the goods is deemed agreed.

8.3 Descriptions of goods in an advertisement or other public statements not addressed to any specific persons, do not represent a description of the quality of the goods.

8.4 Deviations in size, weight or quality are permitted within the context of the agreed standards or the standards which apply in the Supplier's country. The same applies for the usual tolerance in the calculation of quantities in accordance with the principles of accounting.

8.5 For goods designated as being of inferior quality, e.g. "second choice", the warranty is accordingly limited to the characteristics which are to be expected for this special designation.

8.4 No warranty applies to deviations in colour nuances necessitated by the production method or material used.

8.7 The purchaser is only entitled to send goods back with the express written consent of the Supplier. They will in all cases be credited with a maximum of 90% of the price actually paid. The transport costs incurred must be paid by the Customer.

8.8 The warranty for the deliveries provided by the Supplier runs for two years, calculated from the point of notification of readiness for dispatch to the customer or – where the goods are shipped – from the point of handover to the first carrier; the same applies where the shipment is made by the Supplier. This does not affect the transfer of risk provisions under Incoterms 2000 if the place of fulfilment is determined by reference to Incoterms. Rectification of a defect does not extend the term of the warranty.

8.9 Claims under the warranty lapse in the event of modification, processing or improper handling of the goods supplied. The Supplier is not obliged to reimburse the Customer for rectification of defects that it has carried out itself.

8.10 The application of the right of recourse under Paragraph 933b of the Austrian Civil Code is excluded.

8.11 Section 8.3, section 8.7 and section 8.8 do not apply where the Customer is a consumer.
8.12 The statutory warranty periods apply in respect of consumers. The applicable provisions of the Austrian Consumer Protection Act apply in respect of the transfer of risk.

 

9. Declarations by the manufacturer

9.1 Warranty declarations by the manufacturer of the goods only ground claims as against the manufacturer, even if they are passed on by the Supplier. Such warranty assurances do not form part of the Supplier's warranty, nor do they provided the basis of a warranty or guarantee in excess of or in addition to the Supplier's warranty.

9.2 The Supplier is not liable for the correctness of information on handling, operation and control, to the extent that such information is contained in brochures, technical descriptions or other guides; these fall within the scope of responsibility of the manufacturer or importer.

 

10. Compensation for damages

10.1 The Supplier is only obliged to pay compensation for damages for breach of contractual or statutory duties where these relate to intent or gross negligence. The burden of proof in this regard is on the Customer, the same applies for reimbursement of consequential losses.
10.2 Claims for the reimbursement of lost profits and claims for the reimbursement of expenses for operational downtime, production stoppage or indirect damages on account of the delivery of non-conforming goods are excluded.

10.3 The contract entered into between the parties does not contain any protection obligation in favour of third parties. This applies even if it is anticipated that a third party will be the recipient of the service or that a third party will come into contact with the goods.

10.4 The claim for compensation lapses in any case with the processing or modification of the delivery or its onward sale, without the Supplier having been given the opportunity to examine the non-conformity. Any claims for liability or recourse, including any claims for consequential damages, are further limited in monetary terms to 50% of the payment agreed or made in the context of the respective order, and in any case to EUR 20,000.00, and become time-barred within six months of the first opportunity to become aware of the damage and of the person liable to pay compensation.

10.5 The second sentence of section 10.4 does not apply to consumer transactions.

 

11. Product liability

11.1 Excluded from the limitations provided for in section 10 is mandatory liability for defective products if a person is killed or suffers personal injuries.

11.2 Liability for material damage resulting from a product defect, and for all companies involved in the manufacture, import and sale, is excluded. The Customer also undertakes to transfer this exclusion of liability to its purchasers. Claims for recourse within the meaning of the statutory provisions determined in accordance with the foregoing paragraph are excluded, unless the person entitled to recourse proves that the defect was caused in the Supplier's sphere of liability and at a minimum is grossly negligent. Claims for recourse by the Customer as against the Supplier (particularly under Paragraph 12 of the Austrian Product Liability Act) are excluded.

11.3 Sections 11.1 and 11.2 do not apply to consumer transactions, the statutory provisions of the Austrian Product Liability Act, as amended, apply.

 

12. Prices

12.1 Unless otherwise agreed, the Supplier's price are ex works, without packaging, transport insurance, freight or assembly.

12.1 Taxes, contract fees, export, import and transit fees, discount interest, customs duties and customs charges, official commission fees and similar are borne by the Customer.

12.3 The Supplier's prices are drawn up in accordance with the wage rates and costs of materials in force at the time of confirmation of the order; if these increase between the confirmation and execution of the order, the Supplier is entitled to pass on these increases to the Customer. The same applies to other increases beyond the Supplier's control, such as taxes, customs charges and transport prices.

 

 

13. Payment terms

13.1 All prices are in euro, exclusive of the statutory VAT. The Supplier's invoices are due at the time of delivery, and no later than at the time of the submission of the invoice.

13.2 The provision of a discount requires that all previous invoices – excluding those subject to justified objections by the Customer – have been settled in full. In the event that an account payable is not paid on time, all discount agreements become null and void.

13.3 Cheques and bills of exchange will only be accepted by prior written agreement and only as an undertaking to pay. Any taxes on bills of exchange, discount, protest or collection charges that arise shall be borne by the sender. The Supplier assumes no liability for timely presentation or protestation.

13.4 Employees of the Supplier are only authorised to accept payments with an express, written authority to collect.

13.5 Incoming payments are first paid against interest, then against the oldest claim of the Supplier as against the Customer.

13.6 The Customer is not entitled to set off its liabilities against its own counterclaims against the Supplier.
13.7 In the event of default of payment, default interest at a rate of 9.2 percentage points above the basic rate of interest according to Paragraph 456 of the Austrian Commercial Code is deemed agreed, irrespective of other claims. The basic rate of interest in force on the first calendar day of a six-month period applies for the six-month period in question. In addition to default interest, the Supplier is entitled to claim for the reimbursement of damages and expenses caused by the default, in particular the costs of extrajudicial and judicial debt collection measures.

13.8 In the event of default of payment by the Customer, the Supplier is also entitled to demand immediate payment of the entire outstanding debt; the Supplier is also entitled to do this if it becomes aware of unfavourable circumstances with regard to the ability of the Customer to pay or the Customer's financial situation after entering into the contract.

13.9 If the Customer fails to meet a demand to pay, despite the setting of a 14-day grace period, the Supplier is entitled, regardless of any other rights, to take back the goods in the ownership of the Supplier, without this equating to rescission from the contract (repossession clause) or to withdraw from the contract in whole or in part while maintaining the rights of the Supplier, particularly the right to compensation for damages for non-performance.

13.10 The Customer is not entitled to retain payments due to claims under the warranty or other counterclaims not acknowledged by the Supplier.

13.11 Section 13.6 does not apply to consumers. If the Customer is a consumer, the Customer may set off against the Supplier if the counterclaim of the Customer is one legally connected to the liability, if the Supplier is incapable of payment, if there is a legally binding court judgment on the Customer's counterclaim and if the Supplier has acknowledged the counterclaim.
Section 13.7 does not apply to consumer transactions. For consumer transactions, the statutory rate of default interest is 4 %.

 

14. Right of retention

14.1 All goods and deliveries remain the property of the Supplier until paid for in full. In addition, the Supplier reserves title to its goods until payment of all claims arising from the business relationship with the Customer (even if these specific goods have been paid for); the claims of the Supplier include all ancillary claims such as interest, costs and the reimbursement of expenses.

14.2 If the claims arising from the delivery are kept in a running invoice, the retention of title secures the highest outstanding balance.

14.3 If the Customer tenders bills of exchange or cheques, the security by means of retention of title only lapses if the Supplier can dispose of the bank credit from the redemption or discount without restriction.

14.4 The retention of title by the Supplier extends to goods created by the processing, amalgamation or combination with other goods; the processing, amalgamation or other combination is free of charge exclusively for the Supplier.

14.5 If the right of retention expires for any reason, the Supplier and Customer agree as of now that upon their processing, amalgamation or combination, title to the goods is transferred to the Supplier, who accepts the assignment. The Customer in this case remains an unpaid custodian.

14.6 In the event of processing with items still the property of third parties, the Supplier acquires co-ownership of the new goods. The extent of this co-ownership is determined by the proportion of the invoice value of the goods supplied by the Supplier to the invoice value of the other goods. If the goods subject to the retention of title (if applicable, after their processing, amalgamation or combination) are disposed of by the Customer, then the Customer's purchase price claim takes the place of the reserved title. This purchase price claim arising from the disposal is assigned to the Supplier at the point it comes into being. The Supplier acquires title to monies received by means of constructive possession. The Customer must note the fact of this assignment in its accounts and on outgoing invoices, and apprise the recipient of the goods of same. The Supplier is entitled to satisfy itself as to fulfilment of this obligation by sight of the Customer's accounts and of the open list of postings.

14.7 The Customer must insure the goods subject to the retention of title adequately against fire, theft and third-party damage. It must assign the claim under the insurance contract to the Supplier and apprise the insurer of same. The Customer is not permitted to base security interests in the goods the subject of the retention of title. If the goods the subject of the retention of title are affected by enforcement proceedings, the Customer must inform the enforcement agency of ownership by a third party and inform the Supplier within 24 hours.

14.8 If bankruptcy proceedings are opened against the Customer's assets, the estate is not permitted to dispose of the goods subject to the retention of title at the time that the bankruptcy proceedings are initiated.

14.9 If the Customer defaults on payment of the money secured by the retention of title, the Supplier is entitled at any time to repossess the goods to which title has been retained, even if the contract has not yet been dissolved (right of repossession).

14.10 If the retained title or the prior assignment of the proceeds of further disposal is contrary to the substantive law of any place in which the delivery is located, but such law permits similar forms of security, then this form of security is deemed to have been agreed. To the extent that the Customer is required to take corresponding action or provide statements to ensure the effectiveness of this security, the Customer is obliged to do same even without a request from the Supplier.

14.11 The Supplier is entitled to suspend or cease the fulfilment of its own obligations if it emerges after the contract has been entered into that the Customer will not fulfil a significant part of its obligations (i) due to a serious deficiency in its ability to fulfil the contract or (ii) due to a serious deficiency in its creditworthiness or (iii) due to its behaviour in preparing to fulfil or (iv) in fulfilling the contract or prior contracts.

 

15. Place of performance, legal venue and severability clause

15.1 The place of performance for delivery and payment is deemed to be the registered offices of the Supplier even when the handover occurs at another place in accordance with the contract.

15.2 In the event of disputes arising from these terms and conditions or a contract entered into with the Supplier or relating to the breach, dissolution or invalidity of the terms and conditions of the contract, including disputes over the existence or otherwise of these terms and conditions or a contract with the Supplier, the parties to the contract agree that the competent court in Linz, Austria will have exclusive jurisdiction. Irrespective of this, the Supplier is entitled at its election to commence proceedings against the Customer in the competent court at its registered office or its branch office.

15.3 Formal and substantial Austrian law applies exclusively to all matters of the interpretation of these terms and conditions and all contracts entered into between the Supplier and the Customer and the fulfilment of the rights and obligations set out therein, to the express exclusion of the UN Convention on the Law Applicable to International Sale of Goods (CISG) and any other provisions on the conflict of laws.

15.4 Section 15.2 does not apply to consumer transactions. The residence or habitual abode of the consumer is the agreed place of jurisdiction.

 

16. General

16.1 Should individual provisions of these terms and conditions be ineffective, this does not affect the remainder of the terms and conditions. If gaps in the implementation of the contract arise due to the ineffectiveness of one or more provisions or by some other means, the parties to the contract undertake to mutually agree a provision which most closely approximates the commercial outcome of the ineffective provision.

16.2 The Customer grants its exclusive consent to personal data of the Customer being stored and processed in order for the Supplier to fulfil the contract. This declaration may be revoked by the Customer at any time in writing, by email, fax or letter.

16.3 We refer to the fact that our terms and conditions may be accessed online at any time and consequently the Customer accepts in advance the current version of the terms and conditions.

 

17. Online settlement of disputes information according to Art. 14 paragraph 1 ODR-VO:

The European Commission provides a platform for the online settlement of disputes, which you can find at http://ec.europa.eu/consumers/odr/. To the participation in a settlement of disputes process in a costumer arbitration board we are neither obliged nor willing.