General Terms and Conditions of AVS Hydraulikmotoren GmbH
The following General Terms and Conditions alone shall form the basis of all business relations between AVS Hydraulikmotoren GmbH and its customers. Any General Terms and Conditions of Business or Purchasing of contractors shall not be applicable under any circumstances.
1. Conclusion of contract
- All quotations are subject to change, especially with regard to prices and delivery periods. Quotations are usually issued free of charge, but if additional drawings or calculations are produced at the enquirer’s request, these shall be subject to charges unless a purchase agreement is subsequently concluded.
- The purchase agreement is concluded when the Vendor has confirmed acceptance of the purchase order in writing.
- Any changes and amendments to the purchase agreement, particularly supplementary agreements and additional undertakings, shall only be valid if they have been made in writing, with signatures. The same applies to any departure from the written form requirement.
- Any rights and duties arising from the purchase agreement must not be transferred by the Buyer to third parties, unless such a transfer has the prior written consent of the Vendor.
- Agreed prices are understood to be ex-works, including loading, but excluding transport and insurance costs, packaging and any charges and VAT. Prices do not include any assembly or commissioning that may be agreed.
- Between the conclusion of the contract and delivery of the order, changes may occur to the Vendor’s collectively agreed wages or to the prices of the Vendor’s suppliers. If this happens, the Vendor may make appropriate price adjustments. The same applies if the exchange rate between a supplier’s currency and the euro changes by more than 3%.
- Any additional services that are not covered by the purchase agreement – such as transport and insurance costs – must be agreed in writing and shall be charged separately.
3. Payment and arrears in payment
- Unless a different payment deadline has been agreed in writing in individual cases, the purchase price and any prices for separately agreed additional services shall become payable upon delivery of the purchased item and no later than within eight days of the billing date, without deductions. In the event of payment arrears, the interest on arrears shall be 8% above the applicable base lending rate of the ECB.
- Any agreements to pay in instalments must be made in writing. Instalments shall only be permitted by the Vendor if payment targets would otherwise be missed, even if this is not specified separately in the written agreement to pay in instalments. In the event of total or partial payment arrears, even for a single instalment, the Vendor’s entire outstanding receivable amount shall become due for immediate payment.
- Bank drafts and cheques shall only be accepted as payment and only if this has been separately agreed in writing. Any collection fees and charges shall be charged to the Buyer.
- The Buyer may only offset counterclaims against the Vendor’s outstanding receivables if they have been recognised by the Vendor in writing or if they have been granted by a court of law in a legally enforceable manner.
- If the Buyer fails to meet its payment obligations, the Vendor may, at its discretion, either insist on contractual performance and charge interest on arrears, or the Vendor may revoke the contract immediately, without setting a time limit and require the Buyer to pay compensation for contractual non-performance.
- The Vendor may suspend payment agreements and require the immediate payment of any outstanding receivables if there is a substantial deterioration in the Buyer’s creditworthiness, if execution proceedings are carried out against the Buyer’s assets or if bankruptcy or composition proceedings are initiated against the Buyer’s assets or if application to this effect is refused on the grounds of insufficient assets. If such circumstances occur, the Vendor may also, at its discretion, either revoke the contract or only make deliveries against advanced payments or against the payment of security deposits. If the Vendor revokes the contract, the Buyer shall be liable for damages.
4. Shipments and delays in delivery
- In case of doubt, all delivery dates and periods that have been agreed in writing shall be considered as subject to change. A fixed date shall only be considered as agreed between the parties if it has been expressly specified as such in the order acknowledgement. Delivery periods shall start as agreed, the earliest point of commencement being the date of the order acknowledgement. In the event of subsequent contractual changes, a new delivery period shall be agreed in writing at the Vendor’s or Buyer’s request; otherwise the Buyer shall be under an obligation to accept delivery within a reasonable period of time. If the Buyer fails to meet its contractual obligations on time, the Vendor is entitled unilaterally to extend the agreed delivery period by a reasonable amount of time. If damage occurs, arising from a delay in delivery that is verifiably within the Vendor’s responsibility, damages shall be limited to five per cent of the total amount.
- Delivery periods shall be correspondingly extended in the event of force majeure or operational disruptions experienced by the Vendor or its suppliers. Such instances include, for example, strike action or lockout occurring without any fault on the part of the Vendor and temporarily preventing the Vendor from delivering the purchased item by the agreed date or within the agreed period.
- The Buyer understands and approves the practice whereby it is exclusively the Vendor’s decision to make improvements to ordered goods in terms of design or shape or to make any other changes or modifications, if the Vendor believes this to be an improvement. This does not apply to any properties where the purchase has been expressly agreed in writing in the purchase agreement.
5. Acceptance and transfer of risk
- The Buyer shall accept the purchased item within 8 days of the date when the product becomes available, this date being specified in the document giving notice of availability. The transfer of risk to the Buyer shall be completed through acceptance by the latter. If delivery is effected via a forwarding company, the transfer of risk to the Buyer shall take place upon the delivery of the purchased item to the forwarding company. If requested by the Buyer in writing, shipping shall be insured at the Buyer’s expense.
- If there is a delay in the Buyer’s acceptance, delivery shall be deemed to have been effected upon the expiry of the period specified in subclause 1, whereupon the agreed purchase price shall become due for payment and the risk shall be transferred to the Buyer. In such a case the cost of storage, surveillance and insurance shall be charged to the Buyer. However, it is at the Vendor’s discretion whether to uphold the contract and dispose of the goods in some other way and to deliver to the Buyer at a later stage, or to give the Buyer a 14-day extension in writing, specifying that it will refuse acceptance after the expiry of this period. Once the extended period has concluded without the Buyer’s acceptance, the Vendor may revoke the purchase agreement in writing and demand damages at a flat rate of 10% of the agreed purchase price. No option shall be given for the amount to be reduced by a court of law. The Vendor shall be entitled to assert damages over and above this amount.
6. Reservation of title
The purchased item shall remain the Vendor’s property until the full payment of all the receivables to which the Vendor is entitled under the purchase agreement. This shall also apply after the Buyer has installed the purchased item. The reservation of title shall continue to be in place for all payment claims subsequently acquired by the Vendor towards the Buyer in connection with the purchased item, e.g. due to repairs, the delivery of spare parts or any other work. If several invoices are outstanding, it shall be the Vendor’s decision to decide which incoming payments should be assigned to which invoices.
- As long as the reservation of title is in place, the Buyer has the right to install the purchased item, but must nevertheless refrain from any other disposal in respect of the purchased item. The purchased item may only be sold, pledged, used as a security lien, rented out or otherwise transferred to a third party or modified in any way if such action has the Vendor’s prior written approval. If a third party gains rights in respect of the purchased item, particularly in the event of pledging or the lessor’s exercise of a right of lien, the Buyer shall notify the Vendor without undue delay and shall also notify the relevant third party without undue delay concerning the reservation of title.
- If goods under reservation of title are sold by the Buyer in contravention of the above provision, the Buyer hereby undertakes – by way of anticipation – that it shall then assign to the Vendor the receivables to which the Buyer will be entitled on account of the sale. The Vendor is entitled to notify the purchasing party of the relevant goods that this assignment has taken place and that the purchase price must be paid to the Vendor, exonerating the purchasing party from payment to the Buyer.
- While the purchased item is under reservation of title, the Buyer shall ensure that the item is in proper condition and shall, without undue delay, permit all maintenance and repairs envisaged by the manufacturer. Otherwise the Buyer shall be liable for damages and shall lose its warranty claims.
- If the Buyer’s creditworthiness deteriorates substantially, if execution proceedings are carried out against the Buyer’s assets or if bankruptcy or composition proceedings are initiated against the Buyer’s assets or if application to this effect is refused on the grounds of insufficient assets, the Vendor may require the Buyer to return any unpaid goods or, at its discretion, require the payment of a suitable security.
- AVS provides a warranty for its product, undertaking that it is free from defects concerning materials and processing, for a period of 12 months from the date of commissioning, albeit no longer than 18 months from the date of the Buyer’s purchase and after no more than 2,000 hours of operation.
Any parts repaired or replaced by AVS or its contractors in compliance with the aforementioned conditions are subject to a warranty, provided that the parts have been subject to normal and proper use.
- Any products refurbished by AVS on its premises are subject to a warranty that they are without defects concerning materials and processing for a period of six months from the date of purchase.
- This warranty does not apply to consumables. Moreover, neither AVS nor its contractors are under any obligation to conduct repairs or provide replacements if this is necessitated by normal wear and tear or if it is totally or partly the result of destruction, culpable conduct, neglect or improper installation, storage, use, servicing or repairs of the product or if it is due to the use of the product in a manner for which it was not intended, or if it is caused by third-party impact on the product.
In addition to the aforementioned, the warranty does not cover any loss of income caused by downtimes, damage through wrong use or misuse, negligence, accidents, renovation, ongoing maintenance or normal wear and tear.
- If a product is believed to display a material or processing defect within the warranty period, the Buyer must contact AVS or its contractor immediately, so that the next steps can be decided upon.
- No liability is accepted for installation of the purchased item or for any subsequently conducted modifications.
- If defects occur, it shall be at the Vendor’s discretion to decide whether to replace the purchased item against a defect-free item within a reasonable period of time or whether to remove the defects. The options of rescission and price reduction are hereby excluded.
- If improvements are required, the Buyer shall deliver the purchased item back to the Vendor. Rejected parts must be returned without incurring carriage or postage costs to the Vendor. If the complaint is recognised by the Vendor, the Vendor shall choose the most advantageous shipping method for the repaired items and shall bear the resulting costs. When sending notice of defect, the Buyer shall specify the product type, serial number, date of commissioning, the defective parts, how the damage occurred and the possible causes of the fault, completing the entire warranty form provided by the Vendor and adding it to the notice of defect to permit an assessment. If requested by the Vendor, the Vendor may check the purchased item and conduct the warranty work on the Buyer’s premises, in which case the item must be left in the same condition as when the damage occurred. In such a case the purchase document must be submitted, containing the dates of purchase and delivery. Replaced parts shall also become the Vendor’s property even if there is no longer any reservation of title.
- If the Buyer requests removal of a defect that is not recognised by the Vendor as a warranty claim, then the Vendor may make removal of the defect dependent upon prior payment of the probable expected costs. In such a case all the costs shall be borne by the Buyer, in particular transport, packaging, checking the defect and clarifying the causes of the defect.
- The Vendor provides no warranty or any other guarantee for third-party products. Such claims must therefore be addressed directly to the relevant manufacturer, and, if requested, the Vendor shall transfer its claims in this respect against the manufacturer to the Buyer.
Specifications, operating instructions and brochures are generally provided by the Vendor free of charge. Drafts and production drawings may not be duplicated or made accessible to third parties without the Vendor’s written consent. If a supply agreement is concluded, the documents provided by the Vendor shall be returned unprompted. Violations entitle the Vendor to require payment of a contractual penalty of EUR 15,000 per violation, while reserving the right to assert higher damages over and above this figure, if the loss that has occurred is greater. No option shall be given for the amount to be reduced by a court of law.
- The Vendor’s liability for damages is limited to intent and gross negligence. The burden of proof shall rest on the Buyer. Moreover, the Vendor shall bear no liability whatever for consequential damage, especially for loss of profit, production downtimes, emissions or any other indirect damage. Buyers who are not consumers within the meaning of the Austrian Consumer Protection Act (KSchG) or the Austrian Product Liability Act (PHG) shall waive all claims other than personal injury which they may suffer as entrepreneurs, undertaking to transfer this exclusion of liability to any customers who are not consumers within the meaning of the said acts.
- In the event of export shipments, the Vendor bears no liability if violations of industrial property rights are claimed by third parties.
10. Place of jurisdiction and applicable law
All disputes arising from this contractual relationship, including disputes concerning bank drafts and cheques shall be exclusively subject to the relevant competent court in Salzburg. All contractual relations shall be subject to Austrian law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.