General Terms of Delivery of Codatex Hainzlmaier GmbH & Co.KG
1.1 Our deliveries,
services and offers are made solely on the basis of these terms and conditions.
These are thus also for all future business relations valid, even if they are
not agreed upon.
Below is the Codatex Hainzlmaier GmbH & Co.KG
1.2 These General Terms
shall govern legal transactions between business enterprises, namely the
delivery of commodities and, mutatis mutandis, the rendering of services.
Software transactions are with precedence governed by the Software Conditions
issued by the Austrian Electrical and Electronics Industry Association
1.3 Any departure from the terms and conditions
mentioned in 1.1 above shall be valid only if expressly accepted in writing by SeIler.
Submission of offers
2.1 Seller's offers shall be deemed offers
2.2 Tender documents and
project documentation must not be duplicated nor made available to third
parties without the permission of Seller. They may be claimed back at any time
and shall be returned to Seller immediately if the order is placed elsewhere.
Conclusion of contract
3.1 The contract shall be deemed concluded upon
written confirmation by SeIler of an order received
or upon dispatch of a delivery.
3.2 Particulars appearing in catalogue, folders
etc. as well as any oral or written statements shall only be binding if Seller
makes express reference to them in the confirmation of the order.
3.3 Subsequent amendments of or additions to the
contract shalI be subject to written confirmation.
4.1 Prices shall be quoted ex works or ex
Seller's warehouse without VAT, packing and packaging, loading, disassembly,
take-back and proper recycling and disposal of waste electrical and electronic
equipment for commercial purposes as defined by the Ordinance Regulating the
Handling of Waste Electrical Equipment. Buyer shall be liable for any and all
charges, taxes or other duties levied in respect of delivery. If the terms of
delivery include transport to a destination designated by Buyer, transport
costs as weIl as the cost of
any transport insurance desired by Buyer shall be borne by the latter. Delivery
does not, however, include unloading and subsequent handling. Packaging
materials will be taken back only by express agreement.
4.2 Seller reserves the right to modify prices
if the order placed is not in accordance with the offer submitted.
4.3 Prices are based on costs obtaining at the
time of the first quotation. In the event that the costs have increased by the
time of delivery, Seller shall have the right to adjust prices accordingly.
4.4 In carrying out repair orders, Seller shall
provide all services deemed expedient and shall charge Buyer for the same on
the basis of the work input and/or expenditures required. The same holds for
any services or additional services the expediency of which becomes apparent
only as the repair order is executed. ln
such an event special notification of Buyer shall not be required.
4.5 Expenses for estimates of costs of repair
and maintenance or for expert valuations shall be invoiced to Buyer.
5.1 The period allowed for delivery shall
commence at the latest of the following dates:
a) the date of
order confirmation by Seller;
b) the date of fulfillment by Buyer of all the conditions, technical, commercial
and other, for which he is responsible;
c) the date of
receipt by Seller of a deposit or security due before delivery of the goods in
5.2 Buyer shall obtain whatever licences or
approvals may be required from authorities or third parties for the
construction of plant and equipment. If the granting of such licences or
approvals is delayed for any reason the delivery period shall be extended
5.3 SeIler may carry
out, and charge Buyer for, partial or advance deliveries. If delivery on call
is agreed upon, the commodity shall be deemed called off at the Iatest one year after the order was placed.
5.4 In case of unforeseeable circumstances or
circumstances beyond the parties control, such as all cases of force majeure, which impede compliance with the agreed period of
delivery, the latter shall be extended in any case for the duration of such
circumstances; these include in particular armed conflicts, official
interventions and prohibitions, delays in transport or customs clearance,
damages in transit, energy shortage and raw materials scarcity, labor disputes, and default on performance by a major
component supplier who is difficult to replace. The aforesaid circumstances
shall be deemed to prevail irrespective of whether they affect SeIler or his subcontractor(s).
5.5 If a contractual penalty for default of
delivery was agreed upon by contracting parties when the contract was
concluded, it shall be executed as follows, and any deviations concerning
individual items shall not affect the remaining provisions:
Where delay in performance can be shown to have
occurred solely through the fault of Seller, Buyer may claim for each completed
week of delay an indemnity of at most one half of one per cent, a total of no
more than 5 %, however, of the value of that part of the goods to be delivered
which cannot be used on account of SeIler's failure
to deliver an essential part thereof, provided the Buyer has suffered a damage
to the aforesaid extent.
Assertion of rights of damages exceeding this
extent is precluded.
5.6 If the shipment is delayed at the request of
the client, the seller is entitled to bill him the storage costs incurred
month after display of readiness to deliver for storage in
our warehouse at least ½% of the contract amount for each month.
Furthermore the seller is entitled after setting
and unsuccessful course of a reasonable time to have the delivery item available for
any otherwise use and to supply the
client with adequate extended period. If the client is not accepting the goods
the seller is entitled after a grace period of 14 days to withdraw from the
contract or demand damages for non-performance.
acceptance is necessary, the client has to disclose by himself no later than 4
weeks after delivery or permitted partial delivery of an independent part of
the performance an appointment to the common acceptance. The appointment must
happen within 4 weeks. The client has to participate in the activities of
collaboration he was required for to this date. If the appointment of
acceptance does not happen, the delivery counts nevertheless as adopted and
approved by the client.
Passage of risk and Place of performance
6.1 Enjoyment and risk shall pass to Buyer at
the time of departure of the goods ex works or ex warehouse regardless of the
terms of quotation (such as carriage paid, C.I.F. etc.) agreed upon. This
provision also includes the case of shipment being effected, organised and
supervised by Seller and the case of delivery being made in connection with
assembly work to be undertaken by Seller.
6.2 For services the place of performance shall
be the place at which the service is rendered; the risk in respect of such
services or any part thereof that may have been agreed upon shall pass to Buyer
at the time the services have been rendered.
7.1 Unless otherwise agreed, one third of the
purchase price shall fall due at the time of receipt by Buyer of the order
confirmation of Seller, one third after half the delivery period has elapsed
and the balance at the time of delivery. Irrespective thereof the turnover tax
comprised in the amount of the invoice shall be paid within 30 days of the
7.2 In the case of part settlements the
individual part payments shall fall due upon receipt of the respective
invoices. The same shall apply to amounts invoiced for additional deliveries or
resulting from additional agreements beyond the scope of the original contract,
irrespective of the terms of payment agreed upon for the principal delivery.
7.3 Payment shall be made without any discount
free SeIler's domicile in the agreed currency. Drafts
and checks shaII be accepted on account of payment
only, with all interest, fees and charges in connection therewith (such as collection
and discounting charges) to be borne by Buyer.
7.4 Buyer shall not be entitled to withhold or
offset payment on the grounds of any warranty claims or other counterclaims.
7.5 Payment shall be deemed to have been
effected on the date at which the amount in question is at SelIer's
7.6 If Buyer fails to meet the terms of payment
or any other obligation arising from this or other transactions, Seller may
without prejudice to his other rights
performance of his own obligations until payments have been made or other
obligations fulfilled, and exercise his right to extend the period of delivery
to a reasonable extent,
b) call in debts
arisen from this or any other transactions and charge default interest
amounting to 1.25 % per month plus turnover tax for these amounts beginning
with the due dates, unless SeIler proves costs exceeding
In any case Seller has the right to invoice all
expenses arising prior to a lawsuit, especially reminder charges and lawyer's
7.7 Discounts or bonuses are subject to complete
payment in due time.
7.8 SeIler retains
title to all goods delivered by him until receipt of all amounts invoiced
including interests and charges.
Buyer herewith assigns his claim out of a resale of
conditional commodities, even if they are processed, transformed or combined
with other commodities, to Seller to secure the latter's purchase money claim,
and he undertakes to make a corresponding entry in his books or on his
invoices. Upon request Buyer has to notify the assigned claim and the debtor
thereof to Seller, and to make all information and material required for his
debt collection available and to notify the assignment to the third-party
debtor. If the goods are attached or otherwise levied upon, Buyer shalI draw attention to Sellers title and immediately inform
Seller of the attachment or levy.
Warranty and acceptance of obligation to repair defects
8.1 Once the agreed terms of payment have been
complied with, Seller shall, subject to the conditions hereunder, remedy any
defect existing at the time of acceptance of the article in question whether
due to faulty design, material or manufacture, that
impairs the functioning of said article. From particulars appearing in
catalogues, folders, promotional literature as well as written or oral
statements which have not been included in the agreement no warranty
obligations may be deduced.
8.2 Unless special warranty periods operate for
individual items the warranty period shall be 12 months. These conditions shall
also apply to any goods supplied, or services rendered in respect of goods
supplied, that are firmly attached to buildings or the ground. The warranty
period begins at the point of passage of risk acc. to paragraph 6.
8.3 The foregoing warranty obligations are
conditional upon the Buyer giving immediate notice in writing of any defects
that have occurred. Buyer shall prove immediately the presence of a defect, in
particular he shall make available immediately to Seller all material and data
in his possession. Upon receipt of such notice Seller shall, in the case of a
defect covered by the warranty under 8.1 above, have the option to replace the
defective goods or defective parts thereof or else to repair them on Buyer's
premises or have them returned for repair, or to grant a fair and reasonable price
8.4 Any expenses incurred in connection with
rectifying defects (e.g. expenses for assembly and disassembly, transport,
waste disposal, travel and site-to-quarters time) shall be borne by Buyer. For
warranty work on Buyer's premises Buyer shall make available free of charge any
assistance, hoisting gear, scaffolding and sundry supplies and incidentals that
may he required. Replaced parts shall become the property of Seller.
8.5 If an article is manufactured by Seller on
the basis of design data, design drawings, models or other specifications
supplied by Buyer, Seller's warranty shall be restricted to non-compliance
with Buyers specifications.
8.6 SeIler's warranty
obligation shall not extend to any defects due to assembly and installation
work not undertaken by Seller, inadequate equipment, or due to non-compliance
with installation requirements and operating conditions, overloading of parts
in excess of the design values stipulated by Seller, negligent or faulty
handling or the use of inappropriate materials, nor for defects attributable to
material supplied by Buyer. Nor shall Seller be liable for damage due to acts
of third parties, atmospheric discharges. Excess voltage and chemical
influences. The warranty does not cover the replacement of parts subject to
natural wear and tear. Seller accepts no warranty for the sale of used goods.
8.7 The warranty shall lapse immediately if,
without written consent of SeIler, Buyer himself or a
third party not expressly authorised undertakes modifications or repairs on
any items delivered.
8.8 Claims acc. to § 933b ABGB are struck by the
statute of limitation with lapse of the period mentioned under point 8.2.
8.9 The provisions of sub-paragraphs 8.1 to 8.7
shall apply, mutatis mutandis, to all cases where the obligation to repair
defects has to be accepted for other reasons laid down
Withdrawal from contract
9.1 Buyer may withdraw from the contract only in
the event of delays caused by gross negligence on the part of SeIler and only after a reasonable period of grace has
elapsed. Withdrawal from contract shall be notified in writing by registered
9.2 Irrespective of his other rights SeIler shall be entitled to withdraw from the contract
a) if the
execution of delivery or the inception or continuation of services to be
rendered under the contract is made impossible for reasons within the
responsibility of Buyer and if the delay is extended beyond a reasonable
period of grace allowed;
b) if doubts have
arisen as to Buyer's creditworthiness and if same fails, on SeIler's
request, to make an advance payment or to provide adequate security prior to
c) if, for reasons mentioned in 5.4, the
period allowed for delivery is extended by more than half of the period
originally agreed or by at least 6 months.
9.3 For the reasons given above withdrawal from
the contract shall also be possible in respect of any outstanding part of the
delivery or service contracted for.
9.4 If bankruptcy proceedings are instituted
against any contracting party or an application for bankruptcy proceedings
against that party is not granted for insufficiency of assets, the other party
may withdraw from the contract without allowing a period of grace.
9.5 Without prejudice to Seller's claim for
damages including expenses arising prior to a lawsuit, upon withdrawal from
contract any open accounts in respect of deliveries made or services rendered
in whole or in part shall be settled according to contract This provision also
covers deliveries or services not yet accepted by Buyer as weIl
as any preparatory acts performed by Seller. Seller shall, however, have the
option alternatively to require the restitution of articles already delivered.
9.6 Withdrawal from contract shall have no
consequences other than those stipulated above.
Disposal of waste electrical and electronic equipment
10.1 The Buyer of electrical/electronic
equipment for commercial purposes, incorporated in Austria, is responsible for the
financing of the collection and treatment of waste electrical and electronic
equipment as defined by the Ordinance Regulating the Handling of Waste
Electrical Equipment, if he is himself the user of the electrical/electronic
equipment. If the Buyer is not the end user, he shall transfer the full
financial commitment to his customer by agreement and furnish proof thereof to
10.2 The Buyer incorporated in Austria shall
ensure that the Seller is provided with all information necessary to meet the
Seller's obligations as manufacturer/importer, particularly according to §§ 11
and 24 of the Ordinance Regulating the Handling of Waste Electrical Equipment
and the Waste Management Act.
10.3 The Buyer incorporated in Austria is liable
vis-à-vis the Seller for any damage and other financial disadvantages incurred
by Seller due to Buyer's failure to meet or fully meet his financing commitment
or any other obligations according to Article 10. The Buyer shall bear the
burden of proof of performance of this obligation.
11.1 The extent of repairs must be made in
writing by the client in the repair order may be given. A completion of
submitted incomplete equipment is only done with the express written indication
in the repair-order of the client and repair is carried at cost. Missing parts
required for the safe operation of the equipment are always, without
specification of the customer, at fee exchanged.
11.2 Cost estimates have to be calculated. For
devices that are not defect an all inclusive-price
verification is billed.
We make our client and its customers because of claims arising from violations
of copyrights, trademarks or patents freely unless the draft was delivered
goods by the buyer. The indemnification is limited on our part to the
Additional condition for the indemnification is that the leadership of
litigations is on our side and that the alleged violation of law is exclusively
assigned to the construction of our delivery items without connection or use
with other products.
We either have the right to liberate us from the commitments made in point 1,
that we either
a) procure the
necessary licenses relating to the allegedly infringed patents
b) deliver to the
client a revised delivery item which, in the case of exchange against the
offensive delivery item eliminates injury allegation.
reserve the right at any time to design changes; we are not committed to such
changes to products already delivered.
Unless otherwise agreed, subjects to the
information provided to us in connection with orders submitted are not
considered as confidential.
15.1 Outside the scope of the Product Liability
Act, Seller shall be liable only if the damage in question is proved to be due
to intentional acts or acts of gross negligence, within the limits of statutory
provisions. Seller shall not be liable for damage due to acts of ordinary
negligence nor for consequential damages or damages for economic losses, loss
of savings or interest or damage resulting from third-party claims against
15.2 Seller shall not be liable for damages in
case of non-compliance with instructions for assembly, commissioning and
operation (such as are contained in instructions for use) or non-compliance
with licensing requirements.
15.3 Claims that exceed the contractual
penalties that were agreed on are excluded from the respective title.
Assertion of Claims
All claims to which Buyer is entitled must be
asserted in court within three years from passage of risk as specified under
paragraph 6, unless shorter limits of time are prescribed by law, otherwise
claims shall become forfeited.
Industrial property rights and copyrights
17.1 Buyer shall indemnify Seller and hold him
harmless against any claims for any infringement of industrial property rights
raised against him if SeIler manufactures an article
pursuant to any design data, design drawings, models or other specifications
made available to him by Buyer.
17.2 Design documents such as plans and drawings
and other technical specifications as well as samples, catalogues,
prospectuses, pictures and the like shall remain the intellectual property of SeIler and are subject to the relevant statutory provisions
governing reproduction, imitation, competition etc. The provisions of 22 above
shall also cover design documents.
Should individual provisions of the contract or
of these provisions be invalid the validity of the other provisions shall not
be affected. The invalid provision shall be replaced by a valid one, which
comes as close to the target goal as possible.
Jurisdiction and applicable law
Any litigations arising under the contract
including litigations over the existence or non-existence thereof shall fall
within the exclusive jurisdiction of the competent court at Sellers domicile;
the competent court of the Bezirksgericht Innere Stadt, Vienna,
shall have exclusive jurisdiction if Seller is domiciled in Vienna. The contract is subject to Austrian
law excluding the referral rules. Application of the UN Convention on Contracts
for the lnternational Sale of Goods is renounced.