Standard terms and conditions – ALU TP GmbH, Völkermarkt/Austria
Our standard terms and conditions below apply for all quotations,
contracts, deliveries and other services. Any terms and
conditions of the customer deviating from our own terms
and conditions, including merely additional terms and conditions,
which we have not expressly accepted in writing, are excluded,
even where we have not expressly objected to the customer’s terms
and conditions in the particular case. By accepting our deliveries
and services, the customer expressly acknowledges that they are
bound by our standard terms and conditions.
Our customers’ data shall be stored and processed electronically, where permitted by law.
1. Quotation, order acceptance
Our quotations are subject to change. Orders and any order amendments placed with us, whether directly or through our field-service employees, are in any case binding on the purchaser. Orders and amendments placed with us only become binding upon our written confirmation of the order or upon delivery.
All prices are quoted ex works and are, unless agreed otherwise, quoted in euros, excluding value-added tax (VAT), which shall be invoiced at the current rate in force. All prices are actual prices. Where no price has been expressly agreed for a particular order, the prices valid at the date of delivery shall apply. We shall be entitled to make reasonable price adjustments where we incur an increase in raw-material or auxiliary-material prices, wages, salaries, freight or other public charges after the offer has been submitted.
3. Delivery, passing of risk, dispatch, packing
Goods are delivered ex warehouse and, unless agreed otherwise in
writing, are dispatched at the customer’s risk and expense. The goods
are deemed to have been delivered on handing over to the purchaser,
forwarder or carrier, or on notification that the goods are ready for
dispatch. Our deliveries are subject to correct and timely delivery by
our upstream suppliers. Freight costs and, where relevant, the costs of
insuring the consignment at the purchaser’s request shall be borne by the
purchaser. Special loading and dispatch instructions issued by the purchaser
shall be carried at the latter’s risk and expense. To a reasonable
extent, we shall be entitled to render partial services. If, in our
opinion, packing is necessary, the costs therefor shall be borne by
the purchaser in accordance with commercial practice.
Depending on the type of products, deviations of +/- 10% in weight, quantity, running length, etc. upon delivery, both with regard to the final quantity and with regard to the agreed part deliveries, shall be permitted, unless provided otherwise in our applicable technical conditions of delivery. The units of quantities determined by us (generally running metre, depending on the product, or quantity, weight, etc. in special cases) are relevant for the purpose of calculating the invoice value.
4. Delivery periods and times
Delivery times indicated may only be considered as approximate. The agreement of firm deadlines is only valid where we have confirmed such agreement in writing. Should a firm deadline be agreed, the delivery period commences on the date we accept the order, but not before all details required to perform the order have been fully clarified. If the purchaser is to provide documents, information, authorisations or approvals or make an advance payment, the delivery period shall not commence until these obligations have been fulfilled.
Should we be unable to make the delivery within the period contractually provided, the purchaser, after fixing a final deadline of at least 14 days in writing, threatening to repudiate the contract, may withdraw from the contract subject to the provisions of paragraph 3. The customer may only assert claims for compensation for delay or non-performance where the delivery has been delayed on account of gross negligence on the part of the supplier, an executive body or one of our managers.
In the event of unforeseeable circumstances beyond our control, such as force majeure, war, commotion, embargos on imports and exports, strikes and lockouts, difficulties in procuring materials, tool breakage, interruption of operations, energy shortage, lack of transport and similar circumstances (including where these affect the upstream supplier), the delivery period shall be adequately extended (at least by the period for which delivery was hindered) where, as result, we are prevented from performing our obligations in due time. Where it is foreseeable that the delay in delivery will last for more than 2 months, both parties shall be entitled to withdraw from the contract. The purchaser may not establish any claim for compensation on the basis of the extended delivery period, even in the event of withdrawal from the contract. Furthermore, we shall not be responsible for the aforementioned circumstances where these arise during a current event of default. In serious cases, we shall inform the customer of the start and end of such impediments as soon as possible.
Our invoices are payable strictly net within 30 days of the date of invoice without any deduction. In individual cases, we may insist on a deposit or advance payment.
For deliveries abroad, we may require a deposit or advance payment or that a confirmed irrevocable letter of credit be opened, which shall be payable to the bank indicated by us.
Bills of exchange shall only be accepted by agreement and, as for cheques, only as conditional payment. Discount charges and other costs shall be borne by the drawee and must be paid in cash immediately.
We shall not be liable for timely presentation or protest of a bill, etc. In addition, no respite shall be granted for payment of the purchase price as a result of acceptance of the bill of exchange.
As from the due date, 1% interest per month or part thereof shall be charged; in the event that this clause is declared invalid, the interest payable after the due date shall be agreed at the rate of 10% p.a. In the event of default in payment, we shall charge bank debt interest, unless the customer proves that our loss is less than this fixed rate. However, at the very least, the agreed interest payable after the due date shall be owing on default. Claims for effectively higher loss caused by default are not excluded. We shall be entitled to demand an arrears fee of EUR 10.00 for each reminder notice. The contracting parties shall be at liberty to establish that higher or lesser damage has been suffered.
Should the customer default in payment or acceptance, all outstanding invoices shall immediately become due. Should the purchaser fail to observe their payment obligations in the context of these business relations or in the event that a deterioration in the customer’s financial situation is established, we shall be entitled to require appropriate security or an advance payment before continuing to process the order or deliver the goods. Where our products have already been delivered, we may demand immediate payment of the entire outstanding amount, regardless of any agreed payment. This also applies where it subsequently emerges that the financial situation at the time of concluding the contract was significantly worse than we had supposed. Should the customer fail to provide security or make the advance payment within a reasonable time limit to be fixed by us, we shall be entitled to withdraw from the contract.
No lien or right of retention may be claimed and offsetting against counterclaims is not permitted, unless the counterclaims have been legally established or acknowledged by us.
Payments shall always be applied to the oldest outstanding invoice or claim. Expenses incurred in the purchaser’s country or the country of destination in connection with bank transfers or on the basis of documentary collection or documentary letters of credit for our deliveries shall be borne by the purchaser.
6. Reservation of title
All goods and products delivered by us shall be delivered exclusively subject to reservation of title. Goods shall remain our property until payment in full (until encashment of the cheque or discharge of a bill where applicable) of all claims arising from the business relations, including incidental claims and claims for damages. This also applies where all or individual claims we may have are included in an open account and the balance is established and acknowledged. Where payment is made through a reverse bill of exchange, ownership shall be transferred only upon unconditional discharge of the bill.
The customer may neither assign the goods under reservation of title by way of mortgage nor pledge them as security (goods under reservation of title also include goods that we hold in co-ownership once they have been processed or incorporated in or mixed with other goods, in accordance with the following conditions).
Where the customer breaches important contractual obligations, particularly where they default in payment, we shall be entitled to take back the goods after issuing a reminder notice, whereby the purchaser shall be under an obligation to surrender the said goods. Where we take back or attach the goods, there shall only be entitlement to withdraw from the contract where we expressly declare this in writing, unless the Instalment Act applies.If, in the event of default in payment, we exercise our right of return and proceed to take back the goods delivered subject to reservation of title, only a credit note to the value of 50% of the purchase price invoiced shall be issued. The differential amount shall be used to cover our expenses, such as freight costs, new distribution costs, packing costs, etc.The customer retains the right to establish that lesser damage has been suffered.The customer must immediately inform us of assignments or any other imminent infringement of our rights by third parties, specifying the specific circumstances so that we may act accordingly.
The purchaser is entitled to process the goods under reservation of title and to resell them in the ordinary course of business.The customer’s claims arising from the resale of the goods under reservation of title shall hereby be assigned to us as security for all our claims arising from these business relations. We hereby accept this assignment. Where the goods under reservation of title are sold with third-party goods, whether processed or otherwise, the claims shall be considered to have been assigned merely in the value of the invoice amount of the goods under reservation of title that were delivered by us.The customer is authorised to recover the assigned claims on trust for us.The authorisation to recover claims may be revoked if the purchaser fails to duly comply with their payment obligations arising under the underlying contract. In the event of default in payment, or application for or opening of bankruptcy or judicial or out-of-court composition proceedings, or any other form of pecuniary deterioration of the customer, we may also require that the customer inform us of the assigned claims and their debtors, provide us with all necessary information for recovering the claims, deliver the corresponding documents and inform the debtors of the assignment. Furthermore, for this purpose, the customer hereby authorises us to inform the subpurchaser of the advance assignment.
We undertake, on the purchaser’s request, to release the securities provided to us, at our discretion, if and when the value of the said securities exceeds the value of the outstanding claims against the customer by more than 20%.
7. Return of goods
Where goods on which a special contract is based are taken back, there shall be no entitlement to a refund of the purchase price. The purchaser is merely entitled to delivery of replacement goods.
8. Call orders
In the case of call-off orders/framework contracts the goods must be called off completely within the period of time, unless there is an agreement to the contrary. After the period of time has elapsed we are entitled to issue a bill for the goods and to demand immediate payment for them. We are furthermore entitled to issue a bill for the warehousing charges in accordance with the trucking industry rates. With call-off orders the daily price valid on the relevant day of delivery applies. If we are in agreement that deliveries within the scope of the framework contract or deliveries for part quantities can be postponed, then in each case costs in the amount of 50.00 € /Ton per month will be incurred. The purchaser has to bear these costs. These costs will be billed separately at the end of each month as appropriate.
9. Notice of defects, warranty
The goods we deliver are to be promptly checked upon receipt for proper condition, conformity of the performance with the contract and completeness. Any claims must be made in writing. With respect to noticeable defects, claims must reach us within 8 days of receipt of the goods. Defects that cannot be identified upon a proper commercial inspection are to be claimed in writing within 3 months of receipt of the goods by the purchaser, where the right to make a claim is lost.
In the case of material defects, only remedy of the defect or replacement may be requested. If an attempt to remedy the defect or replace the goods is unsuccessful, the customer is entitled to request a decrease in the purchase price (reduction) or rescission of the contract of sale (redhibition).
Irrespective of the legal basis, we shall only be liable for gross negligence by the
party with whom the order was placed, our executive bodies or our managers.
Liability for slight negligence or for any fault on the part of vicarious agents
Where we are liable pursuant to our terms and conditions, damages may not exceed the loss incurred or the lost profit that the party having breached the contract ought to have foreseen on conclusion of the contract, taking into account the circumstances of which the said party had known or ought to have known.
Should goods be delivered in accordance with the purchaser’s drawings or other data, and should these goods infringe third parties’ rights, particularly industrial property rights, we shall be fully indemnified and held harmless by the purchaser. Other claims are excluded unless we are liable for intent or gross negligence.
Should individual clauses of these terms and conditions be or become invalid, all other provisions shall remain unaffected.
12. Place of performance and competent court of jurisdiction
The court for Völkermarkt shall have exclusive jurisdiction to rule on any current
and future claims arising from business relations with fully qualified traders,
including claims arising out of bills of exchange and cheques.
This same place of jurisdiction applies where the customer has no general legal domicile within the country, moves their domicile or usual place of residence out of the country after conclusion of the contract or where their domicile or usual place of residence is unknown at the time of instituting legal proceedings.
ALU TP GmbH | 9100 Völkermarkt | Austria 12.08.2013