Standard business conditions of Perndorfer Maschinenbau KG
1. Scope / Commitments / Future business
These General Terms and Conditions of Sale and Delivery, irrespective of different written agreements in individual cases, are a constituent part of all delivery and sales business of PERNDORFER Maschinenbau KG, A-4720 Kallham, Parzleithen 8, in particular with regard to machinery, machine accessories and spare parts including repairs. Employees, sales representatives and commercial agents are not authorised to give commitments of any kind. These General Terms and Conditions of Sale and Delivery also apply, unless different terms are agreed in writing, to future business of the aforementioned kind without their validity requiring agreement in each individual case. Contractual terms contrary to these General Terms and Conditions of Sale and Delivery , in particular in the buyer's or customer's business terms or contract forms, are in every case to be regarded as excluded by agreement.
2. Quotations / Refusal / Alterations
All quotations are made without obligation. PERNDORFER Maschinenbau KG reserves the right within a period of six weeks to refuse acceptance of a contract received on the basis of a quotation. Information and statements concerning the properties of products of any kind in price lists, leaflets, brochures, product descriptions and other printed matter or published material give only an approximate description and represent in every case non-binding information concerning average values. Construction, form, equipment and colour are subject to alteration in so far as the specified use of the purchase item is not thereby excluded.
3. Ordering / Confirmation of contract / Variation
The customer's contract/order together with the documentation and information provided by the customer, form the basis on which the goods or services are to be provided by PERNDORFER Maschinenbau KG. It is not the responsibility of PERNDORFER Maschinenbau KG to verify the documents and information provided by the customer with regard to general ambiguities, incompleteness nor to verify whether they are suitable for the intended purpose. The customer is committed to his order for a period of six weeks. A contract does not come into force until it is confirmed in writing or a delivery has been made. Silence does not imply acceptance of a contract. The customer is obliged to verify the confirmation of contract immediately. If the confirmation of contract differs from the order, it is to be regarded as approved by the customer unless he gives notice in writing to the contrary within a period of 3 days.
4. Delivery / Delivery dates
Delivery dates and deadlines are always assumed to be estimated dates, even if this is not expressly stated. PERNDORFER Maschinenbau KG will nevertheless endeavour to meet delivery dates. It is a condition of adherence to delivery dates and deadlines that the customer fulfils all the contractual commitments of the continuing business relationship. Delays by the customer in providing data, information or documents necessary for the fulfilment of the contract will entail a corresponding delay to delivery dates and deadlines. Production and delivery obstacles which are not the responsibility of PERNDORFER Maschinenbau KG, such as force majeure, strikes, shutdowns, supply delivery problems, curtailment or loss of working time, transport problems and measures taken by official authorities will entail an appropriate extension to delivery dates and deadlines. In the case of a delay in delivery for which PERNDORFER Maschinenbau KG is responsible, the customer may, with regard only to the goods affected by this delay and excluding any further claims, either demand specific performance or withdraw from the contract having set expressly and in writing a period of additional respite of at least 8 weeks. The withdrawal is only legally valid in the case that PERNDORFER Maschinenbau KG culpably fails to comply with the period of additional respite. In the case of contracts for successive deliveries the right of withdrawal exists only with regard to each individual delivery. In the case of custom-built goods, the period of additional respite is to be appropriate to the individual nature of the product. PERNDORFER Maschinenbau KG also has the right to make partial deliveries. PERNDORFER Maschinenbau KG reserves the right to determine the mode of transport which does not include unloading. Despatch of any kind will be "EXW according to Incoterms 2000" from the relevant PERNDORFER Maschinenbau KG factory (e.g. EXW Kallham) and in each case the cost and risk are to be borne by the customer; in the case of despatch from the PERNDORFER Maschinenbau KG factory the risk is even transferred to the customer if delivery was agreed as "free domicile" or "carriage paid". PERNDORFER Maschinenbau KG - even without the customer's express order to do so - also has the right but not the obligation to arrange insurance for any damage in transit at the customer's expense. If insolvency proceedings are commenced against the customer, or if bankruptcy proceedings regarding the assets of the customer are not commenced due to lack of marginal assets, or if execution proceedings are commenced against the customer, or if a deterioration in the financial circumstances of the customer arises, or if there should be doubtful credit information concerning the customer, or if the customer delays payment to PERNDORFER Maschinenbau KG, PERNDORFER Maschinenbau KG is entitled to demand immediate payment of all amounts including those not yet due for payment. Furthermore PERNDORFER Maschinenbau KG is entitled to make further deliveries contractually confirmed by PERNDORFER Maschinenbau KG conditional upon payment in advance or indemnification even if these have not been agreed. Goods ordered "on request" or "on collection" or on a similar basis will be stored from the agreed time of request or collection on the premises of PERNDORFER Maschinenbau KG or, at PERNDORFER Maschinenbau KG´s wish, with a third party at the customer's expense and risk. In the case of default in acceptance by the customer even if beyond his control, PERNDORFER Maschinenbau KG is entitled, on giving notice, to realise the value of the goods by private contract, in particular by disposal to a third party.
5. Reservation of rights and ownership
All rights to documents such as drawings, plans and samples are reserved. These documents may not be processed nor reproduced nor made available or forwarded to third parties without permission and are to be returned on request. PERNDORFER Maschinenbau KG expressly reserves the right to ownership until payment is made in full. In the case of delay in payment PERNDORFER Maschinenbau KG is entitled to demand the return of the reserved goods; the retrieval of the reserved goods does not represent a withdrawal from the contract. PERNDORFER Maschinenbau KG will further dispose of the goods by private contract and credit the customer with the proceeds, having deducted all expenses associated with the retrieval and further disposal of the goods. Seizure of the reserved goods instigated by PERNDORFER Maschinenbau KG does not imply a renunciation of ownership. If the customer should dispose of the reserved goods, all claims by the customer against third parties resulting from such disposal up to the amount of the still unresolved claims are to be considered to have been assigned to PERNDORFER Maschinenbau KG for the purpose of payment. The customer is obliged to reveal all information regarding buyer, purchase price, delivery date, location of the goods, etc. and disclosure of the transfer. If the goods are confiscated by the customer, he is obliged to deposit the proceeds separately. In the case of seizure of the reserved goods by a third party including attachment, confiscation or similar actions, the customer is to indicate PERNDORFER Maschinenbau KG´s right of ownership and to notify PERNDORFER Maschinenbau KG immediately in writing. The customer will completely indemnify PERNDORFER Maschinenbau KG for all expenses incurred in the prevention of any seizure of the reserved goods. Having given due notice PERNDORFER Maschinenbau KG is entitled to withdraw from the contract and to collect the reserved goods if the customer delays fulfilment of his obligations - even for reasons beyond his control - or if circumstances arise which compromise the rights of PERNDORFER Maschinenbau KG (see e.g. sub-clause 4 above)
6. Prices / Payment
Prices apply as ex warehouse of PERNDORFER Maschinenbau KG in Kallham or ex works excluding carriage, packaging and insurance and are exclusive of the current rate of VAT. Contracts for which no definite prices have been expressly agreed will be charged according to the list price valid on the date of delivery. Invoices are payable without discount thirty days after date of invoice. PERNDORFER Maschinenbau KG reserves the right - even having confirmed a contract - to increase the prices to PERNDORFER Maschinenbau KG´s list price as on the delivery date in the case of increases in the costs of significant materials, raw materials, carriers, increases in labour costs due to mandatory statutory provisions or collective contractual conditions, changes in exchange rates or conditions, increases in charges or increases in transport and delivery costs. Costs which are due to subsequent changes or adjustments to the order, will be borne exclusively by the customer. Bills of exchange and cheques will only be accepted if expressly agreed, without obligation for production or protestation and only on account of payment. Acceptance will be at the value applicable on the day on which PERNDORFER Maschinenbau KG can have disposal of the equivalent value. Discount charges and all costs associated with the discharge of the cheque or bill of exchange will be borne by the customer. Incoming payments will be credited first to costs and expenses, then interest and finally capital; PERNDORFER Maschinenbau KG is entitled to credit incoming payments against the longest-standing unpaid items. In the case of a default in payment on the part of the customer - even for reasons beyond his control - the customer is obliged to pay interest on arrears at a rate of 8 % above the current base rate of the European Central Bank, at least, however, at a minimum of 1 % per month. All guaranteed discounts, deductions or other concessions will be regarded as not granted in the case of a default in payment or if insolvency proceedings are commenced against the customer. If the customer is in arrears with payment - even for reasons beyond his control - he is obliged to pay the reminder and collection costs (e.g. solicitors' fees, debt collection agency's fees, etc) incurred in the due extra-judicial collection of the claim.
The customer is not entitled to cancel the contract either as a whole or in part. If PERNDORFER Maschinenbau KG should accept a cancellation in an individual case, the customer is obliged to pay a lump sum of 30% of the contractual amount to PERNDORFER Maschinenbau KG. The assertion of a claim for a higher amount of damages is reserved.
8. Bank guarantee / Letter of credit
For all prices and payments PERNDORFER Maschinenbau KG reserves the right to demand an abstract, divisible bank guarantee from a first class Austrian bank or the opening of an irrevocable, divisible and transferable documentary credit confirmed by a first class Austrian bank.
Without express written agreement PERNDORFER Maschinenbau KG does not provide a guarantee for a specified utility or usability of the goods. PERNDORFER Maschinenbau KG will only give a warranty on defective material if a replacement can be demanded from the supplier and, moreover, there is evidence that PERNDORFER Maschinenbau KG should have recognised the defect by exercising due care. In the case of loss of any entitlement due to a defect, the customer is obliged to check all (partial) deliveries from PERNDORFER Maschinenbau KG immediately and thoroughly - including their suitability for the intended purpose - and to immediately notify PERNDORFER Maschinenbau KG in writing of any defects, describing them in detail. The customer is not entitled to withhold payments because of insignificant defects or to withhold payment for one part of the goods because another part is showing significant defects. The customer is responsible for proving that a defect existed at the time of the delivery. The customer is obliged to support PERNDORFER Maschinenbau KG in identifying and correcting defects and to enable all required measures (such as access, inspection of documents, etc). If the customer does not comply with his obligation to cooperate in the rectification of defects despite a written warning by PERNDORFER Maschinenbau KG, any claims resulting from a defective service become invalid. Provided that justified complaints regarding defects have been made within the specified period of time and in a proper manner and excluding further claims, the defects will be remedied either by rectification or replacement as desired by PERNDORFER Maschinenbau KG within an appropriate period of at least 8 weeks. In the case of minor defects PERNDORFER Maschinenbau KG is entitled but not obliged, instead of correcting or replacing the goods, to grant an appropriate reduction in price, in particular in cases where a rectification or replacement would entail disproportionate costs. In the case of minor and major defects PERNDORFER Maschinenbau KG is entitled but not obliged to take back the goods in return for a credit note to the value of the order, excluding further claims. The original warranty period is not interrupted by rectification or replacement. All claims under a warranty are invalid if the goods have been used, altered, modified, repaired or in any other way interfered with by the customer or a third party. If PERNDORFER Maschinenbau KG should be responsible for a delay in rectifying or replacing goods, the customer may withdraw from the contract only in respect of the goods affected by this delay excluding any further claims, having expressly set in writing an appropriate period of additional respite of at least 8 weeks. The withdrawal only becomes legally valid if PERNDORFER Maschinenbau KG exceeds the expressly set period of additional respite. In the case of minor defects there is to be no right of withdrawal. The warranty period expires 24 months after the actual delivery of the goods to the customer.
PERNDORFER Maschinenbau KG's liability is limited by cause to such damages that can be shown to be caused by PERNDORFER Maschinenbau KG either intentionally or due to gross negligence. PERNDORFER Maschinenbau KG 's liability is further limited in all cases to a net amount of EURO 100,000.-or to the value of the order and/or the goods, whichever is higher. PERNDORFER Maschinenbau KG is not liable to make good any losses due to delayed delivery or delays in rectification or replacement, consequential losses due to defects, financial loss, loss of profit or losses incurred by third parties. Claims for damages in every case must be asserted in court within a maximum period of one year from the date of actual delivery to the customer or his representative, with further claims being excluded. No liability will be accepted for claims asserted or damages arising after this period. The above exclusions and limitations as to liability apply also to damages caused by persons for whom PERNDORFER Maschinenbau KG is responsible. In the case of fabrications produced by PERNDORFER Maschinenbau KG on the basis of drawings, plans or other information provided by the customer, the customer will indemnify PERNDORFER Maschinenbau KG in any respect, including interest payments and costs, against all infringements of third parties' rights especially industrial property rights.
11. Joint liability / Retention / Refusal to perform
If there are several customers they accept joint liability. The customer is jointly responsible for all demands from PERNDORFER Maschinenbau KG, even if at his request the invoice is made out directly to a third customer or delivery is effected and/or services are rendered to a third party. The customer has no rights of retention or to withhold performance in so far as there are no mandatory legal regulations to the contrary. For as long as the customer does not fulfil all his obligations or commitments to PERNDORFER Maschinenbau KG, the latter is entitled to retain all services and deliveries.
12. Stipulation requiring written form
Commitments by PERNDORFER Maschinenbau KG or alterations to the contract must in every case be confirmed in writing by PERNDORFER Maschinenbau KG for them to be legally valid. Communication by fax is sufficient to comply with this written form requirement.
Deliveries of the PERNDORFER Maschinenbau KG to the customer take place at the address finally announced by the customer. The customer is indebted, to announce address alterations to PERNDORFER Maschinenbau KG, deliveries at the finally announced address as closed are valid otherwise.
14. Escape clause
Nullity or invalidity of individual provisions in the General Terms and Conditions of Sale and Delivery and the contract do not affect the legal validity of the remaining conditions; in this case, those agreements, which are legally valid and most closely approximate to the original intention of PERNDORFER Maschinenbau KG, will apply.
15. Place of performance, legal venue and applicable law
It is agreed that for all claims arising from the business relationship with PERNDORFER Maschinenbau KG, Kallham is to be the place of performance and the appropriate court in Wels is to be solely competent. PERNDORFER Maschinenbau KG nevertheless reserves the right to take proceedings against the customer at the location of his head office. It is agreed that relevant Austrian law will apply to the contract and all claims arising from it or associated with it. The applicability of United Nations agreements regarding international trade is expressly excluded.