of the ELNE Elektrotechnik GmbH, Kalkofenweg 8, 5400 Hallein, Austria (for business transactions with companies)
1.1 All of our deliveries, services and quotations shall be made exclusively on the basis of these General Business and delivery Terms and Conditions, which shall therefore be components of all agreements we enter into. We do not recognize any conflicting, deviating or additional terms and conditions of the buyer (hereinafter the “Buyer”), unless we have expressly agreed to their validity in writing. These General Business and Delivery Terms and Conditions shall also apply if we carry out the delivery without reservation in the knowledge that the Buyer’s terms and conditions conflict with or deviate from our terms and conditions.
1.2 Our quotations shall at all times be subject to change and shall not become legally effective until we have issued a written order confirmation. Likewise, verbal agreements shall not become legally binding until confirmed by us in writing.
2.1 Deliveries shall be made and billed at the respectively effective price in accordance with the latest price list, which can be requested from us. If after an order is placed, price and payroll costs should increase for reasons beyond our control, or if production costs should change significantly, we may change and adjust our prices accordingly after prior notice.
2.2 Prices are quoted without value added tax, packaged, ex warehouse.
2.3 The delivery charge is to be paid by the recipient. Transport is always at the risk of the Buyer.
2.4 PLEASE NOTE THAT DELIVERY TIMES ARE ONLY INDICATIVE AND NON-BINDING. THEY ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. The delivery time shall be extended, in particular by any time period for which the Buyer, based on the agreements made, fails to provide to us information required for our delivery, either in whole or in part.
2.5 We shall not be liable for any failure to perform our obligations under this agreement if the failure is due to an obstacle beyond our control that we could not reasonably have taken into account at the time of entering into this agreement and the consequences of which we cannot reasonably avoid or overcome. If we are unable to provide the service, we must inform the other party of the obstacle and its effects as soon as possible, but no later than five (5) days, and notify them as soon as possible if the obstacle has been removed. In the event of unforeseen obstacles such as operational disruptions, force majeure, war, import embargoes or similar events, we shall be entitled to withdraw from the agreement in whole or in part without the Buyer being entitled to claim damages as a result.
2.6 Furthermore, especially delays caused by our suppliers and operational disruption may result in an extension of delivery times. IN THE EVENT OF DELAYS, DAMAGE COMPENSATION CLAIMS MAY BE MADE ONLY TO THE EXTENT THAT WE CAN ENFORCE THEM WITH THE RESPECTIVE SUPPLIER. ANY OTHER DAMAGE COMPENSATION CLAIMS ARE EXCLUDED.
2.7 Unless complete delivery has been expressly agreed, we shall have the right to also make partial deliveries.
2.8 If the Buyer should fail to accept the goods provided in accordance with the agreement at the contractually agreed time , we shall have the right to demand full payment and to store the goods and implement a redelivery at Buyer’s expense and risk.
2.9 We will accept changes to the extent that we can reasonably be expected to do so; however, this may result in an adjustment of the price and the delivery time, as well as compensation for any costs incurred in vain.
2.10 Customized products cannot be returned.
3.1 The Buyer shall promptly inspect any delivery, at the latest prior to installation or further processing, for visible defects. Failure to do so shall void any claims. All defects, regardless of their nature must be claimed in writing within no more than fourteen (14) days after receipt of the goods, otherwise the Buyer can no longer assert warranty claims (Section 922 et seq.Austrian Civil Code (hereinafter the “ABGB”), or to file damage compensation claims for the damage as such (Section 933a (2) ABGB) as well as for error regarding the freedom from defects of the item (Section 871 seq. ABGB). In the event of a legal dispute, we shall also be entitled to raise the objection of a lack of notification of defects if we have not raised it out of court. .
3.2 Claims about hidden defects shall be claimed promptly upon their discovery, but not later than within fourteen (14) days of their discovery, provided that the claim is made during the warranty period; otherwise, the warranty claims as stated in 3.1 Sentence 1 and 2 shall also be void in this case.
3.3 Provided that the notification of defects is made in due time, the Buyer may assert warranty claims within the warranty period. We will honor the warranty by either repairing/curing or replacing the defective goods at our discretion. If repair is not possible or feasible, the Buyer may, in principle, demand a price reduction or, provided that the defect is not only minor, the rescission of the agreement. It is a precondition for the replacement of the goods that the Buyer returns the goods and does not carry out any manipulations or attempts to repair the goods, regardless of their nature.
3.4 The warranty period shall be twelve (12) months after the date of delivery and shall begin on the date of delivery of our products to the agreed upon delivery address. The applicability of Section 924 Sentence 2 ABGB shall be excluded. Substitute deliveries or the elimination of defects shall not prolong, hamper or interrupt the warranty period. Claims of assignment under section 933b of the ABGB against us shall have no effect. The claiming of defects shall not entitle the Buyer to claim that the agreement was not fulfilled or to change the payment terms.
3.5 Our liability for compensation for property and financial losses is always limited to acts of intent or gross neglect. Liability for minor neglect, reimbursement for consequential damages and purely financial losses, savings that could not be realized, interest losses or damages arising from third party claims against the Buyer shall be excluded. The amount of damage compensation shall always be limited to the value of the delivered goods (part of the delivered goods), with the exception of damages resulting from injury to life, limb or health, for which the user is liable without limitation in the event of negligent breach of duty or intent.
3.6 We expressly emphasize that for the production of components on the basis of Buyers stipulations (drawings, samples, etc.) we do not know the specific designation of use or the designation of the compliant purpose and are therefore not in a position to assess whether the component specification ordered by the Buyer is in compliance with the designated purpose of use and whether it is sufficient. Hence, any liability at our end for potential erroneous designs and all resulting damages shall be excluded in its entirety.
4.1 All goods shall be delivered subject to title retention. We shall retain title to the former until full payment has been made.
4.2 The right of the Buyer to sell or process such goods as part of proper business transactions shall be null and void any time a default of payment in our business relationship with the Buyer arises. This shall also apply if insolvency proceedings are initiated or whenever we assert our title retention right in writing.
4.3 If our goods are processed by the Buyer or any third party, we shall obtain co-ownership in the product at the ratio of our product’s value. If any dispositions are made with regard goods or products in which our goods were processed, and especially if the goods or the products are sold, our title retention right shall also extend to the resulting accounts receivable of the customer or of any third party (extended title retention). Immediately upon their generation, these accounts receivable shall be deemed to have been irrevocably assigned to us. The respective customer shall be notified of our title retention right and the assignment of the accounts receivable. The customer shall be informed of our reservation of title and the assignment of claims without delay, and at our request, evidence of this notification shall be provided and, in the event of a reservation of title or extended reservation of title asserted by us, even if it is disputed by the customer or whoever, all information necessary for its examination and enforcement shall be provided.
4.4 Upon our request, the Buyer shall also undertake to make an entry into Buyer’s accounting records with regard to the title retention right for any accounts receivable generated from the sale of our goods and to permit us to verify the advance assignment notification in the books. An absolute cessation ban shall be deemed agreed upon for all accounts receivables arising from the resale or processing of our goods or any processed product of our goods. This cessation ban shall also include any effects of prior cessions of the Buyer with regard to our title retention right and the former may be rendered void only subject to our written consent. In the event of late payment, we shall have the right to pick up our goods at the expense of the Buyer and the products made that involve our goods without any possession impairment objection being permissible and subject to the exclusion of any right to damage compensation. We shall subsequently have the right to sell the goods or product at our discretion, whereby the Buyer shall be credited the sales revenue, and in the event of co-ownership an amount equivalent to the value share of Buyer’s coownership minus twenty (20) % reselling fees. In the event of late payment arising from the business relationship, we shall also have the right, without rescinding from the agreement and without surrendering or setting off a paid partial purchase price, to seize the goods or the product made with the involvement of our title retention goods on the basis of our title retention right until the payment delay has ended. These, as well as any other provisions set forth in our Terms and Conditions, shall also apply to the insolvency manager of the Buyer. If we accept checks or bank drafts, this title retention shall be in effect until the check or draft has been paid. We shall accept the former only in lieu of other forms of payment. Any discount fees shall be for Recipient’s account.
5.1 The Buyer herewith declares Buyer’s consent to all payments made by the Buyer being applied first to fees and expenses, next to interest and lastly to the primary debt.
5.2 In the event of default in payment or if circumstances arise with regard to the financial situation of the Buyer that lead us to believe that our claims are no longer sufficiently secured (initiation of insolvency proceedings, or denial due to lack of assets, approval of an execution process based on pending payments due, etc.), we shall be entitled to demand immediately payment of all outstanding claims while simultaneously stopping any further deliveries with immediate effect.
5.3 The Buyer waves the option of offsetting; any claims shall not entitle the Buyer to withhold the invoice amount due.
6.1 The place of performance for deliveries, payments, and any warranty claims shall be 5020 Salzburg, Austria.
6.2 The place of jurisdiction shall be Salzburg, Austria. All our business transactions shall be governed exclusively by Austrian law or, if applicable by the United Nations Convention on Contracts for the International Sales of Goods (CISG) in its English-language version, supplemented by Austrian Law.
7.1 Should any provision or part of a provision of these General Terms and Conditions of Business and Delivery be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected.
7.2 Where applicable, the Buyer and Seller are obliged to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the economic success of the invalid provision, provided that this does not result in a significant change to the content of these General Terms and Conditions of Business and Delivery.