Allgemeine Geschäftsbedingungen

General Terms and Conditions (GTC) - (Terms and Conditions of Sale and Delivery)

1. Scope and validity

1.1 These General Terms and Conditions (GTC) apply exclusively to all orders and contracts.

1.2 All orders and agreements shall only be legally binding if the customer accepts the unrestricted validity of our GTC in writing, by fax or by e-mail with a qualified electronic signature. If these are not accepted, this must be notified in writing within 8 days otherwise the contract shall be validly concluded on the basis of our GTC.

1.3 The customer's terms and conditions are expressly excluded for the legal transaction in question and the business relationship.

1.4 Trade practices/usages deviating from these GTC shall have no legal effect.

1.5 These GTC shall apply to the entire business relationship, i.e. all our current and subsequent deliveries and services, even if they are not separately agreed again.

1.6 Collateral agreements, reservations, amendments or additions to the order and mutually agreed deviations from these deviations from these GTC must be made in writing in order to be legally valid, as must any agreement to deviate from the written form.

1.7 Should individual provisions of these GTC or other contractual agreements be or become ineffective or become legally invalid, this shall not affect the validity of the remaining provisions and the legal concluded legal transaction shall not be affected. The invalid provision shall be replaced by an effective provision or interpreted in such a way that it comes closest to the meaning and purpose of the ineffective purpose of the invalid provision.

1.8 With regard to the transactions and contracts to be concluded with us, the customer declares that he is not a consumer, in particular not within the meaning of the Consumer Protection Act (KSchG). Should this not apply to a business case, the customer is obliged to inform us of this at the first opportunity, in any case before the conclusion of the contract, otherwise no legally effective conclusion of the contract comes about.

1.9 Without our prior written consent, the customer is not authorised to transfer contractual rights of any kind to third parties, assign or pledge contractual rights of any kind whatsoever to third parties with legal effect or dispose of them in any other way.

2. Placing and acceptance of orders (conclusion of contract)

2.1 Orders must be in writing to be legally valid and may also be placed by fax or e-mail with a qualified electronic signature.

2.2 If the customer does not receive our written order confirmation within 3 weeks of sending his order, he shall be entitled to withdraw from the order placed with us in writing in compliance with the formal requirements stipulated under point 2.1.

3. Change of order and forwarding of orders

3.1 After conclusion of the contract, the customer shall only be entitled to make changes to his order - including restrictions to the delivery item or scope of delivery - with our written consent.

3.2 We are permitted to subcontract the orders placed with us to technically authorised third parties or companies. We shall be liable to the customer for all deficiencies of any subcontractors in the same way as for our own services.

4. Confidentiality

4.1 The contracting parties undertake to treat the conclusion of the contract and its execution confidentially and not to refer to the mutual business relations in advertising materials without the written consent of the other contracting party.

4.2 All documents mutually provided to the contracting parties, such as models, samples, drawings, details of product descriptions, the process, etc. may not be made accessible to third parties and must be stored in such a way that access by third parties is excluded as far as possible.

4.3 The contracting parties mutually undertake to treat all non-public commercial and technical matters of which they become aware through the business relationship as business secrets. This obligation shall also be transferred accordingly to subcontractors and sub-suppliers.

4.4 The contracting parties mutually undertake to treat the personal data of the other contracting party confidentially and in accordance with the provisions of the Austrian Data Protection Act and the EU General Data Protection Regulation.

5. Delivery

5.1 The ordered delivery quantity may deviate by up to +/- 10%, unless otherwise agreed in individual cases. The customer must accept customary excess and short lengths. Partial deliveries shall be permitted.

5.2 Call-off orders must be scheduled and accepted within 6 months, unless otherwise agreed in writing. After expiry of the acceptance period or if the customer does not make use of an agreed call-off within 6 months after conclusion of the contract, we shall be entitled, after setting a grace period of 2 weeks, to demand immediate acceptance and payment of the goods or to withdraw from the contract and demand full compensation for damages including loss of profit due to non-fulfilment, at our discretion.

5.3 In the event of a delay in delivery caused by us due to gross negligence (or intentional misconduct) and proven by the customer, exceeding 2 weeks, the customer shall be entitled to a contractual penalty for each subsequent full week of delay, amounting to a maximum of 0.5% of the value of the affected part of the total delivery, but in any case, not exceeding 5% in total, provided that the customer has incurred a loss of this amount due to the delayed delivery of a significant part. Further claims arising from the delay are excluded."

5.4 We are only obliged to perform the service as soon as the customer has fulfilled all his obligations necessary for performance, in particular all technical and contractual details, preliminary work and preparatory measures.

5.5 If the customer does not fulfil his obligation to cooperate or does not fulfil them in good time (submission of drawings, submission of data, ordering of material, etc.), the originally agreed delivery period shall be replaced by the period which we specify to the customer after fulfilment of his obligation to cooperate within an appropriate and reasonable framework or, if this is not done, by an appropriately extended period.

5.6 If we are prevented from delivery by disruptions in our or our suppliers' operations which could not have been avoided with reasonable care or other events beyond our control, such as natural disasters, pandemics, epidemics, threat of war, outbreak of armed conflicts, acts of terrorism, closure of shipping and other transport routes, transport routes, labour disruptions and similar events, the delivery period shall be extended accordingly. If delivery becomes impossible within a reasonable period of time that is reasonable for us, our obligation to deliver shall lapse. Claims for damages and other claims of any kind whatsoever are excluded in such cases.

5.7 If the customer has not accepted the goods as agreed (default of acceptance), we shall be entitled, after unsuccessfully setting a grace period of 14 days, either to store the goods at our premises, for which we shall charge at least 0.5% of the gross invoice amount for each month or part thereof. However, we shall be entitled to choose to store the goods with an authorised tradesman at the expense and risk of the customer. Risk and coincidence shall pass to the customer at the beginning of the delay in acceptance. Default of acceptance shall not postpone the due date of our invoices, which shall be paid promptly. In addition to our right to insist on fulfilment of the contract, we shall, however, be entitled to withdraw from the contract after setting a further grace period of 2 weeks and to dispose of the goods elsewhere. For each case of default of acceptance, we shall be entitled to full compensation, including loss of profit, in particular also the difference from a replacement sale.

5.8 All measures required for the import of the goods on which the delivery contract is based into the customer's country, such as the procurement of import licences and foreign exchange permits, must be taken by the customer in good time. If he becomes aware of circumstances which prevent the import, he must inform us immediately. If the procurement of the necessary import documents is in question, we are entitled to withdraw from the contract after setting a further deadline of 2 weeks and to demand full compensation.

5.9 In the case of deliveries to countries of the European Union, the customer is obliged to provide us with a VAT identification number when placing the order. If the customer does not provide us with this number or provides it incorrectly, we shall be entitled to demand compensation for the resulting damages. The same shall apply if the customer does not provide us with the necessary confirmations regarding the transport and final destination of the goods upon delivery ex works. The defence of contributory negligence is excluded, in particular we are not obliged to check or have checked the correctness of a sales identification number provided to us.

6. Cancellation of contract (advance payment, provision of security)

6.1 In addition to the reasons otherwise contained in these GTC, we shall be entitled to demand advance payment or the provision of security or to withdraw from the contract in the following circumstances:

6.1.1 If, after conclusion of the contract, we become aware of circumstances that justify doubts about the creditworthiness of the customer, we shall be entitled to withdraw from the contract, demand advance payments or make our delivery dependent on the provision of security. This shall also apply if due claims are not settled despite reminders. In the event of cancellation, the customer shall have no claims for non-performance. On the other hand, in the event of cancellation of the contract for the aforementioned reasons, we are entitled to offset the advance payments already made by us and to demand full compensation, including loss of profit.

6.1.2 In the event of default of acceptance or other important reasons, such as in particular the opening of insolvency proceedings against the customer's assets (settlement, bankruptcy or rejection of bankruptcy for lack of assets), as well as in the event of default of payment by the customer, we are entitled to withdraw from the contract, provided that it has not yet been completely fulfilled by both parties. In the event of cancellation, we shall be entitled to choose between liquidated damages of 30% of the gross invoice amount or compensation for the actual damage incurred, including loss of profit. If the customer is in default of payment, we shall be released from all further performance and delivery obligations - in addition to the rights listed in point 6.1.1 - and shall be entitled to withhold any outstanding deliveries or services.

6.2 Unless a transaction for delivery by a fixed date has been agreed, the customer shall be entitled to withdraw from the contract in the event of a delay in delivery on our part of more than 14 days, setting a reasonable grace period of at least 20 working days, provided that we have not fulfilled our delivery obligation by the end of this grace period. In the cases of point 5.6, the customer is entitled to withdraw from the contract by setting a 5-week grace period.

6.3 If the customer - without being entitled to do so - withdraws from the contract or requests its cancellation, we shall have the choice of insisting on the fulfilment of the contract or agreeing to the cancellation of the contract. In the latter case, the customer shall be obliged to pay, at our discretion, a lump-sum compensation amounting to 30 % of the gross invoice amount or the damage actually incurred including loss of profit.

7. Prices and payment

7.1 Our prices are based on the cost ratios at the time of conclusion of the contract.

7.2 Unless expressly stated otherwise, all prices quoted by us are exclusive of VAT.

7.3 Should wage costs change due to collective bargaining agreements in the industry or internal company agreements, or should other cost centres relevant to the calculation or costs necessary for the provision of services, such as those for materials, energy, transport, external work, financing, etc. change, we shall be entitled to charge appropriate surcharges corresponding to these cost increases on the basis of our original price calculation. However, we shall only be entitled to these surcharges if the agreed delivery - without culpable delay on our part - only takes place after the expiry of 4 months from the conclusion of the contract.

7.4 Unless otherwise agreed, packaging and freight costs shall be borne by the customer. Packaging such as spools, drums and barrels shall be charged in full. If the empties are returned in perfect, clean, reusable condition, without material residues, carriage paid to the supplier's works, the invoiced price shall be refunded in full. If it has been agreed that empties are provided on loan, they must be returned within 6 months of the invoice date at the latest. After this period has expired and a further deadline of 2 weeks has been set, we are entitled to invoice the value of the empties. Non-returnable packaging will not be taken back.

7.5 Tooling costs shall be invoiced separately without the customer acquiring any rights to the tools.

7.6 Cash discount promises are subject to the settlement of all due claims. We only accept bills of exchange on account of fulfilment by agreement. Expenses shall be borne by the customer.

7.7 All bank charges shall be borne by the customer.

7.8 The customer may only offset recognised or legally established counterclaims.

7.9 Our sales prices do not include any costs for delivery, assembly or installation. However, at the request of the customer, these services will be provided, organised or delegated to subcontractors by us against separate payment. The costs actually incurred for transport or delivery, including a reasonable overhead surcharge, but at least the freight and carriage charges applicable or customary on the day of delivery for the selected mode of transport and the costs of any subcontractor, shall be charged.
Assembly work shall be charged on a time basis, whereby a man-hour rate customary in the industry including travelling expenses and daily allowances shall be deemed agreed.

8. Freight conditions, transfer of risk, place of fulfilment

8.1 Unless otherwise agreed in writing, deliveries shall be made ‘ex works’ in accordance with INCOTERM 2020. Irrespective of the agreed pricing, the risk shall generally pass to the customer when the goods leave the factory or when the customer is notified that the goods are ready for despatch.

8.2 This shall also apply if the transport is carried out, arranged or organised by us. Any transport insurance requested by the customer will be invoiced separately. We accept no liability for a specific transport time.
8.3 In the event of unforeseen events, such as the threat of war, natural disasters, pandemics, epidemics, outbreak of armed conflicts, closure of shipping and other transport routes, work stoppages and similar events, we reserve the right to charge higher freight and insurance costs than those agreed.

9. Retention of title

9.1 All goods are delivered subject to retention of title and remain our property until full payment of all our claims resulting from the business relationship with the customer.

9.2 The assertion of the retention of title shall only constitute a cancellation of the contract if this is expressly declared by us.

9.3 If goods are taken back, we shall be entitled to charge the customer for any transport and handling manipulation costs incurred.

9.4 In the event of access by third parties to the goods subject to retention of title - in particular through seizure - the customer undertakes to draw attention to our ownership and to notify us immediately.

9.5 The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration. The customer shall store for us, under his responsibility, all goods subject to retention of title, the products developed using them or material assemblies.

9.6 The customer undertakes to store and label the goods separately. The retention of title extends to the recognised balance, insofar as we book claims against the customer in a current account (current account reservation).

9.7 The customer shall only process the goods subject to retention of title on condition that no obligations arise for us as a result.

9.8 Irrespective of the proportion of the value of our goods, we shall have the right to choose in the cases of point 9.7. either to hand over the product manufactured in this way to the customer against payment of the entire outstanding balance or to take ownership of it without compensation.

9.9 Any co-ownership shares arising to the customer from mixing or combining the goods subject to retention of title with other items, in particular third parties, shall be transferred to us in advance upon receipt of the goods subject to retention of title.

9.10. The customer may only sell the reserved goods and the items resulting from their treatment or processing subject to retention of title and may not impair our reserved rights by disposing of the goods in any way (e.g. transfer by way of security or pledging).

9.11. We must be notified immediately in writing of any actual or legal seizure of the goods subject to retention of title by third parties and of any damage to or loss of such goods.

9.12. The customer hereby assigns to us all his claims against third parties, insofar as these arise from the sale or processing of our goods, until final payment of all our outstanding claims. Upon request, the customer shall name his customers to us and inform them of the assignment.

9.13. The assignment must be entered in the customer's accounts, in particular in the open items list, and must be made visible to the customer on delivery notes, invoices, etc.

9.14. If the customer is in arrears with his payments to us, the sales proceeds received by him shall be segregated and he shall hold them in trust only for us or in our name.

9.15. Any claims against an insurer are already assigned to us within the limits of § 15 Insurance Contract Act are already assigned to us.

9.16. Claims against us may not be assigned without our express consent.

9.17. If the value of the securities provided to us exceeds our claim by more than 20%, we shall release securities of our choice at the request of the customer.

10. Default of payment

10.1 In the event of default of payment, we shall be entitled to prohibit the authorisation to resell, process or otherwise use the reserved goods with immediate effect and to demand their surrender or retention at the expense of the customer.

10.3 Payments shall be deemed to have been made on the day on which we can dispose of the amount.

10.4 Discounts, bonuses or other payment favours require a separate agreement. In the event of default in payment, even with partial payments from the entire ongoing business relationship, any cash discount agreements and other favours agreed in this way shall also cease to apply to all transactions not yet settled or not yet paid.

10.5 In the event of default of payment by the customer, all our existing claims against him shall become due for immediate payment in cash, irrespective of accepted bills of exchange or payment terms granted. The customer may no longer sell the goods in our ownership or co-ownership and is obliged to provide us with securities. The authorisation to collect claims assigned to us shall expire. The same shall apply if doubts about the creditworthiness of the customer are justified. Reference is made to the preceding provisions, in particular point 6 (cancellation of contract).

10.6 Irrespective of the commercial lien to which we are legally entitled, the customer shall grant us a lien on the material provided to us for the execution of the order and the claims replacing it to secure all present and future claims arising from the business relationship with him. If the customer defaults on payment or defaults on credit, we shall be entitled to realise the pledged material at the current market price of the London Metal Exchange or, if it is not listed, at the German market price on the open market.

10.7 In the event of default in payment, we shall be entitled to demand default interest of 8% above the applicable 3-month EURIBOR, but at least 12% per annum.

10.8 In the event of default, the customer undertakes to reimburse the dunning and collection expenses incurred by us, insofar as they serve the purpose of appropriate legal prosecution, whereby we are not obliged to involve a debt collection agency prior to legal intervention.

11. Compensation for damages

11.1 All claims for damages against us are excluded in cases of slight and gross negligence.

11.2 Recourse claims within the meaning of § 12 of the Product Liability Act are excluded, unless the customer or party entitled to recourse proves that the defect was caused in our sphere and was at least due to gross negligence.

12. Warranty

12.1 The inspection and notification of defects must in any case be made before processing or treatment, blending or mixing and must be sent to us by registered letter and by fax or electronically (e-mail), specifying the defects found. In addition to this notification, a sample of the rejected goods must be sent to us at the same time. If the above modalities are not complied with, all warranty and compensation claims of the customer shall be forfeited.

12.2 In the case of delivery according to sample or specimen, warranty claims are also excluded due to hidden defects if the delivered goods correspond to the sample or specimen. If a defect has its cause in the material provided by the customer, any warranty shall lapse.

12.3 Transport damage must be noted on the consignment note and the delivery note and confirmed in writing by the forwarding agent or the driver delivering the goods. If such confirmation is refused, the customer must draw up a precise report of the damage found, stating the time, name of the driver, etc. The customer shall send us photocopies of these documents.

12.4 In the event of a warranty claim, we shall be entitled, at our discretion, either to restore the goods to the contractual condition or to provide a defect-free replacement free of charge and carriage paid to the contractual place of delivery against return of the defective goods that have become our property or are still our property. After three unsuccessful attempts to repair or replace the goods within a reasonable period of time, the customer may claim cancellation of the contract or a price reduction. Further claims - in particular compensation for consequential damages and other damages are excluded, unless we are guilty of intent or gross negligence or mandatory liability under the Product Liability Act is given.

12.5 If the examination of the notification of defects shows that a warranty case does not exist, we shall be entitled to demand reimbursement of all expenses incurred by us, regardless of their nature.

12.6 The existence of a defect upon delivery of the goods must be proven by the customer. Any legal presumption in this respect, in particular § 924 ABGB, is excluded.

12.7 Recourse by the customer in accordance with § 933 b ABGB (Austrian Civil Code) due to warranty obligations fulfilled by the customer is only possible within the agreed warranty period and within the scope of this contract.

12.8 If the customer continues to use or sell the defective product despite knowing or being aware of the defect, he thereby simultaneously declares to us his waiver of claims with regard to this defect. Insofar as we are obliged to pay compensation to the customer under mandatory law or contract, the customer must prove all legal requirements for the claim for compensation, in particular our fault. Claims for damages on the part of the customer that are aimed at remedying the defect by improvement or replacement, can only be asserted if we are in default with the fulfilment of the warranty claims.

12.9 If the customer asserts the existence of a defect, resulting claims, in particular for warranty or damages, can only be asserted if the customer proves that the defect already existed at the time of delivery of the goods; this also applies within the first 6 months after delivery of the goods.

13. Warranty and compensation claims

13.1 The warranty period shall be 6 months from delivery; in the event of a delay in acceptance from the time of the occurrence of this delay.

13.2 The warranty period shall neither be extended nor interrupted by the rectification of defects or attempts to rectify defects; this shall require the assertion of the warranty claim in court or our written acknowledgement. Attempts to rectify defects do not constitute an acknowledgement and therefore do not lead to an extension of the deadline. The same applies to the rectification of defects as a gesture of goodwill, i.e. without recognising a legal obligation.
In the case of partial deliveries, the warranty period shall commence upon delivery or handover of the respective part.

13.3 Claims for damages of any kind - insofar as this does not conflict with mandatory statutory provisions - shall become statute-barred within 12 months of delivery, irrespective of the time at which the customer becomes aware of them.

13.4 Our liability for consequential damage and financial loss, loss of profit and damage of any other kind is generally excluded, unless such liability exists on the basis of mandatory statutory provisions. In the event of such alleged circumstances, we shall not be obliged to provide evidence of exoneration, but the customer shall be obliged to prove this, as well as any fault on our part that would give rise to mandatory liability.

14. Data protection and copyright

14.1 The customer agrees that the personal data contained in the agreement may also be stored and processed by us in an automated manner in fulfilment of this contract.

14.2 Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like shall always remain our intellectual property. The customer shall not receive any rights of use or exploitation of any kind.

14.3 The intellectual property rights agreed in point 14.2. above shall apply not only to us, but also in favour of the customer by analogy.

14.4 If the industrial property rights of third parties are infringed when deliveries are made according to templates, drawings or other information provided by the customer, the customer shall indemnify and hold us harmless against all claims.

15. Place of fulfilment, place of jurisdiction

15.1 The place of fulfilment for all obligations is the registered office of our company, currently 4030 Linz, Auwiesenstraße 2, Austria.

15.2 The exclusive place of jurisdiction for all disputes arising from contracts concluded with the customer, as well as for the question of the conclusion and legal validity of concluded agreements, including these General Terms and Conditions, is the registered office of our company, currently Linz/Austria.

15.3 We shall be entitled, but not obliged, to assert all claims against the customer and other disputes arising from contracts concluded with the customer - to the exclusion of ordinary legal recourse before state courts - at our discretion before an arbitration court with jurisdiction in Vienna, namely the International Arbitration Court of the Federal Chamber of Commerce in Vienna in accordance with the Arbitration and Conciliation Rules applicable to this procedure. In this case, the customer agrees to submit to the above-mentioned court of arbitration, whose decision shall be final and legally binding for both parties.

16. Choice of law

16.1 All contracts and legal relationships between us and the customer shall be governed exclusively by Austrian law. The applicability of international conventions, such as the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG or UNCITRAL), as amended from time to time, or conventions of a similar nature replacing them, is expressly excluded.

16.2 The language of the contract and negotiations shall be German. Insofar as the contracting parties also use the language of the customer or another language in discussions, correspondence and other occasions, the German wording shall take precedence and German shall be the exclusive language of negotiation in all proceedings, in particular also in arbitration proceedings.

16.3 If we are therefore prepared in individual cases to correspond or negotiate in the language of the customer, this shall not lead to a waiver of the agreements set out in the preceding points.

hpw Metallwerk GmbH
Linz/Austria in November 2020