Aug. RATH jun. GmbH General Terms and Conditions of Sale and Delivery (March 2004)
Quotations and prices
1. The Vendor’s quotations are valid and binding for four weeks from the indicated date of the quotation.
2. The prices are valid ex works. For carriage paid deliveries, special
agreements are to be made.
3. If construction of a model is required, the model costs or a
share of the model costs may be invoiced separately.
4. In the absence of other agreements, orders are binding on the Vendor only after written confirmation by the latter.
5. If the Purchaser supplies any drawings or samples, it shall be held liable to the Vendor for any infringement of rights of any third party by their use. Furthermore, the Purchaser shall be held liable for the technical correctness, freedom from defects and usability of the drawings or samples. The Vendor shall not be liable for defects in goods or services manufactured in accordance with these drawings and samples, except in the case of
6. Any subsequent changes to the drawings or the order entitle the Vendor to invoice the additional costs incurred as a result thereof.
7. The Purchaser shall accept and pay for any bricks made in excess of the ordered number for manufacturing reasons
8. The agreed delivery period does not commence until all commercial and technical details of the order have been agreed between the Contracting Parties. In case of sales for a defined period of time (blanket orders, contracts), but without determination of the quantity, an agreement on quantity and delivery time is reserved for each call.
9. Unless otherwise agreed, the Vendor may make partial deliveries in accordance with the production volume.
10. The Vendor may postpone the date of delivery or withdraw from the delivery in whole or in part if performance of production or shipment is hindered or made impossible by cases of force majeure such as strike or lockout, shortage of workers, production or shipment hindrances at its own or at a supplier’s facility, shortage of energy and raw materials, breakage or misfiring, fire, water damage and power failure as well as weather conditions. Delayed or failed delivery resulting from this does not give the Purchaser the right to compensation, except in the case of gross negligence on the part of the Vendor.
Manufacture and shipping
11. For the Vendor’s products, the tolerances specified by the Vendor – for example in product information and data sheets – are permissible, in particular for dimensional deviations and deflections. Any other values stated by the Vendor, e.g. in product information and data sheets, are approximate values. Properties shall only be deemed to be warranted if expressly confirmed by the Vendor. Sample pieces of the Vendor only serve as a guide.
12. For examinations of the goods, the test methods usually applied by the Vendor shall be used, where as a matter of principle the European Industrial Standards (EN) are to be applied. Quality assurance of the refractory material is carried out in the form of statistical quality control, which is continuously carried out in the Vendor's factories. Any material tests beyond this require a written agreement and shall be at the Purchaser’s expense. Any certificates on material tests shall be issued by the Vendor to the Purchaser only upon separate agreement and against reimbursement of the costs. The quality control carried out by the Vendor shall not replace the Purchaser's duty to inspect and obligation of the Purchaser to give notice of defects.
13. The molds needed to make the bricks remain the Vendor’s property, even if the Purchaser pays part of the cost of making the molds. Wooden molds are kept for two years, metal molds for five years, calculated from the day of the first delivery. Any models etc. provided by the Purchaser will be handled properly, but no liability will be assumed for loss of any kind.
14. The delivery is considered effected and the risk transferred to the Purchaser (even if carriage-free delivery is agreed) once the goods leave the Vendor’s facility. Transport insurance shall be taken out by the Vendor only if the Purchaser expressly prescribes such insurance and undertakes to bear the costs incurred thereby.
15. If goods ready for shipment remain held at the Purchaser’s disposal beyond the agreed delivery date for reasons beyond the Vendor’s control, the invoice may be issued immediately, and payment demanded. The goods are then stored for the account and at the risk of the Purchaser. This does not affect the Vendor’s right to demand that the Purchaser take delivery of the goods.
16. The pallets remaining the Vendor’s property, together with any additional equipment, shall be returned to the shipping facility within 30 days at the latest, unless they are exchanged, in which case any exchange charges shall be borne by the Purchaser. If this period is exceeded, the Vendor may be required to pay a leasing fee. In case of damaged pallets, the repair costs, and in case of lost pallets, the new acquisition costs shall be reimbursed.
Invoice and payment
17. Invoices, including those for partial deliveries, are issued with the date of
18. For determination of the weight of the shipped quantities to be invoiced, the factory weighing is authoritative. In the case of standard goods, weight is not determined for each individual pallet, but is based on the data stored in the computer system for a similar pallet. Later objections concerning weight variation will not be considered.
19. Standard packaging is on europallets with shrink hood. Any packaging in excess of this will be billed separately.
20. For late payments, interest on arrears of at least 12% per annum may be charged. In the event of deterioration of the Purchaser's assets or default of payment, the Vendor shall be entitled to suspend deliveries until security is provided or until the Purchaser has fulfilled their obligations, or to withdraw from the contract without a grace period.
21. Payments shall be made exclusively to the bank account indicated by the Vendor.
22. Until the complete payment of the purchase price, including all additional claims, the goods remain the property of the Vendor. Until then, the Purchaser is not entitled to pledge them to third parties nor to assign them as security. The Purchaser shall inform the Vendor immediately of any access by third parties to the goods subject to retention of title. In case of assertion of the retention of title by the Vendor, the Purchaser shall surrender the goods upon the Vendor’s request.
23. The Purchaser is entitled to resell the goods in the ordinary course of business as long as it is not in default. Hereby it assigns all and any claims arising from such resale to the Vendor. The assigned claim serves as collateral for the Vendor to the amount of the value of the reserved goods respectively sold. The Purchaser undertakes to inform the Vendor upon request of the names of the third-party debtors and the amounts of the claims. The Vendor is entitled to inform the third-party debtor of the assignment, and to assert the assigned claim.
Warranty and liability
24. Deviations from the prescribed dimensions are permitted in accordance with the tolerances specified in the quotations and in the product and data sheets.
25. The Vendor shall be held liable only for the promised product quality, which is defined by the specification of physical and chemical values in the data sheets. It provides no warranty for the durability of the products when they are used in customer-specific processes and applications. The Purchaser must therefore verify the usability of the products in its specific processes and applications by means of experimental and pre-production systems.
26. The Vendor shall be held liable for the suitability of the products for use in Purchaser-specific processes and applications only if a separately commissioned engineering service is furnished by the Vendor in whose context a selection of products suitable for the Purchaser-specific processes and applications is expressly carried out.
27. No warranty for any other technical properties nor a time guarantee for the durability of the refractory materials is provided.
28. Any obvious defects (in particular in terms of quantity, dimensions, shape and color) must be reported in writing immediately upon delivery; other defects must be reported, likewise in writing, immediately upon discovery. Warranty claims must be asserted within 12 months from handover, or, in the absence of such, within 14 months of notification of readiness for dispatch.
29. Defects in parts of deliveries do not entitle to rejection of the entire delivery.
30. In the case of delivery of goods, the Vendor shall fulfill its warranty obligations by means of free replacement delivery, in the case of service delivery, initially by means of free rectification or new production, respectively. Conversion claims arising from defects are excluded.
31. Liability for consequential damages (compensation for damages, wages or freight expenses, penalties for delay and the like) will be assumed only in case of intent or gross negligence.
32. The Vendor is entitled to have any reported defects inspected by an appropriately certified testing institute. If the latter does not confirm the reported defect, the Purchaser shall bear the costs of the inspection.
33. If the Vendor, through its staff, supports the Purchaser’s construction management in supervising the assembly or commissioning, the Vendor shall be liable only for selecting professionally suitable staff and for such staff providing the necessary and professionally correct advice. Any further claims, in particular claims for damages, are excluded, except in cases of gross negligence.
34. The Purchaser expressly waives the right to assert claims for compensation under the Product Liability Act for property damage suffered by them in the course of their business.
35. In the event that the Purchaser resells the goods which are the subject-matter of the contract to another entrepreneur, the Purchaser shall impose the above waiver in accordance with § 9 of the Austrian Product Liability Act on said other entrepreneur.
36. In the event that such an imposition should fail to be effected, the Purchaser shall indemnify and hold harmless the Vendor to the fullest extent.
37. The exclusive place of jurisdiction is Vienna, Austria. Austrian law shall apply, with the exception of conflict-of-laws rules. Application of the CISG is excluded.
38. Any provisions or stipulations deviating from the present Terms and Conditions, in particular any terms and conditions of the Purchaser, shall become effective only upon written confirmation of such deviating provision or stipulation by the Vendor.
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