systron GmbH: General Terms of Business
These terms apply for
.) a person who, when the contract is entered into, is exercising a commercial or independent professional activity (merchant)
.) legal entities under public law or a special fund under public law.
1.1 | All deliveries and services are governed by these terms and by any separate contractual agreements. Customer’s deviating terms of purchase or general terms of business do not constitute content of this contract even if an order is accepted; those terms will apply only if they are expressly acknowledged in writing by Supplier, and even then do not obligate Supplier even if Supplier does not expressly object to them after receiving them. Unless otherwise agreed, a contract is entered into when Supplier confirms the order in writing. Amendments or supplements to the order and follow-up orders will apply only if Supplier has expressly consented to them in writing.
1.1 | These General Terms of Business also apply to all future business relationships, including without limitation those connected with services and spare parts supply for the purchased item, unless the separate General Terms of Business for Services and Spare Parts Supply have been agreed.
1.3 | Supplier reserves ownership of and copyright to all samples, cost estimates, drawings, and similar information of a physical and nonphysical nature, including in electronic form; they may not be made available to any person or entity not a party to this agreement (a “nonparty”). Unless Supplier obtains Customer’s consent, Supplier shall not make available to nonparties any information or documents that Customer designates as confidential.
2. Prices; Payment
2.1 | Unless agreed otherwise, the prices apply ex works, including loading at the factory but excluding packaging. The prices do not include applicable statutory VAT.
2.2 | Unless separately agreed, the payment must be made in full into Supplier’s account as follows: 40% within 10 days after the date on the downpayment invoice, 50% within 10 days after Customer is notified that the machine as ready for shipment, the remaining amount within one month after risk has been transferred.
2.3 | If Customer defaults on its payment obligations, Customer shall pay default interest at the statutory rate. The assertion of further default damage remains reserved.
2.4 | Customer may withhold payments or set them off against counterclaims only if those counterclaims are uncontested or have been finally adjudicated.
3. Delivery period; Delay in delivery
3.1 | The delivery period is revealed in the parties’ agreements. If Customer changes or supplements the order or follow-up orders, the delivery period will be extended accordingly. Supplier shall adhere to the delivery period as long as all commercial and technical issues between the parties have been clarified and Customer has met all its obligations, such as providing the necessary official certificate, or the official or inhouse permit, or making the downpayment. If this is not the case, the delivery period will be extended appropriately. This does not apply if Supplier is responsible for the delay.
3.2 | Compliance with the delivery period assumes correct and prompt delivery from upstream suppliers. If Supplier’s upstream suppliers fails to make correct or punctual deliveries, the delivery period will be extended accordingly.
3.3 | The delivery deadline is deemed met if the delivery object has left Supplier’s factory, or its readiness for shipment is announced, before the deadline expires. This applies even if the delivery object must be inspected and accepted.
3.4 | If the shipment or acceptance of the delivery object is delayed for reasons for which Customer is responsible, Customer will be charged for the costs incurred by that delay, beginning one month after the announcement that the delivery object has been shipped or is ready to be inspected and accepted.
3.5 | If noncompliance with the delivery period is attributable to force majeure, labour disputes, or other events outside Supplier’s sphere of influence, the delivery period will be extended appropriately. Supplier shall inform Customer of the beginning and end of such circumstances as soon as possible.
3.6 | Customer may withdraw from the contract without notice if the entire delivery becomes finally and conclusively impossible for Supplier before risk is transferred. Customer may also withdraw from the contract if, after an order is placed, the performance of part of the delivery becomes impossible and Customer proves to Supplier that Customer has a legitimate interest in rejecting the partial delivery. If this is not the case, or if the proof fails, Customer shall pay the contract price allocated to the partial delivery. The same applies to inability on the part of Supplier. Otherwise, Section 7.2 will apply. If the impossibility or inability arises during the delay in acceptance, or if Customer is solely or overwhelmingly responsible for those circumstances, Customer remains obligated to provide consideration.
3.7 | If Supplier culpably defaults and Customer suffers damage thereby, Customer may demand lump sum compensation for the delay if a separate written agreement on a penalty has been entered into. For each complete week of delay, it amounts to 0.5%, but no more than 4% in total, of the value of the part of the overall delivery that cannot be used promptly; or not in accordance with the contract (which must be proven); as a result of the delay. If Supplier is in default and Customer grants Supplier a reasonable grace period in which to perform that expires to no avail, Customer may withdraw within the scope of statutory provisions while taking into account the exceptional cases recognised in case law and the statutes (a customer’s delay in acceptance, miscellaneous cases in which a customer is responsible for neglected fault rectification, etc.). Further claims arising from delay in delivery are determined exclusively in accordance with Section 7.2 of these terms. The limitations of liability in accordance with item 7.2 of these terms apply even if no penalty was agreed.
4. Transfer of risk; Acceptance
4.1 | Risk will be transferred to Customer if the delivery object has left the factory, even if partial deliveries are made or Supplier has taken on other services, such as the shipping costs or delivery and installation. Any inspection and acceptance procedure that has been agreed must occur without undue delay, either on the date of acceptance or after Supplier announces that the delivery object is ready for acceptance. Customer may not refuse acceptance based on a defect that is minor, insignificant for Customer’s interests, or based on a circumstance attributable to Customer.
4.2 | If shipping or acceptance is delayed or does not occur due to circumstances not attributable to Supplier, risk will be transferred to Customer beginning with the day on which readiness for shipping or acceptance is announced. Supplier shall at Customer’s expense store the goods and take out any insurance policies Customer requests.
4.3 | Partial deliveries are permitted unless they are demonstrably unacceptable to Customer.
5. Retention of title
5.1 | Supplier will reserve the title to the delivery object until all payments under the supply contract have been received. If assembly services are to be rendered, the title to the delivery object will not be transferred to Customer until the assembly fee (or the part of the payment corresponding to the delivery fee) is received.
5.2 | Supplier may insure the delivery object against damage from theft, breakage, fire, water, or other causes, at Customer’s expense, unless Customer has itself demonstrably taken out the insurance.
5.3 | Unless Supplier’s prior written consent is obtained, Customer shall not sell or pledge the delivery object or transfer it by way of security. Customer shall inform Supplier without undue delay if any nonparties carry out distraints, seizures, or other disposals.
5.4 | If Customer breaches the contract, including without limitation by defaulting in payment, Supplier may take back the delivery object after giving due warning and Customer shall return it at Customer’s expense. If Supplier pledges the delivery object or asserts retention of title, this will not be deemed withdrawal from the contract.
5.5 | If Customer sells the delivery object in the ordinary course of business, Customer hereby assigns to Supplier all claims to which Customer is entitled against its buyers or nonparties under the terms of the resale, in the final invoice amount (including VAT), regardless of whether the delivery object is resold with processing. Customer may collect that claim even after the assignment is made. This does not affect Supplier’s entitlement to collect the claim. However, Supplier shall not collect the claim as long as Customer complies with its payment obligations arising from the proceeds collected, and is not in arrears with payment, and, in particular, no motion has been made to initiate insolvency proceedings and payment has not been discontinued. If this is the case, Supplier may demand that Customer notify them of the assigned claims and the debtors for those claims, provide all the information needed to collect the claims, hand over the associated documents, and notify the debtors (nonparties) of the assignment.
5.6 | If Customer processes or transforms the delivery object, this will be deemed performed on Supplier’s behalf. If the delivery object is processed with other items not belonging to Supplier, Supplier will acquire co-ownership of the new item in the ratio of the value of the delivery object to the other processed items at the time of processing. Apart from that, the same applies to the item created through the processing that applied to the delivery object that was delivered under reservation of title.
5.7 | If the delivery object is inseparably mixed with other items not belonging to Supplier, Supplier will acquire co-ownership of the new item in the ratio of the value of the delivery object to the other mixed items at the time of mixing. If the mixing occurs such that Customer’s item is considered the main item, it is agreed that Customer shall assign proportionate co-ownership to Supplier. Customer shall hold in safe custody for Supplier the sole ownership or co-ownership thus created.
5.8 | To secure Supplier’s claims, Customer hereby assigns to Supplier any claims against a nonparty that arise through combining the delivery object with real property.
5.9 | At Customer’s request, Supplier shall release the securities to which it is entitled insofar as the value of those securities exceeds the claims to be secured by more than 20%. Supplier shall select which securities to release.
5.10 | If a motion is filed to initiate insolvency proceedings against Customer’s assets, Supplier may withdraw from the contract and demand that the delivery object be returned without undue delay.
Supplier shall be liable for any defects in quality or title in the delivery, under exclusion of further claims – subject to Section 7. – as follows: Quality defects of new delivery objects
6.1 | Supplier shall repair or replace (at its discretion) any parts found defective within twelve months after delivery due to a circumstance that existed before risk was transferred. Customer shall inform Supplier of such defects in writing without undue delay after they are discovered. Replaced parts become Supplier’s property.
6.2 | So that Supplier can perform all the repairs and replacement deliveries it deems necessary, Customer shall, after consulting with Supplier, grant Supplier the time and opportunity it requires, failing which Supplier is exempt from liability for the ensuing damage. Only in urgent cases in which operational safety is jeopardised, or to avoid disproportionate damage, whereby Supplier must be informed without undue delay, may Customer cure the defect or have it cured by nonparties and demand compensation from Supplier for the demonstrable and necessary expenses incurred.
6.3 | Supplier shall bear the costs incurred by the repair or replacement delivery – provided the complaint proves to be justified – the costs for the replacement item, including shipping, and the reasonable costs for removal and installation, and, if this can be reasonably demanded depending on the case in question, the costs of any necessary provision of its fitters and auxiliary staff. If Customer moves any or all of the delivery object from an installation site agreed in the contract to another place, Customer shall bear the ensuing additional costs, including without limitation any travel expenses Supplier incurs.
6.4 | Customer may withdraw from the contract within the scope of statutory provisions if Supplier allows a reasonable grace period granted to Suppler to perform a repair or provide a replacement delivery due to a quality defect to expire to no avail, taking into account the exceptional cases recognised in case law and the statutes (delay in acceptance by Customer, other cases in which the omitted fault rectification is attributable to Customer’s sphere, etc.). If a quality defect is minimal, Customer may merely reduce the fee (price reduction). Price reduction is excluded in all other cases.
6.5 | No liability will be assumed for the following without limitation: unsuitable or improper use, faulty assembly or commissioning by Customer or nonparties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating equipment, defective construction work, unsuitable building site, chemical, electrochemical or electrical influences, provided Supplier is not responsible for them.
6.6 | If Customer or a nonparty provides improper repairs, Supplier will not be liable for the consequences. The same applies to modifications made to the delivery object without Supplier’s prior consent.
Special regulation for quality defects in used delivery objects:
6.7 | Differing from the preceding regulations, liability for quality defects in used delivery objects is excluded. This does not apply to fraudulently concealed defects or the breach of a guarantee. Otherwise, Customer’s claims under the contact remain unaffected even if used items are delivered.
Defects of title:
6.8 | If the use of the delivery object leads to the breach of industrial property rights or copyrights in Austria, Supplier shall at its expense procure for Customer the right to use the delivery object further, or shall modify the delivery object, in a manner acceptable to Customer, so that the protective right is no longer breached. If this is not possible under economically reasonable conditions or within a reasonable period, Customer may withdraw from the contract. Under the aforementioned preconditions, Supplier may also withdraw from the contract. Moreover, Supplier shall indemnify Customer against any uncontested or finally adjudicated claims asserted by the holder of the protective rights in question.
6.9 | Landlord’s obligations named in Section 6.8 are conclusive if a protective right or copyright is breached (subject to Section 7.2). They exist only if
.) Customer informs Supplier of any asserted breaches of protective rights or copyright without undue delay,
.) Customer supports Supplier to a reasonable extent in defending against the asserted claims or enables Supplier to perform the modification measures in accordance with Section 7.8,
.) all defensive measures remain reserved for Supplier (including out-of-court settlements),
.) the defect of title is not based on any instructions from Customer,
.) the legal infringement was not caused by Customer modifying the delivery object autonomously or using it in breach of the contract.
7.1 | If Customer cannot use the delivery object due to Supplier’s culpability, because Supplier omits or poorly carries out suggestions or advice given before or after contract execution, or breaches other ancillary obligations under the contract – including without limitation providing instructions for operating and maintaining the delivery object – the regulations of Section 6. and 7.2 will apply mutatis mutandis, ruling out any further claims asserted by Customer.
7.2 | Supplier shall be liable, regardless of legal grounds, only
.) for intent,
.) for gross negligence of the proprietor, the executive bodies, or senior managers,
.) for culpable injury to life, limb or health,
.) for defects that Supplier fraudulently conceals,
.) for defects of the delivery object if such liability is required under the Product Liability Act for personal injuries and property damage to privately used objects.
If material contract obligations are culpably breached, Supplier shall also be liable for the gross negligence of non-executive salaried employees, but that liability will always limited to reasonably foreseeable direct damage that is typical of this type of contract. Any claims beyond that extent, including without limitation claims based on pure pecuniary loss, such as production downtime and loss of potential profit, are excluded.
Customer bears the burden of proving intent or gross negligence. In any case, Supplier’s liability sum is limited to the value of the delivery object or rendered service.
8. Statute of limitation
All of Customer’s claims become time-barred in 12 months, regardless of grounds. Intentional or fraudulent conduct, and claims under the Product Liability Act, are governed by the statutory time limits. Those time limits also apply to buildings, and to a delivery object that was used for a building in accordance with its customary use and caused the building‘s defectiveness.
9. Software use
If the delivery object includes software, Customer will be granted a non-exclusive right to use the delivered item and its documentation. It is surrendered for use on the delivery object intended for that purpose. Using the software on multiple systems is prohibited. Customer may duplicate, revise, or translate the software, or convert it from the object code into the source code, only as permitted by law (§§ 40a ff of the German Copyright Act, “UrhG”). Customer shall not remove any manufacturer’s information – including without limitation copyright notices – or, without Supplier’s prior express consent, change it. All other rights to the software, documentation, and copies thereof remain with Supplier or the software vendor. Issuing sub-licences is prohibited.
10. Applicable law; Forum; Personal data
10.1 | All legal relationships between Supplier and Customer are governed exclusively by the laws of the Republic of Austria under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention).
10.2 | All legal disputes will be settled exclusively by the court having local jurisdiction in St. Pölten (Austria), and only Austrian law will apply.
10.2 | Supplier may store and process Customer’s personal data using electronic data processing.