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1 Scope of Application
1.1 Our deliveries and services shall be rendered exclusively on the basis of the following General Terms and Conditions of Delivery. Terms and conditions of purchase or other general terms and conditions of the purchaser are hereby expressly objected to; even if we fail to object to them again at the time of conclusion of the contract they shall not apply.
1.2 Deviations from these Terms and Conditions shall only be effective if approved by us in writing.
1.3 Subsidiarily the "General Terms and Conditions of Delivery of the Austrian Electric and Electronic Industry" published by the Association of the Austrian Electric and Electronic Industry, version February 1994 shall apply.
2 Offers
2.1 In principle, our offers are non-binding.
2.2 Documents handed over in connection with an offer shall not be copied or furnished to third parties without our consent. In case an order is placed with a third party such documents shall be returned to us immediately.
3 Conclusion of Contract
3.1 Contracts shall only be deemed concluded after we have dispatched a written acknowledgement of order or a shipment after receipt of the order.
3.2 Subsequent amendments to or modifications of the contract shall only be effective if confirmed by us in writing. This requirement of written form may not be deviated from orally or tacitly.
4 Prices
4.1 Any and all deliveries shall be effected on the basis of the price list valid at the time of delivery plus value added tax in the statutory amount and considering the following discounts and surcharges:
Our prices include a copper basis of EUR 130.00 per 100 kg copper and/or an aluminium basis of EUR 100.00 per 100 kg aluminium and/or a lead basis of EUR 50.00 per 100 kg lead. The discounts and surcharges for metal will be charged on the basis of the metal content of our goods as indicated in our price lists and on the basis of the price list of metal quotations most recently valid at the time of delivery, which is published periodically by the "Association of Austrian Cable and Line Producers" in Vienna.
4.2. With orders of small quantities we reserve the right to invoice surcharges for small quantities or handling costs.
4.3 Our prices apply ex works Schwechat excluding packaging and unloading.
4.4 In case of excess and short deliveries (Article 5.1) we shall invoice the actual quantity delivered.
5 Delivery Lengths
Orders for goods on stock shall be delivered by us in the standard lengths advised to you with an allowable variation of +/- 10%, and such excess and short deliveries shall be accepted and paid by purchaser. Unless otherwise expressly agreed an allowable length variation of +/-5% shall apply to all other deliveries.
6 Drums and Packaging
6.1 Cable drums shall be invoiced separately according to our price list for drums valid at the time of delivery and shall be paid without any deduction concurrently with the goods. In case our empty and undamaged drums are returned free to our Schwechat works within six months of the date of shipment we shall buy the drums back deducting a handling fee of 25% of the full price of the drum and shall issue a credit note on the relevant amount. In case the drums are returned after more than six months, the repurchase price will be reduced by 5% of the full price of the drum for every additional month commenced.
6.2 Non-returnable drums, planking, loading devices and other types of packaging will be invoiced to purchaser at cost and will not be taken back. The purchaser undertakes to arrange for disposal of the packing material and to pay the costs thereof.
7 Shipment/Passing of Risk
7.1 Deliveries up to 20 kg shall be sent by mail not prepaid ex our Schwechat works.
7.2 Other freight shipments within Austria shall be carried out at our discretion through a forwarder or by rail free Austrian destination railway station. In principle, shipments of more than 20 kg within Vienna shall be free of charge. Transportation abroad shall be organised by the purchaser; delivery will be ex works Schwechat. The mode of shipment chosen by SKW in all cases shall be deemed approved by the purchaser.
7.3 If the purchaser collects the goods himself no compensation will be paid. Additional costs for express shipments shall be borne by the purchaser.
7.4 The risk of loss of or damage to the goods as well as the drums shall be borne by the purchaser as from delivery to the carrier at our Schwechat works.
8 Shipment
8.1 We shall be entitled to make partial deliveries and to charge them separately.
8.2 The delivery periods notified by us shall apply subject to unforeseeable circumstances or circumstances beyond our control, such as, e.g., events of war, labour disputes (strike or lock-out) or other events of force majeure, acts of authorities and prohibitions, delays in transportation and costumes clearance, etc. irrespective of whether such circumstances occur directly with us or with any of our suppliers. In the event such circumstances occur, the delivery period shall automatically be extended by the period of time such circumstance continues. In case such circumstance continues for more than three months, each of the parties may rescind the contract with respect to that part of the order which has not been executed as long as such circumstance continues.
8.3 The delivery period shall commence upon the latest of the following dates:
- date of acknowledgement of order;
- date of fulfilment of purchaser's obligations, if any, such as, e.g., handing-over of technical documentation as well as technical clarification of the orders, handing-over of official permits, etc.;
- date of receipt of an agreed down-payment or security by us;
8.4 Notification of readiness for shipment at the delivery date shall be deemed equal to actual delivery if the latter cannot be effected at the delivery date due to reasons for which we are not responsible.
9 Terms of Payment
9.1 We shall be entitled to demand down-payments. Payments shall be effected to us or to a bank advised by us.
9.2 Our invoices shall be due for payment thirty days after the invoice date in the currency agreed without any deduction. The purchaser shall be entitled to deduct a cash discount that may have been agreed only if he is not in arrears with any other of his payment obligations vis-à-vis us.
9.3 The costs arising from payment by letter of credit or documentary collection that might have been agreed shall be borne by the purchaser.
9.4 The purchaser shall not be entitled to withhold payments on grounds of warranty claims, claims for damages or other claims. The purchaser shall only be entitled to offset claims against claims of his that have been ascertained by court or recognised.
9.5 If the purchaser does not comply with terms of payment, we shall be entitled to hold back outstanding deliveries or to make such deliveries conditional upon production of security or of a (subsequent) down-payment.
9.6 Irrespective of the terms of payment agreed upon, all our accounts receivable shall become due immediately if circumstances arise with the purchaser that diminish his creditworthiness, such as, e.g., opening of insolvency proceedings over the assets of the purchaser or if such insolvency
proceedings cannot be opened due to lack of sufficient assets, etc.
9.7 In case insolvency proceedings are opened over the assets of the purchaser or if such insolvency proceedings are not opened due to lack of sufficient assets the prices agreed upon shall be replaced by the prices according to our price list valid at the time of conclusion of the contract, since we only grant prices below list prices if the purchaser meets his payment obligations on time and completely.
10 Reservation of Title
10.1 The goods that are the object of the purchase shall remain our property until the total invoice amount plus ancillary charges has been paid. Irrespective thereof the risk of loss of or damage to the goods shall lie with the purchaser (see Article 7.4).
10.2 Whilst we hold title to the goods we shall be entitled to identify them as our property by marking the goods in any manner we like. The purchaser undertakes not to damage, remove or obliterate such identification marks.
10.3 Until further notice the purchaser shall be entitled to sell and/or process the goods to which we have retained title in day-to-day business. The purchaser shall be prohibited from transferring by way of security or pledging such goods or to dispose of them in any other way which is not in line with day-to-day business, such as, e.g., sale by the bulk. In case a third party attaches goods to which we still hold title or otherwise seizes them the purchaser shall inform us thereof. Any costs incurred by us due to enforcement of our title shall be reimbursed to us by the purchaser.
10.4 Our title shall not be extinguished either by processing of goods title to which we have retained. We shall acquire prorated co-ownership in the new products or objects through such processing or connection. Our co-owner's share shall be determined by the proportion of the value of our goods to the total value of the new products which are the result of the processing or connecting, or to the increased value of the objects into which our goods are laid.
11 Warranty
11.1 The warranty period shall be 12 months as of delivery and/or notification of readiness for shipment.
11.2. The purchaser shall closely inspect all goods delivered immediately after delivery and/or collection to the extent suitable in ordinary business practice and shall notify without delay any defect in writing through registered letter. Transport damage shall, in addition, be confirmed by the carrier on the transport documents (notice of defects). If the purchaser fails to notify such damage the goods shall be deemed approved unless the defect was not noticeable during inspection. In case such a defect is detected later it shall be notified immediately after having been detected; otherwise the goods shall be deemed approved also with respect to such defect. In deviation from Section 924 AGBG [Austrian General Civil Code] the purchaser shall prove that the defect existed at the time of delivery. The aforementioned obligations shall also be fulfilled in case that goods other than those ordered or a quantity other than agreed is delivered unless the goods delivered obviously differ from the order to such a substantial degree that the seller had to consider an approval by the purchaser impossible.
11.3 Defects of a purely optical nature, such as, in particular, isolated cable impurities or increased rough surface, colour impurity, plasticizer emissions or the like shall not be considered defects for which warranty is assumed or claims for damages may be asserted.
11.4 In addition to the aforesaid, the purchaser shall lose any claims based on defects under the following circumstances:
11.4.1 if upon detection or assumption of a defect by him purchaser takes or fails to take measures which hinder us to inspect the possible defect or damage in detail (e.g., continuing of laying work, etc.);
11.4.2 if by processing or connecting of the goods (in particular laying) a relevant technical standard or statutory provisions (in particular the Austrian Electrical Engineering Regulation as amended) is violated or if such processing or connecting is not carried out by an authorised expert;
11.4.3 if possible instructions for application, assembly, laying or use are not observed, the goods are used for a purpose not agreed upon or if the defect is attributable to normal wear and tear, improper handling, inappropriate storage, improper laying or assembly, insufficient anti-freeze, chemical, electrical or other detrimental impacts or similar circumstances;
11.4.4 if the purchaser himself or a third party not authorised by us have tried to repair the defect.
11.5 With regard to warranty remedies the purchaser is restricted to repair or replacement of the defective part within a reasonable period of time. If transportation of defective goods is not expedient, we will repair the defect or replace the goods at the purchaser's. If we replace goods, title to the same falls back to us.
11.6 In any case the purchaser shall bear all costs that exceed the costs of direct repair of defects, such as, e.g., costs of necessary construction measures, excavation works, costs of identification of defects or the cause of defects, etc.
11.7 The original warranty period shall not be extended by repair of defects of the delivered goods or replacing of the same and shall not result in commencement of a new warranty period. Any claims of purchaser in addition to those stated above of whatever nature as well as recourse pursuant to Section 933b ABGB [Austrian General Civil Code] shall be excluded.
12 Liability
12.1 As seller we shall be liable under the Austrian Statute on Product Liability. Our products may only be used within the scope of the relevant technical standards or statutory provisions, in particular of the Austrian Electronics Regulation of 1987 (BGBl [Federal Law Gazette] 592/1987) as amended from time to time and only by authorised experts. Outside of the scope of application of the Austrian Statute on Product Liability we shall only be liable for damages according to statutory provisions if wilful intent or gross negligence on our part is proved. Liability for slight negligence as well as compensation for consequential damage, pecuniary losses, lost profit or savings, lost interest as well as loss of data or information and for damage in the connection with claims of third parties vis-à-vis the purchaser or for other indirect damage shall be excluded.
12.2 We shall only be liable for contractual penalties if they have been agreed upon in writing (in the original) and only if they are due to our fault.
13 Applicable Law and Venue
13.1 These General Terms and Conditions of Delivery and any related contracts shall be governed by and construed in accordance with the law of Austria with the exception of the UN Convention on the International Sale of Goods.
13.2 Vienna, Innere Stadt [First District] shall be the exclusive venue for all disputes.
13.3 The place of performance for all mutual claims under the business relationship shall be the place of our registered office.
14 Miscellaneous
14.1 E-mails shall be deemed received by us only at the time they are retrieved and opened by our staff in charge during our office hours. If e-mails are opened after our office hours, they shall only be deemed received at the beginning of office hours on the next business day.
14.2 Amendments to or modifications of these General Terms and Conditions of Delivery shall be made in writing. This requirement of written form may not be deviated from orally or tacitly.
14.3 If one or several provisions of these General Terms and Conditions of Delivery or any related contract are found to be invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be deemed replaced by a valid and enforceable one which comes as close as possible to the economic aims of the parties which were intended by such invalid or unenforceable provision.
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