1. Scope

These general terms and conditions of business shall apply to all legal relationships between us - hereinafter referred to as "Atzlinger" - and our customers, suppliers and contractors, provided the latter are entrepreneurs.

 

2. Quotes and quote documents

Our quotes are binding for a period of 30 calendar days. The documents relating to each quote, such as illustrations, drawings, indications of weights and measurements, are approximate only, unless expressly indicated as binding. We reserve the right of ownership and copyright to all quotes, drawings and other documents.

 

3. Placing orders

Orders are only considered placed if we have sent written confirmation. We shall not be liable for errors arising from the documents submitted by the customer (e.g. drawings) due to unclear or verbal information. There is no inspection obligation on the part of Atzlinger.

 

4. Prices

Our prices are quoted ex works and, in principle, without freight and/or shipping costs, packaging costs or other costs.

Our prices apply to standard working hours and working volumes. Overtime, nightwork or hours of work completed on Sundays and public holidays or under harsh conditions shall be subject to the respective surcharges on real wages.

All prices are quoted net plus statutory VAT.

 

5. Payment

Unless otherwise agreed, payments shall be made immediately on receipt of invoice without deduction.

In case of arrears, we shall be entitled to charge default interest and dunning fees at the prevailing statutory rate. We shall also be entitled to dissolve the concluded contract without compliance with any notice periods.

If "advance payments" are agreed, we shall be entitled to withhold delivery until the money has reached our account.

The Client shall not be entitled to retain payments based on warranty claims or other counterclaims not recognized by Atzlinger. Offsetting with claims that are not recognized or legally established shall not take place.

In the case of payment default on the part of the Client, all accounts receivable under the contract shall become due immediately.

 

6. Billing

Atzlinger shall always be entitled to submit partial invoices. An invoice shall be deemed accepted unless the Client objects to it by registered letter within 30 days.

 

7. Execution of service

Atzlinger shall be entitled at its discretion to execute services itself or use third parties to do so. Atzlinger shall be entitled to effect partial shipments and partial services at any time.

Atzlinger shall comply with delivery periods and deadlines, where possible: they shall be non-binding unless they have been expressly agreed as binding and are always understood to be the expected time of provision and handover to the Client.

A withdrawal from the contract by the Client due to delivery delay shall be possible only if a reasonable - at least four-week - grace period has been set. The withdrawal must be exercised by registered letter. The right of withdrawal shall apply only to the part of the delivery or service that the delay relates to.

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8. Delivery and installation

In the case of delivery ex works the transfer of risk shall take place upon handover of the cargo to the freight forwarder and/or the Client or other recipient or party collecting the cargo. This shall apply even if we have selected and/or commissioned the freight forwarder and irrespective of whether any damage has occurred through fault or accident.

Unless expressly agreed otherwise, both the loading and the load securing must be carried out by the collecting party, i.e. the Client or its vicarious agents, for example the freight forwarder commissioned by the Client. If in an exceptional case our workers assist in the loading or load securing at the request of the collecting party, freight forwarder or its assistants, or they carry out these tasks themselves, this shall be performed free of charge and not as a result of a contract concluded with us. In this case our workers shall be subject to the instructions of the freight forwarder, collecting party and/or recipient or their assistants and shall be under the supervision of these parties. Liability on our part for any damages occurring is excluded in all cases. In the case of loading and load securing activities, our workers shall also not be imputable to us as vicarious agents. If claims are filed against us on the basis of the assistance with the loading or load securing, we shall be held harmless.

Unless expressly agreed otherwise there shall be no claim to a particular type of packaging. The freight forwarder and/or the collecting party shall check the suitability of the packaging selected by us prior to loading. Liability for defective packaging shall be excluded if the unsuitably packed cargo is loaded anyhow.

If we have selected and/or commissioned the freight forwarder, the latter shall not be imputable to us as a vicarious agent. Any liability on our part for the fault of said freight forwarder shall be excluded. If in the case in question a full exclusion of liability is not possible, we shall be liable only in the case of gross negligence or intent and shall as a result of a liability for damages be obliged only to assign our claims against the freight forwarder to the aggrieved party. These provisions shall apply irrespective of whether we commission a carrier or a freight forwarder.

Lead times shall be quoted ex works such that they can be achieved with all probability. Claims for compensation due to delayed or failed delivery shall not be recognized. Orders may not be cancelled due to delayed delivery.

If necessary the Client shall be obliged to provide technical assistance for installation work at own cost (e.g. hall in poor weather, tools, lifting gear, power connections, welding equipment, etc.).

All claims against us on the basis of damages caused by loading, unloading, load securing or transport shall expire after six months irrespective of the legal reason and the degree of fault. The period shall begin when the aggrieved party gains knowledge thereof, but no later than with the delivery of the cargo. The Client must impose all limitations of liability in our favor onto all third parties involved.

 

9. Acceptance

Acceptance shall be deemed to have been given upon acceptance of part deliveries or part services; at such point the risk shall pass to the Client. For delivery ex works the risk assumption in the case of loading, unloading, load securing or transport is regulated in the "Delivery and installation" section.

 

10. Warranty

The Client must notify defects immediately after receipt of the goods, but no later than within a period of five working days, in writing and with sufficient detail. If the defect is not reported in a timely manner, all claims for warranty, for compensation on account of the defect itself as well as from an error as to the non-defective nature of the item can no longer be asserted (§ 377 Par. 2  UGB [Austrian Corporate Code]). Warranty claims shall expire in all cases, even in the case of concealed defects, no later than within six months of delivery.

Modifications made to our products prior to the notice of defects and without the consent of Atzlinger shall invalidate any warranty claim. Atzlinger must be given an opportunity for inspection on site.

In the case of a justified notice of defects within the agreed time limit, we shall according to our choice deliver a free replacement or remedy the defect. We shall be given a reasonable period to do this, whereby the Client shall undertake all measures necessary to enable us to examine and remedy the defect. Compensation for claims for lost profits arising from defects is excluded.

The presumption rule pursuant to § 924 ABGB (Civil Code of Austria) is ruled out. The onus is on the Buyer to prove the existence of a defect at the time of handover.

 

11. Damage compensation

Atzlinger's liability shall be based exclusively on these terms and conditions of delivery and payment. All claims not expressly mentioned herein, including claims for compensation, irrespective of their legal basis, shall be excluded unless arising from an intentional or grossly negligent action by us, by a legal representative or vicarious agent. All compensation claims against us shall expire six months after the occurrence of the damage.

The Client shall impose all limitations of liability in our favor onto all third parties involved insofar as the latter could be entitled to claims from the contract existing between Atzlinger and the Client.

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12. Retention of ownership

All deliveries shall be made subject to retention of ownership. All delivered goods shall remain our property until full provision of the required counter-performance by the Buyer. In the event of resale, the Client assigns to Atzlinger here and now all accounts receivable, including ancillary rights, arising from the resale against the buyer or third parties.

In the event of the treatment and processing, mixing or combining of our items with others, we shall become owners of the new items without any obligation arising therefrom.

The Client is obliged to protect goods under reservation of title from depreciation and insure these adequately against natural hazards at its own cost.

In the case of seizures or other interventions by third parties the Buyer shall notify the Seller in writing immediately.

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13. Severability clause / Interpretation

In the event individual provisions of these general terms and conditions are or become ineffective or unenforceable, this shall not affect the validity of the remaining provisions. Instead of the ineffective or unenforceable provisions the contracting parties agree the application of an effective provision which comes closest to the commercial purpose of the ineffective provision. The interpretation regulation of § 915 ABG is expressly waived.

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14. Formal requirements and construed receipt

Verbal agreements or amendments to these general terms and conditions shall have no legal effect. This form requirement can only be waived by a written and explicit agreement.

A declaration of consent sent by us by registered letter shall be deemed to be received no later than seven days after postmarking unless the receipt has already occurred prior to this.

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15. Data privacy

Persons who receive personal data from us are obliged to keep this data confidential in accordance with its purpose and to delete it once it is no longer required.

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16. Place of performance, choice of law and jurisdiction

To resolve all disputes arising from a contract - including about the existence or non-existence of such contract - the exclusive jurisdiction of the appropriate courts for Linz (Upper Austria) is agreed. The contracting parties agree the application of Austrian law with the exception of the UN Sales Convention. The place of performance for deliveries and payments shall be the registered office of the Seller, even if the handover occurs in another location as agreed.

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