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General Terms of Sale and Delivery
of Ing. Friedrich Jordan Handelsgesellschaft mbH.,
A-1190 Wien, Heiligenstädter Strasse 69/16,
in represantation of the Ortlinghaus group, below named "Jordan"
Issued 05/2002, 4 pages, 13 articles.
1. Scope
1.1 The General Terms of Sale and Delivery of Ing. Friedrich Jordan Handelsgesellschaft mbH. (hereinafter referred to as "Jordan") shall be applicable to the exclusion of all others. Any Conditions of the party entering into the contract with Jordan (hereinafter referred to as the "Customer") that may differ from or contradict these Terms of Sale and Delivery will not be recognized unless Jordan has, in writing, explicitly consented to the applicability of said differing conditions. These Terms of Sale and Delivery will also be applicable if, having knowledge of conditions of the Customer's that are contradictory to or differ from its own Terms of Sale and Delivery, Jordan carries out the delivery to the Customer without reservation.
1.2 The Terms of Sale and Delivery will also be applicable to all future business transactions with the Customer. The Customer accepts these Terms of Sale and Delivery upon placing an order, and at the latest upon accepting delivery of the merchandise.
1.3 The Terms of Sale and Delivery shall only apply to companies.
1.4 Subsidiary agreements have to be made in writing and the same applies to amendments or additions to or the cancellation of the contract.
2. Offers and acknowledgments of orders
2.1 Offers made by Jordan are always subject to confirmation. An order by the Customer shall not be deemed to have been accepted until it has been acknowledged by Jordan in writing. Similarly, changes and other arrangements will only be binding if they have been acknowledged by Jordan in writing. The execution of all orders will be based solely on Jordan's written acknowledgment of order or offer.
2.2 If the order is to be described as an offer, Jordan will be permitted to accept it within a 4-week period. The contract will come into effect, at the latest, when the merchandise ordered has been dispatched and, in the case of partial deliveries, when the first consignment has been dispatched.
2.3 If the Customer requires individual cost estimates, the latter will be subject to payment. If an order is placed, the consideration payable for said estimates will be deducted from the purchase price. If the contract of sale is invalidated on any legal grounds whatsoever, the obligation to pay for the cost estimate will remain in force.
2.4 The documents, drawings, details of weights and dimensions, samples, etc. contained in the offers only provide approximate information and do not constitute a qualitative description of the nature of the merchandise. Jordan is entitled to supply merchandise differing from the descriptions in the offer if these differences are not of a fundamental or essential nature and the purpose as stated in the contract is not restricted thereby.
2.5 If parts are manufactured or transferred for manufacturing to Ortlinghaus by Jordan on the basis of the Customer's drawings, the drawings prepared by Jordan and approved by the Customer will be applicable. Any departures from drawings that have been approved are to be specially agreed and any extra costs thus incurred are to be paid for.
3. Proprietary rights
3.1 Jordan reserves for itself proprietary rights and copyright on all illustrations, drawings, calculations, and other documents. This applies in particular to written documents designated as being "confidential". The Customer may only make them accessible to third parties after obtaining Jordan's prior written consent thereto.
3.2 If deliveries are made on the basis of drawings or other information provided by the Customer and if, as a result, third-party proprietary rights are asserted, in the internal relationship between Jordan and the Customer, the Customer will hold Jordan harmless of any claims.
4. Components not included in Jordan's range of suppliable products
If the project activities or advice supplied by Jordan relate to components not included in Jordan's range of suppliable products, e.g. in respect of drive units or power take-offs, Jordan's statements will constitute recommendations and advice that are not binding on Jordan. All claims for compensation, whatever their legal basis may be, shall be ruled out unless they are based on deliberate acts or acts of gross negligence.
5. Prices
5.1 If no statement to the contrary is made on the acknowledgment of order, the prices quoted will always be "ex works" and will exclude packaging; the latter will be charged for separately.
5.2 The prices quoted are to be understood as being net prices; statutory value added tax will be added to them at the level applicable at the time in question. Acceptance charges made by classification companies will be charged for separately.
5.3 Jordan can charge the Customer for any extra work or expense due to subsequent requests for modifications.
5.4 If, after conclusion of the contract, events occur that increase the costs incurred by Jordan itself for the manufacture or shipment of the merchandise, in particular due to increases in Jordan's own purchase prices or due to wage increases, Jordan will be entitled to raise its prices commensurately.
6. Terms of payment
6.1 Invoices will be due for payment without any deduction within 20 days of the date of invoice. Discounts will only be deemed to have been agreed if Jordan explicitly confirms this fact in writing.
6.2 Even if the Customer's terms of payment state the contrary, Jordan will be entitled, in each case, to set a payment off, initially, against the oldest, not legally enforceable claim. If costs or interest charges have already been incurred, Jordan will be entitled to set payments off first of all against the costs, then against the interest charges, and finally against the principal claim.
6.3 The Customer will only be entitled to make a set-off if and to the extent that his/its counterclaims have been legally established or are undisputed or have been recognized by Jordan in writing. The Customer's right of retention will be restricted to claims deriving from the contractual relationship.
6.4 In all cases, cheques will only be accepted with a view to payment. Payments in the form of bills of exchange will be subject to a special agreement. The acceptance of bills of exchange does not mean that payment of our claims is deferred. Jordan will still be entitled to require, at any time, payment in cash on the due date of the claim in return for the surrender of the bill. Stamp duty on bills will be payable by the buyer. The same applies to discount expenses incurred commencing with the due date of the invoices.
6.5 Jordan will be entitled to claim for interest on arrears at a rate of 8% above the base rate of interest as defined by the Federal reserve bank. Jordan explicitly reserves itself the right to furnish proof of any loss higher than this ensuing from a default on payments.
7. Delivery/delivery period/default
7.1 Terms of delivery and delivery dates will only be deemed to have been agreed in a binding manner if an explicit promise has been made in the offer, in writing, regarding said terms or dates. Jordan will not be bound by the term of delivery or delivery date if the Customer does not discharge his/its obligations (payment of instalments, presentation of any documents necessary, etc.) in good time. Jordan reserves itself the right to plead non-performance of the contract.
7.2 Terms of delivery will commence, at the earliest, on the day on which the contract has been concluded in writing. The prerequisite for the commencement of the same is that all the technical questions have been settled.
7.3 If the Customer requires subsequent modifications, Jordan shall be released from the obligation to meet the term of delivery or delivery date.
7.4 The term of delivery will have been met if, by expiration of the same, the item to be delivered has left Jordan's or Ortlinghaus`s works or Jordan has given notification of the readiness for delivery.
7.5 The Customer cannot assert any claims based on delays in delivery that are not intentional or due to gross negligence on the part of Jordan. This will apply, in particular, to delays in delivery due to force majeure. In these cases, the agreed term of delivery or delivery date will be postponed commensurately to the duration of the impediment to delivery.
7.6 If the Customer defaults on acceptance of delivery or neglects his/its obligations with regard to cooperation in other respects, Jordan will be entitled to request compensation for the loss thus incurred, including any extra expenses. Furthermore, Jordan will be entitled to set the Customer a reasonable period of grace for acceptance of delivery, to withdraw from the contract if said period elapses without effect, and to require compensation instead of performance.
8. Retention of title
8.1 Jordan reserves itself the title to all the parts delivered pending receipt of all paymentsbased on the delivery relationship, including any liabilities that may arise in fu ture. In the event of behaviour in violation of the contract, especially default on payment, Jordan will be entitled to take back the item purchased.
8.2 The Customer undertakes to take good care of the parts delivered and, for the duration of the retention of title period, to insure the same for their replacement value against every form of destruction at his/its own expense. Jordan will, nevertheless, be entitled to insure the merchandise itself at the Customer's expense.
8.3 During the retention of title period too, the costs of maintenance and inspection work are to be borne by the Customer, even if said work is carried out by Jordan.
8.4 In the event of seizures or other interventions by third parties, the Customer shall notify Jordan immediately in writing.
8.5 The Customer will be entitled to resell the item purchased in the ordinary course of business; however, he/it instantly assigns to Jordan all claims against the purchaser or third party amounting to the invoice total (including value added tax) of Jordan's claim that may accrue to him/it by virtue of the resale, irrespective as to whether said item has been resold after being processed or not. The Customer will also be entitled to collect this claim after delivery of the item. Jordan's power to collect the claim itself shall not be affected by this. However, Jordan undertakes not to collect the claim as long as the Customer discharges his/its payment obligations from the proceeds received and does not default on payments, and in particular as long as no application has been made for the opening of insolvency proceedings and there has been no suspension of payments.
8.6 If the merchandise delivered is inseparably mixed with or joined to other objects not belonging to Jordan, Jordan shall acquire co-ownership of the new or mixed object in the ratio of the value of the merchandise delivered (total invoice sum including value added tax) to that of the other object or objects at the time of the mixing or joining of the merchandise. The Customer will hold in custody the sole or coownership thus created on Jordan's behalf.
9. Shipping, passage of the risk
9.1 Shipment will be made at the Customer's risk. Even if Jordan accepts responsibility for other services, the risk shall always pass to the Customer, at the latest, when the merchandise is dispatched.
9.2 If there are delays in the dispatch of the merchandise for reasons over which Jordan has no control, the risk shall pass to the Customer as from the day on which the merchandise is ready for shipment. At the Customer's written request and at his/its expense, the consignment will be insured by Jordan against damage due to breakage, transportation, fire, or water.
9.3 The return of transportation and all other packaging materials as described in the Packaging Ordinance will not be accepted, except for pallets. The Customer is obligated to ensure that the packaging materials are disposed of at his/its own expense.
10. Liability for material deficiencies/liability
10.1 Jordan will not be liable for damage or losses caused by improper handling, wear and tear, storage, or other acts performed by the Customer or third parties.
10.2 Statutory claims based on liability for material deficiencies come under the statute of limitations one year after the handing over of the merchandise. This does not constitute the issue of a warranty in respect of durability.
10.3 The Customer also undertakes to discharge his/its obligation with regard to examination as defined in § 377 UGB (Commercial Code) if the merchandise is re-disposed of or resold.
10.4 Jordan will be entitled to choose between making subsequent repairs and delivering new merchandise at its own discretion.
10.5 Expenditure required for the purpose of subsequent performance will not be borne by Jordan if expenditure increases as a result of the merchandise having been transferred to a site differing from the Customer's business premises. This will not apply if the transfer is in conformity with the contractually- intended use of the article.
10.6 A right of recourse on the part of the Customer against Jordan by virtue of claims based on liability for material deficiencies lodged against the Customer by his/its own purchasers shall be ruled out if the Customer has not discharged his/its obligation with regard to examination and the issuance of notices of defect or if the merchandise has been modified due to being processed.
10.7 Jordan's liability for damages under the statutory provisions will exist without restriction if based on any deliberate neglect of its obligations or gross negligence attributable to Jordan. If said neglect of obligations attributable to Jordan is based on ordinary negligence and an essential contractual obligation has been culpably neglected, the liability for damages will be limited to the foreseeable loss or damage that typically occurs in comparable cases. In other respects, liability will be ruled out.
10.8 Liability under the provisions of the Product Liability Act will remain unaffected by this. Liability for loss of life, bodily harm, and injuries to health will also be unaffected.
11. Ban on assignment
None of the claims the Customer may have against Jordan on the basis of the contractual relationship shall be assignable.
12. Product Liability
12.1 The Customer may only use the merchandise for the purposes contractually intended and shall ensure that said merchandise is only re-disposed of or resold to persons familiar with the product-related hazards and risks.
12.2 If the merchandise is used as a basic material and sub-product for its own products, when introducing the final product onto the market the Customer undertakes to discharge its obligation to issue warnings with regard to the merchandise delivered by Jordan too. In the internal relationship between the parties, as soon as requested to do so the Customer will hold Jordan harmless of claims lodged against it in the event of this obligation being neglected.
13. Miscellaneous
13.1 The place of performance shall be Vienna.
13.2 In respect of all disputes arising from the Contract, the venue shall be Vienna. However, Jordan will also be entitled to bring an action against the Customer at the court in whose jurisdiction the Customer has his/its general legal domicile or in whose jurisdiction the Customer has a branch.
13.3 The Contract shall be governed solely by austrian law to the exclusion of UN commercial law.
13.4 If individual provisions of this contractual relationship are inoperative, the operativeness of the other provisions will be unaffected thereby. The parties hereto will endeavour to replace the inoperative provision by an operative one that approximates as closely as possible to the commercial purpose of the Contract. |
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