Terms and conditions of the client or third parties do not apply, even if the seller does not expressly object to their validity in individual cases. Even if the seller refers to a letter that contains the terms and conditions of the client or a third party or refers to such terms and conditions, this does not constitute agreement with the validity of those terms and conditions.
All offers of the seller are non-binding and without obligation unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or assignments within fourteen days of receipt.
The written purchase contract, including these General Terms of Delivery, is solely authoritative for the legal relationship between the seller and the client. It reflects all agreements between the contracting parties on the subject matter of the contract in its entirety. Oral promises made by the seller before the conclusion of this contract are legally non-binding, and any oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to apply.
Supplementary and amended agreements to the agreements made, including these General Terms of Delivery, require the written form to be effective. Except for managing directors or authorized signatories, employees of the seller are not authorized to make oral agreements that deviate from this. Sending by fax is sufficient to maintain the written form; otherwise, telecommunication transmission, especially by email, is not sufficient.
Statements by the seller regarding the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations thereof (e.g., drawings and illustrations) are only approximate, unless precise conformity is expressly required for the contractually intended purpose. They are not guaranteed characteristics but descriptions or identifications of the delivery or service. Commercial deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible as long as they do not impair the usability for the contractually intended purpose.
The seller reserves ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the client. The client may not make these items accessible to third parties either as such or in terms of their content, disclose them, use them itself or through third parties or reproduce them without the express consent of the seller. At the request of the seller, the client shall return these items to the seller in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
The prices are applicable to the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately. Prices are in EURO ex works, plus packaging, the statutory value-added tax, customs duties, and other public charges.
If the agreed prices are based on the seller’s list prices and the delivery is to take place more than four months after the conclusion of the contract, the seller’s list prices applicable at the time of delivery shall apply (less any agreed percentage or fixed discount).
Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of payment is the date on which the payment is received by the seller. Checks are only considered as payment after they have been cashed. If the client does not pay when due, the outstanding amounts will be subject to interest at a rate of 5% per annum from the due date; the assertion of higher interest and further damages in case of default remains unaffected.
The client is only entitled to set-off against counterclaims or to withhold payments due to such claims to the extent that the counterclaims are undisputed or have been legally established.
The seller is entitled to perform outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known to him that are likely to substantially reduce the client’s creditworthiness and by which the payment of the open claims of the seller by the client from the respective contractual relationship (including other individual orders for which the same framework contract applies) is endangered.
Deadlines and dates for deliveries and services promised by the seller are always only approximate unless a fixed deadline or fixed date has been expressly promised or agreed. If shipment has been agreed, delivery deadlines and delivery dates refer to the time of handover to the carrier, freight forwarder, or other third party commissioned with the transport.
The seller may, without prejudice to his rights from the client’s delay, demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the client does not meet his contractual obligations to the seller.
The seller is not liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g., operational disruptions of all kinds, difficulties in procuring materials or energy, delays in transportation, strikes, lawful lockouts, lack of labor, energy, or raw materials, difficulties in procuring necessary official permits, official measures or the non-correct, or not timely correct or not complete delivery by suppliers), which the seller is not responsible for. If such events make the delivery or service substantially more difficult or impossible for the seller and the hindrance is not only of a temporary nature, the seller is entitled to withdraw from the contract. In the case of hindrances of a temporary nature, the delivery or performance periods are extended or the delivery or performance dates are postponed by the period of hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the delivery or service due to the delay, he can withdraw from the contract by immediately notifying the seller in writing.
The seller is only entitled to make partial deliveries if the partial delivery is usable for the client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and this does not cause the client significant additional expenses or additional costs (unless the seller agrees to bear these costs).
If the seller is in delay with a delivery or service or if a delivery or service, for whatever reason, becomes impossible, the seller’s liability is limited to damages in accordance with § 8 of these General Terms of Delivery.
The place of performance for all obligations from the contractual relationship is Cham, unless otherwise agreed. If the seller is also responsible for the installation, the place of performance is the place where the installation is to be carried out.
The type of shipment and packaging are at the seller’s reasonable discretion.
The risk passes to the client no later than with the handover of the delivery item (whereby the start of the loading process is decisive) to the carrier, freight forwarder, or other third party commissioned with the transport to the client. This also applies if partial deliveries are made or the seller has also taken on other services (e.g., shipping or installation). If the shipment or handover is delayed due to circumstances for which the client is responsible, the risk passes to the client from the day of readiness for shipment.
Storage costs after the transfer of risk are to be borne by the client. In the case of storage by the seller, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per completed week. The assertion and proof of higher or lower storage costs remain open to both contracting parties.
Deliveries must be accepted by the client, even if they have minor defects.
If the client is in default of acceptance, fails to cooperate or if the delivery of the seller is delayed for other reasons for which the client is responsible, the seller is entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs).
For each week of default, the client is to pay compensation in the amount of 0.5% of the net price of the delivery item, but not more than a total of 5%. The proof of higher damage and the seller’s legal claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is to be credited against further monetary claims. The client reserves the right to prove that the seller has incurred no damage or considerably less damage than the lump sum.
The warranty rights of the client presuppose that he has properly fulfilled his inspection and complaint obligations in accordance with § 377 of the German Commercial Code (HGB).
Claims for defects become statute-barred 12 months after the statutory start of the limitation period; this does not apply if the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 (buildings and objects for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) of the German Civil Code (BGB). This also does not apply in cases of injury to life, body, or health, in case of intentional or grossly negligent breaches of duty by the seller, and in case of fraudulent concealment of a defect.
The seller’s liability for defects is limited to the client’s choice of subsequent improvement or replacement delivery. The supplementary performance does not include the removal of the defective item or the re-installation if the seller was not originally obliged to install it.
The seller can refuse the type of supplementary performance chosen by the client if it is only possible with disproportionate costs.
If the supplementary performance fails, the client can, at his option, demand a reduction in the purchase price (reduction) or declare his withdrawal from the contract. The client cannot claim damages due to a defect if he chooses to withdraw from the contract after a failed supplementary performance.
If the client chooses compensation after a failed supplementary performance, the goods remain with him if this is reasonable for him. The compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply if the seller has maliciously caused the breach of contract.
Client claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, and in the case of damage that occurs after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable equipment or due to special external influences that are not assumed under the contract. If improper repair work or modifications are carried out by the client or third parties, no claims for defects for these or the resulting consequences arise either.
Claims by the client for expenses required for the purpose of supplementary performance, in particular, transport, travel, labor, and material costs, are excluded insofar as expenses increase because the delivery item has subsequently been taken to a location other than the client’s branch office, unless the transfer corresponds to its intended use.
Recourse claims of the client against the seller only exist insofar as the client has not made any agreements with his buyer that go beyond the statutory claims for defects. Furthermore, the preceding paragraph applies accordingly to the scope of the client’s recourse claim against the seller.
The seller’s liability for damages, regardless of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations, and tort, insofar as it depends on fault, is limited in accordance with this § 8.
The seller is not liable in the case of simple negligence on the part of his organs, legal representatives, employees, or other vicarious agents unless it is a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time and to perform consultations, protective, and custody duties, which are to enable the client to use the delivery item as contractually intended or to protect life and limb of the client’s personnel or to protect his property from significant damage.
Insofar as the seller is liable for damages on the merits in accordance with § 8 (2), this liability is limited to damages that the seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or that he should have foreseen if he had exercised due diligence. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation to the extent that such damage is typically to be expected when the delivery item is used as intended.
In the case of liability for simple negligence, the seller’s obligation to pay compensation for property damage and resulting further financial losses is limited to a total amount of EUR 1,000,000.00 per claim, even if it is a breach of essential contractual obligations.
The above exclusions and limitations of liability apply to the same extent in favor of the seller’s organs, legal representatives, employees, and other vicarious agents.
Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
The limitations of this § 8 do not apply to the seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
The client can withdraw from the contract due to a breach of duty other than a defect or demand termination if the seller is responsible for the breach of duty. A withdrawal due to a breach of duty is only permissible if the seller is responsible for the breach of duty. A withdrawal due to a breach of duty is only permissible if the seller is responsible for the breach of duty; if it is a breach of duty by the seller, a vicarious agent, or a legal representative.
The client can also terminate the contract (terminate) if, due to the delay for which the seller is responsible, the client cannot reasonably be expected to adhere to the contract. The client is entitled to the statutory right of termination even if he initially agreed to a fixed delivery date. Furthermore, in the case of a delay for which the seller is responsible, the client can assert claims for damages if he can prove that he has suffered damage as a result of the delay.
Claims of the client for damages due to delay are limited to 5% of the value of that part of the total delivery that could not be used on time or in accordance with the contract as a result of the delay. Claims for damages are limited to compensation for damage typically foreseeable when the contract is concluded unless there is intent to cause damage or gross negligence on the part of the seller or an intentional breach of contract.
If the client grants the seller a reasonable grace period with the express declaration that he will refuse to accept the service after the grace period has expired, and if the grace period has not been met, the client is entitled to withdraw from the contract. The client can also withdraw from the contract if he has lost interest in the further performance of the contract due to the delay. If the client demands compensation for damages instead of performance, his claim to performance is excluded.
Further claims and rights of the client due to a delay in delivery by the seller remain unaffected.
Liability for damages other than that provided for in § 8 is excluded regardless of the legal nature of the asserted claim. This applies in particular to claims for damages resulting from culpa in contrahendo, other breaches of duty, or tortious claims for compensation for property damage pursuant to § 823 of the German Civil Code (BGB).
The limitations of this § 9 do not apply to the seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act.
The seller retains title to the delivery item until all payments from the delivery contract have been received. In the event of a breach of contract by the client, in particular, default in payment, the seller is entitled to take back the delivery item after issuing a reminder and the client is obliged to surrender it. The taking back of the delivery item by the seller constitutes a withdrawal from the contract. After taking back the delivery item, the seller is authorized to sell it; the proceeds from the sale are to be credited against the client’s liabilities – minus reasonable selling expenses.
The client is obliged to treat the delivery item with care; in particular, he is obliged to insure it sufficiently at replacement value at his own expense against damage caused by fire, water, and theft. If maintenance and inspection work is required, the client must carry this out at his own expense in good time.
In the event of seizures or other interventions by third parties, the client must inform the seller immediately in writing so that the seller can file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse the seller for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the client is liable for the loss incurred by the seller.
The client is entitled to resell the delivery item in the ordinary course of business; however, he assigns to the seller all claims in the amount of the final invoice amount (including value-added tax) of the claim that accrues to him from the resale against his clients or third parties, irrespective of whether the delivery item has been resold without or after processing. The client is authorized to collect these claims even after the assignment. The authority of the seller to collect the claims himself remains unaffected; however, the seller will not collect the claims as long as the client meets his payment obligations from the collected proceeds, is not in default of payment, and, in particular, no application has been made to open insolvency proceedings or suspension of payments.
The processing or transformation of the delivery item by the client is always carried out for the seller. If the delivery item is processed with other items not belonging to the seller, the seller acquires co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing.
If the delivery item is inseparably mixed with other items not belonging to the seller, the seller acquires co-ownership of the new item in the ratio of the value of the delivery item to the other mixed items at the time of mixing. If the mixing is done in such a way that the client’s item is to be regarded as the main item, it is agreed that the client transfers proportional co-ownership to the seller. The client shall hold the sole ownership or co-ownership thus created in safe custody for the seller.
The client also assigns to the seller the claims to secure the seller against claims by third parties that arise through the combination of the delivery item with real property.
The seller undertakes to release the securities to which he is entitled at the request of the client insofar as the realizable value of the securities exceeds the claim to be secured by more than 10%; the choice of the securities to be released is the responsibility of the seller.
The place of performance for all obligations arising from this contract is the seller’s registered office, provided that nothing to the contrary arises from the confirmation of the order.
The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the seller’s registered office. However, the seller is also entitled to bring an action at the general place of jurisdiction of the client.
The relationships between the seller and the client are subject exclusively to the law of the Republic of Austria. The UN Sales Convention (CISG) is excluded.
If the contract or these General Terms and Conditions of Sale and Delivery contains gaps, the legally effective regulations shall apply which the contracting parties would have agreed to achieve the economic objectives of the contract in the case of the loophole or which would have been agreed in accordance with the spirit of these General Terms and Conditions of Sale and Delivery if they had known the loophole.
Note: This is a sample excerpt from a generic set of terms and conditions for a seller’s agreement. Specific contracts may require customization by legal professionals to ensure they comply with applicable laws and regulations and meet the needs of the parties involved. Additionally, contract laws may vary by jurisdiction, so it’s essential to consult with a legal expert to draft or review contracts for your specific situation.