Terms of Sale and Delivery for Business Customers (Austria)
General Terms and Conditions of Sale and Delivery for Business Customers
1.1 These terms and conditions apply to all purchase, work and services contracts, including consulting and other contractual services of unu GmbH (“UNU”) with customers (“Purchaser”). The Purchaser's terms and conditions of purchase, changes or deviations from these terms and conditions of delivery or ancillary agreements shall only be binding on UNU to the extent that UNU has confirmed them in writing. If written declarations are required in these terms and conditions, the text form shall also suffice.
1.2 These terms and conditions shall only apply to companies, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 German Civil Code (BGB).
2. Conclusion of contract
The written order confirmation is binding for the obligation of both parties and for the content of the order. If the UNU has set a deadline for the acceptance of an offer, a contract is only concluded if the offer is accepted in due time. In case of non-timely or non-conforming acceptance by the Purchaser, the contract is only concluded with the written non-conforming order confirmation. The Purchaser is bound to orders for four (4) weeks. The period begins on the day of receipt of the order letter by UNU.
3. Deliveries and services
3.1 The documents belonging to the offer such as illustrations and drawings, weight and dimensional data such as speeds, consumption and operating costs are approximate values with tolerance ranges and do not constitute guarantees of quality (Beschaffenheitsgarantien).
3.2 The quality of the delivery items results from the contract. It is not guaranteed. Deviations must be in writing. The Purchaser must point out in writing any operating or environmental conditions (e.g. special environmental and location requirements) which deviate from the standard conditions. In the absence of such a reference, the aforementioned UNU standard conditions shall apply.
3.3 Costs, drawings and technical documents or other technical information may not be used without the consent of UNU, except for installation, commissioning, use and maintenance of the delivery item, or copied, reproduced, handed over to third parties or disclosed. UNU reserves the property rights and copyrights to all documents.
3.4 UNU is entitled to make constructive changes in the context of the ongoing further development of the delivery items and in the course of purchasing policy decisions.
4. Prices and Payments
4.1 Unless otherwise agreed, the prices for the delivery item include loading and packaging plus the statutory value added tax.
4.2 Unless otherwise agreed in the written order confirmation, the price shall be paid in cash without any deductions within seven (7) days from the date of the invoice. The costs of discounting and collection, in particular of bills of exchange and cheques, shall be borne by the Purchaser. If an agreed payment date is exceeded, the statutory interest on arrears will be charged, without a reminder being required, until the default occurs and subsequently the statutory interest on arrears. We reserve the right to assert further damage caused by default.
4.3 A right of retention on the part of the Purchaser due to disputed counterclaims which have not become res judicata and set-off against them is excluded.
4.4 UNU is entitled, if UNU must fear not to receive the purchase price from the Purchaser in time or incompletely, to refuse the contractual obligation with raising the objection of uncertainty until the due consideration has been effected or security has been provided. UNU may withdraw from the contract if the Purchaser has not effected the consideration or provided security within a reasonable period of time communicated in writing.
4.5 UNU is also entitled to withdraw from the contract after a reasonable period of notice in writing if the Purchaser does not make the agreed down payment in time or seriously and finally refuses acceptance of the ordered goods.
4.6 In the event of withdrawal, UNU shall also be entitled to claim damages including loss of profit in the amount of at least 20 % of the purchase price, unless the damage is demonstrably lower.
4.7 Sales tax is based on the applicable sales tax law. UNU will make use of existing tax exemptions for cross-border deliveries. In the case of cross-border deliveries within the EU, the Purchaser undertakes to inform UNU immediately of the corresponding VAT identification number. It shall participate in the additional evidence required for obtaining a tax exemption in accordance with German or foreign VAT law to the required extent. The Purchaser undertakes in particular to confirm receipt of the delivery in the Member State and to use the procedure and/or form provided by UNU. In the event that the confirmation does not take place, the currently valid German VAT will be charged. German or foreign value added tax to be paid by UNU shall be invoiced in addition to the net price and shall be borne by the Purchaser. If value added tax arises due to payments made before the delivery (service) is effected, the value added tax shall be invoiced separately. The value added tax is due and payable together with the net price.
5. Delivery Period, Reservation of Performance
5.1 The delivery period begins with the dispatch of the order confirmation, but not before receipt of all documents to be provided by the purchaser and clarification of all technical details and not before receipt of any agreed down payment.
5.2 The delivery period is met if the delivery item has been dispatched to the customer by the end of the delivery period. Compliance with the delivery period presupposes the fulfilment of the Purchaser's contractual and cooperation obligations.
5.3 The delivery period shall be extended appropriately in the event of industrial action, in particular strikes and lock-outs, as well as the occurrence of unforeseen obstacles (e.g. (e.g. operational disruption, official interventions, delays in the delivery of essential raw materials, confiscation, energy supply difficulties, war, insurrection, embargo, requisition and natural disasters), which are demonstrably of considerable influence on the completion or delivery of the delivery item. This also applies if the circumstances occur at subcontractors. The aforementioned circumstances are also not the responsibility of UNU if they occur during an already existing delay. In important cases UNU will inform the Purchaser as soon as possible of the beginning and end of such obstacles.
5.4 If dispatch is delayed at the Purchaser's request, the Purchaser shall be charged the costs incurred by storage, beginning one month after notification of readiness for dispatch, but in the case of storage at the supplying plant at least 0.5% of the invoice amount for each commenced month, whereby the assertion of higher storage costs shall remain reserved. The Purchaser is permitted to prove lower costs for the storage of the delivery items. However, UNU shall be entitled to dispose otherwise of the delivery items after setting a reasonable period of time in writing and to resupply the Purchaser upon expiry of the delay on the basis of the agreed delivery conditions and by agreeing a new delivery period.
5.5 The performance of the contract is subject to the provison that there are no obstacles to delivery due to national or international regulations, in particular export control regulations, embargoes or other sanctions. The parties undertake to provide all information and documents required for the export/transfer/import. Delays due to export inspections or approval procedures invalidate deadlines and delivery times. If necessary approvals are not granted, the contract shall be deemed not concluded with regard to the parts concerned; claims for damages shall be excluded in this respect and due to the above-mentioned failure to meet the deadline.
6. Transfer of risk
6.1 If the goods are dispatched at the request of the Purchaser, the risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the time of dispatch.
6.2 If dispatch is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day of notification of readiness for dispatch. Risk shall also pass to the Purchaser upon dispatch if partial deliveries are made or UNU has assumed other services (e.g. dispatch, delivery, installation, assembly or instruction). Shipment is always for the Purchaser’s account. The Purchaser shall also bear the risk if he is in default of acceptance of the delivery items.
6.3 Delivered goods, even if they have defects, are to be accepted by the Purchaser without prejudice to the rights pursuant to Clause 8 of these Terms of Delivery, provided that these defects are not significant.
7. Retention of title
7.1 UNU retains title to the delivery items until receipt of all payments arising from the business relationship with the Purchaser. In the case of a payment agreement by cheque/bill of exchange procedure, the reservation extends to the payment of the bill of exchange accepted by UNU by the Purchaser and does not expire when the cheque received is credited to UNU. The retention of title shall also continue if the claims are included in a current account and the balance has been struck and acknowledged.
7.2 The Purchaser is obliged to handle the delivery items with care and to carry out any repair, maintenance and inspection work in good time at his own expense. UNU is entitled to insure the reserved goods against theft, machine breakage, water, fire and other damage, unless the Purchaser has demonstrably taken out the insurance himself.
7.3 The Purchaser may neither pledge the delivery items nor assign them as security.
7.4 The Purchaser must inform UNU immediately of any attachments, seizures or other dispositions by third parties. The costs of removing such measures shall be borne by the Purchaser.
7.5 In the event of processing, combination, mixing or blending of the reserved goods with other goods not belonging to UNU, UNU shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed goods. Otherwise, the same shall apply to the new item created as to the goods subject to retention of title. It shall be deemed to be reserved goods within the meaning of these conditions.
7.6 In the event of breach of contract on the part of the Purchaser, in particular default of payment, UNU is entitled to take back the goods after a written warning and the Purchaser is obliged to surrender them, without the take back automatically representing withdrawal from the supply contract. In this case, the delivery period is suspended. UNU reserves the right, after removal of the impediment to performance or provision of a security, to supply the Purchaser under renewed validity and continuation of the agreed delivery period.
7.7 UNU undertakes to release securities to which UNU is entitled at the Purchaser's request to the extent that the value of the securities exceeds the claims to be secured by more than 20%.
7.8 If the law in whose area the delivery items are located does not permit the above security agreement, but allows UNU to reserve other rights to the delivery item, UNU may exercise all such rights.
7.9 The Purchaser is obliged to cooperate in measures taken by UNU to protect UNU's right of ownership or in its place any other right to the delivery item.
8. Liability for material defects, limitation of warranty
8.1 UNU warrants for a period of 24 months for material defects of the delivery items existing at the time of the transfer of risk and for repairs carried out. If acceptance or shipment is delayed through no fault of UNU, the warranty expires at the latest 24 months after the passing of risk.
8.2 No separate warranty period shall run for subsequent improvements and replacement deliveries within the scope of the warranty; the warranty period for the original delivery item shall remain in effect. However, the warranty period shall be extended by the duration of the business interruption caused by the repair or replacement delivery.
8.3 No warranty is assumed for used objects.
8.4 The assertion of claims for material defects by the Purchaser - with the exception of those arising from contracts for work and services - presupposes that the Purchaser has properly complied with his duty to examine and give notice of defects in accordance with § 377 German Commercial Code (HGB). The Purchaser shall immediately notify UNU in writing of any material defects found.
8.5 If the delivery item does not correspond to the agreed quality upon transfer of risk, the Purchaser's claim for subsequent performance shall include, at UNU's option, either a free replacement delivery or a free rectification of those parts which are unusable or whose usability is more than insignificantly impaired.
8.6 The Purchaser shall always grant UNU the necessary time and opportunity to carry out any remedial measures or replacement deliveries which UNU deems reasonably necessary after consultation with UNU, otherwise UNU shall be released from subsequent performance.
8.7 In the event of subsequent performance, UNU shall bear all necessary and reasonable expenses, in particular transport, travel, labour and material costs. This shall not apply to additional expenses incurred as a result of the delivery items being taken to a place other than the contractual place of performance. The repair is carried out at the discretion of UNU in a UNU partner workshop or at the end Purchaser. If, at the request of the Purchaser, the repair does not take place at the supplying plant, the costs for the dispatch of qualified personnel shall be borne by the customer. Replaced parts become the property of UNU.
8.8 If, through the fault of UNU, the delivered item cannot be used by the Purchaser in accordance with the contract as a result of omitted or faulty advice before or after conclusion of the contract and as a result of the violation of other ancillary contractual obligations - in particular instructions for operation and maintenance of the delivery item - the provisions of Clauses 8 and 9. of these Terms of Delivery shall apply to the exclusion of further claims by the Purchaser.
8.9 In the event of defects of title, in particular if patent rights of third parties are infringed by the delivery, UNU shall endeavour to remedy them within a reasonable period of time. If this does not succeed, clause 9. of these terms of delivery shall apply. Excluded are all further claims of the customer, in particular for compensation for damages of any kind, including such damages that have not occurred on the delivery item. Otherwise, clause 9.4 of these Terms and Conditions of Delivery shall apply.
8.10 UNU's warranty/liability for essential third-party products under the delivery items is limited to the assignment of warranty and liability claims to which UNU is entitled against the supplier of the third-party product. In all other respects, UNU's liability is limited to the careful selection of subcontractors. However, any necessary repairs within the scope of the warranty will be carried out by UNU.
8.11 No warranty is assumed for material defects caused by force, improper use, repairs by personnel not authorised or trained by UNU, the use of oils and equipment with unsuitable specifications or parts not supplied by UNU. UNU also accepts no liability for wear parts and for damage based on natural wear.
9. Right of the Purchase to withdrawal or reduction and other liability
9.1 The Purchaser may withdraw from the contract if UNU becomes finally unable to perform the entire service before the transfer of risk. If UNU is noticeably only temporarily prevented from performing, the Purchaser shall only be entitled to withdraw from the contract if UNU does not deliver within a reasonable period after the impediment to performance has ceased.
9.2 The Purchaser may also withdraw from the contract if, in the case of an order for similar delivery items, the execution of part of the delivery becomes impossible in terms of quantity and he has a justified interest in rejecting a partial delivery. If this is not the case, the Purchaser may reduce the consideration accordingly. When determining the reduction in value, Sec. 441 para. 3 German Civil Code (BGB) must be observed, whereby the Purchaser's interest in use alone is decisive for the reduction in value.
9.3 If the impossibility occurs during the default of acceptance or through the fault of the purchaser, the latter shall remain obliged to provide consideration.
9.4 Furthermore, the Purchaser has the right to withdraw from the contract if UNU allows a reasonable period of grace in writing for subsequent performance due to a defect within the meaning of the delivery conditions to expire without result. The period for subsequent performance shall be set in such a way that it takes into account any order and delivery deadlines for necessary spare parts for the performance of the subsequent improvement or if the subsequent performance has finally failed, whereby at least two attempts must be granted.
9.5 In the aforementioned cases, the Purchaser may also demand a corresponding reduction in the purchase price instead of withdrawal.
9.6 If, after completion of the supplementary performance, there are still defects which are not significant, which can be assumed to be refutable if the delivery items are still suitable for the intended use, the right of withdrawal of the customer is excluded. In this case, the customer is entitled to a reduction. 441 para. 3 German Civil Code (BGB) shall apply for the determination of the reduction in value, whereby the customer's interest in use alone shall be decisive for the reduction in value.
9.7 All further claims of the Purchaser - on whatever legal grounds - as well as compensation for damage of any kind, including damage that has not occurred to the delivery item itself (e.g. loss of use and production, loss of profit or other consequential damage) are excluded. This exclusion of liability shall not apply in the event of intent or gross negligence on the part of UNU or culpable breach of material contractual obligations. In the event of culpable violation of essential contractual obligations, UNU shall be liable - except in cases of intent and gross negligence - only for reasonably foreseeable damage typical for the contract.
9.8 Furthermore, the exclusion of liability shall not apply in cases where liability is assumed in accordance with Sec. 1 and 4 of the Product Liability Act for defects in the delivery item for personal injury or property damage to privately used objects. It shall also not apply in the case of a guaranteed condition if the purpose of the guarantee was precisely to protect the Purchaser against damage that did not occur to the delivery item.
9.9 The exclusion of liability shall not apply even if UNU has caused damage to the legal interests of life, body and health through a culpable breach of duty.
10. Applicable law
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
11. Place of jurisdiction
For all disputes arising from the contractual relationship, proceedings for the remission of an arrest or a temporary injunction, the civil courts in Berlin shall have jurisdiction. This does not apply if an exclusive place of jurisdiction is given. UNU is also entitled to choose a court competent for the customer.