GENERAL BUSINESS AND DELIVERY CONDITIONS (Date January 2019)
Section 1 Field of application
(1) The following General Terms and Conditions apply to all business relations between MPG GmbH, Liebenauer Tangente 4, 8041 Graz, Austria (hereinafter referred to as "Seller") and its customers. The version valid at the time the contract is concluded shall apply.
(2) Deviations, conflicting conditions or supplements shall not become part of the contract even if they are known, unless the seller expressly agrees to their validity in writing. In this respect, acts of performance of the contract by the seller shall not be regarded as acceptance of the contractual conditions deviating from its conditions. These terms and conditions shall also apply as a framework agreement for all further legal transactions between the contracting parties.
Section 2 Conclusion of the Contract
(1) Offers made by the seller are subject to confirmation and non-binding.
(2) A contract shall only be concluded if the seller expressly accepts the order, which is considered a binding contract offer by the customer, by means of an explicit order confirmation or by carrying out a delivery after receipt of the order.
The seller is entitled to refuse acceptance of the order - for example after checking the creditworthiness of the customer. Otherwise, the seller reserves the right to set a reasonable acceptance period.
(3) Special instructions of the customer, e.g. with regard to delivery periods, discounts or the like, shall only be regarded as non-binding suggestions until they have been expressly accepted in writing by the seller within the framework of the order confirmation.
(4) The seller shall prepare its catalogues, other sales documents, lists and drawings as well as dimensional data with all due care, but reserves the right to subsequently correct obvious errors.
(5) The seller must expressly agree in writing to a change to the order by the customer after conclusion of the contract and reserves the right to indemnification.
(6) The contract shall be concluded subject to the condition that, in the event of incorrect or improper delivery, the seller may not make use of subcontractors or only partially. The seller undertakes to inform the customer immediately in this case and to reimburse any consideration in whole or in part.
Section 3 Retention of Title
(1) The seller retains title to the goods until full payment of the purchase price including any interest and costs.
(2) The customer is obliged to treat the goods with care during the existence of the retention of title. Access by third parties to the goods, in particular in the event of enforcement measures, any damage, other extraordinary depreciation or the destruction of the goods shall be notified to the seller
by the customer in writing without delay. The same applies to a change of ownership of the goods or a change of address of the customer. In the event of a breach of these obligations and in the event of necessary intervention measures against access by third parties to the goods, the customer shall reimburse the seller for all damages and costs.
(3) In order to inspect the goods subject to retention of title, the customer assures the seller of access to his premises after prior agreement of a date. In the event of breach of contract by the customer, in particular default in payment, the seller shall be entitled to withdraw from the contract and demand the return of the goods. This shall also apply if the customer violates an obligation pursuant to paragraph 2 if it is no longer reasonable for the seller to adhere to the contract.
Section 4 Prices and terms of payment
(1) The prices and terms of payment specified in the order confirmation shall apply. The customer agrees to the sending of the invoice by electronic means unless otherwise expressly agreed. The gross price is shown in the invoice. Unless otherwise expressly agreed, the prices are net "ex works" plus the applicable value-added tax and the costs of transport.
(2) Payment agreements shall only be regarded as conditionally agreed. The seller reserves the right to deliver exclusively against advance payment or presentation of a bank guarantee if circumstances become known to the seller which are likely to reduce the creditworthiness of the customer.
(3) The customer undertakes to pay the invoice amount without deductions within 30 days of the invoice date of the seller in the agreed currency (EUR, unless otherwise specified). Deviating terms of payment or agreements as well as cash discounts require a separate express written agreement. After expiry of the payment period, the customer shall be in default and shall pay interest on the debt at 10% above the base interest rate. The seller's right to claim higher damages remains unaffected. Furthermore, the customer is obliged to reimburse all costs and expenses associated with the collection of the claim, such as in particular reminder and collection expenses or other expenses necessary for the appropriate prosecution. The seller shall be entitled to first set off payments made by the customer against the customer's older debts. If costs and interest have already been incurred, the seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the main service.
(4) A right to offset exists only if the customer's counterclaims have been legally established or expressly acknowledged by the seller. The customer is not entitled to withhold payments.
(5) The seller shall have the right to demand immediate payment of all claims and to revoke the agreed discount agreements as well as agreements on terms of payment if the customer does not settle a claim in full or in part by the agreed due date or if circumstances become known which, in the opinion of the seller, are suitable to reduce the creditworthiness of the customer. In this case, the seller is entitled to perform outstanding services only against advance payment or to withdraw from the contract after a reasonable period of grace. Alternatively, in the event of default, the seller shall be entitled to take the goods delivered under retention of title into custody without withdrawing from the purchase agreement until the entire claim, including additional costs, is fully covered.
(6) In the event that goods are to be delivered to a third country, the seller expressly reserves the right to subsequently invoice
the legally valid value-added tax if the customer does not comply with his obligation to provide proper export documentation. In the case of cross-border delivery, the customer shall bear the customs duties, fees and other charges incurred, unless otherwise stipulated in individual contracts.
(7) Unless expressly agreed otherwise, the credit notes issued by the seller shall be valid for 36 months from the date of issue.
Section 5 Delivery and transfer of risk
(1) Unless otherwise agreed in writing, the delivery periods and delivery dates shall serve only as an indication for the customer and shall not be binding. The delivery period begins with the dispatch of the order confirmation, but not before receipt of the documents to be provided by the customer for order processing. The agreement of a fixed delivery date is subject to the proviso that the seller for its part receives the deliveries and services of its respective suppliers in good time and in accordance with the contract. Unless otherwise expressly agreed, the delivery periods and delivery dates shall be ex works. If the goods cannot be collected or dispatched on time through no fault of the seller, they shall be deemed to have been complied with upon notification of readiness for dispatch.
(2) The seller is entitled to make reasonable partial or advance deliveries and to invoice these.
(3) If the customer has not accepted the goods as agreed (default of acceptance), the seller is entitled, after unsuccessful setting of a grace period, either to store the goods on his premises, for which a storage fee of 0.1% of the gross invoice amount per commenced calendar day will be charged, or to store the goods at the expense and risk of the customer with an authorised merchant. At the same time, the seller is entitled either to insist on the performance of the contract or, after setting a reasonable grace period of at least 2 weeks, to withdraw from the contract and use the goods elsewhere. Further claims for damages of the seller remain unaffected.
(4) Unless expressly agreed otherwise, the place of performance for the delivery of goods shall always be the seller's factory or warehouse in Domazlice, Czech Republic. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon delivery ex works or ex warehouse or if the customer is in default of acceptance. When the goods are dispatched, the transfer of risk to the customer takes place when the goods are handed over to the forwarding agent, carrier or other person authorised to carry out the dispatch.
Section 6 Other terms of delivery
In the event of unforeseen circumstances independent of the will of the parties, such as in all cases of force majeure on the part of the seller or its subcontractors, the seller shall be entitled to postpone delivery and performance for the duration of the circumstances and a reasonable start-up period. These circumstances include, but are not limited to, armed conflicts, government intervention and prohibitions, delays in transport and customs clearance, transport damage, shortages of energy and raw materials, strikes and lock-outs.
Section 7 Warranty
(1) The seller shall only be liable for warranty obligations vis-à-vis the customers for defects which occur in compliance with the intended conditions of use and under normal use. In particular, it does not apply to defects which are based on reasons for which the customer or third parties are responsible. The existence of defects must be proven by the customer. Section 924 ABGB does not apply. In the event of default in acceptance, the warranty period shall begin to run from the provision of the goods.
(2) The customer is obliged to examine the deliveries immediately for completeness, conformity with the delivery documents and for externally recognisable defects and to assert recognisable deviations and defects immediately. In addition, the customer must note any transport damage or shortfalls that are recognisable upon delivery on the note of receipt of the transport company. If a complaint is not made within 8 days of receipt of the goods by the customer, the respective delivery is deemed to be in accordance with the contract and the assertion of warranty claims is excluded, unless the deviation was not identifiable despite careful examination.
The regulation according to Section 377 UGB remains unaffected. In the case of hidden defects, written notification to the seller must be given within one week of detection of the defect.
(3) The full burden of proof for all claim prerequisites, including the existence of the defect itself, the time of the determination of the defect and the timeliness of the notice of defect, shall in any case lie with the customer. In the case of defects for which the seller has a warranty obligation towards the customer, the seller shall initially provide a warranty at its discretion by improvement or replacement. The customer shall grant the seller the necessary time for the inspection of the defects and for the repair or delivery of spare parts.
The customer shall bear the costs and the risk for outward and return transport, unless otherwise agreed in individual cases.
(4) An extension of the warranty obligation does not occur due to a remedy of defects. The seller shall only be liable for the rectification of defects by the customer himself or by third parties if he has given his written consent to this. The warranty period for customers is one year from delivery of the goods. Even within this period, the seller shall not be obliged to perform under this title if the customer is in default with his payment
Section 8 Liability
(1) Outside the scope of application of the product liability law, the seller's liability towards customers is limited to intent or gross negligence. Excluded from this limitation of liability are culpably caused personal injuries.
(2) In addition to liability for slight negligence, compensation for consequential damage and financial loss, lost profits, savings not achieved, loss of interest and damage from third-party claims against the customer shall also be excluded.
(3) The limitation period for claims for damages shall be three years from the transfer of risk. The provisions on damages contained in these terms and conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
Section 9 Withdrawal
(1) If the seller is in default of delivery due to gross negligence on its part, the customer may, after setting a reasonable grace period of at least 30 days in writing, declare its withdrawal by registered letter to the seller. The right of withdrawal only applies to the part of the delivery which is in default. In any case, the customer is obliged to return the goods to the seller at his own expense in the event of withdrawal.
(2) The seller may also withdraw from the contract if (a) events occur after the conclusion of the contract which no longer cover costs or make it possible to fulfill the contract at the agreed conditions or (b) the delivery is impossible for reasons for which the customer is responsible or is further delayed by the seller even after setting a reasonable grace period.
The seller reserves the right to assert claims for damages.
Section 10 Subcontractors
The use of subcontractors is always permitted.
Section 11 Data Protection
(1) The protection and security of customer data is a matter of concern to the seller. This processes customer data only within the legal framework, on a legal basis and for corresponding purposes, in particular for the fulfillment of contractual and legal obligations. Details are contained in the data protection declaration of the seller, which is an integral part of the general terms and conditions and is listed and visible on the homepage of the seller and in particular also in the web shop.
(2) Customers are entitled to data protection rights, in particular the rights to information, correction, deletion, restriction, data transferability, objection and complaint. More information are contained in the Data protection declaration
Section 12 Image rights
All picture rights are with us or with our partners. The use of pictures, even in extracts, is not permitted without our express consent.
Section 13 Agreements
The customer hereby agrees to receive various notifications and documents by e-mail. This includes e.g. the receipt of order confirmations, sales confirmations, shipping confirmations etc.
Section 14 Final provisions
(1) Austrian law shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
(2) The place of jurisdiction for all disputes arising from legal transactions which are subject directly or indirectly to these General Terms and Conditions shall be the Austrian court in Graz which has jurisdiction over the subject matter and location of the seller. In any case, however, the seller shall have the right to sue at the general place of jurisdiction of the customer.
(3) In the event that individual provisions of the contract with the customer including these General Terms and Conditions are or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a valid provision that comes as close as possible to the will of the parties.
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