1. Contractual Terms
a) Only the terms and conditions printed hereafter shall be applicable.
b) The following General Terms and Conditions apply to any of our business relationships, the work we perform, any delivery and service we provide, any business transaction we agree on.
c) Terms and Conditions which are deviating from, conflicting with or are complementary to the herewith stated General Terms and Conditions shall not apply or form part of our contractual agreements unless approved in writing by all parties involved.
d) Any amendments and additions to these Terms and Conditions only form part of our transactions and basis of our liability once those changes are put forward in writing and are agreed upon.
e) These Terms and Conditions are also applicable if Seisenbacher performs the contract without reservation and in awareness that these Terms are in conflict with or differ from the Customer’s standard terms.
2. Conclusion of Contract and Price
a) All offers and quotations are subject to change without notice and non-binding. We reserve the right to make technical and other changes within reason.
b) Any offer is based on laws and regulations in force at the time the offer was made. In case the Customer requires modifications of design or workmanship within the scope of what is technically feasible or acceptable to Seisenbacher, Seisenbacher shall submit an amended offer pertaining to the effects of such modifications, in particular with respect to increased or reduced cost or to the date of delivery. The acceptance of the first (partial-) delivery by the Customer shall be an acceptance of this extended offer.
c) We reserve ownership and copyright of all our intellectual property, including constructions, drawings, calculations, samples, quotations, mock-ups and similar information both tangible and intangible in nature. Access to such documentation may be granted in part or whole in special cases and upon written approval and signing of a Non Disclosure Agreement.
d) We do not accept any liability for defects or waste of the materials/components/end products arising from constructions, drawings, imprecise or verbal information and other technical/technological documentation obtained by the customer or third parties as part of the order. Any cost resulting out of changes and / or rework due to defects based on design errors shall be charged to the Customer.
e) By placing an order, the Customer confirms a legally binding offer. Orders however are only considered accepted and contractually binding once approved by us in writing.
f) The contract is concluded – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – subject to the correct and timely delivery by our suppliers depending on the fact that a congruent legal transaction has been concluded with such subcontractor and Seisenbacher is not responsible for the failure of delivery.
g) Subsequent changes and amendments to the contract require notification in writing and must be confirmed by Seisenbacher in order to be legally binding.
h) Services not expressly described in specifications of the contract must be agreed upon separately. For such services the Seisenbacher’s Standard Terms and Conditions are applicable unless otherwise agreed.
i) Our prices shall be considered as Ex-Works (Incoterms: EXW) plus statutory VAT. Packaging, freight, customs and transport insurance costs shall be borne by the Customer. Any different pricing arrangements must be made in writing and confirmed by both parties.
j) The prices offered are daily prices and shall apply until cancelled, as long as the contract has not been concluded.
3. Payment Terms and Conditions and Rescission
a) Unless otherwise agreed, our invoices shall be payable within 30 days based on date of the invoice without any deductions. The Customer shall pay the invoice amount by way of bank transfer into the corporate bank account as shown on the invoice.
b) Should payment terms be exceeded and / or payment withheld without supporting claim of goods or services, default interests amounting to 10 % p.a. shall apply and charged to the Customer until payment is received in full. In cases of invoice or payment disputes, the Customer shall undertake to bear all costs and expenditures associated with collecting all receivables, in particular expenses of collection agencies or other costs of prosecution.
c) The Customer shall only be entitled to withhold or offset payments to the extent that the counterclaims are undisputed or have been verified and reviewed by Court. Such entitlement only applies to the contractual agreement that the claim was filed under and does not apply to any other contracts or orders or other agreements the Customer may have with Seisenbacher.
d) Should the payment term and further payment notice periods expire without payment of the invoice,the customer have financial problems, Seisenbacher is entitled to withdraw immediately from the contract and any related business agreements that may be linked to or supporting the contract of concern. Seisenbacher reserves the right to claim additional damages caused by non-payment.
4. Delivery Terms
a) Delivery dates and delivery time frames have to be agreed in writing and any changes need to be confirmed in writing in order to be binding.
b) In case of engineering services provided by Seisenbacher, delivery time frame starts at the time of design freeze or alternatively with the handing of final designs to the Customer. In case of any design changes after design freeze, initially agreed delivery dates and times will become obsolete and new delivery dates and timeframes have to be reviewed and confirmed by Seisenbacher.
c) On time delivery requires on-time and in-full submission of order and call-offs as well as any required document that the Customer is obliged to submit to Seisenbacher prior to start of engineering or manufacturing and assembly based on a confirmed timetable. Any permits for shipping or legal documents must be ready at an agreed date as well in order to guarantee delivery timeframes as contractually stipulated.
d) The Customer shall not reject partial and advance deliveries unless such deliveries are unacceptable to the Customer and have been confirmed as part of the contract or order.
e) The delivery date is considered complied with when the stated items to be delivered on such agreed date have left the plant or are ready for dispatch on such date. Unless otherwise stated in the order confirmation, delivery dates shall be non-binding dates.
e) In case of unforeseen events such as force majeure, business disruption due to strikes or traffic congestion that may delay shipments from suppliers or to Customers, or other reasons that Seisenbacher cannot be held liable nor responsible for, the delivery period and delivery date shall be extended or postponed as long as the unforeseen circumstances impact daily operations and a re-start of production may require.
g) Should the Customer request any changes to the product after confirmation of the order and delivery date, then the delivery terms shall be revised and agreed in line with the required changes to the product and approved in writing by both parties. In the above stated circumstances, the Customer shall not be entitled to claim any damage nor withdraw from any contractual obligations, unless evidence is provided that the delay was caused by gross negligence on our part. The applicability of § 1298 Paragraph 2 of the Austrian Civil Code is excluded.
h) If the Customer delays shipments or the acceptance of deliveries on its own terms without any fault or negligence on our part, the Customer is held responsible for payment of any cost incurred by Seisenbacher due to such delays. Penalty charges of 0,5% per week will be charged starting one month after the delivery item was announced as being ready for shipment or acceptance. Penalty charges may increase up to 5% of the total invoice value. In cases in which the Customer defaults, Seisenbacher reserves the right to either request contractual fulfilment or withdraw from the contract given a grace period of another 30 days.
5. Defects and Their Remedy
a) Seisenbacher shall warrant that the condition of the delivered goods coincides with the contractual stipulation, unless a deviating agreement has been made.
b) The statute of limitations for claims for material defects shall be 6 months.
c) Seisenbacher may support the Customer in searching for defects and remedying those. If the defects cannot be directly attributed to Seisenbacher, Seisenbacher will invoice such support services to the Customer.
d) In case the Customer or a third party carries out modifications or repairs improperly and without prior approval of Seisenbacher, Seisenbacher shall not be liable for consequences resulting of such modifications or repair work.
e) Additional expenses which arise from the fact that the delivered goods have been transported to another place other than the original place of delivery, will not be born by Seisenbacher, unless Seisenbacher has been aware of the fact that such transport corresponds to the intended use of the goods.
f) The subsequent performance of the contract shall not initiate a new statutory period of limitations. The Customer’s rights to withdraw from the contract or to reduce the purchase price shall be maintained if the subsequent remedy of material defects definitely fails after an adequate term of preclusion combined with a threat to reject the contract with the expiry of the term of preclusion has been set by the authorized representative.
6. Transfer of Risk
a) Any and all risk of delivery of the product shall be transferred to the Customer upon handover or when passing the goods on to the forwarding agent, the haulage contractor or the person or company otherwise designated with performing shipment the opportunity to load the delivery item. The delivery is always made at the expense and risk of the Customer. Should the delivery be delayed due to Customer reasons, the risk shall be transferred to the Customer on the date on which we declare the delivery item as being ready for shipment.
b) We accept no liability for damage and loss during transport.
c) In the absence of particular delivery specifications as part of the order, we shall be entitled to choose the best and most suitable means of shipment at our own discretion and shall select the forwarding agent or carrier. Should the Customer not make any other specifications as regards insurance against damages in transit, we are entitled to make arrangements to this effect and such insurance fees will be charged to the Customer. Seisenbacher is not obliged to cover all shipments through a compulsory insurance scheme but recommends insurance to Customers to prevent or mitigate any risk of damage during transport.
7. Title Retention
a) Regardless of the point and date of risk transfer, the delivery item shall remain our property until the Customer has paid all related open invoices in full.
b) While delivery items are stored at and awaiting reception by the Customer, the Customer is obliged to take adequate care of the delivered goods until the goods are transferred into the Customer's ownership. Should maintenance and inspection work be required, such work will be performed by the Customer at his own expense.
c) The Customer shall inform us immediately and in writing of all unexpected and illegal 3rd party access to the delivery items, especially in case of legal action due to 3rd party intrusion or damage caused to the delivery object. The Customer shall also inform the bailee of Seisenbacher's title retention. The Customer shall reimburse us for all damages and cost incurred due to infringement cases, damage to the delivery and any legal action that would need to be taken in such cases.
d) As long as the delivery item is our property, the Customer is not entitled to pawn the supplied delivery item to a third party, pawn it as guarantee or sell it (except from according to Point 6.e.).
e) The Customer is entitled to resell the delivery item in the proper course of business. He shall immediately settle all accounts receivable totaling the invoice amount which have been incurred by him through re-selling to a third party. In addition, he shall undertake to make a corresponding note in his books or on his invoices. We shall accept the assignment. Following the assignment, we are entitled to collect the accounts receivable. We reserve the right to collect the accounts receivable ourselves as soon as the Customer does not properly satisfy his payment obligations and enters into arrears. In the case of resale on credit, the Customer likewise reserves the ownership towards his buyer. The Customer shall transfer to us the claims and rights arising from this title retention. We shall accept the assignment.
f) In the event that the Customer behaves in a manner contrary to the contract, especially in the case of a delay in payment, we are entitled to withdraw from the contract and demand immediate return of the delivery item. Furthermore, we are entitled to withdraw from the contract in the case of infringement of the above obligations and to request immediate return of the delivery item, if we can no longer be reasonably expected to adhere to the contract.
g) Any treatment and processing of the delivery item carried out by the Customer is always done in our name and on our behalf. If the delivery item is processed, we shall be entitled to co-ownership in the new object in proportion to the value of the delivery item supplied by us. The same applies if the delivery item is processed or mixed with other objects that do not belong to us.
h) If the Customer files a petition for insolvency proceedings to be commenced, Seisenbacher is entitled to withdraw from the contract and demand the immediate return of the delivered goods and can withdraw from the contract. of the European Agreement (the Rome Convention).
a) The Customer shall – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – inspect in detail every shipment immediately after delivery. Complaints due to an incomplete delivery or due to identified defects shall be made in writing immediately after receipt of the individual deliveries, otherwise the delivery shall be considered as accepted without reservation and warranty and damage claims to this effect shall be waived.
b) In terms of its nature and extent, the defect shall be described in such a way that allows us to clearly identify the reason for the complaint. The Customer shall undertake to ensure the temporary storage of the delivery items complained about.
c) Furthermore, we shall be liable for delivery defects to the exclusion of further claims as follows: All such parts shall, at our choice, be repaired or re-delivered free of charge – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – if within one year of the delivery date – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – evidence can be provided of the delivery item being rendered unusable or its usability being considerably impaired due to an event occurring before the transfer of risk, especially due to faulty design, poor quality of materials or defective workmanship. Natural wear, defective material provided by the Customer, improper handling, excessive use, negligence on the part of the Customer and changes without our approval are excluded from the warranty. Warranty claims may – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – only be acknowledged if they are asserted to us in writing within one week from delivery. Notwithstanding the mandatory provisions of the Austrian Consumer Protection Act, we accept no responsibility in the case of used delivery items being sold, repair orders being taken on or in the case of alterations or conversions. For consumers, the warranty period for used delivery items shall be one year from delivery. The Customer shall – notwithstanding the mandatory provisions of the Austrian Consumer Protection Act – carry the full burden of proof for all eligibility requirements, especially for the defect itself, for the point in time at which the defect was identified and for the timeliness of the notification of defects; in this sense, especially the presumption rule of § 924 of the Austrian Civil Code shall be excluded. Notwithstanding the mandatory provisions of the Austrian Consumer Protection Act, the warranty period shall not recommence from an improvement made by us.
d) We provide no guarantees towards our customers in the legal sense. Manufacturers' guarantees shall remain unaffected by this.
9. Liability Limitations
a) We shall only accept liability for damages in the case of intent or gross negligence. The applicability of § 1298 Para. 2 of the Austrian Civil Code is excluded. Liability for slight negligence, compensation for resultant damages and financial losses, savings not earned loss of interest and for damages arising from claims made by third parties against the Customer is excluded.
b) The above liability limitations shall not apply – not with standing the mandatory provisions of the Austrian Consumer Protection Act – to physical injury and damage to health attributable to us or to loss of life on the part of the Customer.
10. Commercial Property Rights and Copyrights
a) If a delivery item is manufactured based on construction specifications, drawings, models or other specifications of the Customer, the Customer shall keep us free from damage liability and complaints in the case of any violation of industrial property rights.
b) Final planning documents, e.g. plans, sketches, models, equipment and other technical documents, as well as samples, catalogues, brochures, figures and the like, shall remain our intellectual property at all times and shall be subject to the relevant legal provisions with regard to duplication, reproduction, competition, etc.
11. Data Privacy
a) According to data privacy provisions, the Customer agrees that personal data related to the contractual agreement with Seisenbacher, shall be collected electronically, processed and archived as part of corporate and legal archiving requirements for business purposes only.
b) The Customer is entitled to revoke the above declaration at any time for future use and treatment of his data.
12. Final Provision
a) Should individual provisions of the contract with the Customer, including these general terms and conditions, be rendered or become ineffective either in whole or in part, this shall not affect the validity of the rest of the provisions. The fully or partially ineffective regulation shall be replaced by a regulation, the economic success of which comes as close as possible to the ineffective regulation.
b) The place of fulfilment for delivery and payment shall be Ybbsitz only. The District Court at Waidhofen an der Ybbs is agreed as being the sole place of jurisdiction in the case of all disputes arising directly or indirectly from this contractual relationship. In the case of consumers, § 14 of the Austrian Consumer Protection Act shall apply.
c) Austrian law shall apply at all times to the contractual relationships between the Customer and ourselves. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply, notwithstanding the mandatory provisions of the Austrian Consumer Protection Act.
d) Changes or amendments to these General Terms and Conditions or to the contracts concluded on the basis of these shall be made in writing in order to be rendered effective. This also applies to this formal requirement being waived.
e) The mandatory rights of a consumer according to the Austrian Consumer Protection Act shall, however, not be limited to all of the provisions mentioned above.