General terms and conditions of business of Steka-Werke Technische Keramik GmbH & CoKG dated 30.07.2015
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1. Area of applicability
1.1 The following terms and conditions of business form the basis of all offers, orders, deliveries and services of Steka-Werke Technische Keramik GmbH & CoKG ("STEKA").
1.2 These general terms and conditions of business shall also apply in case of orders made by remote sales via the Internet. By ordering goods, the Buyer hereby recognises these general terms and conditions of business.
1.3 Other terms and conditions of business shall only be recognised to the extent that they correspond to these general terms and conditions of business or are expressly declared in writing on the basis of the respective contract or service.
1.4 The offer of the webshop shall be addressed exclusively to entrepreneurs as defined in § 1 of the Austrian Enterprise Code (UGB).
2. Definition of terms
2.1 All natural or legal persons which maintain a contractual relationship with STEKA, as well as natural or legal persons which initiate such a relationship with STEKA via the webshop or another channel shall be deemed to be a Buyer as defined in this contract.
2.2 Webshop shall be defined as the automated system for the conclusion of contracts with Buyers operated by STEKA on its website (http://steka.at).
2.3 The order via the webshop shall represent a binding offer submitted by the Buyer for the conclusion of a contract in respect of the goods listed in the order to the stated quantity and quality.
2.4 The order confirmation represents the confirmation of the arrival of the order made via an automated channel and does not represent any information concerning the actual processing or acknowledgement of the order on the part of STEKA.
2.5 A shipping service company is defined as any company by means of which STEKA dispatches the goods ordered by the Buyer to the address stated by it.
3. Conclusion of the contract
3.1 The offers of STEKA - also in the webshop - shall always be subject to confirmation and non-binding, unless otherwise expressly stated by STEKA. Deviating agreements at the time of conclusion of the contract via the webshop shall not be permitted. Should an express binding nature of the offer has been agreed to by STEKA, the offers on the part of STEKA shall automatically lapse after 30 days, unless an acceptance takes place. STEKA shall be entitled to withdraw the offer at any time prior to its acceptance.
3.2 Offers, including enclosures, samples, dimension drawings and descriptions are the property of STEKA and must not be duplicated, made accessible to third parties or passed on to third parties without STEKA’s prior written agreement. STEKA may request the return of offers including enclosures at any time.
3.3 STEKA shall be entitled to also only partially accept orders. All partial deliveries shall be deemed to be a separate sale of the delivered partial quantity.
3.4 The goods listed in the webshop shall be considered to represent an invitation to the Buyer to submit an order in respect of the selected goods at the price stated in the webshop. An automatic order confirmation shall be sent following receipt of the Buyer’s order.
3.5 The order confirmation shall not be considered to be an acceptance of the contract in respect of the goods included in the order.
3.6 The express acceptance of the contract on the part of STEKA shall take place via letter, email or fax. An acceptance can take place via the actual dispatch of the goods to the address stated by the Buyer or by means of a confirmation concerning the dispatch of the goods. In such a case, the contract shall be deemed to have been accepted on handover to the shipping service company, unless the acceptance of contract is expressly declared before this time.
3.7 An order in the webshop is only possible if all obligatory fields (fields marked with a star) are entered in the order form provided by STEKA on the website.
3.8 Prior to the submission of the order, the Buyer will receive an automatic breakdown of the contents of the order, including prices, which can be corrected or confirmed.
3.9 Declarations of intent and other notifications will only be received by STEKA during normal business hours (Monday to Thursday from 7 am to 4 pm, Friday from 7 am to 12 noon, except on statutory national holidays in Austria). Messages such as emails or orders via the webshop deposited on the server outside of these times shall not be deemed to have been received until the next working day.
3.10 The Buyer is aware that the Internet is not a secure communications medium and that data which is sent via the Internet can, on the one hand, become known and, on the other hand, can be amended by third parties.
3.11 STEKA carries out the reasonable and usual security precautions to ensure that the data of the Buyer is processed in a secure manner by means of encryption of the communication via the webshop. However, the Buyer shall bear the risk of the data not arriving at STEKA or not arriving at STEKA in the form transmitted by the Buyer. STEKA proceeds on the assumption that the form in which the data is received corresponds to the form in which it was transmitted by the Buyer.
4.1 The prices which are stated for goods in the webshop amongst others are in euros and are net prices (without value added tax), without discount or other reductions and shall apply ex works including standard packaging and exclusive of shipping and insurance. Value added tax to the respectively applicable statutory amount will be charged additionally. A granting of discounts shall require an express agreement.
4.2 For webshop orders, an additional shipping fee ("delivery costs") will be charged. The concrete amount shall depend on the concrete amount of the ordered goods and the delivery location. A list of delivery costs can be viewed at http://www.steka.at/lieferkosten.
4.3 The prices shall apply exclusively to the requested services. For additionally necessary works, services or special packaging, STEKA shall be entitled to charge reasonable remuneration for the additional expenses which are actually necessary.
4.4 During the performance of the order, STEKA shall reserve the right to adjust the prices for goods and services should costs be incurred due to STEKA receiving new regulations, guidelines or specifications of the Buyer, STEKA being obliged to comply with new laws, ordinances or other constraints or significant changes to the costs of materials, wages or production being incurred, in particular due to the increase or introduction of taxes. Such price adjustments shall be deemed as having been approved by the Buyer 30 days after the notification by STEKA. In case of objections by the Buyer, STEKA shall be entitled to rescind the contract.
5. Terms and conditions of payment
5.1 Unless expressly agreed otherwise, invoices shall be paid by Buyers or other invoice recipients within 14 days of receipt without deduction by the means of payment stated in the invoice.
5.2 Should invoices be settled by means of credit card, one of the credit cards offered in the webshop shall be used.
5.3 On sending of the order, an amount which corresponds to the order shall be reserved on the credit card ("authorisation"). The credit card will not be charged until dispatch of the goods to the Buyer. The credit card data will not be saved.
5.4 STEKA shall not incur liability for losses caused by the payment process not being authorised by the engaged credit card company.
5.5 In case of late payment or performance, default interest in the amount of 9.2% per annum above the base rate of interest shall be due. This can be accessed at the Internet address of the Austrian National Bank (currently http://www.oenb.at/Service/Zins--und-Wechselkurse/Anknuepfungszinssaetze.html ). The default interest shall also be due in cases where the Buyer is not responsible for the payment delay.
5.6 In case of default on the part of the Buyer concerning payment or its other performances, then regardless of other rights, STEKA shall be entitled to retain deliveries until provision of the agreed consideration, taking into account the remaining delivery deadline or, following the expiry of a reasonable period of grace, to rescind the contract and demand damages due to non-performance. In such a case, the Buyer must immediately return to STEKA, at its own expense, all goods which have already been delivered. STEKA shall retain the right to assert damage claims due to devaluation, wear and tear, compensation for its own delivery costs and others.
5.7 In case of breach of its contractual obligations, the Buyer shall be obliged to reimburse all necessary costs for the proportional assertion of the claims of STEKA, however in all cases a fixed amount of 40 EUR in accordance with § 458 of the Austrian Enterprise Code (UGB). In addition, the costs of collection agencies to the maximum amount stated in the respective ordinance for maximum fees charged by collection agencies and the costs of lawyers according to the lawyers’ tariff must be reimbursed.
5.8 The Buyer shall not be entitled to set off claims against those of STEKA, unless the said claims are expressly recognised or have been legally determined by an Austrian court.
6.1 Statements concerning delivery dates shall always be non-binding. In case of non-compliance with delivery dates, the Buyer shall not be entitled to assert the right of rescission unless STEKA fails to hand over the goods to the shipping service company despite the setting in writing of a period of grace of at least two weeks.
6.2 Unless otherwise agreed, the delivery deadline shall commence on conclusion of the contract in accordance with Point 3 and shall end on handover of the goods to the shipping service company.
6.3 In case of circumstances for which the parties are not responsible, such as force majeure, unforeseeable operational disruptions, interventions by the authorities, transportation and customs delays, transportation damage, labour disputes, lack of raw materials, power loss etc, the delivery deadline shall be extended by the amount of time of the respective hindrance. Should delivery no longer be considered reasonable due to the said circumstances, STEKA shall be entitled not to provide delivery. Damage claims of the Buyer due to delivery delays shall be excluded, in particular if STEKA is not responsible for the circumstances connected to delivery delays.
6.4 Should the Buyer fail to comply with its obligations, the delivery deadline shall be reasonably extended and STEKA shall be entitled to rescind the contract and demand reimbursement of the losses incurred, following the setting in writing of a period of grace of 14 days.
6.5 Should partial deliveries be possible, these shall also be legally permitted. Each partial delivery shall be deemed to represent an individual transaction and can be charged separately by STEKA. In case of delay of partial deliveries, the Buyer shall not be able to assert any rights in respect of the remaining partial quantities.
6.6 Deliveries shall take place ex-works inclusive of standard packaging. All risks shall be transferred to the Buyer, at the latest on handover to the shipping service company.
6.7 Should the goods be ready for dispatch and should the shipping or acceptance be delayed for reasons for which STEKA is not responsible, the risk shall be transferred to the Buyer on receipt of the notification concerning readiness for dispatch.
6.8 Goods which are delivered ex-works must be retrieved by the Buyer immediately, however before the expiry of a reasonable deadline. Should no retrieval take place, STEKA shall be entitled, according to its own discretion, to store the goods at the expense and risk of the Buyer and to charge these as having been delivered ex-works.
6.9 Unless otherwise agreed, STEKA shall take the decision concerning the route, type and means of dispatch, without the provision of a guarantee concerning the fastest, most secure and cheapest form of transportation.
6.10 Insurance against damage in transit shall only take place if an express agreement is concluded in this respect and the costs shall be borne by the Buyer.
6.11 STEKA shall reserve the right to exceed or fall below the order quantity by 10% and to charge the Buyer for the quantity which was actually delivered.
7. Right of rescission / right of retention
7.1 The prerequisite for the delivery obligation is good creditworthiness on the part of the Buyer or full advance payment of the order and/or authorisation of the amount on the credit card provided by the Buyer. Should STEKA receive information following conclusion of the contract which points to a deterioration in the creditworthiness of the Buyer or leads to doubts concerning the creditworthiness of the Buyer, in particular if a significant deterioration to its asset position takes place, payments are suspended or due invoices are not paid despite a warning, STEKA shall be entitled to demand advance payments or securities or to rescind the contract and demand damages due to non-fulfilment.
8. Reservation of ownership
8.1 Until fulfilment of all claims, all delivered goods shall remain the property of STEKA, also in the processed condition.
8.2 In case that the Buyer acquires sole or co-ownership of a unified new item by means of connection, amalgamation or mixing of the property of STEKA with other moveables, in order to secure the claim, the Buyer shall now assign the said ownership right to STEKA with the concurrent undertaking that the new item will be stored for STEKA properly and free of charge until full payment.
8.3 In case of re-selling of the goods which belong to STEKA or the new item produced from these, the Buyer shall inform its consumers of the right of ownership of STEKA.
9. Data protection
9.1 The Buyer hereby agrees that the data provided within the framework of the order and its performance will be gathered, processed, saved and used for purposes of bookkeeping and internal market research and marketing purposes.
9.2 The data will be used in order to fulfil statutory regulations, to process the payment transactions and for advertising purposes. STEKA complies with the statutory data protection regulations.
9.3 The Buyer shall have the free of charge right to information concerning the data saved about it and, if applicable, the right to correction, blocking or deletion of the said data in accordance with the Data Protection Act 2000 (Datenschutzgesetz 2000).
10. Third party property rights
10.1 In case of the ordering of articles which are not listed in the catalogue, the Buyer shall be liable for ensuring that the engaged products do not infringe third party property rights or patents. The Customer shall indemnify STEKA and hold it harmless in case a claim is brought against STEKA by a third party due to a breach of property rights or patent rights in connection with the performance of an order.
11.1 All dimensions without a tolerance notice shall be deemed to be average dimensions and shall be subject to DIN 40680 m.
11.2 In case, goods are to be manufactured in accordance with specifications provided by the Buyer and should the said specifications be changed, STEKA shall be entitled to charge reasonable remuneration for the additional expenses and reimbursement in respect of the materials which have become unusable.
12.1 STEKA shall only assume a guarantee for products in accordance with the following provisions and only in relation to the Buyer as the first consumer. The assignment of warranty claims to third parties shall be excluded.
12.2 STEKA shall provide a guarantee concerning the quality of the materials and for proper performance, with the provision that deviations in the dimensions during the manufacturing process are unavoidable. Therefore tolerance areas in accordance with DIN 40680 m shall remain reserved, unless agreements to the contrary were expressly concluded.
12.3 The Buyer shall immediately check the delivered goods following receipt for completeness, correctness and other freedoms from defects. The Buyer shall provide a written complaint in respect of any defects immediately, however at the latest within 14 days of receipt of the goods, otherwise the Buyer loses all claims to which it is entitled concerning defects which are recognisable in case of a proper inspection (§ 377 of the Austrian Enterprise Code - UGB). A written complaint must be raised in respect of defects which are not immediately recognisable. This must take place within 14 days of discovery and in all cases, within one year of delivery. Should no complaint be submitted correctly in terms of form or on time, the goods shall be deemed to have been accepted. A defect in a partial delivery shall not entitle the Buyer to rescind the contract.
12.4 The warranty shall only apply to strains under the usual operational and climatic conditions. Should the goods be intended for special conditions and should STEKA not have provided a written guarantee for the said conditions, a warranty for the said special conditions shall be excluded.
12.5 Claims due to defects, regardless of the legal reason on which they are based (in particular warranty, damages, special right of recourse) shall be time barred for all types of delivery after the expiry of the warranty period of one year following delivery.
12.6 The Buyer shall be obliged to initially provide STEKA with the opportunity to provide improvement. Only if improvement and exchange are impossible the Buyer may demand a price reduction or conversion.
12.7 Should STEKA improve an actual defect, STEKA shall be able to demand that the Buyer sends the goods to STEKA at the cost and expense of the latter, should this be feasible.
13. Matrices for the Buyer’s own constructions
13.1 The costs of work tool and work tool changes shall be due for payment as follows: half on placing of the order and half on acceptance (approval) of the type sample. Invoices in this respect shall be due to payment within 14 days of receipt without deduction, unless expressly agreed otherwise.
13.2 Work tools paid for by the Buyer shall become its property, however these shall remain in the possession of STEKA in order to protect the construction. Their handover may not be requested, also in case of defect complaints or if the work tools are not used. Deliveries to third parties which are made using the Buyer’s own work tools will only be carried out if the owner agrees.
13.3 Should no more orders for which the use of the Buyer’s own work tools is necessary be issued for a period of five years, STEKA shall be entitled to destroy the matrices and the Buyer’s own work tools or to use these elsewhere.
14.1 The Buyer shall be obliged to conclude an industrial injury insurance policy, as well as a public liability insurance policy, both with the customary sums insured.
14.2 Failure to conclude the respective insurance policies shall not lead to a restriction of the obligations incumbent on the Buyer and, in particular, shall not lead to the Buyer being released from the order.
15.1 Regardless of legal reason, in particular in case of delay, impossibility of performance, breach of contractual obligations, defects, consequential loss connected to defects or due to unlawful acts, STEKA shall not assume any liability for any losses which are due to simple negligence on the part of STEKA or persons for which it is responsible.
15.2 STEKA shall only incur liability for positive losses, to the exclusion of the obligation to pay damages for lost profit.
15.3 The Buyer shall provide proof of the presence of gross negligence and intent.
15.4 A breach of the notification obligation in accordance with Points 17.1 and 17.2 shall lead to an exclusion of all liability on the part of STEKA, especially as the suitability of the products must be checked by STEKA prior to using the goods in these states and areas.
15.5 Should the Buyer fail to take out the insurance stated in Point 14, the Buyer shall incur liability in relation to STEKA for all resulting detrimental consequences, and shall be obliged to reimburse the said losses within 14 days of notification by STEKA.
16.1 Until notification in writing of a different address, deliveries and declarations of intent shall be legally effective if delivered to the address stated by the Buyer in the order. On conclusion of the contract, the Buyer shall be obliged to fully and correctly provide the essential data which is requested.
16.2 In case of incorrect, incomplete and unclear provision of information by the Buyer, the Buyer shall incur liability for all costs and losses incurred as a result. The Buyer shall be obliged to pay compensation should it fail to provide immediate written notification of the name, address and/or change to the place of residence. In case of failure to provide the above information, all written notifications, including via email, shall be deemed to have been received if sent to the last known address of the Buyer.
16.3 The assignment to third parties of the rights under the contract shall require the written agreement of STEKA.
16.4 In order to be valid, amendments and ancillary agreements shall require the written confirmation of the persons of STEKA who are entered in the company register as having power of representation and shall only apply to the individual business transaction. The same shall also apply in respect of deviation from the written form requirement.
16.5 The other employees are not authorised to agree amendments or ancillary agreements to these general terms and conditions of business.
16.6 Should contractual texts be drafted in more than one language, the German version shall be binding.
16.7 These general terms and conditions of business in the English language are merely intended to facilitate international business transactions. The German version of the general terms and conditions of business shall be solely binding. This shall apply in particular in case the English translation deviates from the German version in any way.
17. Exclusion of applicability for goods and services
17.1 Should the Buyer intend to use the goods manufactured, sold or otherwise handed over in space travel, aviation, cableway installations, on the railways or automotive sector or should the Buyer intend to sell or transfer the goods to third parties who intend to use these in the aforementioned areas, the Buyer shall be obliged to notify STEKA of this intention before conclusion of the contract, so that STEKA has the option of rejecting entering into the agreement.
17.2 The notification obligation stated in Point 17.1 shall also apply to the Buyer if it is located in the USA, Canada or Australia, or should it intend to sell or otherwise hand over or import the goods of STEKA in the named countries, also free-of-charge.
18. Place of jurisdiction, applicable law, severability clause/taking effect
18.1 The place of performance and place of jurisdiction for all claims connected to the contract shall be Innsbruck, Austria.
18.2 Austrian law shall apply to the exclusion of the law of conflicts and the United Nations Convention concerning the International Sale of Goods.
18.3 Should one of the above-mentioned provisions be or become ineffective or unenforceable, the validity of the remaining clauses and the contract which forms the basis for these shall remain unaffected. The ineffective or unenforceable provision shall be replaced by an effective and enforceable clause which comes as close as possible to the ineffective or unenforceable provision in economic terms.
18.4 In respect of existing business relationships between STEKA and Buyers, the amendments to the general terms and conditions of business in the current form shall take effect on 01.01.2016. These shall apply to all contracts concluded after the time of taking effect, also without a specific reference to the update or amendment to the general terms and conditions of business.