XAVA General Terms and Conditions of Delivery and Sale
These general terms and conditions are valid from September 1, 2021.
All present and future business with XAVA Recycling e.U., Tannbergstraße 10, 4132 Lembach i.M., FN 434665p, (referred to hereinafter as “Seller“) is governed exclusively by the following general delivery and sales terms, even if they are not specifically referred to, and cover business relating to all products and services provided by the Seller (referred to hereinafter as “XAVA products”).
The Seller’s general delivery and sales terms and conditions are intended to govern legal business between companies. In cases they are also to apply to legal business with consumers in accordance with paragraph 1 of the Austrian consumer protection law, they only apply to the extent that they do not contradict the first main part of this law.
Contractual clauses that deviate or supplement these general delivery and sales terms and conditions – in particular general delivery, purchasing and sales terms and conditions of the client (referred to hereinafter as “Client“) – will only apply if they have been explicitly confirmed in writing by the Seller.
- PRICES AND PAYMENT TERMS
Unless explicitly agreed otherwise, the prices of the Seller are (EUR) net ex works delivery (address of the Seller) without packaging, discount and VAT plus any price increases due to increases in manufacturing costs (material costs, wages, general costs, etc.) between the order being placed and delivery.
Unless agreed otherwise, the purchase price is due for payment immediately on receipt and acceptance in writing of the order confirmation, and before delivery at the latest. If the Client defaults on an agreed (partial) payment, the Seller is entitled to invoice annual interest on arrears of 5 % (five percent points) above the 3 months Euribor rate. This does not affect our right to make a further claim for damages due to default. Any agreements regarding discounts expire as soon as payment or part payment is delayed. In the event that payment is delayed, immediate maturity is agreed and the Seller is entitled to immediately withdraw from the contract.
- OFFERS & COST ESTIMATES
All proposals and cost estimates as well as technical descriptions in brochures, advertisements or on the Seller’s website, are nonbinding and serve merely as a basis for compiling a proposal. No responsibility for the correctness of the cost estimate is taken.
The Seller’s proposals are always submitted in writing and are nonbinding. Intermediate sales are reserved.
A contract for XAVA products does not exist until the Seller has issued a written order confirmation or the ordered XAVA products have been delivered.
Order confirmations sent by the Seller are to be immediately checked by the Client and signed and returned to the Seller within 7 days of arrival. If no written message is received to the contrary within 7 days of delivery, the order confirmation is deemed correct and complete, even without it having been signed and returned.
- DELIVERY PERIODS AND FULFILMENT
The delivery periods will be adhered to by the Seller as far as possible. They are, unless expressly agreed elsewhere, nonbinding and are intended to indicate the forecast time of completion. Fixed dates laid down by the Client will not be recognised by the Seller unless these have been expressly confirmed in writing as fixed dates in the order acknowledgement.
The delivery periods do not start running until full payment has been made by the Client.
In the event of an agreed change to the respective contract, the Seller is unilaterally permitted to determine a new delivery date.
The Seller reserves the right to make design and form changes during the delivery period.
Claims by the Client regarding non-fulfilment or delay are excluded providing these circumstances are not due to intent or gross negligence by the Seller.
The deliveries and services provided by the Seller are deemed to have been fulfilled in the following cases, unless otherwise agreed in writing with the Client:
- a) When notification of readiness for shipment is given (= EXW and FCA terms, INCOTERMS 2020),
the Client has to accept the object of sale immediately after notification of readiness for shipment has been given, or
- b) an agreed location of fulfilment/delivery: on departure from the Seller’s
In the absence of any written agreement, place of performance and fulfilment is 4132 Lembach, Austria. In general, the agreed INCOTERMS 2020 apply.
Risk and hazard, including accidental loss, are transferred to the Client on fulfilment. If the Seller has determined a collection period and this is exceeded by the Client, then a storage fee may be invoiced. This does not affect the validity of a claim for damages exceeding this amount.
The Client is also liable for risk and hazard during the loading of XAVA products. The Client must obtain written confirmation from the Seller that the load has been secured properly. If the Client has not provided suitable equipment for collecting the delivery and this is apparent to the Seller, then the Seller is permitted to refuse loading and invoice the costs incurred of making the delivery ready for collection.
- OFFSETTING AND RETENTION BAN
Counterclaims against claims of the Seller can only be lodged by the Client with legally determined claims or claims expressly recognised in writing. Otherwise compensation is excluded.
The Client is not entitled to hold back payment as a result of warranty or compensation claims.
- RIGHT OF WITHDRAWAL OF THE SELLER
The Seller is permitted to withdraw from the contract for an important reason before complete fulfilment of all mutual contractual obligations. An important reason exists in particular if bankruptcy proceedings are initiated on the Client’s assets or the opening of bankruptcy proceedings is disallowed due to lack of assets. If the Client is culpable of causing the Seller to withdraw from the contract, the Seller is permitted to choose – in addition to the reverse transaction claims – either to claim a lump sum compensation for damages of 15% of the gross invoice amount or compensation for their actual loss.
- RETENTION OF OWNERSHIP
The object of purchase and its component parts remain in sole ownership of the Seller (retention of ownership) until all (payment) obligations of the Client in connection with the relevant legal business have been met in full, even if payment has already been made for some of the individual component parts. As long as retention of ownership exists, a sale, mortgage, chattel, rental or other transfer of the object of purchase is impermissible without written permission from the Seller. If the Client does not meet their payment obligations in part or in full, or excessive debt or of cessation of payment exists, or an insolvency application has been submitted on the Clients assets, the Seller is permitted but not obliged to repossess the object of purchase and make valid all other rights pertaining to retention of ownership.
The Seller is permitted, until complete fulfilment of all the Client’s existing obligations in connection with the relevant legal business, to remove and/or keep components required to operate the XAVA product, such as the control box. This entitlement exists even after the Seller has delivered supplies and services in accordance with paragraph 7 of these terms and conditions. The Client is obliged, until complete fulfilment of all their obligations in connection with the relevant legal business, to remove components designated by the Seller the first time they are requested, or to enable the Seller to remove the components without hindrance. The Client is liable for all disadvantageous consequences and damages resulting from removing one of the components, except in the event of intent or gross negligence by the Seller.
If third party claims are made valid concerning the retention of ownership of the Seller, the Client must immediately inform the Seller by recorded delivery letter and take suitable measures to defend the retention of ownership of the Seller at their own cost. During the period of retention of ownership the Client is to insure the object of sale at the Seller’s request to the value of the new price against all risks including fire. The insurance policies are to be made in favour of the Seller.
During the period of retention of ownership the Client is obliged to keep the object of sale in good condition and have any repairs performed immediately on agreement with the Seller – except in the case of emergencies – in repair workshops approved in writing by the Seller.
In the event of the Seller giving written permission for reselling, pledging, chattel mortgaging, renting or otherwise handing over the object of sale to third parties during the period of retention of ownership, the Client is obliged to advise the third party of the existence of the retention of ownership and transfer to them all obligations laid down in these terms and conditions.
- TRADEMARK PROTECTION AND CI GUIDELINES
All images, logos, icons, photos or other documentation made available by the Seller during the course of negotiating or fulfilling the contract are copyright and trademark protected. The Client is permitted to use images, logos, icons, photos or other documentation submitted to them in this way exclusively within the framework of the Seller’s CI guidelines.
The Client is not permitted to use in connection with the Seller or the Seller’s products any other images, logos, icons, photos or other documentation not made available by the Seller.
- PLANS, DRAWINGS AND OTHER DOCUMENTATION
Documents made available by the Seller in physical form or electronically, such as in particular plans, photos, samples and other documents, remain the intellectual property of the Seller. Each use, especially the transmission, reproduction and publication by the Client, must have prior written approval from the Seller. Failure to comply will result in a fine of at least € 50,000.00 (fifythousand) payable within 90 days. The actual amount depends on the incurred an future damage.
The Seller can demand the return of documents issued by the Seller in the event of a contract not being awarded.
The Seller provides a warranty exclusively for explicitly warranted properties of its products/services and for characteristics generally expected, but not for the suitability of the services/product for purposes specified by the Client.
For companies, the obligation to report faults applies in accordance with paragraph 377 of the Austrian Commercial Code. In the event of any other loss of claims, the Client must inspect each delivery and service immediately, at the latest within 14 days of delivery or performance, for visible faults and specify any faults detected in writing in detail immediately.
The warranty period for the Seller’s deliveries and performances is 6 months from delivery and starts with the handover of the goods to the Client. Deliveries of replacements or remedies to faults do not extend, delay or interrupt the warranty period. Recourse claims in accordance with paragraph 933b of the ABGB (Austrian Civil Code) against the Seller are excluded. Making faults valid does not entitle the Client to claim non-fulfilment of the contract or to change the payment terms.
The existence of faults is to be proven by the Client. Paragraph 924 of the ABGB (Austrian Civil Code) is excluded.
The Client has an obligation to enable the Seller to immediately determine the extent of the fault.
In the event of a warranty claim, the Seller is entitled to determine the type of warranty remedy (improvement, replacement, price reduction or conversion). In the case of improvement, the Seller chooses whether the work is performed at the delivery location or at the Seller’s works.
The Seller is not liable for parts that they have not manufactured themselves, but is prepared to pass on the Client any entitlement to make a warranty claim against the relevant Manufacturer.
The warranty period starts with fulfilment of the contract. The warranty expires if the Client resells the object of sale, if the object of sale is changed by a third party or parts manufactured by a third party are fitted to the object of sale, if the Client does not adhere to the instructions on the XAVA product (operating instructions and machine documentation).
Properties covered by the warranty in accordance with paragraph 922 section 1 of the ABGB (Austrian Civil Code) are only covered if they are explicitly specified and warranted by the Seller. Product descriptions, brochures and the Seller’s specifications (or those of a third-party manufacturer) etc. are not valid as warranted properties.
For repair work, a warranty only covers the parts that have been replaced and only within the scope of the warranty provided by the manufacturer or Seller. No warranty is provided for wear parts (i.e. meshes) and used machines unless otherwise agreed in writing.
- MANUFACTURER’S WARRANTY
The Seller provides a manufacturer’s guarantee for selected XAVA products over and above the warranty specified in point 10. unless otherwise agreed in writing with the Client (and if need be the Client’s customer). The scope of this manufacturer’s warranty is specified separately in the XAVA guarantee conditions.
The Seller is only obliged to provide compensation in the cases that are taken into consideration in the event of intent or gross negligence. In the event of minor negligence, the Seller is liable only for personal injury. The Seller is not liable for indirect damages, loss of profit, loss if interest, omitted savings, consequential damages and damage to property. The liability of the Seller lapses 6 months from the Client being aware of damages and damaging party, and in any event within 3 years of performance of the contract.
Any fault of the Seller must be proven by the Client. The exemption from liability also includes claims against employees, representatives and contractors working for the Seller, due to injuries that they subject the Client to – without reference to a contract between them and the Client.
To the extent for whatever reason a penalty at the expense of the Seller has been agreed, this is subject to judicial reduction law; damages exceeding the amount of the penalty are excluded.
Any existing right to compensation of the Client are limited to the value of the contract (dealer purchase price) of the respective contract.
If the Client is a vendor, then their right of recourse in accordance with section 12 of the Austrian Product Liability Act is explicitly excluded.
- CONSENT TO ELECTRONIC CONTACT FOR ADVERTISING PURPOSES
The customer grants the contractor the right to contact him electronically via newsletters or other promotional activities in order to inform about current activities, upcoming events, new products and latest offers. The rights granted may be revoked at any time informally by the contracting authority. Such cancellation doesn’t affect the validity of other points of these terms and conditions.
- CONTESTING ERRORS
The Client and the Seller mutually agree to dispense with the right to enter into legal business by contesting errors in accordance with clause 871 of the ABGB (Austrian Civil Code).
- COURT OF JURISDICTION AND APPLICABLE LAW
All disputes between the Client and the Seller in connection with legal business, including disputes regarding the signing, legal validity, changing and termination of legal business will be settled in the appropriate court of law responsible for 4132 Lembach / Upper Austria.
This agreement shall be governed by Austrian law to the exclusion of the Austrian conflict-of-law provisions. The application of the UN convention on contracts and the international sale of goods is excluded, to the extent that due to a legal requirement it is not impossible for the Client to enter into an agreement on jurisdiction.
The contract language for lack of mutual agreement is German.
If the Seller makes available to the Client a translation of the German version of these general business terms, if there are any deviations between the two then it is solely the German version that applies.
- SEVERABILITY CLAUSE
If one or more clauses of these terms and conditions become(s) ineffective then the remaining clauses are not affected. In place of the ineffective clause, a clause must be agreed that comes closest to achieving the intended legal purpose of the ineffective clause.
End of General Terms and Conditions of Sale and Delivery.