GENERAL TERMS AND CONDITIONS OF BUSINESS
XAVA RECYCLING e.U., AUSTRIA
PREAMBLE 1.1. The present General Conditions of Business shall apply, save as varied by express agreement accepted in writing by both parties. 1.2. The following provisions concerning the delivery of goods shall also apply correspondingly to the performance of services.
CONCLUSION OF CONTRACT: 2.1. The contract shall be deemed to have been entered into when the Vendor (Xava Recycling e.U), upon receipt of an order, has sent a written acceptance of order. 2.2. Modifications of and amendments to a contract shall only be valid if confirmed in writing by the Vendor. Purchasing conditions of the Purchaser shall only be binding upon the Vendor where such purchasing conditions have been separately accepted in writing by the Vendor. Oral undertakings of the Vendor shall only be binding if subsequently confirmed in writing. 2.3. The Vendor’s offers shall be valid without engagement. The Vendor reserves the right of prior sale.
PLANS AND DOCUMENTS: 3.1. Data concerning weights, dimensions, measures, capacities, performance ratings, terms of delivery, prices, and the like indicated in catalogues, leaflets, circulars, advertisements, illustrated matter, price lists, etc. shall not be binding save to the extent that they are expressly referred to in the acceptance of order. 3.2. Drawings, sketches, plans and other technical documentation as well as catalogues, samples, leaflets, illustrated matter and the like shall in any case remain the property of the Vendor. They may not, without the owner’s express consent, be utilised, disseminated, reproduced, published, distributed or displayed. Failure to comply will result in a contractual penalty of € 30,000. This must be provided by the buyer within 3 months.
PACKAGING: Save as otherwise agreed, prices shall not include packaging. Where the common type of packaging is provided so as to prevent transport damage under normal transport conditions during the shipment of the goods to the agreed place of destination, such packaging shall be at the cost of the Purchaser and returnable only if expressly agreed in a written form.
PASSING OF RISK: 5.1. The moment when the risk passes shall be determined as follows: a. On a sale “ex works”, the risk shall pass from the Vendor to the Purchaser when the goods have been placed at the disposal of the Purchaser, provided that the Vendor gives to the Purchaser notice of the date on and after which the Purchaser may take delivery of the goods. The notice of the Vendor must be given in sufficient time to allow the Purchaser to take such measures as are normally necessary for this purpose. b. On a sale “F.O.B.“, the risk shall pass from the Vendor to the Purchaser when the goods have effectively passed the ship’s rail at the agreed port of shipment. 5.2. Where no indication is given in the contract of the form of sale, all goods shall be deemed to be sold “ex works”. 5.3. The Vendor shall only be obliged to affect insurance where and to the extent that such insurance cover has been agreed in writing. 5.4. In all other respects, the INCOTERMS valid at the date of conclusion of the respective contract shall apply.
PERIOD OF DELIVERY: 6.1. Save as otherwise agreed, the period of delivery shall commence at the latest of a. the date of the acceptance of order; b. the date of fulfilment of all technical, commercial and financial preconditions on the part of the Purchaser; c. the date of the receipt by the Vendor of such payment in advance of delivery as is stipulated in the contract and/or the date of opening of a letter of credit, if any, required for the transaction in question. 6.2. The Vendor shall be entitled to make partial and advance deliveries. 6.3. Should a delay in delivery be caused by circumstances affecting the Vendor that discharge the Vendor from responsibility as indicated in Art. 10, the Vendor shall be granted a reasonable period of grace for delivery. 6.4. In the event of a delay in delivery caused by fault on the part of the Vendor, the Purchaser shall be entitled to demand specific performance or to terminate the contract after previously granting a reasonable period of grace. In the case of custom-made products, the fact that the Vendor may not be able to use unfinished products for other purposes shall be taken into account when determining the length of the period of grace. 6.5. In the event that performance has, due to a fault on the part of the Vendor, not been rendered during the period of grace granted according to Art. 6.4, the Purchaser shall be entitled to terminate the contract, by notice in writing to the Vendor, in respect of all undelivered goods that cannot be properly used. In this case, the Purchaser shall be entitled to recover any payment which he has made in respect of undelivered goods or goods that cannot be properly used and, to the extent that the delay in delivery was caused by serious default on the part of the Vendor, to recover any expenses properly incurred in performing the contract and up to the date of termination. The Purchaser shall return to the Vendor products that although delivered cannot be properly used. 6.6 Any claims of the Purchaser against the Vendor exceeding the scope indicated in Art. 6 shall be excluded in the case of delay caused by the Vendor. 6.7 Where the Purchaser does not take the goods at the place and time provided for by the contract for any reason other than an act or omission of the Vendor, the Vendor shall be entitled to either demand specific performance or terminate the contract after granting the Purchaser a period of grace to take the goods. In such a case, once the goods have been appropriated to the contract, the Vendor may arrange for their storage at the risk and cost of the Purchaser. The Vendor shall further be entitled to recover any expenses properly incurred in performing the contract and not covered by payments received.
PRICES: 7.1. Save as otherwise agreed, prices shall be ex Vendor’s factory and do not include packaging and loading. Where delivery including shipment is agreed, prices shall not include unloading of the goods and further transport to their place of use. 7.2. In the case of contracts concluded with prices left open, the purchase price valid at the date of delivery shall be charged.
PAYMENT: Payment shall be made in the manner and at the time or times agreed by the parties in a Dealer Agreement. Other terms of payment as deemed necessary from time to time are permissible only as arranged and agreed to in writing by both parties. Down Payments have to be made, unless otherwise agreed, on receipt of order confirmation. The Purchaser shall not be entitled to retain payments for reasons of warranty claims or other counterclaims not recognised by the Vendor. Where the Purchaser delays in making any agreed payment or performing any other obligation, the Vendor shall be entitled to either insist on specific performance and a) postpone the fulfilment of his own obligations until such payment is made or such other duty is performed; b) demand a reasonable extension of the delivery period; c) declare the entire open balance of the purchase price immediately due; d) in so far as the purchaser is not able to claim any grounds of release as provided for in Clause 10, recover interest on arrears at the rate of 7,5% over and above the bank rate charged at that time by the Austrian National Bank, such interest to be charged from the time fixed for payment. The Vendor reserves the right to recover a higher interest on overdue accounts as compensation for loss occasioned by delay. Additionally, the Vendor shall be entitled to recover all frustrated expenses incurred in performing the contract. e) or, after granting a reasonable period of grace, terminate the contract. The purchaser is under obligation to file the vendor’s retention of title to ownership of the goods the vendor’s retention of title to ownership of the goods.
AUXILIARY MATERIALS: Auxiliary materials, if any, required for handover, commissioning or subsequent services, if any, shall be provided by the Purchaser free of cost.
WARRANTY AND LIABILITY: Warranty is only provided when payment has been made in full and only exists within the statutory guarantee obligation. The warranty period will not be extended after the defect has been rectified. The guarantee is only provided in such a way that the renewed parts, which can be proven to be unusable due to work or material defects within this time, are replaced free of charge at the discretion of the contractor or repaired within a reasonable period. The client has to bear the labor costs for the removal and installation. If parts are sent back, the buyer assumes the risk and costs. For costs that arise when the buyer himself rectifies the defect, the vendor must give prior written consent. The warranty obligation only applies to defects that occur during normal use. It does not apply to defects caused by improper handling by the buyer or one of his agents. Furthermore, the warranty does not apply to defects in wear parts (eg screen meshes), for violent damage and its consequential damage. For those parts that the seller has obtained from subcontractors, he is only liable within the scope of the warranty claims to which he is entitled. Furthermore, the seller does not have to pay compensation for injuries to persons and damage to goods that are not the subject of the contract. The following circumstances are considered reasons for relief: industrial conflicts, fire, seizure, embargo, ban on currency transfer, insurrection, lack of means of transport, restriction of energy consumption.
VENUE, APPLICABLE LAW: The place of jurisdiction for all disputes arising directly or indirectly from the contract is the Austrian court locally responsible for the company location of the vendor. Austrian law applies. For delivery and payment, the place of fulfillment is the registered office of the vendor, even if the transfer takes place at another location as agreed. The UN sales law is excluded.