General sales conditions Fix Metall
As of March 2012
4. Fulfillment and transfer of risk
4.1 Delivery is ex works (EXW, INCOTERMS 2000).
4.2 Unless otherwise agreed, the place of performance is Vienna.
4.3 If the shipment is delayed or becomes impossible through no fault of Fix Metall, the risk passes to the buyer upon notification of readiness for shipment. If delivery on call is agreed, the goods are deemed to be called at the latest one year after the order.
5. Prices and terms of payment
5.1 The prices specified in the order confirmation from Fix Metall plus the respective statutory value added tax are decisive. Additional deliveries and services will be charged separately. The prices are ex works or ex warehouse and do not include transport, packaging, disposal, cutting or similar costs.
5.2 In spite of instructions to the contrary from the buyer, Fix Metall is entitled to first credit incoming payments against older open invoices. If costs and interest have already been incurred, Fix Metall is entitled to offset the payment first against the costs, then against the interest and finally against the capital claim.
5.3 Payments are to be made in cash or by bank transfer and without any deductions free Fix Metall’s paying office in the agreed currency. Bills of exchange and checks are only accepted as payment. The buyer must bear all costs and expenses associated with their redemption. A payment is only deemed to have been made when Fix Metall can dispose of the amount. If checks are handed over, payment is only deemed to have been made when the check has been irrevocably cashed.
5.4 The buyer is only entitled to set-off, retention or reduction, regardless of notices of defects or any counterclaims, if Fix Metall has expressly consented or if the counterclaims have been legally established by a court.
5.5 If the buyer is in default, Fix Metall is entitled to charge interest on arrears at the rate charged by commercial banks for open overdrafts, but at least 6 % above the base interest rate announced by the Austrian National Bank. The assertion of further default damages remains unaffected by this.
5.6 If the buyer does not meet his payment obligations, in particular if checks or bills of exchange issued by him are not honored, or if he suspends his payments, or if Fix Metall becomes aware of other circumstances that jeopardize the buyer's creditworthiness, Fix Metall is entitled to the entire To demand payment of the remaining debt, even if partial payments have previously been accepted, as well as to request advance payments or security deposits.
6. Retention of title
6.1 Until all claims for current or future legal relationships have been met, Fix Metall can demand security from the buyer at any time. Fix Metall will release collateral of its own choice if the value of the collateral exceeds the receivables by more than 20 %.
6.2 Delivered goods remain the property of Fix Metall (= reserved goods) until full payment has been made. Processing or connection of goods subject to retention of title by the buyer are always carried out for Fix Metall as the manufacturer, without Fix Metall being subject to any obligations. Insofar as the property of Fix Metall would expire due to processing or connection, it is agreed with the order of the buyer that co-ownership of Fix Metall arises in proportion to the value of the uniform item created by working or processing. The buyer keeps the co-property for Fix Metall free of charge.
6.3 The buyer is entitled, provided he is not in default of payment, to process and sell the reserved goods in the ordinary course of business. Pledges or security transfers of reserved goods are not permitted. The buyer assigns the claims against third parties arising from the resale or any other legal reason regarding the reserved goods in full to Fix Metall upon acceptance of the goods by the third party. The buyer must properly record the security assignment in his books and authorizes Fix Metall or an authorized representative bound by Fix Metall to professional secrecy to check this. Fix Metall revocably authorizes the buyer to collect the claims assigned to Fix Metall for its invoices in its own name. Upon request, the buyer will disclose his debtor and the amount of the outstanding claim against this Fix Metall and disclose the assignment to his debtor.
6.4 If third parties access the goods subject to retention of title, the buyer will point out the property of Fix Metall and will notify Fix Metall immediately. Costs and damages paid by the buyer.
6.5 If the buyer behaves contrary to the contract, in particular late payment, Fix Metall is entitled to take back the goods subject to retention of title at the buyer's expense or, if necessary, to assign the buyer's surrender claims against third parties. The withdrawal as well as the attachment of the reserved goods by Fix Metall does not constitute a withdrawal from the contract. The right to compensation remains unaffected.
7.1 If the delivered goods are defective or lack guaranteed properties or if they become defective within the warranty period due to manufacturing or material defects, Fix Metall shall, at its discretion, deliver a replacement or repair the goods to the exclusion of other warranty claims by the buyer - in particular to the exclusion of liability for consequential damage by the buyer after. Multiple rectifications are permitted.
7.2 The warranty period is 6 months and begins with the delivery to the buyer.
7.3 The buyer must examine the delivered goods for any damage immediately upon receipt. Fix Metall must be informed of any damage or loss within 14 days of delivery, giving precise details of the defects notified, otherwise the delivery will be deemed approved. Defects that cannot be discovered even after careful inspection within 14 days of delivery are to be reported to Fix Metall immediately after discovery in writing, stating the exact defect, otherwise the delivery is considered approved. Defective delivery items are to be kept ready for inspection by Fix Metall in the condition in which they were at the time the defect was discovered. Rejected goods may only be returned with the written consent of Fix Metall. Failure to comply with the above provisions will result in the exclusion of all claims due to defective delivery against Fix Metall.
7.4 The buyer must always prove the defectiveness of the goods; the presumption of deficiency in § 924 AGBG does not apply.
7.5 If a rectification or replacement delivery is unsuccessful after a reasonable period of time, the buyer can request a price reduction or change of the delivery contract.
8.1 Claims for compensation against Fix Metall as well as against their vicarious agents are excluded unless the damage was caused intentionally or through gross negligence. Fix Metall accepts no liability for loss of profit.
8.2 Fix Metall is only liable to the buyer for information and advice on the use of its products within the limits of section 8.1 if a special fee has been agreed for this.
9. Flat-rate compensation for cancellation
If the buyer withdraws from the contract for reasons beyond the control of Fix Metall, Fix Metall is entitled to claim a lump sum compensation amount of 50 % of the net order amount. The same applies if Fix Metall withdraws from the contract for reasons for which the buyer is responsible.
10. Place of jurisdiction, applicable law
10.1 The place of jurisdiction for all disputes arising directly or indirectly from the contract is the local court in commercial matters for 1010 Vienna. Fix Metall is also entitled to assert claims before the court responsible for the buyer's registered office.
10.2 The contract is subject exclusively to Austrian law. The applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
10.3 Should one or more provisions of these terms and conditions of sale and delivery be or become ineffective, or if this contractual text contains a loophole, the contracting parties will replace or supplement the ineffective or incomplete provision with appropriate regulations that largely correspond to the economic purpose of the intended regulation. The validity of the other provisions remains unaffected.
Offers from Fix Metall are subject to change and non-binding. Orders of the buyer are only considered accepted upon delivery of the written order confirmation. Additions, changes or additional agreements to or from agreements require the written confirmation of Fix Metall to be effective.