General Terms and Conditions
of Ulbrichts Witwe GmbH (FN 177246 g) AT 4690 Schwanenstadt, Kaufing 34
Status 01. 08. 2012
All our legal transactions, deliveries, other services and offers are exclusively on the basis of these General Terms and Conditions. We do not recognise deviating customer conditions pertaining to an order or other customer business documents, which only apply in case of our written confirmation. These Terms and Conditions also apply as a framework agreement for all further legal transactions with the customer. The version applicable at the time of contract agreement is decisive.
In case of contradictions in the contract bases, the following order applies:
- special agreements, insofar as we have confirmed these in writing
- our General Terms and Conditions
- trade and civil rights norms
Definition of terms
- “Customer” is our contract partner.
- “Contract partners” are the customer and ourselves.
- “Accessories” are tools, injection moulding modules etc. that we manufacture and that require special supply conditions and if necessary assembly.
- “Products” are products we manufacture or acquire (e.g. emblems and logos for the front, rear and engine area of automobiles, helmets) that can be supplied to the customer without special supply conditions and that we do not assemble.
- “Goods” are both “Accessories” (point 3 above) and “Products” (point 4 above).
Our offers and price lists are non-binding and subject to alteration. Contract agreements only come into effect through our written order confirmation or a fulfilment action on our behalf (e.g. delivery/shipping of the goods). Any other agreements or subsidiary agreements made, also at a later stage, only take effect upon our written confirmation.
Technical specifications in our documentation are understood as approximate values unless they are explicitly assured as binding. Construction or production-related changes and modifications are excepted. Straightforward typing or calculation errors in offers, order confirmations or invoices can be corrected by us at any time.
All documents passed on to the customer, especially cost estimations, designs, models, technical calculations and such like remain our property. The customer is not allowed to make these documents available to third parties. If an order is not issued by the customer, these documents must be returned to us without delay.
Agreed delivery schedules begin with our sending of the order confirmation. The respective delivery period does not start, however, until all technical or other information, documents, deposits or other services by the customer (hereinafter advance obligations) for fulfilling our duties have been confirmed by us as received. In case of a delay in advance obligations, the delivery schedule is delayed accordingly.
For accessories, the delivery schedule is fulfilled if they are ready to use when the schedule expires. They are considered ready for use if they can be used properly and no relevant defects are preventing use. This also applies if the manufacturing of unimportant components (e.g. insulation or coating) occurs later or if any required advance obligations of the customer or other companies appointed to manufacture the equipment have not been fulfilled and do not allow a test run, or if the equipment has not yet been handed over despite the deadline. If it is not possible to carry out a test run immediately after readiness of the accessory through no fault of our own, any resulting additional costs are charged separately.
The delivery deadline is extended accordingly if modifications are required due to structural reasons, due to official requirements or upon the wishes of the customer, requiring multiple deliveries, or if a test run is not possible due to reasons not of our own doing or can only be carried out at a later point in time. Any resulting additional costs are borne by the customer.
When delivering products, the delivery schedule is fulfilled if the object of delivery leaves our warehouse before the deadline or if the customer has been informed by then that it is ready for delivery.
Delivery delays do not entitle the customer to withdraw from the contract, nor to make any warranty, grounds of error or damage compensation claims. We are entitled to carry out partial or advance deliveries and to charge for them.
We reserve the right to choose the type of shipping under exclusion of any liability. There is no obligation to choose the cheapest form of shipping.
The packaging – also for partial deliveries – is industry standard. Packaging beyond this is at the expense of the customer. Express and air freight are charged in addition. Transport insurance is only concluded upon request and at the expense of the customer.
Operational faults and force majeure events, as well as events beyond our control, especially for example delivery delays and such like on behalf of our sub-supplier, entitle us either to extend the schedules or to withdraw from the contract due to the unfulfilled part, excluding any legal claims, especially warranty, grounds of mistake or damage compensation claims. This also applies if the events occur at a time when we are in a delay.
The acceptance of goods – even if it is only a partial assembly or delivery – must be carried out within the deadline and the agreed schedule specified in the individual contract, after notification of readiness for acceptance. If this time frame or deadline is exceeded for reasons not caused by us, the equipment is considered as accepted as fault-free, as well as following any use of the goods including by third parties.
If there are no significant defects or if these were corrected, the results of tests are compiled in an acceptance report issued by us. This report also includes any insignificant defects and the deadline for correcting them. The acceptance report must be signed by the customer, otherwise acceptance of the supplied (partial) equipment is considered as accepted without defects.
Transfer of risk and place of fulfilment
The price and performance risk are transferred from us to the customer with the notification of readiness for shipping, or at the latest when the delivery leaves our warehouse. In the case of direct delivery from the warehouse of our supplier, it transfers to the customer independently of any specially agreed price for the shipping. If the shipment of goods ready for shipping is not possible through no fault of our own, we are entitled to store the goods at the cost and risk of the customer as we deem suitable, whereby the delivery is considered as completed. We are entitled to carry out the storage ourselves at standard market prices or to store the ready goods at a third-party location in the name of and at the expense of the customer. Independently of any agreement regarding the place of delivery and the assumption of any transport costs, the place of fulfilment is agreed as our company head office.
Payment conditions, delays, offsetting ban, foreign deliveries
Our invoices – also partial invoices – are due for net payment30 days after the date of issue without any fees deducted, especially without any discount deduction. Bills of exchange or cheques are only accepted upon special agreement.
In the case of a payment delay by the customer, we are released from all further service and delivery obligations and are entitled to withhold any remaining deliveries or services or to request prepayments or assurances. The customer is also obliged to pay default interest amounting to 1% per month, whereby we are entitled to charge any standard bank interest beyond this. In addition, the customer must repay any resulting reminder and debt collection fees and is obliged, in particular, to pay the fees of the appointed debt collection institute, with maximum rates set out by the RO of the BMwA. If we send a reminder, the customer is obliged to pay a fee of €15,00 per reminder.
After conclusion of the contract, if a significant decline in the financial circumstances of the customer occurs or if circumstances become known that reduce the creditworthiness of the customer in our estimation, all payments are due immediately. Further deliveries and assembly work are only possible in this case upon prepayment.
The customer is not entitled to withhold or offset payments on the grounds of counterclaims of any kind.
For export business, the customer alone is obliged to ensure the completion and maintenance of all the necessary export, customs and other formalities at their own expense. We do not issue any kind of liability or warranty for the reliability of the export of the purchased goods. The customer must also send all export and customers papers etc. to us in the original, as otherwise they will be obliged to pay any VAT. In addition, for deliveries abroad it is a condition for our delivery to open an irrevocable documentary letter of credit at a bank specified by us, which can be used against presentation of the shipping documents or haulage acceptance certification.
In the case of assembly interruptions not foreseen in the agreement that are not due to us, we are entitled to request partial payments.
Retention of ownership
We retain ownership of all goods delivered until the full payment of the purchase price or work fees including interest and supplementary charges, no matter what legal basis – also from previous business. If an invoice is ongoing, the reserved property is also a security for our balance claim. Applying the retention of ownership – insofar as we do not declare a withdrawal from the contract, to which we are entitled – is not considered a withdrawal from the contract and does not release the customer from their obligations, especially payment of the amount due.
While the retention of ownership applies, any alienation, pledging, security transfer or other placing the goods at the disposal of third parties is not permitted.
The retention of ownership also extends to the products resulting from the processing. With the processing, combination or mixing of our goods with other materials, we acquire joint ownership of the resulting products.
Determining the value-added shares
If the customer nevertheless alienates the goods, then they are assigning their claims against their customer to us up to the amount of our claim against them in advance. The customer is obliged to inform us without delay of the name and address of their buyer, the specifications and the amount payable as a result of the resale, as well as to inform the buyer of the assignment of claim. Furthermore, the customer is obliged to make the assignment of this claim clear to us in their business books in a suitable manner. We are entitled at any time to inform the customer’s buyer of the assignment.
The customer must inform us without delay of a seizure or other comprising of the property of any kind through third parties. The customer is obliged to bear the costs and measures to eliminate the intervention, especially the costs of intervention processes and such like.
If the customer does not meet their obligations or ceases to make payments, the entire remaining balance becomes due immediately, even that with a later due date. In this case, we are entitled to demand the handing over of the goods under exclusion of any right of retention. After taking back the goods, it is at our discretion to resell the purchase object and to credit the customer against the still outstanding duties with the achieved proceeds minus 20% resale fees, or to take the goods back at the purchase price minus any decreases in value and to charge the customer a lease at standard rates for their period of ownership of the goods.
Warranty, compensation for damages, product liability
Notices of defects must be notified in writing by the customer immediately, at the latest within 7 days of occurrence of the defect, with a detailed fault description, but do not entitle the customer to withhold due payments in part or in full.
Discrepancies between the ordered and the delivered goods, such as incorrect measurements or the wrong goods (Aliud deliveries) must be notified within 7 days of delivery and before processing them, even if the goods are not delivered directly to the customer. Otherwise the goods are considered accepted and we cannot take them back or exchange them.
Our advice, whether in writing or spoken, is non-binding and does not release the customer from their own checking of the goods in terms of suitability and the intended purpose. In the case of subsequent deliveries, we do not assume responsibility with the exact concordance with the first delivery.
The warranty period is twelve months and is neither extended nor interrupted by improvement attempts, which also applies to partial deliveries. For extra equipment, the warranty period starts with its use, also by third parties, at the latest on the day of acceptance. If an acceptance is not possible through no fault of our own, the warranty period starts 14 days after we have notified the readiness for acceptance (post stamp date applies). In the case of defects recorded in the acceptance report that are attributable to us, the warranty period starts from the date these defects are remedied.
When delivering products, the warranty period starts from the handover of the product to the customer. If the handover is delayed through no fault of our own, the period starts with the notification of readiness for dispatch from us to the customer, at the latest when the delivery leaves our warehouse, in the case of direct delivery from the warehouse of our deliverer to the customer.
The customer must always prove any defectiveness of the supplied goods at the time of handover. The condition for our warranty duty for extra equipment is the correct execution of maintenance in accordance with the specifications in the documentation and/or the conclusion of a maintenance contract and its implementation from the start of use.
The warranty is void if the customer themselves or third parties carry out modifications or overhauls on the supplied goods without our written consent. In case of a complaint, the customer is obliged to accept the goods initially, unload them correctly and store them.
For those goods or components that we have acquired on our behalf from sub-suppliers, we are only liable insofar as we have warranty claims against the supplier.
For the goods we have delivered, we only guarantee that they have the properties that are standard on the market for these goods. For properties that go beyond this, especially those contained in public statements – e.g. advertising and specifications included with the goods – we only provide a warranty if these properties have been assured by us in writing as part of the order issued.
For equipment and spare parts, a claim is only valid for defects that affect its functioning and not its appearance. A warranty duty relates without exception to the defective goods or parts, but not to the working hours and travel expenses for remedying the fault.
It is at our discretion whether we fulfil the warranty duty through replacement, correction, price reduction or conversion.
Unless specified otherwise in a special agreement, the place of fulfilment for our warranty duties is the company head office.
It is not permitted to assign warranty or claims for damages or the like. If the delivered goods are sold on by the customer, all warranty claims towards us are cancelled, the right of recourse according to §999 b ABGB is excluded.
For damages to our customer as part of the business transaction, we are only liable to the extent of the order value in case of gross negligence or the gross negligence of the fulfilment agents, except personal damage for which we are liable even for slight negligence. Compensation for consequent damages, pure pecuniary loss, lost profit and damages from the claims of third parties is excluded.
The customer must prove gross negligence.
Instructions given in brochures, user manuals or other goods information must be followed strictly by the customer to avoid damage. There is an explicit warning against use beyond the defined usages. We do not have a testing and/or warning duty towards materials, data and print facilities provided by the customer. In particular, we do not check the correctness of date stored on any data carriers provided. We do not assume any kind of liability for direct and indirect damage caused by defectiveness of such data and materials.
If the customer themselves is held liable due to product liability law, the customer explicitly waives recourse to us in relation to §12 product liability law.
Withdrawal from contract
In the case of acceptance delay or other important reasons, especially the notification of an insolvency petition regarding the customer’s assets, as well as a payment delay by the customer and cases of force majeure, we have the right to withdraw from the contract or parts of it immediately, irrespective of any other kind of rights, without setting an extension period. The customer is obliged to inform us immediately in writing of any such circumstances. The withdrawal comes into effect through a statement on our part only.
Data protection, change of address and copyright
The customer agrees that the personal data included in the contract is stored and processed by us with the help of automation for the fulfilment of this contract.
The customer is obliged to notify us of any changes of residential or business address immediately, verifiably and without being prompted, as long as the legal transaction in the agreement has not yet been completely fulfilled on both sides. If this notification is neglected, any communication to the customer sent to the address previously known to us is considered as received. It is the customer’s responsibility to verify the sending of the change notification in individual cases.
Material and data provided
Materials, documents and data of any kind (hereinafter material) provided by the customer are to be supplied postage-free to our company. The receipt is confirmed without warranty of the correctness of the quantity indicated in the supplied documents. It is only during the production process that we are able to carry out a proper acceptance and checking and are only liable for damages resulting from our own gross fault. We are entitled to charge all costs associated with the checking and storing of the supplied material. Packaging material automatically transfers to our ownership with the processing.
The material of the customer is to be collected by the customer within four weeks of fulfilling the order. After expiry of this period, we assume no liability for uncollected materials and are entitled to dispose of the materials at the expense of the customer without any kind of replacement claims or – as we deem appropriate – to store it in the name of and at the risk and expense of the customer at standard market conditions at our or a third-party site. We are in no case obliged to keep these materials or objects serving for their reuse beyond the stated date.
For data provided to us by the customer, we are only liable if the customer confirms with a printed proof that the data we received concords with the data conveyed. We have no checking and/or warning duty regarding materials provided by the customer. We do not check the correctness of the data stored on data carriers supplied to us. We assume no kind of liability for direct or indirect damages causes by the faultiness or incorrectness of such data and materials.
Place of fulfilment, choice of law and jurisdiction, severability clause
The place of fulfilment for all contractual duties of the contract partners is the location of our head office in Schwanenstadt/Austria, independently of any agreement about the place of the delivery, assuming transport costs or the place of payment.
This agreement is subject exclusively to Austrian substantive law. The conflict-of-law rules of Private International Law and the UN sales law (CISG) are herewith explicitly excluded.
The place of jurisdiction for all disputes resulting from the contract relationship or in connection with it is for the customer exclusively the court responsible for Schwanenstadt/Austria. However, we are also entitled to bring the customer before any other court of choice that can be responsible under national or international law.
The invalidity of individual clauses of our General Terms and Conditions does not affect the validity of the other clauses of these conditions. The contract partners are obliged to agree a new clause that comes the closest to the purpose of the invalid clause.
The titles of the sections in these sales conditions only serve the purpose of clarity and may not be referred to for interpretation.
No business transaction taking place between the customer and us and no delay or neglection regarding the exerting of a right, legal remedy or means of legal redress granted to us in accordance with these sales conditions is considered a waiving of these rights. Every right and legal remedy granted to us in this document and every means of legal redress is cumulative and exists on an equal footing, alongside and in addition to the other legally accorded rights, legal remedies and means of legal redress.