Windhager Version: 05/2013
General Terms and Conditions
Section 1. General provisions - scope
1.Our General Terms and Conditions, as amended, that are published at www.windhager.eu, shall apply exclusively to the entire execution of contract; any contradicting or deviating terms and conditions of the customer shall not apply, even if we failed to object to their applicability in any individual case. Our own purchases and orders shall be subject to (in order of priority): our General Terms and Conditions of Purchase, these present General Terms and Conditions and the statutory provisions.
2.Any individual agreements deviating from our General Terms and Conditions must be in writing and the company signature must be affixed, otherwise they shall not be legally valid.
Section 2. Prices and terms of payment
1.We shall be entitled to increase agreed upon prices without notice if price increases and/or wage increases that are outside our scope of influence occur after the customer placed its order, irrespective of whether they occur by collective contract or otherwise. Our prices are stated net, statutory VAT must be shown separately and the customer shall be obliged to provide its VAT ID number upon placement of the order.
2.For goods we call or purchase from third party suppliers in the customer’s name, such supplier’s quantity tolerances - usually 5 % - shall apply. Deliveries must be 95 % complete, notices of defects for short deliveries of up to 5 % shall be excluded.
3.Our invoices shall become due as follows: 2 % discount for payment within 10 days upon the date of invoice or 30 days net. Bills of exchange or cheques shall only be accepted as payment and only upon our express written consent. Payment by bill of exchange or cheque shall not entitle the customer to deduct a discount and shall not be deemed to be a postponement of the due date of any invoice.
4.The customer shall not be entitled to set off any claims against its counterclaims unless such counterclaims were recognised by declaratory judgment or recognised by us in writing. The customer shall not be entitled to any right of retention with regard to any counterclaims the customer may have.
5.Payments made by the customer without stating a purpose for the payment shall be allocated to costs first, then to interest and last to the outstanding debts. If there are more than one outstanding and overdue payments owed by the customer, we shall be entitled, in our sole discretion, to decide to which of the outstanding items we allocate any incoming payment.
Section 3. Delivery
1.Our periods of delivery shall be without engagement. If we are unable to meet an agreed upon delivery date, the customer shall be obliged to grant us a grace period of not less than 4 weeks by written notice; in such case, the customer shall not be entitled to rescind the contract or to assert claims for damages. If we execute delivery within such grace period, the order shall be deemed to be fulfilled within due time. The customer shall be entitled to a right of rescission if we fail to execute the order despite having received a written reminder and despite being granted a grace period of 4 weeks. We shall not be liable for any delay incurring in our sphere of responsibility or in that of any of our suppliers due to force majeure, in particular natural disasters such as flood, earthquake, fire, or due to any nuclear accidents, wars, acts of terror, riots, lock-outs or strikes, interventions by public authorities or shortages of raw materials or energy. We shall inform the customer without delay of the occurrence of any such event. The customer shall be entitled to set a grace period after the end of any of such events; until such time, our delivery obligations and the running of any periods of time shall be suspended. If the duration of any of such events exceeds a period of 3 months, the customer shall be entitled to set a reasonable grace period and then to rescind the contract with regard to any unfulfilled part thereof. If delivery is rendered impossible in whole or in part due to any of such events, we shall be discharged from any delivery obligation we may have towards the customer and the customer shall not be entitled to assert any claims for damages.
2.We shall be entitled to deliver before the agreed upon delivery date. The customer shall be obliged to accept the goods whether they are delivered on or before the agreed upon date. Unless otherwise agreed upon in writing, the customer shall also be obliged to accept partial deliveries.
3.If we are in delay in delivery for any other reason and based on our culpable conduct, the customer shall not be entitled to assert claims for damages in cases such delay in delivery incurred based on our slight negligence; if it is based on our gross negligence or wilful intent, the customer’s claims for damages shall be restricted to the amount of the order value.
4.Unless otherwise agreed upon, delivery shall be effected ex works. The risk of accidental damage or perishing of delivery shall be transferred to the customer as of the time the goods are ready for collection, however, as of the time the goods are handed over to the forwarder or carrier at the latest. Upon the customer’s request, we shall take out transport insurance for the goods at the customer’s expense. Packaging costs shall be borne by the customer.
5.If the customer is in delay of acceptance or otherwise violates its obligations to cooperate, we shall be entitled to claim compensation for any damage incurred, including any additional expenses. In such case, the risk of accidental perishing or accidental damage or deterioration of the goods shall pass to the customer as of the time the customer is in delay of acceptance.
Section 4. Defects - warranty - damages
1.Obvious defects of the goods or packaging of any kind must be notified in writing and in detail on the date of delivery, immediately upon receipt of the goods, by registered letter or fax; otherwise such defects shall be deemed accepted. The customer shall be obliged to inspect the goods and to take random samples. Hidden defects must be notified in writing and in detail by registered letter or fax within 5 working days upon receipt of the goods, otherwise such defects shall be deemed accepted. If the customer is supplied directly by third parties (our suppliers or sub-suppliers) for the purposes of a drop shipment, we shall not be obliged to inspect the goods and we shall assign to the customer any warranty claims or claims for damages so that the customer shall be entitled and obliged to assert such claims directly and exclusively against such third party and we shall be indemnified from any such claims.
2.In case of any defects that incurred within our sphere of responsibility, we shall be entitled, in our discretion, to either remedy such defect or to exchange the goods and effect a replacement delivery. For such purpose, the customer shall grant us a reasonable grace period of not less than 4 weeks. To the extent we are unable or unwilling to remedy such defect or to effect a replacement delivery within the grace period, the customer shall be entitled to reduce the price or to rescind the contract in whole or in part.
3.Deviations in quality, colour, width, length, equipment or design of the goods shall not be deemed a defect to the extent they are customary in the industry or of only minor extent and unavoidable for technical reasons and shall thus not create any warranty claims or claims for damages.
4.Any claims for compensation the customer is entitled to assert against us and/or against any third parties for which we are liable, shall be limited to the net order value of the defective (partial) delivery, but in any case to the maximum amount covered by our manufacturer’s liability insurance; the compensation for any other claims of the customer exceeding such amounts, irrespective of the legal reasons for such claims, shall be excluded. We shall not be liable for any consequential harm caused by a defect, for third-party damage or for loss of profit or any other pecuniary damage incurred to the customer. For the purposes of the above limitation of liability, we shall only be liable for any damage we caused with wilful intent or gross negligence.
Section 5. Delay in payment
1.If the customer fails to make any payment by the agreed upon payment date, the customer shall be deemed to be in default in payment automatically and no specific reminder or notification shall be necessary. Default interest of 12 % p.a. and the obligation to compensate us for any attorney costs for collection, dunning and recovery costs for out-of-court collection shall be deemed agreed upon for any delay in payment. If the customer is in delay with only one instalment (in case of agreed upon payment in instalments) the entire outstanding residual amount shall become due and payable with immediate effect (default) and we shall be entitled to demand that all orders we have not yet executed be paid in advance (payment on account, payment in advance). To the extent the customer fails to comply with such request, we shall be entitled to set a grace period of 14 days upon the expiry of which we shall be entitled to rescind the contract and to claim damages for non-performance.
2.We shall not be obliged to effect any delivery to the customer until full payment of any invoiced amounts due, including default interest and costs. If the customer is in delay in payment with regard to any payment due and payable or if the customer’s financial condition deteriorates in such a manner that due payment of additional deliveries seems questionable, we shall be entitled to invoke the defence of insecurity and to demand payment in advance for any deliveries not yet executed. In such cases, we shall also be entitled to effect deliveries against cash on delivery. Any costs resulting therefrom shall be borne by the customer. If the customer fails to make such prepayment, we shall be entitled to rescind any and all yet unfulfilled deliveries and contracts.
3.If we rescind the contract due to a deterioration in the customer's financial condition, we shall be entitled to demand a lump-sum cancellation fee of 30 % of the gross invoice value as liquidated damages. Such cancellation fee (contractual penalty) shall not be subject to judicial discretion.
Section 6. Retention of title
1.We expressly reserve the title to all deliveries until full payment of any claims resulting therefrom. Such deliveries may only be resold in the ordinary course of business. We shall be entitled to take the purchased item back if the customer acts in violation of the contract. If delivered goods are processed or mixed with third-party goods, we shall acquire co-ownership to such newly created item in propor-tion of the value of our invoice to the invoice value of such new, processed or mixed item. The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. With immediate effect, the customer shall assign to us its claims resulting from such resale of the goods subject to retention of title up to the amount of the final invoice (incl. VAT) by making accounting advice notes. If the goods are resold to intermediate dealers, the accounting advice note must be made and the relevant intermediate dealer is to be informed of our right to retention of title, otherwise, the customer shall be obliged to indemnify us and hold us harmless from and against any claims with regard thereto. Such assignment shall apply irrespective of whether the goods were resold without or after processing. The customer shall remain entitled to collect the receivables after such assignment, however, our right to collect such receivables ourselves shall remain unaffected thereby. We undertake to release securities upon the customer’s request to the extent the value of such securities exceeds the value of the receivables to be secured by more than 10 %.
2.If our goods are taken back, the customer shall be obliged to surrender the goods that are subject to our retention of title. For the purposes of picking up the goods, we shall be entitled to enter the customer's business premises, warehouses or other rooms, either ourselves or by commissioning third parties to do so. If we take back any purchased items, this shall not be deemed to be a rescission of contract unless expressly declared by us in writing. After return of the goods, we shall be entitled to dispose of them at any time by private sale. Any proceeds from such disposal must be set off against the customer’s debts (less reasonable expenses for such disposal).
3.All deliveries made by customers to us shall pass into our irrevocable ownership upon acceptance; we do not accept any third-party rights to retention of title. The customer confirms that any goods delivered by us are free from third-party rights to retention of title, otherwise the customer shall be obliged to indemnify us and hold us harmless from and against any claims with regard thereto.
4.The customer shall be obliged to treat our goods with due care, in particular to take out sufficient replacement value insurance against fire, flood and theft at the customer’s expense. In case of any claim, the insurance benefits shall be deemed assigned to us up to the amount of our unpaid receiva-bles. In case of any claim, the customer shall be obliged to immediately inform the insurance company of such assignment to us.
5.In case of any attachment by courts or administrative authorities, in case of the initiation of insolvency proceedings or in case of other attachments by third parties, the customer shall be obliged to inform such attaching parties of the existing retention of title and to inform us of such attachment immediately and in writing, failing which the customer shall be obliged to indemnify us and hold us harmless from and against any claims with regard thereto in order to enable us to assert our title to the goods.
Section 7. Image copyrights
1.We shall grant to the customer a (for the time being) free-of-charge right to use the images provided by us with regard to the products and items purchased from us, including the right to use such images in online networks, in particular but not limited to the internet. Such right to use such images with regard to the products and items purchased from us shall be granted until revoked, however, no longer than until the end of the business relationship for whatever reason. The customer's right to use such images shall be restricted to the use thereof by the customer or third parties for the distribution and/or objectively correct marketing of our products and articles, otherwise, the customer shall be obliged to indemnify us and hold us harmless from and against any claims with regard thereto. Such entitlement shall not automatically be transferred to the customer's own customers or business partners. The customer shall be obliged to obtain our prior written consent if such images are to be passed on to third parties for distribution, marketing or illustration purposes, irrespective of whether such third parties are individuals or legal entities. The customer undertakes to inform us without request of its customers and business partners, including their full company name and business address, if such images are to be used by the customer’s customers or business partners.
2.Only the images provided by us may be used in connection with our products and items. For any violation of this provision, a contractual penalty amounting to EUR 10,000 for each case, regardless of culpability and not subject to judicial discretion, shall apply and we expressly reserve the right to assert any additional claims for damages. Upon termination of the business relationship with the customer for whatever reason, the right to use the images shall expire. For any violation, a contractual penalty amounting to EUR 5,000 for each case, regardless of culpability and not subject to judicial discretion shall apply.
Section 8. Place of performance, place of venue
1.Any legal disputes arising out of or in connection with these General Terms and Conditions as well as out of or in connection with any contracts and legal relationships based thereon, shall be the exclusively subject to Austrian jurisdiction, the court competent for the subject matter in the state capital Salzburg shall be agreed upon as the place of venue. We reserve the right to file an action against the customer at any other place of venue of our choice. Austrian substantive law shall be exclusively agreed upon, the principles on conflicts of law and the UN Sales Convention shall be excluded. Place of performance and place of payment for both parties shall be exclusively the seat of our company in Thalgau, Austria.
Thalgau, May 2013