General Terms and Conditions

General Terms and Conditions of the Umwelt Service GmbH (USG)
Status: September 2010 

 

1. General area of application
a) Our terms of delivery and payment are exclusive.
We object to terms of delivery and payment conflicting with or diverging from our terms, unless we expressly acknowledge their validity in writing. Our terms of delivery and payment are also valid, when we deliver the products while being aware of the buyers’ terms conflicting or diverging from our own terms.

b) The terms of delivery and payment are also valid for all future business with the buyers.

 

2. Conclusion of contract
The purchase contract is only concluded with our written agreement. Our invoice also counts as confirmation of order, if a written confirmation has not been issued beforehand. Decisive date for the conclusion of contract is the date of confirmation of order or invoicing.

 

3. Offers and prices
a) Our offers are free and unbinding. Should no prices have been agreed on at the time of the conclusion of contract, the prices from the day of delivery shall be valid.

b) Quality and measurements are determined by the agreed constitution, in lack thereof by the commercial custom. Details regarding quality, measurements, weight and usability do not secure or guarantee a certain constitution.

c) Should we send sample deliveries prior to the conclusion of the contract, then these shall serve the determination of the quality and identification of present foreign material in the raw material. The result based on the buyer’s tests serves as the basis of the respective product’s future pricing.

d) Our prices are quoted ex works, excluding shipment, customs, accessory import charges and in addition to the VAT. The buyer shall be in charge of the products’ unloading, even if delivery was free of carriage charges.

e) If a delivery is to take place more than four months after conclusion of the contract, we reserve the right to settle a corresponding price increase, according to the buyer’s information, in case that our purchase prices increase or the fabrication or distribution prices are increased due to circumstances beyond our control.

 

4. Delivery, default of acceptance or delivery
a) Terms and dates of delivery are only binding for us with our written approval. Terms of delivery start with the date of the order confirmation. Should the buyer be obliged to pay in advance, delivery shall not start before reception of payment.

b) Term and date of delivery are to be considered as respected by us, when we have informed the buyer of the readiness for shipment before expiration of the term or date of delivery, or the order for shipment has been given. As far as the buyer does not wish a certain way of shipment, we shall choose the type of shipment at our own discretion without guaranteeing the cheapest or fastest way.

c) Events of force majeure entitle us to extend the delivery for the period of interference and an appropriate start-up period, or to partially or entirely withdraw us from delivery due to the unfulfilled part of the contract. Equalling force majeure are strike, lockout or unforeseeable or inevitable circumstances, which render a timely delivery impossible in spite of acceptable efforts.

d) Should we have agreed in writing with the buyer to deliver the products only on his call, the buyer shall then be obliged to call the products within 6 months after conclusion of the contract by written notice.

e) Should the buyer be in default of acceptance or culpably violate other obligations to co-operate, for example his duty to call under lit. d), we are then entitled to request compensation for damages, including possible additional expenditures. Further claims remain unaffected.

f) We are entitled to partial deliveries.

 

5. Passing of risk, shipment, release orders
a) The danger of possible accidental perishing or deterioration of the product, as well as the danger of confiscation, on delivery, with shipment of the product to the carrier, the shipper or other persons responsible for the shipment’s execution, is transferred to the buyer.

b) Same counts for handover, when the buyer is in default of acceptance.  

c) Freight charges are invoiced directly from the carrier, or, should we take care of shipment, by us. A possible transport insurance shall be taken by the buyer, unless we do not deliver ex works but agree on CIF (costs, insurance and freight).

d) Orders with continuing deliveries should be given with release orders and sorting of an approximately same monthly volume. Should the quantities contracted for be exceeded by individual call-ups, we are entitled but not obliged to delivery of the exceeding products. We are entitled to invoice such excess products at the prices valid on the day of retrieval.

e) Should the loading or shipment of the products be delayed for reasons within the buyer’s responsibility, we are entitled to stock the products at the buyer’s cost and risk, to take all measures necessary for the preservation of the products and to invoice the products as delivered. The same shall count if products ready for shipment have not been retrieved within a term of one week.     

 

6. Payment and delay of payment
a) Payments shall be made within 14 days after invoicing without deduction, as far as no other written agreements were settled.

b) Upon default of payment  by the buyer , we are entitled to charge default interest of 10 % above the basis interest rate. The buyer is entitled to prove that a lower damage has occurred.

c) Should the buyer fall behind with a payment, all other open invoices shall be due for immediate payment, even if the term of payment has not yet been reached. Should it become known that the buyer is in a bad financial situation prior to or following a delivery, we are entitled to accelerate maturity for all open invoices or to demand a security.

d) The buyer shall be entitled to balance only with undisputed or legally binding claims. These are only valid for the respectively same legal relationships. Each individual order counts as a separate contractual relationship.

 

7. Reservation of proprietary rights
a) The delivered products remain in our property until complete payment of all claims, which result from the current or future business relation with the buyer.

b) In the event of garnishment or other interferences from a third party, the buyer is obligated to inform the third party of our property and to notify us in writing in order for us to file a claim. Should the third party not be able to reimburse the legal and extra judicial fees of a claim, the buyer shall be held liable for the losses suffered by us.

c) The buyer is entitled to resell the products subject to retention of title on the regular course of business. However, he already now transfers to us all claims to the amount of the final invoice (VAT included) from our claims, which arise from the resale against his buyers and third parties, regardless of the fact whether the goods subject to retention of title has been resold without or after treatment. The buyer remains authorized to collect this claim even after cession. Our power to collect a claim ourselves remains unaffected. However, we commit to refrain from the collection of claims, as long as the buyer respects his payment obligations, does not get in default of payment and particularly if no insolvency proceedings are engaged or a suspension of payments occurs. Should this be the case, we are entitled to request the buyer to disclose the ceded claims and their debtors, to give all information necessary for the collection, to submit the respective documents and to inform the debtors (third parties) of the cession.

d) Processing or transformation of the goods subject to retention of title by the buyer shall always be carried out for us. In the event that these goods are treated with other objects not belonging to us, we shall obtain co-ownership of the new objects in relation of our product’s value (final amount of invoice, including VAT) to the other processed products at the time of processing. The conditions for delivered goods subject to retention of title apply for goods produced by processing.

e) In the event that goods subject to retention of title are inextricably combined with other objects not within our possession, we shall obtain co-ownership of the new product in relation of our own product’s value (final amount of invoice including VAT) to the other combined products at the moment of combination. Should the combination occur in a way, which makes the buyer’s good the main object, it shall be agreed that the buyer transfers us a pro rata co-ownership. The buyer then keeps the sole or joint ownership custody for us.

f) We commit to releasing guarantees we are entitled to on the buyer’s request, as far as the realized value of our guarantees does not exceed the claims to be ensured by more than 10 %; the choice of the guarantee to be released remains with us.

 

8. Delivery quality, weights
a) The quality of our products depends on the available raw materials. With trial shipments or product deliveries, the buyer has to take into consideration usual changes in quality, colour differences and weight discrepancies. However, these lie within our responsibility and represent a defect of quality, only if they could have been avoided in the given circumstances with reasonable effort and if the usability of the products has not been insignificantly affected. Minor changes, trial shipments and samples can in general not be rejected.

b)  The determination of weights and measurements depends on the weighing carried out by us, our the supplier or the shipping office. The proof of weight is effected on request by submission of the weight note. The weight checks can only be rejected by the buyer only based on official weighing immediately after delivery.  

 

9. Liability, Guarantee
a) Warranty claims by the buyer are under the condition that he has duly fulfilled his duty to examine and make a complaint in respect of a defect immediately on receipt of the goods. Obvious defects are to be reported in writing immediately, at the latest one week after reception of the goods at the place of destination. Defects, which have not been detected even after thorough examination are to be reported immediately in writing after their discovery.  Rejected goods shall not be unloaded without our permission, otherwise it shall be regarded as accepted as free from defects. Should a discrepancy in sorting be determined only during or after unloading, the goods shall be stored separately, otherwise they are considered as accepted free of defects.

b) In the event of a defect, we are entitled to request either a remedy of the defect or the delivery of a new item by our choice (subsequent-performance). Should one of these options be impossible or out of proportion, we are entitled to refuse it. We may also refuse such subsequent performance, should the buyer not fulfil his payment obligation corresponding to the part which is free of defect.

c) Should such subsequent performance be impossible or fail, the buyer is free to choose either a reduction of the purchase price or to withdraw from the contract within the legal requirements.

d) As far as nothing else results from lit. e), other claims by the buyer  - for whatever legal reason – are excluded. This is especially valid for claims of compensation for damages outside of the purchased goods as well as for lost profits and claims, which are not based on the defectiveness of the goods.

e) The liability exclusion stated in lit. d) does not apply for defects due to injury of life, body or health, which are based on a wilful or careless breach of duty of one of our legal representatives or agents. The liability exclusion is also inapplicable for liabilities for other defects, which result from intentional or out of serious negligence of a legal representative or agent. Should we culpably breach an essential contractual obligation, the liability shall not be excluded, but limited to the contract-typical, foreseeable damage. It is also excluded according to the regulations listed under lit. d). The liability exclusion finally does not apply for the assumption of a guarantee or any warranted qualities, if an included defect causes our liability. The same respectively applies for reimbursement of expenses.

f) The statute of limitations terminates within 12 months after passage of risk.

g) The general assumption as stated in § 924 ABGB is excluded. The buyer must submit proof of defect at the moment of delivery.

 

10. Withdrawal of the buyer
Should the buyer withdraw from the contract and can be held responsible for this withdrawal, we are entitled to request a flat compensation of 20 % of the order value including VAT, if any. The buyer is entitled to submit proof that we have suffered a lesser damage. Should we be able to prove a higher damage, then the latter is subject to compensation.

 

11. Place of performance, jurisdiction and applicable law
a) Place of performance for mutual legal relationships is Wels, Austria.

b) Wels is the place of jurisdiction for all present and future claims resulting from business relationships including change and check demands. We are also entitled to sue the buyer at his residence.

c) The business relationship is subject to Austrian law and jurisdiction. The applicability of UN Purchase Law (CISG) is excluded.

USG-Umweltservice GmbH  I  Franz-Fritsch-Straße 11/Nord/210  I  A-4600 Wels  I  Tel.: +43 7242 - 20 88 22 40  I  Fax: +43 7242 - 20 88 22 49  I  info@usg.at  I  www.usg.at