General Terms and Conditions

for the Supply of Goods and Services by LÖFFLER GmbH (Registered with the Regional Court of Ried im Innkreis under FN 113126 m), Südtirolerstraße 41, A-4910 Ried im Innkreis (Last amended: September 2018)

 

1. Validity

1.1. We solely enter into a contract on the basis of our General Terms and Conditions for the Supply of Goods and Services ("General Terms and Conditions").

1.2. Our General Terms and Conditions as in force at the time of the conclusion of the contract apply in each case. They are available on our website: www. loeffler.at/en/agb/.

1.3. For the purpose of our General Terms and Conditions, customers are solely deemed to be business owners within the meaning of Section 1 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz).

1.4. The terms and conditions of the customer or changes and/or amendments to our General Terms and Conditions are only valid if we have given our express consent thereto in writing.

1.5. Furthermore, the terms and conditions of the customer are not recognised as valid even if they are not explicitly rejected by us after we have received them. Rather, the acceptance of the terms and conditions of the customer or parts thereof requires our express written consent.

 

2. Offers, conclusion of contract, language, scope of services, cost estimates

2.1. Our offers are generally subject to change and are therefore non-binding. This likewise applies if this is not separately noted in the offer. Contracts are only deemed to have been concluded by an act of performance by us (e.g. delivery, dispatch of the goods) or by means of our written order confirmation.

2.2. Statements made by us, in particular informal statements by our employees, or agreements whose terms differ from these General Terms and Conditions are only binding on us if we confirm this in writing. We make no representations or warranties in the legal sense. In particular, the details contained in offers, contractual documents, prospectuses, price lists, etc. do not constitute warranted or guaranteed properties.

2.3. The negotiating language, contract language and the language to be used for implementation of the contract is exclusively the English language.

2.4. The scope of the services to be provided by us is shown in our description of service in the contract documents. Any subsequent change made by the customer to the content of the service requires our written consent.

2.5. The customer shall make express written reference to the information about our services contained in catalogues, price lists, prospectuses, advertisements on exhibition stands, circulars, advertising mailings, on our website or in other media ("Information Material") insofar as this information forms the basis of the customer's decision to place an order. In such a case, we can comment on the accuracy of the information. If the customer violates this obligation, such information is considered subject to change and non-binding unless it is expressly declared in writing in our description of service that it forms part of the contract.

2.6. Preliminary work requested by the customer, such as designs (e.g. one-off production designs) and models, are likewise provided against payment of a fee unless otherwise agreed in writing.

2.7. Goods and services shall be supplied by us in accordance with the possibilities we have to supply such goods and services. In particular, the contract is concluded on condition that we will not perform or will only do so in part if we ourselves are not correctly or properly supplied. A declaration to that effect from our supplier is considered sufficient proof that we are, through no fault of our own, prevented from delivering goods/supplying a service. The customer shall be informed within an appropriate period in the event of the unavailability or only partial availability of the service. Where applicable, any consideration already paid shall be reimbursed.

 

3. Prices

3.1. Prices are generally not to be understood as fixed prices. If prices are left open at the time of the conclusion of the contract, the list prices applicable on the day on which performance is rendered are payable.

3.2. There is a right to adequate remuneration for services ordered by the customer that are not covered by the original order.

3.3. Prices are quoted in euros ("€") plus VAT at the statutory rate and ex works (EXW), in accordance with Incoterms 2010, meaning the customer shall arrange collection from the plant/warehouse commissioned by us with supply. The customer shall bear the packaging, transport, loading and shipping costs, as well as customs duty and insurance costs. If costs are incurred for necessary packaging or packaging that has been expressly requested (e.g. for special quantities/dimensions), special marking and division and the like, such costs are likewise added to the price on the basis of the expenditure incurred by us plus an appropriate handling fee and they are not covered by the agreed prices unless otherwise agreed in writing.

3.4. We are entitled at our discretion, and we are under an obligation at the request of the customer, to adjust the contractually agreed fees if since the conclusion of the contract changes of at least 5% have occurred with regard to a) labour costs by virtue of statute, ordinance, collective agreement or shop agreements, or b) other cost factors necessary for effecting performance, such as the cost of materials (e.g. due to changes in national and/or international prices for raw materials), changes to relevant exchange rates, taxes, customs duties, public charges, freight costs and other accompanying charges, etc. The adjustment is made to the extent the actual manufacturing costs at the time of performance have changed compared with those at the time of conclusion of the contract, unless we are in delay.

3.5. We are only required to take back packaging if this has been expressly agreed. The customer shall arrange the proper and environmentally-sound disposal of waste materials.

 

4. Central Settlement

4.1. If the customer is no longer integrated in a central settlement, he will also no longer gain reductions in remuneration (e.g. discounts) which are granted by virtue of the central settlement and, from that date, he will have to pay us the correspondingly increased prices.

4.2. If a new integration into a central settlement takes place with respect to the customer, then all reductions in remuneration granted by us (e.g. discounts) will cease to apply and the customer will gain from this date only the reductions in remuneration resulting from the central settlement. In addition, we are entitled in such a case to exercise a special right of termination with a notice period of three months to the last day of a month, if the new reductions in remuneration for us are disadvantageous compared to the previous ones.

 

5. Payment

5.1. Payments shall be effected in accordance with our written order confirmation. If payment dates are not specified therein, the invoice amount shall fall due for payment within 30 days as of invoice date without deduction. The customer is in default of payment if payment is not made upon expiry of this period.

5.2. All payments shall be made by bank transfer free of charges to our paying agent. We reserve the right to exclude individual payment methods. In any case, we reserve the right to deliver only against advance payment, collection c.o.d., or against a bill of exchange. In the case of shipments, we are in particular entitled to charge packing and shipping costs and collect payment from the customer on a cash on delivery basis if the customer defaults on a payment due under the existing business relationship with us or if a credit limit agreed with us has been exceeded.

5.3. We are not bound by any payment dedications that are made by the customer (e.g. on the remittance slip). We are entitled to use payments, irrespective of any dedication made, to settle the oldest outstanding invoice items plus any default interest accrued thereon and costs, in the following order: costs, interest, principal claim.

5.4. If i) the customer defaults on an agreed payment or fails to effect another performance in connection with this or another existing legal relationship with us or ii) there is a material deterioration in the financial circumstances of the customer following conclusion of the contract or iii) we become aware of circumstances which are likely to diminish the creditworthiness of the customer, we are – without prejudice to our other rights – entitled to a) postpone performance of our own obligations until such time as performance is effected by the customer and extend the performance period accordingly, b) accelerate payment of all outstanding receivables from this and other transactions and c) only perform this and other transactions and/or outstanding performances against advance payment.

5.5. If payment is not received by the deadline, even if only regarding an individual partial service, any allowances granted (discounts, reductions and the like) are forfeited and will be invoiced.

5.6. In case of payment default, the customer shall reimburse to us the costs incurred for issuing reminders and collecting payment insofar as such is necessary for taking appropriate legal action. This includes in any case the cost of two reminder letters at the present standard market rate of at least EUR 40.00 per reminder as well as a reminder letter sent by the attorney in charge of collection. The assertion of other rights and claims remains unaffected.

5.7. The customer is authorised to set off claims only if and to the extent that counterclaims have been established as binding by a court of law (res judicata) or have been recognised by us. The customer is not entitled to withhold payments. In particular, the customer is not entitled to withhold payments due to warranty claims or other counterclaims.

5.8. In the case of payment default by the customer, we are entitled to charge statutory default interest at the rate applicable to corporate transactions.

 

6. Withdrawal from the contract

6.1. Irrespective of our other rights, we are entitled to withdraw from the contract with the customer a) if its performance or the commencement, continuation or completion of the service is impossible for reasons attributable to the customer or if it becomes impossible or is further delayed despite the setting of an appropriate grace period, b) if there are reasons to doubt the customer's ability to meet its financial obligations and the customer, when requested to do so by us, neither makes an advance payment nor provides suitable collateral prior to our performance, or c) if the extension of the performance period amounts in total to more than half of the originally agreed performance period owing to the circumstances specified in 9.2 below, but at least three months.

6.2. For the reasons stated above, our withdrawal may also be declared with respect to an outstanding part of the service.

6.3. If an application for insolvency proceedings is made against the assets of the customer or such proceedings are opened or an application for insolvency proceedings is dismissed due to a lack of sufficient assets, we are entitled to withdraw from the contract without setting a grace period. If this right of withdrawal is exercised, it will immediately become effective at the time the decision is taken not to continue the business of the customer. If the business is continued, withdrawal only becomes effective six months after the opening of insolvency proceedings. In the event of withdrawal, termination of the contract occurs with immediate effect provided the insolvency law to which the customer is subject does not preclude this or if termination of the contract is imperative for the purpose of avoiding serious economic disadvantages on our part.

6.4. Without prejudice to our other rights, we are in the case of withdrawal entitled to a) charge for any performance or partial performance already effected in accordance with the contract and to demand payment therefor (this also applies to any performance which has not yet been accepted by the customer, as well as to any preparatory acts performed by us), b) demand the return of any items already supplied or c) demand fixed compensation from the customer in the amount of 30% of the order value plus VAT without having to furnish proof of actual damage sustained. The assertion of a claim for higher damages and/or a claim over and above the remaining damage and other claims is permitted. The customer's obligation to pay damages is independent of fault.

6.5. The assertion of claims by the customer for lesion beyond moiety (laesio enormis), mistake or on the grounds that the basis of the transaction has ceased to exist, is excluded.

 

7. The customer's cooperation obligation

7.1. We shall effect performance as soon as possible after a) all commercial and technical details have been clarified, b) the customer has satisfied, or procured the satisfaction of, all commercial, technical and legal requirements for performance, in particular those outlined in the contract or in the information provided to the customer prior to conclusion of the contract or of which the customer should have knowledge on the basis of his education, relevant technical expertise or experience, c) we have received the agreed advance payments or security deposits, and d) the customer meets his contractual obligations with regard to advance performance and cooperation, in particular those specified below.

7.2. If the customer fails to meet this cooperation obligation, our performance is not defective – solely in terms of the incomplete service provided due to incorrect information from the customer.

7.3. The customer shall, if need be, arrange at its expense all necessary third party approvals as well as notifications issued to and approvals granted by authorities. We only make reference thereto at the time the contract is concluded if the customer has dispensed with making such arrangements and if the customer does not possess such knowledge on the basis of his education, relevant technical expertise or experience.

7.4. The customer may not assign claims and rights arising from the contractual relationship without our written consent.

 

8. Performance

8.1. Objectively justified, minor changes to the performance of our service which are acceptable to the customer are deemed to have been approved in advance.

8.2. Where a modification or amendment is made to the order for any reason whatsoever after the order is placed, the performance periods/dates are extended and/or postponed by an appropriate period.

8.3. If the customer wishes performance to be effected within a shorter period of time following conclusion of the contract, this constitutes a contract amendment. Overtime may become necessary as a result and/or additional costs may be incurred by expediting the procurement of materials, and the fee payable is increased appropriately in such cases in proportion to the necessary additional work and expense.

8.4. Any objectively justified partial supply of goods or services is permitted and may be invoiced separately. Complaints made with regard to the partial supply of goods or services do not entitle the customer to refuse the remaining part of the goods or services to be supplied.

8.5. If delivery on call is agreed, we are entitled to deliver the completed goods no later than two months after the order is placed and after notice is given that the goods are ready for dispatch and to issue an invoice even if no request has yet been made by the customer for delivery.

8.6. We deliver ex works (EXW), in accordance with Incoterms 2010, from the plant/warehouse commissioned by us with supply.

8.7. The sale of goods that we have provided to the customer on commission shall be notified to us immediately in writing.

 

9. Periods and dates of performance

9.1. We specify estimated yet non-binding periods/dates of performance in the contract documents. After the expiry of the anticipated periods/dates of performance, we are in default with performance as soon as it can be demonstrated that we have received a written reminder from the customer, sent by registered mail, in which an appropriate grace period is set amounting at least to 20% of the agreed period of performance. In the case of custom-made items in particular, the grace period must be calculated to take due account of the fact that we are unable to make any other use of parts already produced. Compliance with our performance obligation requires the clarification of all legal, technical and commercial questions and issues, as well as the timely and proper performance of obligations by the customer. We reserve the right to object to non-performance, incomplete performance and/or improper performance of the contract.

9.2. In the event of unforeseeable circumstances or circumstances beyond the control of the parties, such as cases of force majeure preventing compliance with the intended periods/dates of performance, such periods/dates are in any case extended/postponed by the duration of these circumstances; this includes in particular armed conflicts, interventions and prohibitions by public authorities, transport and customs clearance delays, damage sustained in transit, energy and raw material shortages, employment disputes, and the loss of a major supplier which cannot easily be replaced. The aforementioned circumstances also entitle us to extend and/or postpone the periods/dates of performance if our suppliers are affected by such circumstances.

9.3. If commencement of the service to be provided or implementation thereof is delayed or interrupted by circumstances attributable to the customer, in particular due to a violation of the cooperation obligations specified in section 7., the periods of performance are extended accordingly.

9.4. Fixed-date transactions are explicitly referred to as such and are only accepted if this has been confirmed by us in writing.

9.5. Penalty provisions shall be agreed separately and only become applicable if confirmed by us in writing. Penalties are generally excluded except in those cases where a separate agreement is reached in this respect.

 

10. Risk assumption and shipment

10.1. The risk passes to the customer at the time at which the goods are handed over to the forwarding agent or the carrier, but no later than the time at which they leave our warehouse or if the customer is in default of acceptance. This also applies even if, as agreed, we deliver free to the place of destination using our own or third party means of transport. Insurance cover is not provided.

10.2. Shipping routes, means of transport and protection and packaging are, excluding any liability, left to our discretion. To the extent possible, special modes of transport will be used at the customer's request and invoiced separately. Delivery vehicles must have safe and unfettered access to the place of unloading and be able to unload without delay.

 

11. Default of acceptance

11.1. Deliveries are deemed to have been made once notice has been given in a timely manner that the goods are ready for dispatch. Goods ready for dispatch must be immediately accepted by the customer. If the customer is in default of acceptance (refusal of acceptance, delay in advance services, no request within an appropriate period in the case of orders for goods to be delivered on call) and the customer, despite the setting of an appropriate grace period, has not remedied the circumstances attributable to it which are delaying or impeding performance of the service, we may – while the agreement remains in effect – otherwise dispose of the materials set aside for performance of the service provided that in case of continuation of the performance of the services we procure such materials again within an appropriate period depending on the particular circumstances.

11.2. In case of default of acceptance by the customer, we are likewise entitled at our option – while insisting upon the performance of the contract – to ship the goods to the customer or to store the goods for the customer at its expense and risk. In the case of storage, we are entitled either to store the goods ourselves and charge a standard fee for storage or have the goods stored in the customer's name and for its account by third parties.

11.3. If however the customer is in default of acceptance, we also have the right to withdraw immediately from the contract after an appropriate grace period expires without result and to resell the materials set aside for performance of the service after successfully having withdrawn from the contract or otherwise dispose of them.

11.4. The assertion of our other rights and claims remains unaffected.

 

12. Reservation of title

12.1. The goods supplied or otherwise delivered by us remain our property until such time as payment is received in full. Furthermore, we retain title to the goods until all receivables due from the business relationship with the customer are settled in full. If the value of the goods to which title is reserved exceeds the receivables to be secured from the business relationship by more than 20%, we shall release a corresponding portion of the security interest at the request of the customer. For open accounts, reservation of title serves as security for the unpaid balance on the account.

12.2. The customer shall treat the goods with care for the duration of the period during which title is retained. The customer shall inform us immediately in writing of any seizure of the goods by third parties, in particular of any enforcement measures taken, as well as of any damage to or the destruction of the goods. In such cases, the customer shall also make the third party aware of our ownership rights. The customer shall notify us immediately of a change in ownership of the goods, as well as any change in its own address. The customer shall compensate us for all loss, damage and costs resulting from a violation of these obligations and from intervention measures that prove necessary to protect against seizure of the goods by third parties.

12.3. If the customer is a reseller, it is entitled to continue to resell the goods in the ordinary course of business. It assigns to us in advance all existing receivables equivalent to the invoice amount which are due to it from third parties as a result of the sale. The customer shall make a corresponding statement of assignment in its books or on its commercial invoices. We accept this assignment. Following assignment, the customer is empowered to collect the receivables so long as it meets all of its payment obligations toward us and/or until such time as this is revoked by us. We reserve the right to collect receivables ourselves as soon as the customer fails to meet its payment obligations properly and defaults on payment. Moreover, reselling is only permitted if we have been notified in advance in a timely manner and have been provided with the name and address of the buyer, and on condition that we have given our express written consent to the sale. In the event we have given consent, sentences 2 to 6 above in this section 12.3 will apply mutatis mutandis.

12.4. The customer gives his express agreement that we may, to the extent this is acceptable for the customer, enter the premises at which the goods subject to reservation of title are being held in order to assert our right thereto, in particular to assess our goods to which title is reserved and to label them as such, after giving reasonable advance notice.

12.5. The customer shall bear all necessary and reasonable costs for taking appropriate legal action.

12.6. In the event the customer acts contrary to the terms of the agreement, in particular in case of payment default, we are entitled to withdraw from the contract and/or demand return of the goods. In addition, we are entitled in the event of a violation of an obligation under clause 12.2 above to withdraw from the contract and/or demand return of the goods. Asserting our right to reservation of title only constitutes withdrawal from the contract if this is explicitly stated.

12.7. We may realise the best possible price for any reclaimed goods subject to reservation of title on the open market.

12.8. Until all of our receivables are paid in full, the goods subject to reservation of title may not be pledged, assigned by way of collateral or otherwise encumbered with third party rights.

12.9. The treatment and processing of the goods shall at all times be made in our name and on our behalf. If the goods are processed, we acquire co-ownership of the new item in relation to the value of the goods supplied by us. The same applies in those cases where the goods are processed or combined with other items which do not belong to us.

 

13. Third party rights

13.1. In respect of deliverables manufactured by us according to the customer's documentation (drawings, models or other specifications, etc.), the customer solely assumes liability for ensuring that third party rights are not infringed by such deliverables.

13.2. If third party rights are nevertheless asserted, we are entitled to halt production of the deliverables at the risk of the customer until such time as the issue surrounding third party rights is clarified, save where the claims are patently unjustified.

13.3. The customer shall upon first request hold us completely free and harmless with regard to any such infringement of third party rights. Likewise, we may seek compensation from the customer for the necessary and expedient costs incurred by us.

13.4. We are entitled to demand from the customer the payment of an appropriate advance on any procedural costs.

13.5. Unless otherwise agreed, we shall supply goods or services free and clear of third party intellectual property rights only in the country in which the place of delivery/performance is located. Insofar as a third party asserts justified claims against the customer on account of the infringement of intellectual property rights as a result of the supply of goods/services by us and used in accordance with the contract, we are liable vis-à-vis the customer within the period specified in section 15.1 as follows: a) we shall – at our option and expense – either obtain a right of use for the relevant goods/services, effect changes so that the intellectual property right is not infringed or provide a replacement. Where this is not possible for us on terms and conditions which are fair and reasonable, the customer may avail itself of its statutory conversion or price reduction rights; b) our obligation to pay compensation is set out in section 16.; c) our aforementioned obligations only exist to the extent that the customer immediately informs us in writing of the claims asserted by third parties, does not concede the existence of an infringement and leaves to our discretion all defensive measures and settlement negotiations. If the customer ceases use of the goods/service on the grounds of mitigation or for other important reasons, it shall make the third party aware that its cessation of use does not constitute an acknowledgement of an infringement of intellectual property rights. Any claims the customer may have are excluded insofar as the customer is responsible for the infringement of intellectual property rights. Furthermore, any claims the customer may have are excluded insofar as the infringement of intellectual property rights is caused by customer requirements, an application not envisaged by us or as a result of the modification of the goods/service by the customer or because of any use in combination with products not supplied by us, in respect of which the customer shall hold us free and harmless in this regard. In the case of infringements of intellectual property rights, the provisions set forth in sections 5.7, 15.1 and the final sentence of 15.2 apply mutatis mutandis to the claims of the customer that are governed by 13.5 a).

 

14. Our intellectual property

14.1. Deliverables and execution documents in this regard, sketches, drawings and other documentation provided by us or created as a result of a contribution made by us remain our intellectual property and we reserve all rights thereto; the customer does not – in the absence of any other express written agreement – receive or acquire any rights thereto whatsoever, such as rights of exploitation or use.

14.2. Any use, which falls outside of the intended use under the agreement, in particular disclosure, reproduction, publication and the making available of such items, also including partial copying thereof, as well as imitation, processing or exploitation, requires our prior express consent in writing.

14.3. Furthermore, the customer shall treat as confidential and not disclose to third parties any knowledge it acquires as a result of the business relationship.

14.4. If items were provided by us to the customer to prepare the ground for the contract, or within the context of the conclusion and/or execution of the contract, and if said items were not necessary for performance (e.g. designs), these items shall be returned to us within 14 days. Where the customer fails to comply with a corresponding request in a timely manner, we may demand fixed compensation from the customer in the amount of 50% of the order volume without having to furnish proof of actual damage sustained. The assertion of a claim for higher damages and/or a claim over and above the remaining damage and other claims is permitted. The customer's obligation to pay damages is independent of fault.

 

15. Warranty (liability for defects)

15.1. The place of performance under the warranty is the original place where service is rendered. The warranty period for our services is one year from the transfer of risk.

15.2. Subject to compliance with the agreed payment terms in accordance with the following provisions, we are only under an obligation to remedy any defect that impairs functionality due to a fault in development, material or workmanship if it can be shown to have already existed at the time of the transfer of risk. A defect regarding the material and/or workmanship is solely deemed to exist if and to the extent that the performance does not have the properties expressly agreed upon in the contract. Any customary or technically unavoidable deviations (e.g. as to quality, colour, size, equipment or design) shall be not be deemed defects. All ancillary costs incurred in connection with rectifying the defect (such as, for instance, costs of transportation, disposal, travel and travel time) are for the customer's account.

15.3. The correction of a defect alleged by the customer does not constitute an acknowledgement of the existence of a defect.

15.4. The customer shall at all times be required to prove that the defect was already present at the time of transfer. The right of recourse against us under Section 933b para. 1 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) expires one year after performance.

15.5. The warranty claims of the customer require the customer to have duly fulfilled its examination obligation and its duty to give notice of defects. Furthermore, the item in respect of which notice of defects is given must in any event be left in a completely unaltered state. If the item to which the objection relates has been altered, the assertion of any warranty claim by the customer is excluded unless it can be demonstrated that we acted with intent or as a result of gross negligence. The customer must immediately examine the performance rendered by us for defects (even in the case of partial performance) and notify us of any defects found without undue delay, but within one week of performance at the latest, otherwise the assertion of any warranty claims for defects and other liability claims is likewise excluded. Latent defects shall be notified to us without undue delay, but no later than one week following their discovery, otherwise the assertion of any warranty claims for defects and other liability claims is likewise excluded.

15.6. If the assertions made by the customer regarding alleged defects are unjustified, the customer shall compensate us for any expenses we incur in determining the absence of defects or correcting faults at our standard rates of remuneration.

15.7. We provide a warranty for defects in our performance initially at our option by means of improvement or replacement. If improvement and replacement are not possible or feasible, the customer may demand a reduction in the price or, provided it does not concern defects of a minor nature, cancellation of the contract, at its option. We shall be allowed at least two attempts at improvement or replacement on the part of the customer.

15.8. The warranty period is not extended or interrupted by improvement and/or replacement. With regard to new parts used within the context of improvement and/or replacement, any independent warranty for defects irrespective of the legal grounds therefor is excluded.

15.9. If the objects of performance are manufactured on the basis of the requirements, drawings, models or other specifications of the customer, we only warrant that we have executed performance in accordance with the agreement.

15.10. The customer shall cease any and all use or processing of a defective object of performance, which risks further damage or prevents or makes it more difficult to identify the cause of the defect, insofar as this is not unreasonable.

15.11. The warranty does not apply to and/or all other liability on our part is excluded for faults resulting from any non-compliance with terms and conditions of use and/or maintenance, or from faults resulting from any overloading of the parts in excess of the values specified by us and/or the manufacturer, and from the negligent, improper and/or incorrect treatment or storage and/or from faulty maintenance. Further, we give no assurance and assume no liability for damage or injury attributable to the actions of third parties or to electrical and/or chemical influences. The warranty does not relate to the replacement of parts subject to natural wear and tear.

15.12. The warranty lapses immediately if the customer itself or a third party not expressly authorized by us makes changes to, repairs or carries out maintenance on the items supplied without our written consent.

15.13. In case of defects other than the defects in title regulated under section 13.5, the provisions of this section 15 apply mutatis mutandis.

15.14. Unless otherwise specified in these General Terms and Conditions, our liability for defects is comprehensively regulated in this section 15. Any further warranty for defects on our part, irrespective of the legal grounds therefor, is hereby excluded.

 

16. Liability and limitations on liability

16.1. In cases of slight negligence, any liability on our part and in respect of our employees, contractors or other vicarious agents ("people") is excluded for damage to property and financial loss, irrespective of whether it concerns direct or indirect damage, lost profit or consequential damage, damage due to delay, impossibility, positive breach of an obligation or breach of contract, culpa in contrahendo, or due to defective or incomplete performance or any damage resulting from third party claims against the customer. The injured party at all times bears the burden of proving gross negligence or wilful intent. To the extent our liability is excluded or limited, this also applies to the personal liability of our employees.

16.2. The aforementioned limitations on liability do not apply if the damage results from dangers that neither are typical for the legal relationship nor were foreseeable given the special circumstances of the individual case.

16.3. Should the customer itself be made liable under the Austrian Product Liability Act (Produkthaftungsgesetz) or corresponding foreign legislation, it shall expressly waive any right of recourse against us, in particular within the meaning of Section 12 of the Austrian Product Liability Act or corresponding provisions of foreign legislation unless it can be shown that we were grossly negligent in this regard.

16.4. All liability claims which are deemed to exist against us on their merits are limited in terms of amount to the net value of any individual object of performance substantiating the liability claim in question or to the actual cover provided under any insurance policy taken out by us, whichever is the greater.

16.5. Any liability claims against us lapse 12 months after provision of our service; in the case of tortious liability, from the time of knowledge, or in the case of grossly negligent ignorance, from the time of the circumstances giving rise to the claim and the person liable to pay damages.

16.6. The aforementioned limitations on liability also apply with regard to damage caused to property entrusted to us for processing purposes.

16.7. Unless otherwise specified in these General Terms and Conditions, our liability is comprehensively regulated in this section 16. Any further liability on our part, irrespective of the legal grounds therefor, is excluded.

 

17. Severability

Should a provision of the agreement be or become ineffective, either in whole or in part, the permissible provision which comes closest to the economic purpose of this provision shall be deemed to have been agreed. This also applies if a provision is deemed ineffective due to a measure of performance or time denominated in the agreement; in such cases, a measure of performance and time which comes closest to that intended and which is legally permissible replaces the one originally agreed. This is without prejudice to the remainder of the agreement. The same applies to any omissions in this agreement that need to be rectified.

 

18. General

18.1. This agreement is solely subject to and construed in accordance with Austrian law.

18.2. The conflict-of-law rules of private international law are excluded.

18.3. The place of performance for our contractual obligations is the plant/warehouse commissioned by us with supply. The place of performance for all customer obligations is Südtirolerstraße 41, A-4910 Ried im Innkreis, Austria.

18.4. It is agreed that all legal disputes between us and the customer arising from or in connection with the contractual relationship shall be settled by the court with local and subject-matter jurisdiction for A-4910 Ried im Innkreis, Austria. Notwithstanding that, we are at our option entitled to institute legal proceedings against the customer in any other court which may be competent under national or international law.

18.5. The customer shall notify us immediately in writing of any changes to his name, the name of his company, his address, legal form or other relevant information.

18.6. If our products are exported, the relevant export and control provisions must be observed and adhered to. Any authorisations shall be obtained by the customer and submitted to us in a timely manner. Should this not happen, we are entitled to withdraw from the contract without incurring any liability to pay damages to the customer in this regard. The customer is solely responsible for assessing whether a product requires an export licence and whether the export is subject to special control provisions. For each breach of such provisions, the customer shall indemnify us from and against third party claims of any kind whatsoever. This also applies to any and all costs that are incurred by us in connection with the exercise of our rights.