General Terms and Conditions
This is where you will find the conditions of sale and delivery of ADLER-Werk, Lackfabrik Johann Berghofer GmbH & Co, Bergwerkstrasse 22, A-6130 Schwaz.
1.1. Applicability of the conditions
If no agreements have been made to the contrary, the conditions of sale and delivery will apply to all merchandise and services supplied by us. By virtue of placing orders for merchandise or services, customers explicitly recognize the conditions of sale and delivery of ADLER-Werk. Even if they have not been objected to or have been complied with, the customer's terms of contract will not be recognized unless they have been acknowledged in writing by ADLER-Werk. If our conditions of sale and delivery are already known to the customer, they will apply to future transactions even if not newly communicated to the customer. Acceptance of our deliveries of merchandise or provision of services will be deemed to constitute recognition of our conditions. Collateral agreements will only be operative if we have confirmed them in writing;
The offers of ADLER-Werk are non-binding and without engagement. ADLER-Werk will only be bound by orders that have been acknowledged in writing or have been performed as a result of the forwarding of the merchandise.
2.1. Delivery dates and quantities
will be pursuant to what has been contractually agreed. Partial shipments will be permissible. In the case of custom-made products, the actual quantities delivered may exceed or fall short of the agreed quantities to a small degree (by up to 10%). In the event of delays in delivery, §§ 918 ff ABGB (General Civil Code) will be applicable. However, claims for compensation on the part of the customer will be limited to the invoice value of the quantity of merchandise that has not been delivered in good time.
2.2. Delivery expenses and freight charges, passing of the risk
The place of shipment and the shipment route will be selected by ADLER-Werk. The customer's wishes will be taken into account as far as possible, any costs arising from this being chargeable to the customer. Deliveries within Austria will always be made by HGV, carriage paid (CIP "address of customer" as defined by Incoterms). Any extra costs due to express freight or postage will be chargeable to the customer. However, delivery will only be effected free of charge or carriage paid for a minimum order of 100 kg (litres) or for merchandise with a minimum value of EUR 200.-. For quantities smaller than the above, shipping charges will be borne by the customer. Deliveries will be made at the customer's risk. The risk will definitively pass to the customer with the dispatch of the merchandise. If the latter defaults in accepting delivery or if delivery cannot be effected for a reason for which the customer is answerable, the risk will definitively pass to the customer in this case too. Shipments to other countries will be made at the customer's expense, the merchandise being made available "ex works free carrier", (FCA "ADLER-Werk, Bergwerkstraße 22, A-6130 Schwaz" in accordance with Incoterms).
3.1. Calculation of the price
The price will be calculated on the basis of the quantity shipped. Any incidental expenses going beyond those stated in Clause 2.2 and connected with the delivery of the merchandise or payment of the consideration will be chargeable to the customer. If price increases occur between the conclusion of the contract and complete performance of the same, the customer will be notified thereof immediately. As a matter of principle, they will be borne by the customer. However, the customer is entitled to cancel the portion of the contract that has not yet been performed within 14 days of being notified of the price increase.
3.2. Terms of payment
Our invoices are payable subject to a 2% cash discount within 14 days of the invoice date or net within 30 days of the invoice date. Periods of credit differing from the above will only be operative if confirmed by us in writing. Orders placed by new customers will only be carried out on the basis of cash in advance or cash on delivery. These arrangements will apply until the new customer has been informed in writing that he/it too can make payments in accordance with the above terms of payment. A discount will not be permissible as long as older invoices that are due have not been settled by the due date of the invoice or if the invoice is to be settled by a bill of exchange. If bills of exchange are taken for discount with a view to performance - something we will have no obligation to do - in addition, all bank-related interest and discount, collection, and other expenses are to be paid net by the customer as soon as notification thereof has been given. In the event of a default in payment, the customer will be charged the interest customarily charged on bank loans, at the minimum, however, interest at 5% above the Austrian National Bank's bank rate applicable at the time in question, together with the cost of the debt enforcement proceedings.
The return of non-returnable drums will not be accepted. As ADLER-Werk is a member of a comprehensive waste management system, non-returnable drums containing only residues can be disposed of via this system. Only leased packings that are explicitly designated as such are to be returned carriage paid, at the latest within 3 months of the passing of the risk (cf 2.2), in a perfect and usable condition. The customer is expressly prohibited from filling the leased drums with other products. Depending on the degree of contamination, a charge of up to the total value of the drum will be made for any cleaning costs incurred as a result.
4. Return of merchandise
The return of any merchandise delivered will only be accepted by ADLER-Werk if there is a defect in it. If merchandise is accepted for return on a goodwill basis, 20% of the invoiced value will be deducted to cover any expenses incurred.
5. Liability for defects
We give a warranty for the quantity and uniform quality and colour of our products. Differences in quantity, as stated in Clause 2.1, are possible. The buyer has to check immediately whether or not the merchandise supplied matches the contractual agreements in terms of quantity and quality and ensure that it is suitable for any area of application that may have been agreed on. If this check is neglected, either completely or in part, or if a notice of patent defects is not filed within 8 days at the latest of the acceptance of the merchandise, the latter will be deemed to have been approved in respect of said defects and the area of application. Claims in respect of hidden defects are to be lodged as soon as they make their appearance and, at the latest, within 6 months of the acceptance of the merchandise. Complaints will be ruled out under all circumstances if thinners, curing agents, paint additives, or other components have been admixed that are not ADLER-Werk products too, or if, in part, materials or stains of other origins have been used to build up the coating. Notices of defects are to be filed in writing and be accompanied by details of the invoice data and the batch number. Merchandise that is the subject of a complaint may only be returned to us with our explicit consent. At our request, however, a sample drum is to be made available to us for test purposes. If the claim under the warranty is justified, the forwarding costs will be included. Notices of defects do not release the customer from its/his obligation to comply with the agreed conditions of delivery and payment. Specific recourse claims against ADLER-Werk pursuant to § 933 b ABGB (General Civil Code) are limited to two years after the delivery date. At any rate, a prerequisite for claims under the warranty is that the customer furnishes proof of the existence of the defect upon delivery of the merchandise.
5.2. Liability for losses
The utilization, processing and handling of our products are operations over which we have no control and are the sole responsibility of the customer. Any applications-related counselling, including, in particular, advice given in leaflets and operating guidelines, is given to the best of our knowledge and is based, in each case, on the state of the art and the scientific knowledge available at the time. Advice and recommendations are supplied without a guarantee as to their correctness, and will not serve to establish any legal, contractual relationship, or any collateral obligations deriving from the contract of sale, and, accordingly, it is the user's own responsibility to carefully relate such advice or recommendations to the area of application and processing conditions in each individual case. Consequently, nor will any applications-related counselling given verbally, in writing, or via tests release the buyer, in particular, from discharging any inspection obligations that are necessary or from meeting any protective standards that may apply. In the case of claims for damages on the part of the customer under § 933a ABGB (General Civil Code), ADLER-Werk will be liable in accordance with § 933a paragraph 2 ABGB for the same period during which claims would accrue under the warranty pursuant to Clause 5.1, provided the customer is able to prove that ADLER-Werk is to blame for the defect. Any claims for damages, including claims relating to any third-party proprietary rights, that go beyond the warranties stated (5.1) will be ruled out. However, if on the basis of statutory provisions now in force or statutory provisions by which we will be bound in future liability for damages should come into effect, then it will be limited to the value of the merchandise delivered.
6. Retention of title
We reserve title to the merchandise delivered pending payment in full. The customer may dispose of, process, or mingle the merchandise with other items only in the course of his/its regular business operations. If the merchandise subject to retention of title is resold, the purchase price thus obtained will be deemed to be assigned to ADLER-Werk for the purpose of covering the unsettled claim. If the merchandise is processed or mingled with other items, the retention of title will also be extended to cover the new product depending on the degree of processing or mingling. Neither ownership-transfer of the merchandise subject to retention of title or ownership-transfer of claims on the same for purposes of security nor attachment of said merchandise will be permissible. The customer shall notify ADLER-Werk immediately if third parties intend to lodge claims regarding the merchandise subject to retention of title or to establish rights with regard to said merchandise.
7. The venue in the event of disputes
will be A-6130 Schwaz, Austria, or any other venue that may be stipulated by statute. The laws of the Republic of Austria will apply to the exclusion of all other bodies of law. UN mercantile law based on CISG is explicitly ruled out.
If one or more of the terms of these conditions of sale and delivery should be or become inoperative, this will not affect the legal operativeness of the remaining terms.
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