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General Terms and Conditions of Business r-BeSt coating Hartstoffbeschichtungs GmbH, Exlgasse 20a, A-6020 Innsbruck
1 Preamble
This contract is valid, as long as the contracting parties clearly and in writing have not agreed anything to the contrary, for all
deliveries and services of r-BeSt coating Hartstoffbeschichtungs GmbH (=r-BeSt)
2 Close of Contract
2.1 The contract is taken as concluded, as soon as
r-BeSt after the receipt of an
order has sent out a confirmation to the principal and the said principal does
not promptly reject the order in writing. An order is taken in this sense to
include the sending of goods, the pre advising of goods to be sent and similar
activities respectively.
2.2 Offers from r-BeSt
are made without prejudice. Verbal information and acceptances, statements in
prospectuses and advertising statements in whatever form respectively,
illustrations, samples, compositions, performances, applications, quality
statements, etc. are without prejudice, provided they have not clearly and in
writing been designated as binding by r-BeSt.
2.3 Deviations from the product descriptions are taken as
approved, provided the contracting partner does not find them unreasonable.
3 Delivery Dates and Part Deliveries.
3.1 The delivery dates given by r-BeSt
are to be understood as guideline values. Should r-BeSt
run into delay, so is r-BeSt responsible for the
damages resulting from the delay only, if the delay is caused by
r-BeSt through a breach of fundamental duties of the contract or
through wilful damage or gross negligence. Compensation for damages as a result
of non-performance can only be demanded by the contract partner also after a
time limit with threats of rejection, if the non-performance is as a result of
wilful damage or gross negligence or in the case of minor negligence is based
on a breach of fundamental provisions of the contract.
3.2 r-BeSt is entitled
to split delivery.
4 Price and Payment Conditions
4.1 The prices stated in the confirmation of order are
taken as agreed and operates from the place of delivery stated by
r-BeSt. Not included in the quoted prices are costs and additional
costs of the delivery e.g. freight, postage, custom duties, insurances, and
delivery costs. These prices will be charged extra on the invoice to the
contract partner The prices stated are always net, that means excluding
statutory revenue, custom duties and other dues.
4.2 The danger of damage or loss of the delivered goods
passes upon leaving the point of distribution to the contract partner.
4.3 Invoices from r-BeSt are, as
long as not otherwise agreed in writing, payable net without any cash discount
deductions or any other deductions within 30 days, or payable within 10 days
less 2% cash discount. r-BeSt accepts cheques
payable on account only, all resulting bank charges will be debited to the
contract partner. In the case of part deliveries according to paragraph 3.2
only the amount partly due is payable.
4.4 In cases of delay in payment r-BeSt
will charge the contract partner default interest in the height of 10%.
r-BeSt reserves the right to prove a higher damage resulting from
the delay , the contract partner the right to prove a lower consequential
damage.
4.5 The contract partner can only exercise a right of
retention based on a counter claim which relates to the same contractual
relationship. In the cases of ongoing business relations each individual order
is considered as a separate contractual relationship. The off setting against
claims of r-BeSt is also only with uncontested and
absolutely laid down claims admissible.
4.6 The contract partners agree that the rights and duties
stipulated under this contract will not be affected through the introduction of
the Euro. Payment obligations, in particular the stipulated monetary value, are
taken to be agreed in Euro, as soon as the Euro becomes the sole permissible
legal tender. The translation follows in all cases upon the officially
stipulated exchange rate.
4.7 For delivery and payment the registered office of
r-BeSt GmbH is taken as the place of fulfilment, also in the case
where actual delivery according to agreement takes place at another place.
5 Guarantee
5.1 Scope of the Guarantee
5.1.1 r-BeSt does not
guarantee the reaching of a particular result through the employment of the
subject matter of the contract (tool life, etc.), guarantees however that at
the time of delivery by r-BeSt no spontaneous
flaking off of the diamond coating was present.
5.1.2 The guarantee does not cover the removal of mistakes
that occurred through outside influences or application mistakes. Furthermore
guarantee claims do not result, if the contract partner does not follow
necessary instructions issued by r-BeSt, or the
contract partner or in addition non authorized third parties have interfered
with the contractual goods or have caused changes to be effected, just as also
not in the case where the contract partner has not completely or has
incorrectly supplied information necessary for r-BeSt
to properly carry out his duties.
5.2 Conditions of the Guarantee.
The contract partner is for the assertion of the guarantee duty
bound, r-BeSt is to be granted the examination of
the complaint object by the sending of the said object to the company
registered office of r-BeSt. r-BeSt
will be freed from all guarantee obligations upon refusal by the contract
partner to grant the examination of the said object by r-BeSt.
5.3 Handling of Guarantee Claims
5.3.1 In the case of deficiency of the contractual goods or
of property defect that r-BeSt according to § 2.3
has assured the contract partner in writing, r-BeSt
is entitled as she may choose, in the first place to the improvement of the
defective object. Should the said improvement prove impossible or should
replacement delivery prove impossible within a reasonable time, the contract
partner is entitled to demand the setting off (reduction) of the contractual
sum. r-BeSt retains the right to liquidate the
contract partner’s claim by the issuing of a credit note to cover the sum
concerned.
5.3.2 Public defects are to be reported to r-BeSt
by the contract partner before using the contract object, in any case at least
within five working days after receiving the delivery, in every case of defect
all claims are to be made in writing giving details of the defect. This also
applies in this respect after the appearance of defects that could also not
have been discovered after careful examination within this time limit. The
general guarantee time limit is absolute, also for hidden defects with a time
limit of six months after reception of the delivery.
5.4 Concluding Regulations to the Guarantee
5.4.1 The guarantee from r-BeSt
is limited to the height of the scope of the contractual sum (net, excl.
statutory turnover tax) and in the case of contracts with more than one
contractual positions, limited to the height of the corresponding position
total.
5.4.2 All further rights and claims of the contract partner
against r-BeStregardless of the legal ground e.g. as
a result of defect or fault of the contractual goods are excluded. This applies
also for the remedy of indirect, damages such as consequential losses, loss of
profit, damages brought about through the use of the contractual goods or
through their non-usability on things and persons. Furthermore claims based on
grounds of a breach of subsidiary contractual duties, in particular
consultation and clarification duties are excluded.
6 Liability for Damage
r-BeSt and his vicarious
agents are liable only for damages caused through wilful damage or gross
negligence. In the case of minor negligence r-BeSt
is excluded from liability. In the case of gross negligence irrespective of the
legal ground the liability is in the height of three times the contractual sum
(net, excl. statutory turnover tax) and with contracts with more than one
contract positions is limited to three times the height of the corresponding
position total of the part that caused the damage or that stands in direct
relation to the position causing the damage respectively.
7 Export
The contract partner undertakes in the case of export or import of
the contractual goods to observe the laws of the appropriate countries as well
as the Austrian foreign trade laws and to establish proof in the appropriate
form of all due import- and/or export licences, foreign exchange authorizations
or such authorization necessary for the carrying out and carrying in of the
contractual object. This applies equally for deliveries in countries, on the
receiver or for purposes where the contract partner knows or should have known
that they are subject to legal control. In the absence of the appropriate
authorization r-BeSt is in no case liable.
8 Exemptions
In the case of delay in deliveries due to force majeure,
sovereignty interventions, Act of God, war, insurrection, strike in own
business, by delivery companies or transporters or based on any other grounds
not caused by r-BeSt, r-BeSt
is entitled to carry out the delivery within a reasonable time upon the
disappearance of the circumstance.
9 Third Party Claims
r-BeSt will set the contract
partner free from third party claims resulting from the breach of industrial
property rights or copyright laws, provided the contract partner has informed
r-BeSt without delay and in writing of the existence of such rights,
and has provided r-BeSt with all the information and
support necessary for taking defensive measures, in particular the alteration
or exchange of the delivered goods. All further claims from the contract
partner based on any other grounds whatsoever are excluded.
10 Right of Property
10.1r-BeSt reserves the right of
property for all delivered contractual goods (=reserved goods) until the
complete discharge of all financial obligations arising from the current
business relationship. This provision applies as long as the value of the
delivered reserved goods and open invoices from r-BeSt
do not amount to more than 100%, over and above that following contractual
goods in the chronological order of their delivery are taken as transferred.
10.2 The contract partner is not entitled to seize reserved
goods before the passing of property or to cause such to be transferred for
security reasons, himself or through a third party to interfere with the
property, to carryout or effect changes to the contractual goods. The
contractual goods may only be further disposed of within the framework of the
regular course of business, in so doing the contract partner acquires already
complete rights against his purchaser as security against claims from
r-BeSt. r-BeSt accepts this cession.
Should there occur any intervention with reserved goods or the claims from
which r-BeSt has cessed the contract partner will
inform r-BeSt in writing without delay and thereby
inform the third party of the existing rights of r-BeSt.
10.3 r-BeSt is entitled
to demand from the contract partner that the property rights of
r-BeSt on the reserved goods be externally made known. The contract
partner is to follow the prescribed regulations necessary for the protection of
the said right of property.
10.4 Should the contract partner be in delay with one or
more payments in full or in part, discontinues his payments, has an impending
bankruptcy or court action over his property or the lack of sufficient cost
covering property present in order to avoid a bankruptcy action, the contract
partner may no longer have access to the contractual goods. r-BeSt
is entitled in such a case to withdraw from the contract or to take back the
reserved goods to be utilized for other purposes or to recall the authorization
of the contract partner regarding the withdrawal of claims from further
disposition. r-BeSt can then demand information
about the receiver of the reserved goods and show them the cession of the claim
as well as withdrawing the claim himself.
10.5 During the duration of the right of property, the
contract partner will undertake sufficient insurance at his own cost and
expense to cover the reserved goods against damage and destruction, e.g.
through fire, water, burglary, vandalism or theft. The contract partner gives
over the rights to claim insurance acquired in this connection over to
r-BeSt and r-BeSt accepts this cession.
r-BeSt declares the reversion of these rights to the contract
partner the moment the property rights are liquidated.
11 Rescission
Both parties could repudiate a concluded contract wholly or in
part, if:
11.1 in accordance with § 5.3.1 it comes to a delay in
delivery of more than three months over the agreed delivery date. Further
claims of the contract partner are hereby excluded.
11.2 the working or coating of a product is impossible for
any reason whatsoever. In particular r-BeSt is
entitled to withdraw from a concluded contract, if after requesting the
information necessary to effect the performance of the services the said
information is not made available to r-BeSt in
writing within three weeks.
12 Confidentiality and Data Protection
The contract partners will treat as confidential company and
business secrets of the other contract partner that have become known to them
within the framework of the their business relationship. This applies also
after the termination of the business relationship.
13 Jurisdiction
13.1 The place of jurisdiction for all disputes directly
arising from the contract is that Austrian court which has jurisdiction for the
place where the main office of r-BeSt is situated.
13.2 The parties can also agree in writing the jurisdiction
of a court of Arbitration.
13.3 Austrian law governs this contract. The validity of the
United Nations Agreement over contracts regarding the International Sale of
Goods of 11.04.1980 (CISG) is excluded.
14 Miscellaneous
14.1 Should individual provisions of this "General Terms and
Conditions of Service of r-BeSt GmbH, Exlgasse 20a,
A-6020 Innsbruck" or the contract concluded with the contract partner be partly
or wholly invalid, so is the effectiveness o the rest of the contract not
affected.
14.2 Alterations and additions to this contract for their
validity requires the written confirmation through r-BeSt.
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