ECOTHERM Austria GmbH Conditions of Purchase
vers. 01.05 dt. 06.05.2020
Our „General Terms and Conditions of Business below apply to all deliveries and services. Verbal agreements shall only apply following written confirmation by the Recipient. Conditions of sale that contradict our „General Terms and Conditions of Business shall be ineffective unless they have been expressly approved by the Recipient.
Your quotations shall be without obligation and free of charge. The order shall only be deemed to have been placed on dispatch of our written order confirmation.
Quotations or estimates addressed to us shall be binding and free of charge in the absence of express agreement to the contrary. In the event of a quotation made to us, the Tenderer is committed there to for 60 days from receipt of this quotation by us.
- Quotation validity and delivery deadlines
If quotations are addressed to us, the Tenderer is committed to them for 60 days from receipt of the quotation.
The advised delivery deadlines shall be binding upon the Supplier; the delivery deadline shall run from the date of order. Only deliveries without reservation of title are accepted.
Force majeure, interruptions to operations of any kind and whatever the cause, and other unforeseen events, which significantly complicate acceptance for the Recipient, shall give the Recipient the right to extend the acceptance deadlines without the Supplier being due a claim to compensation and without the possibility of earmarked quantities being invoiced prior to acceptance.
- Protection of plans and documentation, secrecy
Plans, sketches, cost estimates and other documentation such as brochures, catalogues, samples, presentations and similar material shall remain our intellectual property. Any improper use, especially transmission or internal use, is expressly prohibited.
- Transfer of risk
In the absence of a written agreement to the contrary, delivery of the goods shall take place at the supplier‘s cost and risk. The goods are deemed to be sold free of charge to address of buyer. Transfer of risk shall be established when the goods arrive at the company or the agreed delivery destination.
In the absence of other express agreements, prices stated to us shall be understood to be inclusive of all taxes and incidental expenses, including carriage costs. Agreed prices or those based on the contract are deemed to be fixed prices. We do not accept escalation clauses and such like, unless they have been specially negotiated.
- Payment terms (maturity, part payment, discount)
In the absence of express agreement to the contrary, our payment term is 45 days from receipt of invoice. In the case of payment within 14 days from receipt of invoice we are due deduction of a discount to the value of 3%.
- Cancellation fees
The Purchaser shall have the right to cancel the contract, without stating reasons, within 14 days of placing the order, on payment of a cancellation fee of no more than 3% of the purchase price
In accordance with the following provisions, the Supplier shall be obliged to remedy each defect impairing serviceability due to a construction fault, a fault in the material or execution fault. The Supplier shall also be liable for defects in expressly stipulated characteristics.
Exclusions of liability by our contracting parties, especially under the heading Warranty or Compensation, shall not be accepted unless these have been expressly negotiated with us in detail. In the event of defects emerging we may choose replacement, repair or a reduction in price at our discretion, if there is no entitlement to redhibition and we exercise this right. If we insist on repair or replacement, we are entitled to withhold payment in full until complete fulfilment of the performance or delivery owed. Furthermore, deviations from the statutory provisions concerning compensation or warranty, such as changing allocation of the burden of proof, shortening deadlines and such like, require our express, case-by-case consent in writing to be effective.
By way of derogation from the statutory regulation, during the entire warranty period the burden of proof for freedom from defects shall remain with the supplier.
The obligation to investigate defective deliveries of goods according to§377 Austrian Uniform Commercial Code (UGB) is expressly eliminated by agreement. In the event of any defects being discovered, we are entitled to a period of six-weeks in which to complain about defects.
- Liability /Compensation
The Supplier, whether manufacturer, importer or dealer, has the status of producer. The Supplier shall in each case be liable within the terms of the Austrian Product Liability Act (Produkthaftungsgesetz) for any personal injury or damage to property which we incur as a consequence of the defectiveness of the goods supplied. It undertakes to hold us harmless and indemnify us. In addition to personal injury and damage to property, the Supplier shall also be liable for all indirect and direct consequential loss or damage which we incur as a result of processing or using the defective goods supplied. Exclusions of claims for compensation within the terms of §12 PLA shall not be accepted. We shall not accept exclusion of claims for compensation according to §933b ACC of 1797.
- Set off
We shall not acknowledge a contractual exclusion of set-off; instead we are entitled to offset claims at any time, using all the claims due to us against the contracting party as the case arises.
- Covenant against assignment
Any claims that have arisen against us cannot be assigned for lack of express consent in writing.
- Formal requirements
All agreements, subsequent amendments, supplements, collateral agreements etc. must be affected in writing to be valid. This shall also include the original signature or secure electronic signature
- Confidentiality Association
Confidential information, which particularly includes the business relationship, may not be passed on to any third parties without the prior written consent of ECOTHERM. In the event of an infringement, a contractual penalty in the value of an annual average order value for the last three financial years is been agreed and must be paid to ECOTHERM within 5 working days after written notification. This penalty payment does not release the supplier that ECOTHERM is entitled for any other claims of damages
- Choice of law / Jurisdiction
The law of Austria alone shall apply. The court materially competent for Wels shall be the exclusive place of performance and jurisdiction. Applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) is excluded.