General Terms of Sale

General Terms of Sale
(GTS) of mechatronics engineers for
commercial purposes
2016 version
1. Scope of application
1.1. These terms of business apply between us (MAG
machines) and natural and legal persons (in the following:
customers) for the current business-related legal transaction
as well as for all future business, even if in the individual
case, particularly in the case of future supplementary or
follow-up orders, they are not explicitly referred to.
1.2. The version of our GTS that is valid at the time the
contract is concluded is to be applied; these terms can be
downloaded from our homepage (www.mag.at) and have
also been supplied to the customer.
1.3. We conclude contracts exclusively on the basis of our
GTS.
1.4. Terms of business of the customer or amendments or
supplements to our GTS require our express written consent
in order to be valid.
1.5. The customer’s terms of business are not accepted even
if we do not expressly reject them after having received
them.
2. Offers, conclusion of contracts
2.1. Our offers are not binding.
2.2. Promises, assurances and guarantees on our part, or
agreements diverging from these GTS in connection with the
conclusion of the contract become binding only on our
written confirmation.
2.3. The customer must notify us of any information about
our products and services that is provided in catalogues,
price lists, brochures, advertisements on trade fair stands,
circulars, advertising mailings or other media (information
material) which is not attributable to us, insofar as the
customer takes this as the basis for his decision to place an
order. In such a case, we can comment on its accuracy. If the
customer does not meet this obligation, such information is
not binding, unless it is expressly declared to form part of the
contract.
2.4. Estimates of costs are provided without warranty and are
free of charge.
3. Prices
3.1. Prices stated are fundamentally not to be understood as
lump sum prices.
3.2. For services that are ordered by the customer and which
are not covered in the original order, in the absence of a fee
agreement there is a claim to appropriate remuneration.
3.3. Prices stated are to be understood as plus the statutory
value added tax that is applicable in each case, and ex works.
Costs of packaging, transport, loading and despatch, as well
as customs duty and insurance, are to be borne by the
customer. We are obliged to take back packaging only if this
is explicitly agreed.
3.4. The customer is responsible for arranging the proper and
environmentally appropriate disposal of scrap material. If we
are separately entrusted with this, in the absence of a
remuneration agreement this must be additionally
compensated appropriately to the extent agreed for this.
3.5. We are entitled, and also obliged at the customer’s
request, to adapt the contractually agreed remuneration if
changes have occurred to the extent of at least 5 % in respect
of (a) wage costs through law, directive, wage agreement,
company agreements or (b) other cost factors that are
necessary for performance, such as procurement costs of the
materials to be used, on the basis of recommendations of
joint committees or of amendments to national or world
market prices for raw materials, exchange rates etc. since the
contract was concluded. The adaptation shall be made to
the extent to which the actual manufacturing costs at the
time the contract was concluded change in relation to those
at the time of the actual performance, unless we are in
delay.
3.6. The remuneration in the case of continuing obligations
is agreed to be index-adjusted according to the 2010
consumer price index and remuneration is thereby adjusted
accordingly. The month in which the contract was concluded
is taken as the starting basis.
3.7. Costs for travel expenses, daily allowances and
overnight allowances are charged separately. Travel time is
deemed to be work time.
4. Goods provided
4.1. If equipment or other materials are provided by the
customer, we are entitled to charge the customer 10 % of the
value of the material or equipment provided, as a handling
surcharge.
4.2. Such equipment and other materials provided by the
customer are not covered by the warranty. The quality and
serviceability of goods provided are the customer’s
responsibility.
5. Payment
5.1. One third of the remuneration shall be due on conclusion
of the contract, one third at the start of performance, and
the rest following completion of performance.
5.2. Entitlement to deduct a discount requires express
written agreement.
5.3. Payment references stated by the customer on the bank
transfer documentation are not binding for us.
5.4. If, in the context of other existing contractual
relationships with us, the customer is in default of payment,
we are entitled to suspend fulfilment of our obligations from
this contract until the customer has met his obligations.
5.5. We are then also entitled to make payable all claims for
services from the ongoing business relationship with the
customer that have already been provided.
5.6. Where a payment deadline is exceeded, even if this is
only in respect of an individual part of the performance, any
price reductions granted (discounts, allowances etc.) are
forfeited and shall be added to the invoice.
5.7. In the event of a delay in payment, the customer
undertakes to reimburse us for the necessary and
appropriate costs of collecting payment (reminder costs,
collection charges, lawyers’ fees etc.).
5.8. In accordance with section 456 of the Austrian
Commercial Code (UGB), in the case of culpable delay in
payment, we are entitled to charge 9.2 % points above the
base interest rate.
5.9. We reserve the right to claim further damages for delay.
5.10.The customer is entitled to offset only insofar as
counter-claims have been established by the courts or
acknowledged by us.
5.11.For the appropriate reminders that are necessary for
payment collection, the customer undertakes, in the event of
culpable delay in payment, to pay reminder fees of € 7,50 per
reminder, insofar as this is in an appropriate proportion to
the claim that is being asserted.
6. Credit rating check
6.1. The customer declares his express agreement that his
data may be communicated exclusively for the purpose of
protection of creditors to the officially privileged creditor
protection associations Alpenländischer Kreditorenverband
(AKV), Österreichischer Verband Creditreform (ÖVC),
Insolvenzschutzverband für Arbeitnehmer oder
Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870
(KSV).
7. Customer’s duty of cooperation
7.1. Our duty to render performance begins, at the earliest,
as soon as all technical details have been clarified, the
customer has created the technical and legal prerequisites
(which we shall be pleased to communicate on request), we
have received the agreed down-payments or securities, and
the customer has fulfilled his contractual obligations of
preliminary work and cooperation, in particular also those
specified in the points below.
7.2. In the case of assembly work to be carried out by us, the
customer is obliged to ensure that work can be begun
immediately after the arrival of our assembly team.
7.3. The customer must secure the required permits from
third parties as well as the notifications and approvals by
authorities at his expense. Details of these can be requested
from us.
7.4. The quantities of energy and water required for the
rendering of performance including trial operation are to be
provided by the customer at his expense.
7.5. For the time of rendering the performance, the customer
must make available to us, free of charge, lockable rooms,
which are not accessible to third parties, for use by the
workers as well as for storing tools and materials.
7.6. The customer is liable for ensuring that the necessary
constructional, technical and legal preconditions for the
work to be completed or the object of purchase are in place
which were described in the contract or in information
provided to the customer before the contract was concluded
or which the customer must have known on the basis of
relevant specialist knowledge or experience.
7.7. The customer is also liable for ensuring that the technical
installations, such as supply lines, cabling, networks and the
like are in a technically perfect and operational condition and
are compatible with the objects of purchase or work to be
effected by us.
7.8. We are entitled but not obliged to check these
installations in return for separate remuneration.
7.9. In particular, before the start of assembly work, the
customer must provide the necessary information on the
location of concealed supply lines for electricity, gas and
water or similar installations, escape routes, other
obstructions of a structural nature, possible sources of
danger, as well as the necessary statics-related information,
without being asked to do so.
7.10.Details of the necessary information relating to the
order can be obtained from us.
7.11.The customer bears sole responsibility for the design
and functionality of parts that have been provided. There is
no duty to examine any documents provided by the
customer, details or instructions provided – beyond setting
up a technical construction dossier and certifying observance
of the Machines directive as well as any other applicable
guidelines – with regard to the item to be supplied, and
liability in relation to this is excluded. The duty to issue the
certification can be contractually transferred to the customer
marketing the deliverable item.
7.12. The customer is not entitled to assign claims and rights
from the contractual relationship without our written
consent.
8. Execution of work
8.1. We are obliged to take account of subsequent
modification and extension wishes of the customer only if
they are necessary for technical reasons in order to achieve
the purpose of the contract.
8.2. Minor amendments to our performance that are
objectively justified and are reasonable for the customer are
deemed to be approved in advance.
8.3. If, after the contract has been awarded, there is an
amendment of or supplement to the order for whatever
reason, then the delivery / performance deadline is extended
by an appropriate period of time.
8.4. If, after the contract has been concluded, the customer
desires performance within a shorter period of time, this
represents a change to the contract. This may necessitate
overtime and/or extra costs may arise due to acceleration of
material procurement, and the remuneration is increased
accordingly in proportion to the necessary expenditure.
8.5. Objectively justified (e.g. size of installation,
construction progress etc.) part-deliveries and partperformance are permitted and can be invoiced separately.
8.6. If delivery on call is agreed, the object of performance /
object of purchase is deemed to have been called six months
after ordering at the latest.
9. Deadlines for supply and performance
9.1. Deadlines and dates for supply / performance are
binding for us only if they have been established in writing.
Any divergence from this requirement of the written form
must likewise be in writing.
9.2. Deadlines and dates are postponed in the event of force
majeure, strike, unforeseeable delay by our ancillary
suppliers that is not caused by us, or other comparable
occurrences that lie beyond our sphere of influence, in that
period of time during which the corresponding occurrence
lasts. The customer’s right to withdraw from the contract in
the event of delays that render a commitment to the
contract unreasonable remains unaffected by this.
9.3. If the start of performance or the performance are
delayed or interrupted by circumstances that are attributable
to the customer, in particular on account of infringement of
the duty of cooperation pursuant to point 7, performance
deadlines are extended accordingly and completion dates are
postponed accordingly.
9.4. For the storage of materials and equipment and the like
in our company that is necessitated by this, we are entitled to
charge 1 % of the invoice amount for each month or partmonth of delay in performance, with the customer’s
obligations of payment and acceptance remaining unaffected
by this.
9.5. In the event of a withdrawal from the contract on
account of delay, the customer must grant a grace period by
means of registered letter whilst simultaneously threatening
withdrawal.
10. Risk assumption
10.1. The risk passes to the business customer as soon as
we hold the object of purchase, the material or the work
ready for collection in our works or warehouse, deliver it
ourselves, or hand it over to a carrier.
10.2. The business customer shall take out appropriate
insurance against this risk. We undertake to take out
transportation insurance at the written request of the
customer and at his expense. The customer approves any
customary method of despatch.
11. Delay in acceptance
11.1.If the customer delays acceptance for longer than 2
weeks (refusal of acceptance, delay in preliminary work or
otherwise, no call made within an appropriate time in the
case of delivery on call), and if in spite of an appropriate
grace period having been set, the customer has not ensured
the elimination of the circumstances attributable to him
which delay or prevent the performance being rendered, we
are entitled in the case of a valid contract to deploy
otherwise the equipment and materials that have been
specified for the performance of the work, insofar as in the
event that the performance of the work is continued, we
procure these again within a time appropriate to the
respective circumstances.
11.2.In the case of delay in acceptance on the part of the
customer, we are likewise entitled, in the case of insistence
on fulfilment of the contract, to store the goods at our
premises, for which we are due a storage fee pursuant to
point 9.4.
11.3.In the case of a justified withdrawal from the contract,
we are permitted to demand from the customer flat-rate
damages of the level of 10 % of the gross order value without
proof of the actual damage.
11.4.Claiming higher damages is permitted.
12. Reservation of title
12.1.The goods that we supply, assemble or otherwise hand
over remain our property until payment has been made in
full.
12.2.Reselling is permitted only if that has been notified to us
in good time beforehand, stating the name and exact address
of the buyer and we agree to the reselling. In the event that
we agree, the claim for the purchase price is deemed to be
assigned to us here and now.
12.3.Until full payment of the remuneration or purchase
price has been made, the customer must indicate this
assignment in his books and on his invoices, and must inform
his debtors accordingly. On request, he must make available
to us all documents and information such as are necessary to
assert the assigned receivables and claims.
12.4.If the customer falls into arrears in payment, we are
entitled, whilst setting an appropriate grace period, to
demand surrender of the goods that are subject to retention
of title.
12.5.The customer must notify us immediately before the
opening of bankruptcy proceedings in relation to his assets or
the attachment of our goods that are subject to retention of
title.
12.6.The customer declares his explicit understanding that in
order to assert our claim to reservation of ownership, we are
permitted to enter the location of the goods that are subject
to retention of title.
12.7.The customer shall bear any costs that are necessary
and appropriate for pursuing expedient legal remedies.
12.8.In the assertion of reservation of ownership, a
withdrawal from the contract exists only if this is explicitly
declared.
12.9.We are permitted to dispose of the goods subject to
retention of title that have been reclaimed as we see fit and
to our best advantage.
12.10. Until all our claims have been paid in full, the
object of performance / object of purchase must not be
pledged, assigned or otherwise burdened with the rights of
third parties. In the case of seizure or other availment, the
customer is obliged to point out our right of ownership and
to notify us immediately.
13. Industrial property rights of third parties
13.1. For deliverables that we produce according to
customer documentation (design specifications, drawings,
models or other specifications etc.), warranty that the
production of these deliverables does not infringe the
industrial property rights of third parties is assumed
exclusively by the customer.
13.2. If the industrial property rights of third parties are
nonetheless claimed, we are entitled to suspend production
of the deliverables at the customer’s risk until the rights of
third parties have been clarified, unless it is obvious that the
claims are unjustified.
13.3. The customer shall indemnify us for any loss or
damage in this regard.
13.4. We are entitled to demand from business customers
appropriate advances on costs for any legal costs.
13.5.Likewise we can claim from the customer the refunding
of necessary and expedient costs that we have incurred.
13.6.We are entitled to demand appropriate advances on
costs for any legal costs.
14. Our intellectual property
14.1.Deliverables and related production specifications,
plans, sketches, estimates of costs and other documents as
well as software that have been provided by us or which have
arisen through our contribution shall remain our intellectual
property.
14.2.Use thereof, in particular distributing, copying,
publishing and making them available, even including the
copying only of extracts, as well as imitation, processing or
exploitation, requires our explicit consent.
14.3.The customer furthermore undertakes to maintain
confidentiality in relation to third parties of the knowledge
he has acquired from the business relationship.
15. Warranty
15.1.The warranty period for our services is one year from
handover.
15.2.In the absence of any agreement to the contrary (e.g.
formal acceptance), the time of handover is the time of
completion, at the latest when the customer has taken over
the work into his control or has refused to take it over
without giving reasons. With the date on which the customer
is notified of completion, in the absence of justified refusal of
acceptance the work is deemed to be taken into his control.
15.3.If a joint handover is envisaged, and if the customer
does not attend the handover appointment that has been
notified to him, the handover is deemed to have taken place
on that day.
15.4.The remedying of a defect that has been claimed by the
customer does not represent acknowledgement of a defect.
15.5.The customer must always prove that the defect existed
at the time of handover.
15.6.For the remedying of defects, the customer must make
the plant or equipment available to us without culpable
delay, and must grant us the opportunity for assessment by
us or by an expert appointed by us.
15.7.Notices of defects and complaints of all kinds must be
notified immediately (at the latest after 14 working days) to
the domicile of our company, in writing, with as accurate a
description of the defect as possible and stating the possible
causes, otherwise the warranty claims are forfeited. The
goods or work that are the subject of complaint must be
handed over by the customer, insofar as this is feasible.
15.8.If the defects alleged by the customer are unjustified,
he is obliged to compensate us for expenses incurred for
establishing freedom from defects or remedying defects.
15.9.Any utilisation or processing of the defective
deliverable that carries the risk of further damage, or makes
elimination of the cause more difficult or prevents it, must be
stopped by the customer without delay, unless this is
unreasonable.
15.10. We are entitled to carry out or have carried out
any examination that we regard as necessary, even if this
renders the goods or work pieces unusable. If this
examination shows that we are not responsible for any
defect, the customer must bear the costs for this
examination against appropriate remuneration.
15.11. Transportation and travel costs arising in connection
with the rectification of defects are to be borne by the
customer. On request by us, the customer must provide, free
of charge, the necessary workers, energy and premises, and
must cooperate in accordance with point 7.
15.12. The customer must grant us at least two
attempts to rectify the defect.
15.13. We can avert a request for rescission through
improvement or an appropriate price reduction, insofar as
this does not relate to a significant and unrectifiable defect.
15.14. If the deliverables are produced on the basis of
details, drawings, plans, models or other specifications of the
customer, we provide warranty only for the execution
according to specifications.
15.15. The fact that the work is not fully suitable for the
agreed use does not constitute a defect if this is based
exclusively on actual circumstances that differ from the
information that was available at the time of performance
because the customer does not fulfil his obligations to
cooperate in accordance with point 7.
15.16. Likewise it is not a defect if the customer’s technical
installations, such as supply lines, cabling, networks etc. are
not in a technically perfect and operational condition, or are
not compatible with the items supplied.
16. Liability
16.1.In the case of pecuniary loss as a result of the
infringement of contractual or pre-contractual obligations, in
particular because of impossibility of performance, delay etc.,
we shall be liable only in cases of premeditation or gross
negligence on account of technical circumstances.
16.2.If any liability insurance has been taken out by us,
liability is limited to the maximum liability amount thereof.
16.3.This limitation also applies in respect of damage to items
that we have accepted for processing.
16.4.Claims for damages must be filed before the courts
within two years or are otherwise forfeited.
16.5.The restrictions or exclusions of liability also include
claims against our employees, representatives and
contractors for damage which they cause to customers
without reference to a contract on their part with the
customer.
16.6. Our liability is excluded for damage due to improper
handling or storage, overuse, failure to follow operating
instructions and installation instructions, defective assembly,
commissioning, servicing, maintenance by the customer or
third parties not authorised by us, or natural wear and tear,
insofar as this caused the damage. Liability is also excluded
for failure to carry out necessary servicing.
16.7.If and insofar as the customer can claim insurance
payments for damage for which we are liable, through an
indemnity insurance that he has taken out himself or that has
been taken out for his benefit (e.g. liability insurance, fully
comprehensive cover, transport, fire, interruption of
operation and others), the customer undertakes to claim the
insurance payment and our liability to the customer is limited
to this extent to the disadvantages that the customer suffers
by claiming on this insurance (e.g. through higher insurance
premiums).
16.8.Those product characteristics are owed which, in
respect of the licensing regulations, operating instructions
and other product-related guidelines and information (in
particular also monitoring and servicing), can be expected of
us, third-party manufacturers or importers by the customer,
taking into account his knowledge and experience. The
customer as reseller must take out adequate insurance for
product liability claims and must indemnify us for any loss or
damage with regard to claims for recourse.
17. Severability clause
17.1.In the event that individual parts of these GTS are
invalid, the validity of the other parts shall not be affected by
this.
17.2.The parties here and now undertake to agree a
substitute provision – from the perspective of responsible
contracting parties – which comes as close as possible to the
invalid provision in terms of the economic end, taking into
account what is usual in the industry.
18. General
18.1. Austrian law applies.
18.2. The convention on contracts for the international sale
of goods is excluded.
18.3. The place of performance is the domicile of the
company (Wirtschaftspark 44/46, 8530
Deutschlandsberg, Austria).
18.4. The place of jurisdiction for all disputes arising from
the contractual relationship or future contracts between us
and the customer is the court having jurisdiction for our
domicile.
18.5.The customer must inform us immediately in writing of
any changes to his name, company name, address, legal form
or other relevant information.

Remarks:
These General Terms of Sale have been drawn up in
accordance with the legislation that is currently
applicable. It is however pointed out that despite the
most careful drafting, all information is provided
without warranty and any liability on the part of the
author, publisher or Austrian chambers of commerce
is excluded. You may make your own amendments,
but this is at your own risk. Words appearing in the
masculine form apply equally for both sexes.