General Terms and Conditions
General Terms and Conditions
BÖMA Maschinenbau und Automatisierung GmbH
Reute 1153a, A-6861 Alberschwende
1. validity and legal force:
1.1 The following agreements apply to all orders accepted and executed by us and are recognized by our customer upon placement of the order, even if individual conflicting conditions are not expressly contradicted by us.
1.2 Unless otherwise expressly agreed in writing (also by fax or signed e-mail) upon conclusion of a contract, the following agreements constitute a supplementary component of every contract concluded between us and our customers. This also applies to amendments, supplements and/or deviating commitments. To be valid, they must all be confirmed by the company.
1.3 By placing an order with us or by confirming delivery of the subject matter of the contract at the latest, our customer declares its consent to these general sales and delivery agreements and also to the fact that they apply to future transactions between our customer and us.
2. offer and conclusion of contract
2.1 Offers are always made in writing
2.2 The contract is concluded when we issue a written (also by fax, e-mail in signed form) declaration of acceptance in the form of an order confirmation or when we actually execute the order.
2.3 We reserve the right to correct all errors at a later date.
2.4 Plans, sketches, technical documents from our company as well as offers and project documents are our intellectual property, as are samples, catalogs – here in particular the present catalog – brochures and illustrations. They may be reclaimed by us at any time and must be returned immediately if the contract is not concluded.
2.5 Any utilization, duplication, distribution, publication and presentation, even in part, of these documents (Section 2.4) is prohibited. Infringements shall result in compensation for damages (Copyright 2002)
3. performance of services and delivery periods
3.1 Delivery periods shall commence on the date of acceptance of the order (order confirmation), but not before the date of fulfillment of all contractual obligations incumbent on our customer, such as in particular the agreed opening of a letter of credit or the provision of a payment guarantee. This shall not affect our claim for compensation for expenses caused by delays on the part of our customers.
3.2 Delivery periods shall be suspended as long as our customer is in default with the fulfillment of its obligations – also from other transactions with us – or in any case until all technical and contractual details have been clarified by mutual agreement and the legal requirements for the execution of the order have been met.
3.3 Partial delivery by us is permissible. Each partial delivery shall in principle be deemed an independent transaction.
3.4 The delivery deadline shall be deemed to have been met upon notification of readiness for dispatch on our part, even if dispatch cannot take place or cannot take place on time through no fault of ours or the supplier/producer.
3.5 In the event of a delay in delivery due to force majeure, no liability shall be assumed and we shall be entitled to postpone the fulfillment of assumed obligations appropriately or to withdraw from the contract in whole or in part at our discretion.
3.6 Compensation for damages or claims for subsequent delivery shall be excluded in such cases. In such cases, our customer is also not entitled to unilaterally withdraw from the order placed.
3.7 In the event that we do not fulfill our obligations on time, our customer must grant us a reasonable grace period.
4. handover and acceptance
4.1 Use, risk and coincidence shall pass to our customer upon dispatch of the delivery “ex works” Alberschwende (place of performance), unless otherwise stipulated in individual cases by agreements made (in particular by INCOTERMS).
4.2 We shall be free to choose the shipping routes and means of transport to the exclusion of any liability.
5. prices
5.1 Prices are quoted net without any deductions and, unless otherwise agreed, apply “ex works” without packaging and without loading.
5.2 Additional costs incurred due to a specific type of shipment requested by our customer shall in any case be borne by our customer.
5.3 Ancillary costs, such as public charges, customs duties, levies, import and export taxes and fees, shall be borne by our customer unless otherwise stated or agreed.
6. payment due date, consequences of default
6.1 The place of performance for payments to us shall be Alberschwende.
6.2 Unless otherwise agreed, payments shall be made net 30 days after invoicing and to the exclusion of any right of retention or set-off against counterclaims not expressly acknowledged by us in writing.
6.3 Payments shall be deemed made on the day on which we have them at our disposal in the agreed currency.
6.4 In the case of pricing in euros, 1% per month shall be payable in the event of default in payment. In addition, all reminder, collection, survey and information costs and the costs of any lawyer we may engage shall be reimbursed.
6.5 In the absence of an express dedication, payments shall be credited to the oldest outstanding claim, in the case of individual claims first to costs, then to interest and finally to capital.
6.6 In the event of non-compliance with the agreed terms of payment and/or the occurrence of circumstances which cast doubt on the creditworthiness of our customer, we shall also be entitled to declare all our claims against our customer immediately due and payable, to withdraw from all pending purchase and/or delivery contracts and to claim damages for non-performance.
7. retention of title
7.1 The goods sold shall remain our property until full payment of the purchase price and all our ancillary claims, in particular interest and costs. The retention of title shall also extend to new or other products resulting from processing or combination.
7.2 Our customer shall be obliged to make a book entry indicating the retention of title and to notify us immediately of any access by third parties (in particular seizures) to the reserved goods or assigned claims. The assignment of our customer’s claim against us must also be documented in a suitable form and notified to our customer’s contractual partner at the latest when the invoice is issued. In such a case, our customer must inform third parties of our rights and reimburse us for all costs associated with the protection of our rights, including any legal fees.
7.3 Our customer hereby assigns all claims in the amount of the invoice amount that accrue to him against a third party as a result of the resale and undertakes to make a corresponding note in his books or on his invoices. We accept the assignment. After assignment, we are authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not properly meet his payment obligations and is in default of payment.
8. force majeure
8.1 Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up time or to withdraw from the contract in whole or in part. This shall not give rise to any liabilities on our part towards the contractual partner, in particular claims for damages against us.
8.2 Force majeure shall include strikes, lockouts, mobilization, war, terrorist attacks, blockades, export and import bans, shortages of raw materials and fuel, fire, traffic blocks, disruptions to operations or transport and other circumstances which make the execution of the transaction significantly more difficult or impossible, irrespective of whether they occur at our premises, those of our suppliers or their sub-suppliers, our customer or otherwise in the customer’s sphere. Non-delivery or late delivery by our suppliers to us shall also be deemed to be force majeure, provided that the cause is not attributable to us.
9. warranty
9.1 The warranty period begins at the time of the transfer of risk and is 1 year.
9.2 As a reseller, we only assume the warranty in accordance with the scope of liability of the manufacturer, supplier and/or producer. We do not assume any further guarantees and/or compensation.
9.3 Warranty is provided for expressly stipulated properties of our products and/or for such properties that are usually assumed, but not for the suitability for certain processes or purposes of our customer.
9.4 Warranty claims expire immediately in any case with unauthorized repair of our products by our customer.
9.5 We only accept returns after express prior agreement, but always only in original packaging or in appropriately secure replacement packaging.
10. defects
10.1 The goods delivered by us must be inspected by our customer for defects immediately after delivery and any defects must be reported to us immediately and listed in detail. Notification of defects (including hidden defects) must be made in writing (also by fax, e-mail in signed form) or by telegraph within 5 working days of delivery or discovery at the latest.
10.2 In the event of defects, we are entitled, at our own discretion, to offer improvement, supplementation of the missing goods, replacement of the goods or a price reduction. Any further claims against us, in particular rights to rescission, damages and/or substitute performance, are excluded.
10.3 Notices of defects will not be recognized if the goods are not at the place of destination or are no longer in the condition in which they were delivered.
11. liability
11.1 We shall only be liable for damage to items belonging to our customer which occurred directly in the course of the performance of the service and which was caused by gross negligence or intent on our part. All other claims of the contractual partner, in particular for any further damages (in particular for financial losses) including any consequential damages (due to defects) and loss of profit are excluded.
11.2 Claims for damages against us in accordance with mandatory statutory provisions shall be limited to the value of the item causing the damage, if this is not permissible, to the invoice value, if this is not permissible in accordance with mandatory statutory provisions, to the actual damage, excluding compensation for loss of profit and excluding compensation for consequential damage, indirect damage and third-party damage.
11.3 The goods supplied by us only offer the level of safety that can normally be expected on the basis of approval regulations, operating and user manuals, regulations of the manufacturer, supplying plant and/or producer and other instructions.
11.4 For quantities, dimensions, form and designs, the customary commercial margins are always reserved and are deemed to be agreed.
11.5 If we are entrusted with the solution of design tasks, liability on our part can only arise if our customer proves that our delivery and/or service does not correspond to the general state of the art due to gross negligence.
11.6 In the event of a breach of the obligations imposed on our customer on the basis of these general sales and delivery agreements, as well as in the event of a claim on our part with regard to damage caused by such products which have been placed on the market by the customer, our customer shall be obliged to indemnify and hold us completely harmless (including any legal fees and litigation costs), irrespective of the existence of fault. If our customer has paid compensation to a third party in respect of a product supplied by us on the basis of the provisions of product liability law, recourse claims against us are excluded in any case.
12. product liability
12.1 We are liable within the scope of application of the Product Liability Act for personal injury and damage to property suffered by a consumer. We are not liable for damage to property caused by our products to one of our customers (commercial or trade companies).
12.2 We undertake to represent the interests of our customers conscientiously vis-à-vis the manufacturer, but must always refer our customers to the manufacturer(s) in this regard.
12.3 Companies that have purchased goods from us are obliged to fully inform themselves about the handling, operation and maintenance of our products. In particular, they must expressly inform themselves in detail about the respective product-specific hazards on the basis of the operating instructions and the possible uses.
12.4 Our customers are obliged to keep precise incoming documentation on the goods delivered by us in order to be able to assign beyond doubt whether the delivered product originates from us. Our customers are also obliged to keep this documentation for a period of 10 years from the date of delivery of our product.
12.5 In the event that a claim is made against us under the PHG, the customer is obliged to provide us with all documentation and other evidence without delay and without any claim for reimbursement of costs. Furthermore, our customers are obliged to provide us with any assistance.
13. withdrawal from the contract
13.1 We are entitled to withdraw from the contract:
– if the execution of the delivery or the start or continuation of the service is further delayed for reasons for which the contractual partner is responsible or which are further delayed despite the setting of a grace period.
– If there are concerns regarding the solvency of our customer and he neither makes advance payment nor provides suitable security prior to delivery at our request;
13.2 Withdrawal may also be declared with regard to an outstanding part of the delivery and service for the above reasons.
13.3 If insolvency proceedings are opened against the assets of one of the two contracting parties or if an application for the initiation of insolvency proceedings is rejected for lack of sufficient assets, the other contracting party shall be entitled to withdraw from the contract without setting a grace period.
13.4 Without prejudice to our claims for damages, in the event of withdrawal from the contract, services or partial services already rendered shall be invoiced and due for payment. This shall also apply to advance services already rendered by us and/or insofar as the delivery and service has not yet been accepted by our customer. However, we shall also be entitled to demand the return of items already delivered.
14. applicable law
14.1 The contract and these General Terms and Conditions of Sale and Delivery shall be governed by Austrian substantive law in the version applicable at the time of conclusion of the contract.
15. mediation clause
15.1 All disputes and/or conflicts arising from this contract or in connection with this contract, or concerning the breach of contract itself, the termination or invalidity of contractual provisions, the parties shall initially attempt to settle amicably within the framework of a mediation procedure by an impartial third party (mediator).
15.2 The parties shall conclude an agreement with the mediator on the course of the procedure within a period of four weeks after first addressing the conflict (15.1). For the duration of the proceedings, all time limits shall be suspended and the parties shall maintain the strictest confidentiality and secrecy.
15.3 In the event that an agreement on mediation is not reached within four weeks or the mediation proceedings are terminated without result, the parties shall settle all disputes arising from these proceedings in accordance with the following provisions.
16. place of jurisdiction (valid for our customers within the EU):
16.1 The place of jurisdiction is the competent court in Feldkirch.
17. miscellaneous
17.1 Should individual provisions of the contract or these general agreements be invalid in whole or in part, the remaining provisions shall remain valid. In the event of partial ineffectiveness, our customer undertakes to replace ineffective provisions with provisions that correspond as closely as possible to the purpose of the ineffective provision in agreement with us.
Alberschwende, the 13.2.2020