General terms and conditions
§ 1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter: GTCSD) shall apply to any business between customer and SOLA. These GTCSD shall be exclusively applicable. Any Terms and Conditions of the customer contrary to or in deviation from these GTCSD shall not be accepted by SOLA, unless the applicability of such terms and conditions is expressly agreed by SOLA in writing.
1.2 These GTCSD shall be applicable to all future transactions between the Parties until SOLA issues new GTCSD, even if these transactions are concluded without reference to these GTCSD, as well as in the event that SOLA carries out business in knowledge of conflicting or differing terms and conditions.
1.3 Any amendments and modifications of these GTCSD need to be carried out in writing in order to be effective.
§ 2. ORDER
2.1 SOLA’s offers are without engagement and non-binding. The customer is bound by orders seven days upon SOLA’s receipt of the order. The right to intermediate sale is reserved. Any contracts on the customer’s orders shall be effective only when SOLA sends a written confirmation of order or delivers the goods. Our written confirmations of orders constitute the contractual basis and are decisive for the extent of delivery.
2.2 Measures, weights, illustrations, descriptions and the like set out in SOLA’s printed papers are approximate indications only and with reservations, unless explicitly referred to as binding in writing. During the time of delivery, the right to make alterations to construction or shape in response to improvements of technology or legal requirements (in particular laws and jurisdiction) is reserved, providing that the alterations are reasonable and acceptable for the customer. Obvious mistakes, printing, calculation, spelling or arithmetical errors shall not be binding for SOLA and do not entitle customer to claim damages whatsoever. As long as SOLA has not confirmed an order in writing, SOLA is not required to notify customer on its own initiative of any change or alterations. Any product of intermediate size not set out in the current price lists shall be ordered as manufactured to customer’s specification (cf. § 4.4).
2.3 SOLA unlimitedly reserves full rights of ownership and intellectual property in any estimates, drawings or other documents; they shall not be disclosed to third parties or exploited without prior written approval by SOLA.
§ 3. DELIVERY, DELIVERY PERIOD, TRANSFER OF RISK
3.1 Unless expressly agreed otherwise, the goods shall be deemed to be sold ex works (EXW). SOLA has the free choice to place the goods at the customers’ disposal at AT-6840 Götzis headquarters or at any of its branches or affiliate companies and/or to deliver ex the sites mentioned above at SOLA’s. SOLA is entitled to partial deliveries or partial performances, provided that those are not unreasonable or unacceptable for the customer. The INCOTERMS 2010 shall apply.
3.2 If the customer does not collect the goods at the agreed time at the latest, any risk shall be transferred to the customer upon expiration of the agreed pick-up deadline or date. Should SOLA undertake for the shipping, shipping is carried out on behalf of, on account of and at the risk and peril of the customer. The risk of accidental loss or deterioration of delivery shall at the latest pass onto customer at the time when shipment is handed over to the person effectuating the transport or when delivery has left the premises of SOLA for shipment; this shall be valid even if SOLA is obliged to carry the freight costs pursuant to an agreement concluded between the parties. If shipment is delayed on demand of the customer, risk and peril are transferred to the customer at the time of notice of readiness to ship.
3.3 Delivery deadlines indicated by SOLA are always non-binding, unless it is explicitly agreed in writing that the delivery deadline shall be binding. A bindingly agreed delivery deadline shall be deemed met if the goods have left our plant in time or if freight collection by customer is agreed, customer is notified of readiness to ship.
3.4 If the bindingly agreed delivery deadline cannot be met due to circumstances beyond of control or responsibility of SOLA, in particular in case of business interruptions, strikes, public unrest, lockouts, a shutdown of the entire or parts of the deliver plant, in case of war, government orders or force majeure with SOLA or one of its suppliers, the bindingly agreed delivery period will be prolonged without further ado for the time the disruption lasts and until the operational consequences are removed. Such events, as long as they last longer than three months, entitle both of the parties, to withdraw from the contract in whole or in part on the grounds of the nonfulfilled part of the contract without having to pay damages.
3.5 If a certain period or a certain time-limit is agreed for SOLA’s delivery and if the deadline or the time-limit is exceeded, default will occur only after a reminder has been issued and a grace period of generally at least four weeks has expired without any result. The customer may withdraw from the contract and assert damages only after default has occurred and another reasonable grace period granted to SOLA has expired without any result.
3.6 Unless expressly agreed otherwise in writing, the delivery period starts with the following times at the latest:
a) The date of the confirmation of order
b) The date on which the customer has complied with all technical, commercial and financial conditions incumbent on the customer.
c) The date on which SOLA has received a down payment that is due prior to delivery of goods and / or a letter of credit has been issued.
§ 4. PRICES, PRICE ADJUSTMENTS
4.1 The prices are set out in SOLA’s price list valid from time to time. All prices are without engagement and net ex the loading or shipment place determined by SOLA. Not included in the price are in particular duties, freight, packaging, transportation insurance etc, which are additionally charged. The VAT is calculated separately pursuant to the legal provisions on the basis of the tax rate currently effective.
4.2 Prices are calculated on the basis of the price valid on the contract execution date (§ 2.1).
4.3 Any changes in producer prices / factory prices / list prices of SOLA’s suppliers entitle SOLA to appropriately change the prices also after the contract was executed or an order was placed. In the event that the agreed delivery deadline is longer than one month counting from conclusion of contract, SOLA is entitled to calculate the prices on the basis of the price list of SOLA valid on the day of delivery.
4.4 SOLA reserves the right, in particular during permanent business relations, to make the acceptance of customers’ orders dependent on minimum order values or to charge a minimum quantity surcharge. In case of manufacture to customer’s specification (cf. § 2.2 above) a surcharge applies. For manufacturing and technical reasons, with manufacture to customer’s specification, excess or short supplies of up to 10% are permissible. The customer undertakes to accept the relevant produced product quantities to the actual extent within the above-mentioned limits.
4.5 Any special services which may be separately agreed, e.g. the affixing of the customer’s advertising materials or special packaging, will be subject to extra charges.
§ 5. PAYMENT AND DEFAULT
5.1 The invoices shall be issued with the day of confirmation of order or with delivery. Convened payments shall be payable in cash and immediately upon receipt of the invoice, within 30 days from the invoice date at the latest, without deduction and before procurement of goods, unless otherwise agreed in the confirmation of order.
5.2 Payments are timely made if payments are received by SOLA in cash or are irrevocably credited to its account on the maturity date or on the last day of the deadline without further expenses.
5.3 The customer automatically and without prior notice falls into default of payment upon expiry of the 30-days payment deadline. In case of default, SOLA may charge default interests – subject to proof of further damage caused by default – at the statutory rate. This interest rate shall be raised if SOLA proves that the financial burden is higher due to a higher tax rate. If payments are not received within the time allowed for payment, SOLA reserves the right to charge dunning charges of EUR 10.00 net for each reminder.
5.4 Even if the customer is in default of one single payment, payment shall be applied to cover first costs accrued, then accrued default interests and then earliest debt; any dedication of payments made by the customer shall be disregarded.
5.5 The retention of any payment due to or off-setting against any counter-claims of customer shall only be allowed if such counterclaims are acknowledged by SOLA or legally established as final and absolute.
§ 6. WARRANTY
6.1 SOLA does not warrant for any compliance with specific provisions applicable in the country of destination.
6.2 The goods shall be immediately examined and defects shall be immediately inspected, at the latest within six working days upon receipt at the customer’s, provided this is feasible within the regular course of business. SOLA or its representatives shall be immediately notified of apparent defects. SOLA shall be notified of defects that cannot be detected within said deadline even after thorough examination or which might only appear later on immediately after discovery of such defects. Should the customer not perform his obligation to examine the delivered goods as well as to notify SOLA of defects in accordance with this paragraph in a timely manner, the goods are deemed approved.; § 377 par. 4 and 5 of the Austrian Commercial Code (UGB) (regarding the timeliness of the notification of defects or the case of fraudulent concealment of such defect) remain unaffected.
6.3 Should a defect be given, SOLA is entitled to subsequent fulfilment by remedying the defect or delivery of a non-deficient good (replacement delivery). SOLA has the optional right either to remedy the defect or replace the good. SOLA’s right to entirely refuse to remedy the defect or replace the good due to disproportionate expenditure (§ 932 par. 2 of the Austrian Civil Code, ABGB), remains unaffected. The customer has however the optional right to withdraw from the contract or to ask for a purchase price reduction if subsequent fulfilment fails, in particular if fulfilment is impossible or if SOLA does not manage subsequent fulfilment within due time, if such fulfilment is refused by SOLA or culpably delayed by SOLA.
6.4 The customer shall grant SOLA the necessary time and occasion to remedy the defect or make a replacement delivery; otherwise, SOLA is exempt from its warranty. Should SOLA chose to remedy the defect, SOLA is entitled to ask the customer that the deficient part or the good is sent to an address outlined by SOLA at SOLA’s expenses for repair and subsequent return or – optionally – that the customer shall hold the deficient part or good in readiness and SOLA or a third party acting on its behalf is sent to the customer in order to remedy the defects.
6.5 Warranty Claims may not be asserted for immaterial defects.
6.6 SOLA is entitled to refuse to remedy the defects or to make a replacement delivery, as long as customer has not fulfilled its payment obligation towards SOLA to the extent equalling the non-deficient part of the fulfilled delivery if the non-deficient part or the goods by itself are of interest for the customer (e.g. if it is possible to use it independently).
6.7 SOLA shall not be held liable for damages that arise after peril passed onto customer due to unsuitable or improper shipment, faulty assembly or start up by customer or third party, modifications or attachments not explicitly approved by SOLA, change or obliteration of signs or numbers on goods, normal wear, faulty or negligent handling or operation by customer or third party, improper storage, climatic effects etc.
6.8 All warranty claims – except from those due to damage to life, body or health or due to gross negligence by SOLA or its vicarious agents – become time-barred within twelve months upon delivery of the goods.
6.9 Claims for damage and expenses of the customer based on a defect are governed by § 7 of these GTCSD.
§ 7. CLAIMS FOR DAMAGE AND EXPENSES, LIABILITY
7.1 Should damages be caused due to breach of obligation by SOLA, SOLA shall not be held liable for claims for damage or expenses if SOLA provides the evidence that it is not responsible of the breach of obligation. If SOLA is responsible of the breach of obligation, SOLA shall be liable for claims of damage or expenses in accordance with the statutory regulations, unless otherwise provided in § 7.2 and § 7.3.
7.2 In the event of slight negligence, liability of SOLA for claims for damage or expenses shall be excluded. SOLA shall in particular not be held liable for loss of profit or other economic losses incurred by customer caused by slight negligence.
7.3 The disclaimer of liability pursuant to § 7.2 is not applicable to claims arising from warranty, injury to life, body or health, for claims arising from the Product Liability Act (“Produkthaftungsgesetz”) as well as for claims due to slight negligent breach of material contractual obligation. In the case of slight negligent breach of contractual obligation, the fulfilment of which enables the due and proper performance of the contract and on the observation of which the contractual partner may and does regularly rely (essential contractual obligations), liability shall be limited to the reimbursement of foreseeable damages typically appearing upon conclusion of the agreement.
7.4 Insofar the liability of SOLA is excluded or limited, this exclusion or limitation shall also be applicable to the personal liability of employees, representatives or the vicarious agents of SOLA.
§ 8. WITHDRAWAL FROM THE CONTRACT IN THE CASE OF BREACH OF OBLIGATION
8.1 The customer shall not be entitled to withdraw from the contract due to failure of performance or non-performance in accordance with the contract if SOLA is not responsible of the breach of obligation.
8.2 This shall not apply, if based on a special agreement (e.g. fixed date transaction, Fixgeschäft) – the customer was granted a right of withdrawal, irrespective of fault. Furthermore, this is not applicable on defects of goods; in this case the statutory regulations of the law relating to sales shall apply, unless otherwise stipulated in these conditions.
§ 9. RESERVATION OF TITLE
9.1 Until full and complete payment of the purchase prices and payment of all previous and future deliveries of goods in the context of the business relationship – including any ancillary claims –, SOLA shall retain title to all of its goods. The reservation of title is also valid against the carrier to whom the goods have been handed over at the request of the customer or of SOLA.
9.2 If SOLA asserts its right of reservation of title this shall not be seen as a withdrawal from the contract. On the contrary, SOLA shall rather be entitled to claim its rights under the contract, in particular the claim for damage and loss of profit, besides the right to return of property.
9.3 The customer shall be granted the revocable right to resell the delivered goods in the course of ordinary business operation, unless he is in default of or has discontinued payment. The customer shall not be entitled to dispose of the goods subject to reservation of title other than in the afore-mentioned manner, in particular customer shall not be allowed to pledging or chattel of mortgage of goods, until full payment. The customer has to undertake measures to defend ownership of SOLA against third-party interventions as well as pledging of goods subject to reservation of title. The customer is obliged to indicate SOLA’s ownership. The customer shall notify SOLA thereof immediately in writing.
9.4 In the event of resale, the customer hereby assigns all his claims on purchase price against seller as well as any future receivables from the resale of goods, including all ancillary rights, to SOLA and shall note the assignment of claims in his business records. The assigned claims serve as security for all claims pursuant to § 9.1. The customer shall notify SOLA immediately, at the latest on SOLA’s request, on the assignment to third parties for the purpose of payment and shall provide SOLA with the information necessary to assert its rights and to deliver the documents to SOLA.
§ 10. FINAL PROVISIONS
10.1 Place of performance for deliveries and services shall be the seat of the delivering plant. Place of performance for payments shall be the place of business of SOLA.
10.2 The contractual relationship between SOLA and the customer shall be governed by and construed in accordance with the Law of the Republic of Austria, excluding all bi- and / or multilateral agreements on the sale of goods, in particular excluding the United Nations Convention on Contracts for the International Sale of Goods (= „CISG“ / „ Vienna Convention for Sale of Goods “) as well as excluding the conflict of law rules of private international law.
10.3 All disputes arising out of or resulting from this contractual relationship shall, if the customer is an entrepreneur, legal entity under public law or special fund under public law or has its residence or main business seat outside of Austria, be exclusively brought before the courts at the seat of SOLA. SOLA shall however also be entitled to sue the customer at the customer’s main business seat.
10.4 Should individual provisions of these GTCSD be or become invalid in whole or in part, this shall not affect the vailidity of the remaining provisions. In this event, the invalid provisions shall be replaced by
a new provision which corresponds to or closest reflects the economic purpose of the invalid provision or the presumed intention of SOLA.