General Terms and Conditions of Sale and Delivery for the Trade of Clayly

1. Validity of the general terms and conditions of sale and delivery for trade (in the following “GCSD”)

The deliveries, services and offers of our company shall be made exclusively on the basis of these GCSD, irrespective of the type of legal transaction. All our declarations of intent under private law are to be understood on the basis of these GCSD. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our GCSD, unless we have expressly agreed to their validity in writing. In this respect, contractual performance on our part shall not be deemed to be consent to contractual terms and conditions deviating from our GCSD. These Terms and Conditions shall also apply as a framework agreement to all further legal transactions between the contracting parties.

2. Conclusion of contract

2.1. Our offers are non-binding and subject to change. Verbal promises, collateral agreements and the like which deviate from these GCSD or other of our written declarations of intent, in particular those made by sellers, deliverers, etc., shall not be binding on us. The content of brochures, advertising announcements, etc. used by us shall not become part of the contract unless expressly referred to.

2.2. Each order requires an order confirmation for the conclusion of the contract. The sending or handing over of the goods ordered by the customer shall also effect the conclusion of the contract. If offers are made to us, the offering party shall be bound by them for a reasonable period of at least eight days from receipt of the offer.

3. Price

Unless otherwise expressly stated, all prices quoted by us are inclusive of value added tax. Should the wage costs change between the conclusion of the contract and delivery due to collective bargaining regulations in the industry or internal company agreements, or should other cost centers relevant to the calculation or costs necessary for the provision of services, such as those for materials, energy, transport, external work, financing, etc., change, we shall be entitled to increase or decrease the prices accordingly.

4. Terms of payment, interest on arrears

4.1. In the absence of agreements to the contrary, our claims shall be paid in cash concurrently with the handover of the goods. Our invoices shall be due for payment as of acceptance of the goods. In the absence of special agreements, the deduction of a cash discount is not permitted. In the event of default in payment, including partial payments, any discount agreements shall become invalid. Payments by the customer shall be deemed to have been made only upon receipt in our business account.

4.2. In the event of default in payment, we shall be entitled to charge default interest of 14% of the gross invoice amount from the due date. We reserve the right to make further claims, such as in particular the claim to higher interest, under the title of compensation for damages.

5. Withdrawal from the contract

5.1. In addition to the general statutory provisions, we shall also be entitled to withdraw from the contract in the event of default of acceptance (clause 4) or other important reasons, such as in particular the opening of bankruptcy proceedings against the assets of a contractual partner or the rejection of a bankruptcy petition for lack of assets to cover costs. In the event of withdrawal, we shall have the option, if the customer is at fault, to claim liquidated damages of 15% of the gross invoice amount or compensation for the actual damage incurred.

5.2. In the event of default in payment by the customer, we shall be released from all further obligations to perform and deliver and shall be entitled to withhold any outstanding deliveries or services and to demand advance payments or securities or, if necessary, to withdraw from the contract after setting a reasonable grace period.

5.3. If the customer withdraws from the contract – without being entitled to do so – or unjustifiably requests its cancellation, we shall have the choice of insisting on the fulfillment of the contract or agreeing to the cancellation of the contract; in the latter case, the customer shall be obliged to pay, at our discretion, liquidated damages in the amount of 15% of the gross invoice amount or the actual damage incurred.

6. Reminder and collection charges

In the event of a delay in payment, the customer shall reimburse us for the reminder charges incurred, staggered according to reminder levels, plus postage per reminder issued, as well as an amount of € 3.70 per half-year for keeping records of the debt relationship in the reminder process. In addition, we shall be reimbursed for all dunning and collection expenses necessary for the appropriate prosecution, e.g. those of a collection agency, whereby the maximum remuneration due shall be that resulting from the BMwA ordinance on maximum rates of remuneration due to collection agencies.

7. Delivery, Transport, Default in Acceptance

7.1. Our sales prices do not include costs for delivery, assembly or installation unless explicitly stated otherwise. Upon request, however, these services will be provided or organized by us against separate payment. In this case, the actual costs incurred for transport or delivery, including a reasonable overhead surcharge, but at least the freight and carriage charges for the selected type of transport applicable or customary on the day of delivery, shall be invoiced. Assembly, repair and service work shall be invoiced on a time basis, whereby a man-hour rate customary in the industry shall be deemed to have been agreed.

7.2. If the customer has not accepted the goods as agreed (default in acceptance), we shall be entitled either to store the goods on our premises, for which we shall charge a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof, or to store the goods at the customer’s expense and risk with an authorized commercial enterprise. At the same time, we shall be entitled either to insist on performance of the contract or to withdraw from the contract after setting a reasonable grace period and to use the goods for other purposes. If the goods are perishable and there is imminent danger, we shall be entitled, in the event of default in acceptance, to sell the goods ourselves at a reasonable price for the account of the defaulting customer without prior warning.

8. Transfer of risk

Without prejudice to the statutory provisions, the risk of accidental loss or accidental deterioration shall in any case pass to the Buyer or to a third party named by the Buyer who is not the carrier upon handover of the goods.

9. Delivery Period

9.1 We shall not be obliged to perform until the customer has fulfilled all its obligations necessary for performance, in particular all technical and contractual details, preparatory work and preparatory measures.

9.2 We shall be entitled to exceed the agreed dates and delivery periods by up to two weeks. Only after expiry of this period may the customer withdraw from the contract after setting a reasonable period of grace.

10. Place of performance

Place of performance is the headquarters of our company in Leonding near Linz in Austria.

11. Minor changes of performance

Minor or other changes to our performance or delivery obligations that are reasonable for our customers shall be deemed approved in advance. This applies in particular to deviations caused by the object (e.g. in dimensions, colors, etc.).

12. Warranty, duty to examine and to give notice of defects

12.1 In the event of a rectifiable defect, we shall fulfill the customer’s warranty claims at our discretion either by replacement, repair within a reasonable period or price reduction. Claims for damages by the customer aimed at rectification of the defect may only be asserted if we are in default with the fulfillment of the warranty claims.

12.2 In accordance with § 377 f of the German Commercial Code (HGB), the goods must be inspected immediately after delivery, but within six working days at the latest. Defects discovered in the course of such inspection shall be notified to us in writing without delay, but no later than three working days after their discovery, stating the nature and extent of the defect. Hidden defects must be notified to us in writing without delay, but no later than three working days after their discovery. If a notice of defect is not made or not made in time, the goods shall be deemed approved.

13. Compensation

13.1 All claims for damages against us shall be excluded in cases of slight negligence. The existence of slight or gross negligence must be proven by the injured party.

13.2 The limitation period for claims for damages shall be three years from the transfer of risk. The provisions on damages contained in these GCSD or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.

13.3 Before connecting or transporting IT products or before installing computer programs, the Customer is obliged to sufficiently back up the data already existing on the computer system, otherwise the Customer shall bear the responsibility for lost data as well as for all damages related thereto.

13.4 The first sentence of item 13.1 shall not apply to personal injury and damage to items accepted for processing in the case of consumer transactions.

14. Product liability

Recourse claims within the meaning of § 12 of the Product Liability Act shall be excluded unless the party entitled to recourse proves that the defect was caused in our sphere and was at least due to gross negligence.

15. Retention of title and its enforcement

15.1 All goods and items shall be delivered by us subject to retention of title and shall remain our property until payment has been made in full.

15.2 In the event that we reclaim or take back the goods subject to retention of title, this shall only constitute a withdrawal from the contract if this is expressly declared. In the event of goods being taken back, we shall be entitled – without prejudice to further claims – to charge any transport and handling costs incurred.

15.3 If the purchaser processes or works on the goods or object delivered by us before all our claims have been satisfied, he shall not acquire ownership thereof. We shall acquire co-ownership of the resulting new item in the ratio of the value of the goods delivered by us to the other processed goods at the time of processing or treatment.

15.4 The Buyer may neither pledge nor assign by way of security the goods subject to retention of title. In the event of any pledges or other claims by third parties, the Buyer shall be obliged to assert our right of ownership and to notify us immediately.

15.5 Only an entrepreneur whose ordinary business operations include trading in the goods purchased from us may dispose of the goods subject to retention of title until the outstanding purchase price claim has been settled in full.

15.6 The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

16. Assignment of claims

16.1 In the event of delivery subject to retention of title, the customer hereby assigns to us his claims against third parties, insofar as these arise from the sale or processing of our goods, on account of payment until final payment of our claims. If the customer is in default with his payments to us, the sales proceeds received by him shall be segregated and the customer shall hold them only in our name. Any claims against an insurer are already assigned to us within the limits of § 15 VersVG.

16.2 Claims against us may not be assigned without our express consent.

17. Retention

In the event of a justified complaint, the customer shall not be entitled to withhold the entire gross invoice amount, but only an appropriate part thereof, except in cases of reversal.Der Kunde ist bei gerechtfertigter Reklamation außer in den Fällen der Rückabwicklung nicht zur Zurückhaltung des gesamten, sondern nur eines angemessenen Teiles des Bruttorechnungsbetrages berechtigt.

18. Loss of date

18.1 Insofar as the Customer has to pay its payment obligations in installments, it shall be deemed agreed that in the event of late payment of even one installment, all outstanding installments shall become due immediately without any further grace period.

18.2 Point 18.1 shall apply to consumer transactions insofar as we have rendered our performance in full, even if only one of the customer’s outstanding partial performances is due for at least six weeks, and if we have sent the customer a reminder setting a grace period of at least two weeks under threat of losing the deadline.

19. Choice of law, Place of jurisdiction

Austrian law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. The language of the contract is German. The contracting parties agree on Austrian, domestic jurisdiction. For the decision of all disputes arising from this contract, the competent court at the headquarters of our company shall have exclusive local jurisdiction.

20. Data Protection, Change of Address and Copyright

20.1 The customer gives his consent that also the personal data included in the purchase contract will be stored and processed by us in an automated way in fulfillment of this contract.

20.2 The customer shall be obliged to notify us of any changes in his residential or business address as long as the legal transaction which is the subject matter of the contract has not been completely fulfilled by both parties. If such notification is omitted, declarations shall be deemed to have been received even if they are sent to the last address notified.

20.3 Plans, sketches or other technical documents, as well as samples, catalogs, brochures, illustrations and the like shall always remain our intellectual property; the customer shall not be granted any rights of use or exploitation whatsoever.

21. Severability clause

Should individual provisions of these GCSD be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions.

Status: 11/2010 Download

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