Delivery condition

General Delivery condition

FNDT GmbH, A-3390 Melk, Industriestraße 6
The following Terms and Conditions of Sale and Delivery shall apply to all our contracts, quotations, deliveries, and other services, including any future transactions. Any general terms and conditions of the customer shall not apply, even if they are communicated to us in a confirmation letter or by any other means and we do not expressly object to them. Except as otherwise provided below, the statutory provisions shall apply exclusively.
The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG), Federal Law Gazette BGBl. 1988/96, is expressly excluded.

Preamble
1.1 These General Terms and Conditions of Delivery shall apply unless the contracting parties have expressly agreed otherwise in writing.
1.2 The following provisions governing the delivery of goods shall apply mutatis mutandis to the provision of services.
1.3 For installation and assembly work, the Assembly Conditions of the Austrian Association of the Machinery and Steel Construction Industry, as amended from time to time, shall apply in addition.
Conclusion of Contract
2.1 The contract shall be deemed concluded when the Seller has sent a written order confirmation after receipt of the order and the Buyer has not demonstrably objected to it within ten (10) days.
2.2 Any amendments or supplements to the contract shall only be valid if confirmed in writing by the Seller. The Buyer’s purchasing conditions shall only be binding upon the Seller if they have been expressly accepted by the Seller.
2.3 Should import and/or export licences, foreign exchange permits, or similar approvals be required for the performance of the contract, the party responsible for obtaining such licences or approvals shall make all reasonable efforts to obtain them in due time.
Plans and Documentation
3.1 Information contained in catalogues, brochures, circulars, advertisements, illustrations, price lists and similar documents regarding weight, dimensions, capacity, price, performance and the like shall only be binding if explicit reference is made to such information in the quotation and/or the order confirmation.
3.2 Plans, sketches, cost estimates and other technical documentation, which may also form part of the quotation, as well as samples, catalogues, brochures, illustrations and similar materials, shall remain the intellectual property of the Seller at all times. Any use, duplication, reproduction, distribution, disclosure to third parties, publication or presentation shall require the express consent of the owner.
Packaging
4.1 Unless otherwise agreed:
a) the stated prices shall be understood to exclude packaging costs;
b) packaging shall be carried out in accordance with customary commercial practice in order to prevent damage to the goods under normal transport conditions during transit to the agreed destination. Packaging costs shall be borne by the Buyer and packaging will only be taken back upon separate agreement.
Transfer of Risk
5.1 Unless otherwise agreed, the goods shall be deemed sold Ex Works (EXW), meaning they are made available for collection at the Seller’s premises.
5.2 In all other respects, the INCOTERMS in force on the date of conclusion of the contract shall apply.
Delivery Period
6.1 Unless otherwise agreed, the delivery period shall commence on the latest of the following dates:
a) the date of the order confirmation;
b) the date on which all technical, commercial and financial prerequisites to be fulfilled by the Buyer under the agreement have been satisfied;
c) the date on which the Seller receives any advance payment due prior to delivery of the goods and/or any agreed payment security has been established or opened.
6.2 The Seller shall be entitled to make partial deliveries and deliveries in advance of the agreed delivery date.
6.3 If delivery is delayed due to circumstances occurring on the Seller’s side which constitute grounds for relief within the meaning of Article 14, the delivery period shall be extended by an appropriate period.
6.4 If the Seller is responsible for a delay in delivery, the Buyer may either demand performance or declare withdrawal from the contract after granting the Seller a reasonable grace period.
6.5 If the Seller fails, through its own fault, to make use of the grace period provided for in Article 6.4, the Buyer may withdraw from the contract by written notice with respect to all goods not yet delivered. The same shall apply to goods already delivered if they cannot reasonably be used without the outstanding goods.
In such case, the Buyer shall be entitled to reimbursement of payments made for the undelivered goods or for goods that cannot be used. Furthermore, provided that the delay in delivery was caused by the Seller’s gross negligence, the Buyer shall also be entitled to reimbursement of justified expenses incurred up to the termination of the contract which cannot be used for any other purpose.
Goods already delivered and rendered unusable as a result shall be returned by the Buyer to the Seller.
6.6 If the Buyer fails to accept the goods duly made available under the contract at the agreed place or at the agreed time, and such delay is not attributable to any act or omission on the part of the Seller, the Seller may either demand performance or withdraw from the contract after granting an additional reasonable period.
If the goods have been specifically allocated to the contract, the Seller may store the goods at the Buyer’s cost and risk. The Seller shall also be entitled to reimbursement of all justified expenses incurred in connection with the performance of the contract which are not covered by payments already received.
6.7 Any claims of the Buyer against the Seller arising from delay, other than those expressly provided for in Article 6, shall be excluded.
Acceptance Testing
7.1 If the Buyer requests an acceptance test, this must be expressly agreed upon in writing with the Seller at the time of conclusion of the contract.
Unless otherwise agreed, the acceptance test shall be carried out at the place of manufacture or at another location designated by the Seller during the Seller’s normal business hours. The generally accepted practices of the relevant industry sector shall apply to the execution of the acceptance test.
The Seller shall notify the Buyer of the acceptance test in due time so that the Buyer may attend the test or be represented by an authorised representative.
If the delivered goods are found during the acceptance test not to conform to the contract, the Seller shall promptly remedy any defects and restore the delivered goods to a contractually compliant condition. The Buyer may request a repeat of the acceptance test only in cases of material defects.
Following completion of the acceptance test, an acceptance test report shall be prepared. If the acceptance test confirms that the delivered goods comply with the contract and function properly, this shall in any event be confirmed by both contracting parties.
If the Buyer or its authorised representative fails to attend the acceptance test despite timely notification by the Seller, the acceptance test report shall be signed solely by the Seller. In all cases, the Seller shall provide the Buyer with a copy of the acceptance test report, the accuracy and correctness of which the Buyer may no longer dispute, even if the Buyer or its authorised representative was unable to sign it due to absence.
Unless otherwise agreed, the Seller shall bear the costs of the acceptance test. However, the Buyer shall in all cases bear any costs incurred by the Buyer or its authorised representative in connection with the acceptance test, including but not limited to travel expenses, subsistence costs and compensation for time and expenses.
Price
8.1 Unless otherwise agreed, all prices are quoted Ex Works (EXW) at the Seller’s premises and do not include loading costs.
8.2 Unless otherwise agreed, the prices are based on the cost levels prevailing at the time the quotation is submitted. Should such costs change between the date of the quotation and the date of delivery, such changes shall be for the benefit or account of the Buyer, as the case may be.
Payment
9.1 Payments shall be made in accordance with the agreed payment terms. Unless specific payment terms have been agreed, one third of the purchase price shall be due upon receipt of the order confirmation, one third upon expiry of half of the agreed delivery period, and the remaining balance upon delivery.
Irrespective of the foregoing, any value added tax (VAT) stated on the invoice shall in all cases be payable no later than thirty (30) days after the date of invoice issuance.
9.2 The Buyer shall not be entitled to withhold payments on the grounds of warranty claims or any other counterclaims not acknowledged by the Seller.
9.3 If the Buyer defaults on an agreed payment or any other contractual obligation, the Seller may either insist on performance of the contract and:
a) suspend the performance of its own obligations until all outstanding payments or other obligations have been fulfilled;
b) claim a reasonable extension of the delivery period;
c) declare the entire outstanding purchase price immediately due and payable;
d) provided that no grounds for relief within the meaning of Article 14 exist on the Buyer’s side, charge default interest from the due date at a rate of 7.5 percentage points above the applicable base interest rate of the European Central Bank (in accordance with Directive 2000/35/EC on combating late payment in commercial transactions of 29 June 2000), or declare withdrawal from the contract after granting the Buyer a reasonable grace period.
9.4 In any event, the Buyer shall reimburse the Seller for all reminder fees, collection costs and enforcement expenses incurred as additional damages resulting from the delay in payment.
9.5 If, upon expiry of the grace period referred to in Article 9.3, the Buyer has still failed to make the payment or perform the outstanding obligation, the Seller may withdraw from the contract by written notice.
Upon the Seller’s request, the Buyer shall return any goods already delivered and compensate the Seller for any depreciation in value of such goods. Furthermore, the Buyer shall reimburse the Seller for all justified expenses incurred in connection with the performance of the contract.
With regard to goods not yet delivered, the Seller shall be entitled to make available to the Buyer any completed or partially completed components and to demand payment of the corresponding proportion of the purchase price.
Reservation of Ownership
10.1 The Seller shall retain title to the goods supplied until all financial obligations of the Buyer have been fulfilled in full.
The Seller shall be entitled to visibly identify its ownership of the delivered goods. The Buyer shall comply with all formal requirements necessary to preserve and protect the Seller’s retention of title rights.
In the event of seizure, attachment, or any other claim or intervention by third parties, the Buyer shall assert the Seller’s ownership rights and shall notify the Seller without undue delay.
Warranty
11.1 Subject to the following provisions, the Seller shall remedy any defect impairing the usability of the goods which results from faulty design, materials, or workmanship. The Seller shall also be liable for defects relating to expressly warranted characteristics or properties.
11.2 This obligation shall apply only to defects which occur within a period of one (1) year from the transfer of risk in the case of single-shift operation or, where delivery includes installation, from the completion of installation.
11.3 The Buyer may rely on this Article only if the Buyer notifies the Seller immediately in writing of any defects that have arisen. The presumption rule under Section 924 of the Austrian Civil Code (ABGB) shall be excluded.
If the Seller is informed in this manner and the defects are to be remedied by the Seller under the provisions of this Article, the Seller shall, at its option:
a) repair the defective goods at the place where they are located;
b) require the defective goods or defective parts to be returned for repair;
c) replace the defective parts;
d) replace the defective goods.
11.4 If the Seller requires the defective goods or parts to be returned for repair or replacement, the Buyer shall bear the costs and risks of transport unless otherwise agreed. The return shipment of repaired or replacement goods or parts to the Buyer shall, unless otherwise agreed, be at the Seller’s expense and risk.
11.5 Any defective goods or parts replaced under this Article shall become the property of the Seller and shall be placed at the Seller’s disposal.
11.6 The Seller shall only bear the costs of repairs carried out by the Buyer if the Seller has given its prior written consent.
11.7 The Seller’s warranty obligation shall apply only to defects occurring under the prescribed operating conditions and during normal use. In particular, the warranty shall not apply to defects resulting from:
• improper installation by the Buyer or persons engaged by the Buyer;
• inadequate maintenance;
• repairs or modifications carried out improperly or without the Seller’s written consent by persons other than the Seller or persons authorised by the Seller;
• normal wear and tear.
11.8 With regard to parts of the goods supplied by subcontractors specified by the Buyer, the Seller’s liability shall be limited to the warranty claims available to the Seller against such subcontractors.
Where goods are manufactured by the Seller on the basis of designs, drawings, specifications, or models provided by the Buyer, the Seller shall not be responsible for the correctness of such designs but only for ensuring that the goods are manufactured in accordance with the Buyer’s specifications.
In such cases, the Buyer shall indemnify and hold harmless the Seller against any claims arising from infringements of intellectual property rights or other protected rights.
The Seller shall provide no warranty for repair orders, modifications or conversions of used goods, third-party goods, or for the supply of used goods.
11.9 From the commencement of the warranty period, the Seller shall assume no liability beyond that expressly provided for in this Article.
Liability
12.1 It is expressly agreed that the Seller shall not be liable to the Buyer for personal injury, damage to property that is not the subject matter of the contract, any other consequential damages, or loss of profit, unless the circumstances of the individual case demonstrate that the Seller acted with gross negligence.
The reversal of the burden of proof pursuant to Section 1298 of the Austrian Civil Code (ABGB) is expressly excluded.
12.2 The goods supplied provide only the level of safety that may reasonably be expected based on applicable approval regulations, operating instructions, the Seller’s instructions regarding the handling and use of the goods, in particular with regard to any prescribed inspections, and any other instructions or notices provided.
12.3 In cases of slight negligence on the part of the Seller, and provided that Article 12.1 does not apply, liability for damages shall be limited to 3% of the contract value, but in any event to a maximum amount of EUR 500,000.
12.4 Any claims for damages arising from defects in deliveries and/or services must, unless the defect has been expressly acknowledged by the Seller, be asserted before a competent court within one year after expiry of the contractually agreed warranty period; otherwise, such claims shall be deemed forfeited.
12.5 FNDT GmbH maintains liability insurance coverage with R+V Allgemeine Versicherung AG under Policy No. 808/25/633477108/2000514 with a sum insured of EUR 2,373,800.00.
Consequential Damages
13.1 Unless otherwise provided for in these Terms and Conditions, the Seller’s liability towards the Buyer for production downtime, loss of profit, loss of use, contractual losses, or any other economic or indirect consequential damages shall be excluded.
Force Majeure
14.1 The parties shall be wholly or partially released from their obligation to perform the contract on time if they are prevented from doing so by events of Force Majeure.
Force Majeure shall exclusively mean events that are unforeseeable, unavoidable, and beyond the control of the parties concerned. Strikes and industrial disputes shall also be regarded as events of Force Majeure.
However, a Buyer affected by an event of Force Majeure may only invoke Force Majeure if it provides the Seller without undue delay, and no later than five (5) calendar days after the occurrence of the event, with a registered written statement confirming the commencement and anticipated end of the impediment. Such statement must be confirmed by the relevant governmental authority or chamber of commerce of the country of supply and must specify the cause of the event, its expected effects, and the anticipated duration of the delay.
In the event of Force Majeure, both parties shall make every reasonable effort to eliminate or minimise the difficulties and foreseeable damages arising therefrom and shall keep the other party continuously informed of developments. Failure to do so shall render the defaulting party liable for damages suffered by the other party.
Delivery dates and deadlines that cannot be met due to Force Majeure shall be extended by the duration of the Force Majeure event or, where appropriate, by such additional period as may be mutually agreed between the parties.
If a Force Majeure event continues for more than four (4) weeks, the Buyer and the Seller shall seek to reach an agreement through negotiations regarding the practical consequences for contract performance and execution.
Should no mutually acceptable solution be reached, the Seller shall be entitled to withdraw from the contract in whole or in part.
Data Protection
15.1 The Seller shall be entitled to store, transmit, process, and delete the Buyer’s personal data within the scope of the business relationship and in accordance with the applicable data protection regulations.
15.2 The parties undertake to maintain strict confidentiality towards third parties regarding all information and knowledge obtained through their business relationship.
Jurisdiction, Applicable Law and Place of Performance
16.1 The competent court for all disputes arising directly or indirectly out of or in connection with the contract shall be the Austrian court having territorial jurisdiction over the Seller’s registered office. However, the Seller shall also be entitled to bring proceedings before the court having jurisdiction over the Buyer.
16.2 The parties may alternatively agree to submit disputes to arbitration.
16.3 The contract shall be governed by Austrian law, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG), Federal Law Gazette BGBl. 1988/96.
16.4 The Seller’s registered office shall be deemed the place of performance for delivery and payment, even where delivery is contractually agreed to take place at another location.