GTC of PET Austria GmbH – Version 01/2021
Deliveries are carried out by us only based on the following terms and conditions, which shall be deemed to have been accepted for the present transaction as well as for all further, including earlier, transactions when the order is placed. These Terms and Conditions are valid in so far as they are not changed by deviating written agreements. These General Terms and Conditions of Trade and Delivery shall also apply if the contracting partner communicates its own deviating Terms and Conditions, which we do not expressly object.
Unless otherwise agreed, the prices quoted are on the spot, net from our branches, excluding packaging and loading, packaging will be charged for at cost and will not be taken back. Price changes caused by circumstances over which the contractor has no influence, such as a price increase or price reduction by upstream suppliers, changes of law, official decrees, changes of collective agreement wages as well as price changes due to circumstances imposed by third parties occurring between the conclusion of the contract and delivery or invoicing, will be passed on to the contracting partner if there are more than two months between placing the order and delivery. This provision applies accordingly to fluctuations in currency exchange rates, increase and reduction in material costs based on recommendations of the Joint committee or due to changes (increase or decrease) in world market prices for raw materials, which have an impact on the materials used.
2. Delivery Time
2.1 Delivery dates stated by us are estimated delivery dates and non-binding. We can therefore not be held liable in any way for damages caused and loss of profit due to exceeding the delivery time. We are entitled to make partial and pre-deliveries. The transfer of risk and coincidence coincides with the handing over to the customer, the carrier or the forwarding agent, even if we have commissioned them with the delivery.
2.2 Goods ordered on “call-off” must be accepted within two months from the date of the order. After expiry of this period – or any shorter or longer period agreed in individual cases – we shall have the right, at our option, to deliver the goods or to withdraw from the contract and in any case to claim compensation for damage suffered and lost profit.
2.3 If the contracting partner is a consumer in terms of the KSchG (Austrian consumer protection act), paragraph 1 does not apply, but the contracting partner is entitled to withdraw from the contract if the delivery period exceeds 14 days. We are only liable for damages resulting from a possible delay in the event of gross negligence or intent, so that compensation for damages due to slight negligence is excluded.
3.1 The warranty period for contracting partners who are entrepreneurs in terms of the UGB (Austrian commercial code) and other companies is six months and begins at the time of the transfer of risk. Entrepreneurs are obliged to claim defects immediately by registered mail, otherwise their warranty and damage claims are forfeited. We are entitled to choose the warranty remedy (replacement, redhibition, improvement or price reduction). The occurrence of defects does not entitle to retain the purchase price or a part thereof unless the contracting partners are consumers in terms of the KSchG (Austrian consumer protection act).
3.2 The warranty period shall not be extended by a remedy of defects. The Seller shall never be liable for those goods or parts of goods which the Seller has obtained from subsuppliers to a greater extent than the Seller itself is entitled to warranty claims against the subsuppliers.
3.3. The warranty expires
- if changes or modifications are made to the goods delivered by us by parties other than ourselves without our written consent,
- if the agreed terms of payment are not met (deferment of payment does not change the loss of the warranty claim),
- if the customer does not follow the regulations concerning the treatment of the object of purchase (operating instructions) and in particular does not have the required inspection carried out properly or
- if the customer does not examine the ordered goods within 2 working days and does not inform us of any defects in writing (also by email or fax) within the same period. If no notification of defects is made within this period, all services to entrepreneurs shall be deemed checked, approved and handed over free of defects.
3.4 We are under no circumstances obliged to compensate for loss of profit and we are only obliged to pay other compensation if the damage was caused by us intentionally or through gross negligence.
3.5 The defective goods must be left in the same condition so they can be inspected by a representative appointed by us.
3.6 The shifting of the burden of proof in accordance with § 924 ABGB at our expense is excluded if the customer is an entrepreneur.
3.7 The warranty is excluded for used machines.
Payment of the purchase price shall be made as agreed or as stated on our invoice. Should payment dates be exceeded, default interest in accordance with § 1333 para. 2 ABGB (Austrian Civil Code) shall be deemed to have been agreed and we shall be entitled to postpone fulfilment of our own obligations until we receive the payments in arrears. In case of customer default, we are entitled to take back the goods to which we retain title until payment has been made in full, without this being equated to a withdrawal from the contract. We are entitled to step back from accepting the order or request advance payment of the entire fee if, after placing the order, circumstances relating to the economic conditions of the customer become known through which our claim no longer appears to be sufficiently secured.
Offsetting against our claims is not possible. If our business partner is a consumer in terms of the KSchG (Austrian Consumer Protection Act), offsetting against our claims is only permitted if the counterclaim is legally connected to the consumer’s obligation and has been established by court or acknowledged by us in writing.
6. Retention of title
6.1 The goods shall remain our property until the purchase price, including any interest and collection costs, has been paid in full; in the case of payment by bill of exchange, the goods shall remain our property until the encashment of the bill of exchange. Retention of title shall also apply if the goods are not delivered directly by us but by a third party on our behalf. During this period the customer is therefore not entitled to transfer ownership of the goods to another third party, pledge them, offer them as security or otherwise transfer or process them. The customer is therefore obligated to notify us immediately by registered letter of any damage to the goods purchased, any attachment of these goods or any transfer of these goods and to do everything he is obliged to do as a diligent businessman or custodian so that we suffer no damage to our property.
If the customer sells or otherwise passes on goods subject to retention of title in the ordinary course of business, he hereby assigns to us by way of security all claims and accessory claims against third parties arising from such transactions. Upon request, the customer must inform us of his debtor and all information which we require to assert our claims and shall notify his debtor of the irrevocable assignment of claims. Our customer is authorised and obliged to collect the claims resulting from the resale for us as long as we do not make use of our right of direct collection.
7. Withdrawal from the contract
If there is no legal reason for withdrawal the revocation of the contract requires our written consent. In this case (if a contract is dissolved with our consent), we are entitled to demand 15% of the gross purchase price as contractual penalty, which is not subject to judicial mitigation. Any further claims remain unaffected and in place. We are entitled to step back from accepting the order if, after placing the order and prior to delivery, circumstances relating to the economic conditions of the customer become known through which our claim no longer appears to be sufficiently secured and recoverable.
8. Choice of Law
Austrian law shall apply under the exclusion of UN sales law. If our contractual partner is a foreign customer and if UN sales law would apply, it is mutually agreed that this is expressly excluded.
9. Place of jurisdiction
Pursuant to § 104 JN (Austrian Jurisdiction Act) it is agreed that the place of jurisdiction shall be the relevant competent court in Wels. Place of performance shall be our registered office.
10. Data proctection
The customer consents that his personal and business data is electronically saved and processed by us and he agrees to receive information about new products and services by electronic mail and telecopies.