General conditions of service and supply.

General conditions of service and supply.

  • Alba tooling & engineering GmbH, Forstau, Österreich
  • Alba tooling & engineering GmbH, Bissendorf, Deutschland
  • Alba tooling & engineering s.r.o., Surany, Slowakei
  • ALBA tooling & engineering d.o.o., Slovenj Gradec, Slowenien

Hereinafter referred to individually and jointly as ‘Alba’.

 

1. Preamble

 

1.1. All Alba services and supplies to the orderer are executed solely on the basis of these General Conditions of Service and Supply.
Unless explicitly agreed otherwise, our general business conditions as notified to the contractual partner apply.
Our contractual partner agrees that, in the case of our general business conditions being applied by him, in the event of doubt our provisions shall apply, even if the conditions of the contractual partner remain unopposed.
In this regard,  actions taken on our part to fulfil the contract are not considered to represent an approval of any contractual conditions which differ from our conditions. If ambiguities nevertheless remain in the interpretation of the contract, these must be resolved in such a way that the content which ordinarily applies in comparable cases is deemed to have been agreed. 

 

1.2. These General Conditions of Supply have essentially been compiled for legal transactions between companies. Should they in exceptional casesalso be taken as a basis for legal transactions with consumers for the purpose of Section 1, Para. 1, Figure 2 of the Consumer Protection Act, Federal Law 140/1979 in the version Federal Law I 62/2004, they only apply insofar as they do not contradict the clauses of the first main section of the Act.

 

1.3. The following provisions relating to the supply of goods also apply to services.

 

1.4. Installation or the set-up of machinery is only performed by Alba by special written agreement and subject to the special installation conditions of the professional association of the Mechanical Engineering and Steel Construction Industry of Austria.

 

2. Quotations / ordering / contract completion

 

2.1. Quotations given by Alba are always non-binding as long as they are not limited in time.

 

2.2. Orders awarded by the orderer are binding on him and are considered to have been accepted with written order confirmation by Alba.

 

2.3. The electronic receipt of data sets is not synonymous with an order placement by the orderer.

 

2.4. The order confirmation contains the final and comprehensive description of the services to be provided by Alba and in particular forms a basis for technical performance features, technical and commercial details and usage and safety provisions.

 

2.5. The documentation handed over by the orderer to Alba before awarding the order, such as sketches, specifications, materials, samples, tools, models and similar items, represents a binding basis for the drafting and elaboration of the quotation. The orderer must notify Alba of any subsequent changes upon ordering.

 

2.6. Amendments and addenda to the contract require the written confirmation of Alba in order to be valid.

 

2.7. If import and/or export licences or currency authorisations or similar authorisations are necessary for execution of the contract, the party responsible for procurement must make every reasonable effort to obtain the necessary licences or authorisations in a timely manner.

 

3. Plans and documentation

 

3.1. The information relating to weight, dimensions, capacity, price, output and similar issues contained in catalogues, brochures, circulars, advertisements, figures and price lists etc. is only significant if it is explicitly referred to in the quotation and/or the order confirmation.

 

3.2. At the request of the orderer, Alba shall provide him with information and sketches which facilitate the commissioning, use and maintenance of the supplied object for the orderer. The orderer and Alba shall agree on the scope on a case-by-case basis. However, Alba is not obliged to procure workshop sketches for the delivery items or spare parts.

 

3.3. Alba reserves the right to make amendments to construction and other amendments to technical data and performance features insofar as they facilitate technical advancement.

 

3.4. Any obvious errors, printing, calculation, typing and mathematical errors are non-binding for Alba.

 

3.5. Plans, sketches, cost estimates, costings and other technical documentation which can also be part of the quotation always remain the intellectual property of Alba as do samples, catalogues, brochures, figures and similar items. Any utilisation, duplication, reproduction, dissemination and forwarding to third parties, publication and presentation may only occur with the explicit prior written consent of Alba.

 

4. Packaging

 

4.1. In the absence of a different agreement
a) the prices stated are considered to exclude packaging;
b) if packaging is used as is customary in order to prevent damage to goods which would occur under normal transport conditions en route to the determined destination, this is executed at the cost of the purchaser and is only taken back by agreement.

 

5. Transfer of risk / dispatch

 

5.1. Unless agreed otherwise, all goods are sold ‘ex works’ (EXW) (readiness for collection). If Alba is obliged to provide the supply/service in any way other than ‘ex works’, the customer is obliged to conduct the necessary preliminary works and preparations in a timely manner to ensure the agreed type of dispatch.

 

5.2. Alba only dispatches the goods if explicitly desired by the orderer. Dispatch and transportation take place on behalf of and at the risk of the orderer to the best of Alba’s judgment, unless agreed otherwise.

 

5.3. In this case, Alba can insure the freight if desired and at the expense of the orderer. The risk emanating from the finished goods is also transferred to the orderer when the goods are ready for dispatch but cannot be dispatched or collected by the purchaser through no fault of Alba.

 

5.4 Furthermore, the version of the INCOTERMS which was valid on the day of contract signature applies.

 

6. Delivery terms

 

6.1. In the absence of any agreement to the contrary, the delivery terms commence at the latest on the following occasions:
a) Date of order confirmation;
b) Date of fulfilment of all technical, commercial and financial pre-requisites incumbent upon the purchaser in accordance with the agreement;
c) Date on which Alba receives a down payment to be paid before delivery of the goods and/or the date on which a payment guarantee to be produced or any other payment guarantee is established.

 

6.2. Alba is entitled to execute partial and advance deliveries, insofar as appropriate for the orderer.

 

6.3. The orderer is obliged to arrange all provisions of information and/or material necessary for the execution of the order in a timely manner.

 

6.4. The delivery date stated in Alba’s order confirmation is only binding on Alba if the orderer has notified Alba of all technical details necessary for successful execution of the order in a timely manner, such that timely handling is assured. If it is foreseeable for Alba during the course of the order execution that compliance with the deadline is at risk due to a lack of information from the orderer, Alba shall draw these circumstances to the attention of the orderer. If delivery is delayed due to circumstances arising on the part of Alba’s and which constitute exonerating reasons for the purpose of Art. 14, an appropriate extension to the delivery term will be granted.

 

6.5. If Alba is liable for the delayed delivery, the purchaser can either demand fulfilment or declare rescission from the contract with the establishment of an appropriate grace period.

 

6.6. For damages resulting from delayed delivery by Alba, Alba shall only be liable if a relevant grace period has been conceded and rescission from the contract has been declared simultaneously. Alba reserves the right to prove to the orderer that lesser damage has been caused to the orderer than that alleged by the orderer as a result of delayed delivery.

 

6.7. If the grace period envisaged in Art. 6.4 due to a fault on the part of Alba is not used, the purchaser can rescind from the contract by means of a written notification with regard to all as yet undelivered goods. The same applies to goods already delivered which cannot be used appropriately without the goods which are still outstanding. In this case, the purchaser has the right to a reimbursement of the payments made for the undelivered goods or for the unusable goods. Furthermore, where the delayed delivery was caused by gross negligence on the part of Alba, the purchaser is also entitled to compensation of the justified expenses incurred by him until dissolution of the contract and which could not be further used. The purchaser must return any goods which have already been delivered and are not usable to Alba.

 

6.8. Should the purchaser fail to accept the goods provided in accordance with the contract at the contractually agreed location or the contractually agreed time and if the delay is not due to an action or omission by Alba, Alba can either demand fulfilment or rescind from the contract with establishment of a grace period. If the goods have been rejected, Alba can proceed with placement into storage of the goods at the expense and risk of the purchaser. Alba also has a claim to the reimbursement of all justified expenses incurred for execution of the contract and which are not included in the payments received.

 

6.9. Claims of the purchaser against the seller as a result of his delay other than those stated in Art. 6 are excluded.

 

7. Acceptance inspection

 

7.1. Insofar as the purchaser requires an acceptance inspection, this must be explicitly agreed with Alba in written form upon signature of the contract. Unless any regulations are established to the contrary, the acceptance inspection must be executed at the place of manufacture or at a place to be determined by Alba during Alba’s normal working times. The general practice of the industry branch in question for the acceptance inspection is significant. Alba must notify the purchaser of the acceptance inspection in a timely manner to enable the latter to be present at the inspection or to be represented by an authorised representative. If the object of delivery proves to be contrary to the contract during the acceptance inspection, Alba must rectify the defect without delay to ensure that the object of delivery is in a condition as agreed in the contract. The purchaser can only demand a repetition of the inspection in the event of fundamental defects being identified. Following an acceptance inspection, an acceptance report must be drafted. If the acceptance inspection resulted in execution in accordance with the contract and the perfect functionality of the object of delivery, this must be confirmed by both contractual parties. If the purchaser or his authorised representative is absent from the acceptance inspection, despite timely notification by the seller, the acceptance report only needs to be signed by the seller.
Alba must submit a copy of the acceptance report to the purchaser in any event, the accuracy of which the purchaser can no longer dispute if he or his authorised representative did not sign the report due to absence from the acceptance inspection. Unless agreed otherwise, Alba shall bear the costs of the executed acceptance inspection. However, the purchaser must personally bear the costs incurred by him or his authorised representative in connection with the acceptance inspection, e.g. travel, subsistence costs and allowances.

 

8. Price

 

8.1. The prices apply ex works from Alba without loading, unless agreed otherwise.

 

8.2. The prices are based on the costs at the time of the price quotations, unless agreed otherwise. Should the costs change (especially materials, energy, transportation, wage costs …) before the time of delivery, these changes will be to the benefit/detriment of the purchaser.

 

9. Payment

 

9.1. Unless explicitly agreed otherwise, payments must be made by the orderer to the payment office of Alba 30 days in each instance following the date of the invoice without deductions, free from expenses. If the orderer does not pay by this deadline, default on payment shall arise. The payments must be made in accordance with the agreed payment conditions. Where no payment conditions have been agreed, 30% of the price must be paid by the orderer upon receipt of the order confirmation, 60% upon completion (delivery), 10% after final acceptance by the orderer, but 4 weeks at the latest after notification of readiness for acceptance.

100 % of the cost of upgrades and changes is invoiced following completion (delivery). Regardless of this, the value-added tax included on the invoice must be paid 30 days at the latest after issuing of the invoice.

 

9.2. The purchaser is not entitled to the reimbursement of payments due to warranty claims or other counterclaims which are not acknowledged by Alba.

 

9.3. If the purchaser is in arrears on an agreed payment or other service, Alba can either insist on fulfilment of the contract and
a) postpone the fulfilment of its own obligations until settlement of the delayed payments or other services,
b) utilise an appropriate extension to the delivery term,
c) make due the entire outstanding purchase price,
d) levy reminder costs of 20 EUR for the 1st reminder, 30 EUR for the 2nd reminder and 50 EUR for the 3rd reminder, plus default interest amounting to 8% above the base rate annually; claims for compensation of proven higher interest are not affected by this. 

 

9.4. However, the purchaser must reimburse Alba the reminder and collection costs arising as further damage caused by delay.
In the case of arrears, the contractual partner/customer undertakes to reimburse Alba, even in the event of payment arrears for which he is not liable, with the reminder and collection costs arising, insofar as necessary and adequate for appropriate prosecution, whereby he undertakes in particular, in the event of utilisation of a collections agency, to reimburse to Alba costs arising as a result, insofar as these do not exceed the maximum rates of the remuneration due to the collections agency in accordance with the decree of the BMWA (Federal Association for Mediation in the Economy and Working Environment). Where Alba performs its own reminder operations, the debtor undertakes to pay a sum of € 20 per reminder issued and a sum of € 10 net in each instance for the registration of the debt relationship in the dunning process per half year.
Furthermore, all further damage, in particular damage constituted by higher interest being due on any credit accounts of Alba due to non-payment, must be reimbursed regardless of liability for payment arrears. 

 

9.5. If the payment or other settlement owed has not been made by the purchaser upon expiry of the grace period in accordance with 9.3, Alba can rescind from the contract by written notification. At Alba’s request, the purchaser must return goods already delivered to Alba and pay compensation for the value depreciation of the goods arising and reimburse all justified expenses which Alba has incurred in the execution of the contract.
With regard to goods as yet undelivered, Alba is entitled to provide the finished or semi-finished components to the purchaser and demand the relevant proportion of the selling price to this end.

 

9.6. The payment obligations, in particular the determined monetary values, are considered to be agreed in Euro.

 

9.7. If, after signature of the contract, Alba becomes aware of facts and especially payment arrears on the part of the orderer with regard to earlier deliveries which lead to the conclusion according to dutiful commercial judgment that the payment claim is endangered by a deficient payment ability, Alba is entitled to make outstanding payments due immediately and to refuse to provide its own service until payment has been made or a guarantee has been provided in this regard. If the payment is not made or a guarantee provided within a period established by Alba, Alba is entitled to rescind from the contract and demand compensation. Partial deliveries which have already been made are immediately due for payment, regardless of a rescission. Further rights due to Alba by operation of law remain unaffected by this.
The contractual partner dispenses with the option of compensation. However, this does not apply vis-à-vis consumers in the event of an inability to pay on the part of Alba, and in the event of counterclaims which are legally related to the claim from Alba, ascertained by operation of law or acknowledged by Alba. In these cases, consumers have the option of offsetting.
Justified complaints do not provide entitlement to retention of the entire invoice amount, but solely an appropriate proportion thereof.

 

10. Retention of title

 

10.1. Until complete fulfilment of all financial obligations of the purchaser arising from the business relationship, Alba reserves the right to ownership of the object of purchase (goods subject to retention of title). If a current account relationship exists, the retention of title relates to an acknowledged balance. Alba is entitled to identify its ownership of the object of delivery externally. The purchaser must comply with the necessary formal requirements for preservation of the retention of title. In the event of seizure or other utilisation, the purchaser is obliged to assert the proprietary right of Alba at his expense and notify Alba without delay.

 

10.2. Should retention of title be ineffective in accordance with applicable law, at AlbaS’s request, the orderer must provide comprehensive assistance to Alba in protecting the right of ownership to the object of delivery in the country in question or in another way for adequate safeguarding of the interests of Alba to the payment.

 

10.3. All handling and processing of the goods subject to retention of title are undertaken by the orderer on behalf of Alba. If the goods which are subject to retention of title are processed with other objects which do not belong to Alba, Alba shall acquire co-ownership to the new product in the ratio of the invoice value of the goods subject to retention of title to the values of the other objects at the time of processing. If the goods which are subject to retention of title are combined with other movable objects and made into an integrative product or if the other product is to be viewed as the main product, the orderer shall transfer proportionate co-ownership to Alba, insofar as the main product belongs to him. The orderer shall hold the ownership or co-ownership in safe custody for Alba. For the product arising by processing or combination, apart from this, the same applies as for goods subject to retention of title.

 

10.4. The orderer is obliged to treat the goods subject to retention of title carefully, to store them separately from other goods and to adequately insure them against fire and water damage and theft at his own expense. Necessary maintenance and inspection work must be performed by the orderer in a timely manner at his own expense.

 

10.5. In the case of even partial payment arrears, the purchaser now consents to Alba collecting the goods at any time at his own expense.
In the enforcement of the retention of title or also in the case of retrieval of the goods, rescission from the contract only exists if this has been explicitly declared.

 

11. Warranty

 

11.1. Alba is obliged, in accordance with the following clauses, to rectify all defects impairing usability which are attributable to an error in construction, material or execution. Alba must also vouch for defects to expressly stipulated characteristics.

 

11.2. This obligation only exists for such defects which occur during a one-year period with single shift operation with effect from the time of risk transfer or upon delivery with assembly from the end of installation onwards.

 

11.3. The purchaser can only refer to this article if he notifies the defects which have arisen to Alba in writing and without delay. The presumption rule of Section 924 of the Austrian Civil Code (ABGB) is precluded. If the defects can be rectified by Alba in accordance with the provisions of this article, Alba may choose:
a) to repair the defective goods on the spot;
b) to have the defective goods or the defective components returned for the purpose of repair;
c) to replace the defective components;
d) to replace the defective goods. 

 

11.4. If Alba has the defective goods or components returned for the purpose of repair or replacement, the purchaser shall bear the costs and risk of transport, unless otherwise agreed. Return of the repaired or replaced goods or components to the purchaser shall be at the expense and risk of Alba, unless otherwise agreed.

 

11.5. The orderer must compensate Alba for costs incurred by complaints made if it transpires that the supply or service contains no defects for which an Alba warranty exists.

 

11.6. The defective goods or components replaced in accordance with this article are at the disposal of Alba.

 

11.7. Alba is only liable for the costs of defect rectification performed by the purchaser if it has given its written consent in this regard.

 

11.8 Alba shall accept no liability for damage which is attributable to unsuitable or improper use, incorrect installation, commissioning or repair of the object of delivery by the orderer or a third party commissioned by him, to changes made to the object of delivery by the orderer or a third party commissioned by him without the written consent of Alba, to natural wear and tear, to incorrect or negligent handling, to the use of unsuitable supplies or replacement materials, to deficient construction works or unsuitable building ground at the premises of the orderer or to chemical, electrochemical or electrical influences, insofar as Alba is not liable for these. Furthermore, Alba shall accept no liability for defects occurring as a result of non-compliance with processing, use and operational information. If the delivery is made in accordance with sketches, specifications, samples, etc. of the orderer, the orderer shall accept responsibility for the risk of suitability for the intended purpose of use, insofar as suitability of the objects of delivery for this purpose is not explicitly confirmed.

 

11.9. If acceptance has been agreed and executed, the orderer is precluded from reporting defects which could have been ascertained during careful acceptance. This applies accordingly if Alba and the orderer have executed test runs of the systems and machinery supplied for the purpose of acceptance.

 

11.10. For those parts of the goods which Alba has obtained from the sub-supplier prescribed by the purchaser, Alba is only liable within the scope of the warranty claims due to it vis-à-vis the sub-supplier.
If goods are manufactured by the seller on the basis of construction details, sketches or models of the purchaser, Alba’s liability shall not extend to the accuracy of the construction, but shall be limited to ensuring that execution took place in accordance with the information provided by the purchaser. In these cases, the purchaser must indemnify and hold the seller harmless in the case of any infringement of property rights.
Alba shall accept no liability in the case of acceptance of repair orders or modifications or conversions to old and external goods and in the case of supplying of used goods.

 

11.11. From the start of the warranty period, Alba shall accept no further liability than that determined in this article.

 

12. Liability

 

12.1. It is considered explicitly agreed that Alba shall not be required to pay the purchaser compensation for injuries to persons, damage to goods which are not the object of the contract, for other damages and loss of profits, insofar as it does not become apparent from the circumstances of the individual case that Alba is guilty of gross negligence. Reversal of the burden of proof in accordance with Section 1298 of the Austrian Civil Code (ABGB) is precluded.

 

12.2. The object of purchase only offers such security as can be expected as a result of licensing regulations, operating instructions, provisions of Alba regarding handling of the object of purchase – especially with regard to any prescribed inspections – and other information given.

 

12.3. In the event of slight negligence on the part of Alba, claims for compensation are precluded insofar as Article 12.1 does not apply.

 

12.4. All claims for compensation resulting from defects to supplies and/or services must – where the defect has not been explicitly acknowledged by the seller – be legally enforced within one year of expiry of the contractually determined warranty period, otherwise the claims expire.

 

13. Consequential damage

 

13.1. Subject to provisions to the contrary in these conditions, Alba’s liability vis-à-vis the purchaser for production stoppages, lost profits, downtime, contractual detriments or any other economic or indirect consequential damage is precluded.

 

14. Grounds of relief

 

14.1. The parties are released from timely contractual fulfilment either in whole or in part if they are prevented from doing so by acts of force majeure. Solely events which are unforeseeable and inevitable for the parties and over which they have no control shall be considered to be acts of force majeure. Operational defects, unrest, strikes and industrial action, warlike disputes, riots, embargos, impoundment, restrictions in energy consumption are viewed as acts of force majeure. This also applies if these circumstances arise at the premises of Alba’s suppliers.
However, the purchaser who is impeded by an event of force majeure can only refer to the existence of force majeure if he hands over to Alba without delay and within 5 calendar days at the latest a statement sent by registered mail and confirmed by the respective governmental authority or chamber of commerce of the country of supply regarding the start and provisional end of the impediment,  the cause, the effects to be anticipated and the duration of the delay.
In the event of force majeure, the parties must make every effort to rectify or reduce the difficulties and foreseeable damage and keep the counterparty continually informed in this regard. Otherwise, they shall be obliged to pay compensation to the counterparty.
Deadlines or timeframes which cannot be complied with as a result of force majeure shall be extended by the duration of the effects of force majeure at most or, if necessary, by a period to be determined by mutual agreement.
If an act of force majeure lasts for longer than four weeks, the purchaser and seller shall attempt to rectify the transactional effects by means of negotiations. If no mutually agreeable solution is attained, Alba can rescind from the contract either in whole or in part.
The rescission encompasses as yet unfulfilled parts of the contract, insofar as the partial deliveries and services effected are not unusable for the orderer.

 

15. Data protection

 

15.1. Alba is entitled to store, forward, revise and delete personal data of the purchaser within the scope of business transactions.

 

15.2. The orderer is obliged to treat all information, know-how and other business secrets which he has discovered from or about Alba with the strictest confidence and not to pass on or otherwise make accessible to third parties any information, documents/documentation, programme descriptions, drawings, sketches or other documents without the explicit consent of Alba.

 

16. Place of jurisdiction, applicable law, place of fulfilment

 

16.1. The place of jurisdiction for all disputes resulting directly or indirectly from the contract is the Austrian court which is locally responsible for Alba’s headquarters. However, Alba can also invoke the court responsible for the purchaser.

 

16.2. The parties can also agree to the jurisdiction of an arbitration court.

 

16.3. The contract is subject to Austrian law, with preclusion of UN purchasing law.

 

16.4. Alba’s headquarters are considered the place of fulfilment for delivery and payment, even if handover takes place at a different location by agreement.

 

16.5. Should individual clauses of the order or these general conditions of service and supply be or become ineffective, this does not affect the effectiveness of the remaining clauses.

 

17. Formalities

 

17.1. All agreements, subsequent amendments, addenda, additional agreements, etc. must take the written form in order to be effective, whereby e-mails without a secure electronic signature are considered to be the written form.

 

Last revised: 21.04.2009

ALBA tooling & engineering GmbH

A-5552 Forstau, Winkl 133
Phone: +43 6454 7800-0
Fax: +43 6454 7800-9
E-Mail: office[at]albatools.com
Website: www.albatools.comhttp://www.albatools.com/

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Winkl 133 | A-5552 Forstau
T: +43 6454 7800-6100
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