General Trading Conditions No. 01/2011
of MEX Equipment & Consulting e.U.
1. The present General Trading Conditions No. 01/2011 are exclusively binding for the entire business relationship between MEX Equipment & Consulting e.U. (subsequently called “Seller”) and the Buyer also for the future. Herewith other purchase conditions or other general business conditions of the Buyer are contradicted and cannot be applied. The Seller is authorized to change the present General Trading Conditions No. 01/2011 effective for all future business relationships with the Buyer after a corresponding communication.
II. Quotation, Conclusion of Contract
1.For all quotations and sales agreements between the Seller and the Buyer the following conditions of contract are exclusively binding. Quotations submitted by the Seller are made without any engagement on his part. They are intended to give access into documentation to the Sellers business partners to facilitate their decision on placing a purchase order. Orders placed will become binding only after written confirmation of Seller within a reasonable time thereafter.
2.If a Buyer doesn't fulfil his payment obligations after receiving the order confirmation and invoice within 14 days from invoice date plus granted additional respite, the Seller is legitimated to resign from the sales contract. Resulting financial damage has to be burdened by the Buyer in such case.
3.All technical information, i.e. descriptions, illustrations, drawings, dimensions and weights, fabricates and models, year of manufacture and information on capacities and performance as well as conditions, steady and loose accessories, made either verbally or in writing in the quotation are only given as approximations and therefore they are not binding for the Seller.
4.Supplements, modifications or additional agreements become effective only after written confirmation of the Seller.
5.In case the offered machines are not in Sellers stock and their location together with the address have been communicated to the prospective Buyer, the addressee of quotation is obligated not to pass on this information to third parties or to buy these machines either directly by himself or via third parties, but only via the Seller. He further is committed to make all negotiations with regard to price and any other conclusion via the Seller. Otherwise, the addressee of quotation will compensate the Seller for the loss of profit in full height of the difference between the evidenced purchase price and price of the quotation.
III. Obligation of Delivery
1.The Sellers written order confirmation is binding with regard to the scope of delivery.
2.The obligation to deliver the sold machine will be cancelled without replacement, if the machine has been sold twice by mistake or if the machine has been demolished or damaged to an extent that a delivery cannot be considered any longer. The before mentioned exclusion of liability does not apply in case of gross negligence. In this case the burden of evidence is to be made by the Buyer.
IV. Prices, Payment Terms
1.All prices to be understood ex Sellers stock or other present location. Value added taxes are to be charged additionally.
2.The payment of the full purchase price is effective at the latest when the goods are ready for dispatch net cash, if not expressly agreed otherwise.
3.Delayed payments will involve interest payable on arrears, amounting to 9 per cent above the rate of the actual 3-month EURIBOR displayed by the National bank of Austria.
4.Upon non-compliance with the conditions of payment or if circumstances become known to Seller after conclusion of the contract, which reduce the credit rating of the Buyer with regard to bank aspects, all claims will become due after previous reminder and without considering the currency terms of the accepted drafts. In such case the Seller is authorised to carry out still outstanding deliveries and services only against advance payment or guarantees or after a reasonable period of time to withdraw from the contract.
5.Retaining of payments or balancing of accounts against claims of the Buyer being denied by the Seller, are not permitted.
V. Delivery Time
1.The delivery time is fulfilled when, upon its expiry, the object of sale has left the Sellers stock or the Buyer has been notified of its being ready for dispatch.
2.Unforeseen events which may occur out of the Sellers influence may prolong the delivery period by a reasonable extent. This also applies if such events do occur during an already existing delay.
3.In case of delay, caused by the Seller, which involves a loss to the Buyer, especially if a fixed delivery date has been agreed, authorises the Buyer to claim an indemnification, however at the same time this will exclude any further claims. Such indemnification amounts to ½ percent for each full week of exceeding the agreed delivery date plus 14 days of waiting period. However, the maximum of fine must not exceed 3 per cent of the partial resp. of the total order that, due to the delay, has not been supplied in time.
4.If shipment and/or acceptance of the object of sale is delayed due to circumstances caused by the Buyer, the latter will be charged after 14 days, beginning with the date of notification of shipment with any storing costs accrued with a third party for storing the goods and/or storage at Sellers place in the height of ½ per cent of invoice amount for each month. The Seller is justifiable to have the delivery object otherwise sold after granting of a fruitlessly proceeded extension and to make the Buyer liable for a profit loss thereafter.
5.The observance of the time of delivery presumes the fulfilment of all obligations of the Buyer from the purchase contract.
VI. Danger-Transition, Insurance
1.After the object of delivery is handed over to forwarding agent, freight carrier, collector or if the goods are transported via forwarder assigned by Seller, however definitely not later than upon their leaving of the Sellers stock, the risk will be borne by the Buyer. Upon the Buyers request and at his cost the Seller will insure the goods against transport risks.
2.If, due to circumstances which the Seller has not to account for, the shipment is delayed, all risks are transferred to the Buyer beginning with the date of their being ready for dispatch. Upon the Buyers request the Seller will insure the goods against damage risks. These costs are charged to the Buyer.
3.Partial shipments are permitted.
VII. Reservation of Proprietary Rights, Securities
1.The Seller reserves the property right for all objects of supply until entire payment of all claims arising from business relations with the Buyer have been received by the Seller. Upon current invoice, the entire reserved goods will serve as security to claim balances. In case the value of existing securities for Seller exceed the claims to the Buyer by more than 25 per cent of the reserved goods the Buyer is obliged upon the request of Seller to release additional securities.
2.The Buyer is not allowed to either pledge or assign the object of delivery as security. In case of execution, confiscation or other disposals by third parties, he has to inform the Seller immediately. In case of the Buyers contrary behaviour to the sales agreement, especially upon delay in payment, the Seller is authorised to take back the goods, prior to a reminder and the Buyer is obliged to release the same.
3.Claiming of property reserve as well as distress of the object of delivery by the Supplier are not to be regarded as withdrawal from the contract as far as the law of instalment payment is not applied.
4.The Seller is authorised to insure the object of supply against fire, water and other damages, at the Buyer´s cost, provided the latter cannot provide such insurance by himself.
VIII. Warrantee, Liability Limitation
1.The warrantee period is valid for new machinery or products with industrial and/or job related utilization for a maximum of 12 months.
2.Second-hand machinery and equipment are sold in the present condition. Supplementary equipment is supplied only as far as available. All claims of warrantee are excluded. The Buyer has the right to inspect and/or to test the goods before contract conclusion or delivery. Any liability for open and hidden damages is impossible, if the machine has not been inspected by the buyer prior to shipment, except the Seller did not inform the Buyer in case of known damages or roughly careless. If the Seller makes repairs or later supplies within the warrantee period, this will not cause a new beginning of the warrantee period. For defects on parts which are subject to wear, for example gears, bushings, screws, barrels, etc., no warrantee will be granted. Welded and bolted machinery is considered to be free of crack and fracture.
3.The Seller cannot be held responsible for consequential damages regardless for which legal reason and no matter of which nature. All Buyers claims beyond the elimination of damages, especially for goods which are not part of the delivery, will not be accepted by the Seller. Furthermore the Seller cannot be held responsible for any loss in profit or any other consequential damages.
4.Damages caused by outer influence, improper installation and treatment, wrong service or maintenance, corrosion or normal wear are excluded from any warrantee. In this context especially the guarantee does not include any damage on parts caused by abrasive wear. Wear parts are all turning parts, all drive parts, tools and especially screws and barrels (for example on the extruder). With the sale of a machine it is assumed that the machine is used in a one-shift running operation.
5.The Buyer is obliged to inspect the delivered goods properly on his own expenses and immediately after receipt and he will inform the Seller about possible damages, wrong deliveries or less quantities in writing. A period of seven days for announcing any deviation is agreed between the Seller and the Buyer. Hidden damages are to be announced to the Seller after discovery in writing instantaneously.
6.If the Buyer finds a defect he is not permitted to change the delivery object, to work on it by himself or give it to third parties for repair without informing the Seller and giving him the opportunity and time to inspect the defect and if necessary to arrange the required repair (repair work or delivery of spare parts). Otherwise all warrantee claims will expire immediately.
7.In case the Buyer has assigned the Seller to carry out the transport any transport damages must be reported to the Seller immediately. The Buyer has to carry out all necessary formalities with the carrier especially to meet all obligations against third parties.
8.If complains are justified and approved by the Seller a rework of faulty goods or delivery of spare parts may take place. Multiple reworks and deliveries are allowed.
IX. Place of Fulfilment, Jurisdiction, Applicable Law
1.The head office of the seller to be the place of performance and payment even when handing over of the delivery was accomplished at another place.
2.If no arbitration court was agreed upon between the contractual partners, all disputes arising from this contract shall be referred to and settled by the materially competent court at the place of the head office of the Seller.
3.Austrian law shall apply if the goods are exported. The Buyer declares by placing the order to understand the legal terms used in these delivery conditions in the way they are understood according to Austrian law. Austrian law applies without reference to its international private law and without referring to other foreign laws or referring back to itself. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
X. Legal Validity, Data Protection
1.If one of the previous provisions violates compelling laws and would hence become invalid when applied, it is agreed that in such a case an admissible regulation shall be applied which comes nearest to the sense of this condition instead of the clause possibly subject to nullification.
2.Possible alterations or supplements of the contract require the effectiveness of the written confirmation by the Seller.
3.The Seller is authorized to process and to store the received data from the Buyer connected to the business relationship, even if these come from third parties in the sense of the data protection law of Austria.
4.This English version is a translation, the German original text is authentic.