Therms of Delivery
Unless otherwise agreed in writing, these General Terms of Delivery (“Terms”) shall exclusively govern all sales and deliveries made by Kilobaser GmbH.
Any deviationfrom these Terms is only valid and binding, if it is expressly agreed in writing by Kilobaser GmbH. Buyer’s general terms of purchase or any similar unilateral terms of Buyer do not become part of the contract, even if they are referred to or contained in an order accepted by Kilobaser GmbH.
2 Conclusion of contract
Kilobaser GmbH’s quotations are estimates without legal implications. No rights can be derived from statements or pictures appearing in catalogues, websites, folders, promotional literature and the like. Oral statements are binding only if confirmed by Kilobaser GmbH in writing.
When the Buyer wishes to place an order for Kilobaser GmbH’s products, it shall submit an order form to Kilobaser GmbH. Such order shall be treated as an offer by the Buyer to contract with Kilobaser GmbH, but shall not be binding on Kilobaser GmbH until accepted in accordance with clause 2.3.
If Kilobaser GmbH, at its discretion, accepts the Buyer’s order, it shall issue an order confirmation to the Buyer. The contract is concluded upon the issuance of such order confirmation or conclusively (by means of Kilobaser GmbH’s performance). Oral or written statements shall only be binding, if expressly confirmed in the order confirmation.
Amendments of or additions to the contract require Kilobaser GmbH’s written consent. Orders, order confirmations as well as amendments to them and other written confirmations are also valid if submitted electronically.
Prices only cover the products and/or services, including standard packaging, and are calculated EXW Kilobaser GmbH(Incoterms 2010), excluding freight, insurance, value added tax or any other applicable sales tax, customs, import or other duties levied in respect ofdelivery, unloading and subsequent handling, maintenance and pre-or after sales services.
If applicable according to the agreed delivery term(Incoterms 2010), these costs, expenses and charges will be invoiced to Buyer separately. Packaging materials will be taken back only by express agreement and in any case, at the Buyer’s risk and cost.
Prices are based on the time of the first quotation. In the event that the costs have increased by the time of delivery or if the order placed is not in accordance with the quotation, Kilobaser GmbH reserves the right to adjust prices accordingly.
Unless agreed otherwise, the Buyer shall effect a 50% pre-payment to Kilobaser GmbH before shipping of the order and within 14 days from the date of the order and 50% payment within 30 days after delivery. Payments shall be made in Euro by bank transfer to one of Kilobaser GmbH’s bank accounts free of charges for Kilobaser GmbH.
If the Buyer fails to make any payment to Kilobaser GmbH by the due date, Kilobaser GmbH may without prejudice to its other rights a)charge interest on the overdue amount at the rate of 1.25% per month in case the order was already delivered to the customer, such interest accruing on a daily basis from the due date until the date of actual payment of the overdue amount;and/or b) suspend performance of its obligations, without any liability to the Buyer for such delay, until full payment has been made;and/or c) claim compensation from the Buyer for all costs and expenses arising from the delay in payment prior to legal action.
Title to the products will pass to the Buyer upon the date of delivery, provided all outstanding sums owed by the Buyer to Kilobaser GmbH have been fully paid by then; otherwise title is retained by Kilobaser GmbH until all due sums are fully paid. In case of a resale of a product for which Kilobaser GmbH retains title, the Buyer assigns his claim out the resale, to Kilobaser GmbH to secure Kilobaser GmbH’s rights,even if the product is processed, transformed or combined with other commodities.
The Buyer may not withhold or retain payments or other obligations or offset them against any amount due to Kilobaser GmbH.
Unless agreed otherwise, the products will be provided EXW Kilobaser GmbH (Incoterms 2010) and risk of loss of the products will pass to the Buyer upon such delivery point, whether or not the shipment is effected, organized or supervised by Buyer or Kilobaser GmbH and regardless of any installation or assembly work to be performed by Kilobaser GmbH after the delivery of the products. 5.2.
Delivery or performance dates in relation to the supply of products are approximate only. Unless otherwise expressly stated by Kilobaser GmbH, time is not of the essence for delivery of the products and Kilobaser GmbH will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
The actual delivery time will depend on the fulfillment of the preliminary conditions and shall start at the latest of the following dates: a) the date of order confirmation by Kilobaser GmbH; b) the date of fulfillment by Buyer of all the conditions, technical, commercial and other, for which he is responsible; c) the date of receipt by Kilobaser GmbH of a deposit or security due before delivery of the goods in question.
Buyer shall obtain whatever licenses or approvals may be required from authorities or third parties for the construction of plant and equipment. If the granting of such licenses or approvals is delayed for any reason,the delivery period shall be extended accordingly.
Kilobaser GmbH may carry out, and charge Buyer for, partial or advance deliveries. If delivery on call is agreed upon, the commodity shall be deemed called off at the latest one year after the order was placed.
Kilobaser GmbH shall not be in breach of a contract nor liable for any failure or delay in performance of any of its obligations and the delivery time shall be extended accordingly in case of unforeseeable circumstances or circumstances beyond the parties’control, which impede compliance with the agreed delivery time, including but not limited to fire, flood, earthquake, windstorm or other natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; labor disputes; voluntary or mandatory compliancewith any law; accidental damage; loss at sea; adverse weather conditions; shortage of raw materials; loss of major suppliers; interruption or failure of utility service, including but not limited to electric power, gas or water, delays in transport or customs clearance, damages in transit; regardless if they affect Kilobaser GmbH or any of its subcontractors.
For the period of twelve months from the delivery, Kilobaser GmbH warrants that the delivered products a) conform to the specifications provided by Kilobaser GmbH; and b) are free from latent or patent defects in material or workmanship that impede the specified use of the products.
If a product is found to be defective during the warranty period, Kilobaser GmbH shall remedy such deficiency, at its option and its cost, by the repair or replacement of the defective product at the Buyer’s or Kilobaser GmbH’s premises or an adequate reduction in price. The warranty period for the repaired or replaced product shall run for the remainder of the initial warranty period. Replaced parts shall become the property of Kilobaser GmbH.
This warranty shall be in lieu of all statutory warranty provisions. All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for a specific purpose (whether statutory or otherwise) other than those expressly set out in these Terms are excluded to the fullest extent permitted by law.
Kilobaser GmbH shall not be liable for a defect in the products and/or services unless the defect is notified to Kilobaser GmbH within 10 days from the date of delivery, or if the defect would not be apparent on reasonable inspection, within the long stop warranty period of twelve months from the date of the delivery.
If a productis manufactured by Kilobaser GmbH on the basis of design data, design drawings, models or other specifications providedby the Buyer, Kilobaser GmbH’s warranty obligation is limited to the compliance with the Buyer’s specifications and does in no event extent to material supplied by the Buyer. 6.6.
Kilobaser GmbH accepts no warranty for the sale of used goods.
Unless expressly agreed otherwise, the Buyer may only cancel a contract for the purchase of products, if the delivery of the products has been delayed due to Kilobaser GmbH’s gross culpability and the reasonable grace period set by the Buyer has expired. The cancellation shall be submitted by registered mail only. All rendered deliveries,performed Servicesand preparationacts will be invoiced to the Buyer accordingly.
Irrespective of its other rights, Kilobaser GmbH may cancel, in whole or in part, a contract for the purchase of products or Services without any liability to the Buyer, if a) the delivery of the products or performance of the Services is rendered impossible or delayed despite setting a reasonable grace period due to reasons attributable to the Buyer; b) concerns about the Buyer’s solvency emerge and the Buyer, upon Kilobaser GmbH’s request, does not make an advance payment or post an adequate bond prior to delivery,c) the Buyer is or becomes insolvent, or d) the delivery is delayed due to reasons set out in clause 5.6 for more than six months. 7.3. Other consequences of the cancellation are excluded.
8 Service, maintenance and repair
These Terms apply subject to its adaptation to all orders for the performance of service, maintenance and repair(“Services”), unless otherwise stated herein.
The Buyer shall, at Kilobaser GmbH’s discretion, make available the products at its premises or return them to Kilobaser GmbH’s premises at Buyer’s cost and risk for performance of the Services.
Kilobaser GmbH will, upon request and at Buyer’s cost, provide a quotation for the estimated costs of the Services subject to clause 2.1.
If, while carrying out service orders, Kilobaser GmbH finds the products to be in improper condition, Kilobaser GmbH may perform all services Kilobaser GmbH deems required to restore and/or maintain the proper condition of the products in question without having to obtain the Buyer’s prior consent. All Services performed will be invoiced to the Buyer at cost according to the current tariffs, unless such Services are covered by Kilobaser GmbH’s warranty obligations according to clause 6.
The place of performance shall be the place at which the Service is rendered. Risk in respect of Services passes to the Buyer upon performance of the Services.
9 Limitation of liability
Outside the scope of the Product Liability Act, Kilobaser GmbH shall be liable only if the damage in question is proved to be due to intentional acts or acts of gross negligence, within the limits of statutory provisions. Kilobaser GmbH shall not be liable for damage due to acts of ordinary negligence.
Kilobaser GmbH shall not be liable forand disclaims all warranty obligations forany damages or losses arising from the Buyer’s (or any third party’s) subsequent use or misuse of the products and/or services including, without limitation a)fair wear and tear; b) abnormal working or operating conditions beyond those referred to in the productspecification, including atmospheric discharges, excess voltage and chemical influences; c) the Buyer’s (or any end user’s) negligence or willful misconduct, or that of its agents or employees, or any failure to follow Kilobaser GmbH’s instructions as to use of the products; d) assembly, installation, modification, alteration,service or repair work not undertaken by Kilobaser GmbH or a representative authorized by Kilobaser GmbH in writing; and e) compliance or non-compliance with licensing requirements.
Kilobaser GmbH’s liability for any and all claims, whether based on contract, tort, statute, indemnity or otherwise, arising out of or in connection with this agreement are limited in their aggregate total to the value of the respective order. Any claims exceeding this limitation of liability are expressly excluded.
In no event shall Kilobaser GmbH be liable to the Buyer for (i)any indirect, special, consequential, incidental or punitive loss or damage; or (ii)loss of data or other equipment or property; or (iii)economic loss or damage; or (iv)incurring of liability for loss or damage of any nature whatsoever suffered by third parties, including in each case incidental and punitive damages; or (v)any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill in connection with or arising out of an order.
Subject to the preceding subparagraphs of this section 9 and the limitations of liability set out herein, any and all claims that may arise out of or in connection with an order shall, to the extent legally possible, be dealt with in accordance with the respective liability insurance coverage policy of the parties.
10 Statute of limitations
10.1. The Buyer’s right to redress for all claims against Kilobaser GmbH arising out of the Buyer’s warranty obligations to a customer further to a resale of the products is excluded. Where the exclusion of the redress is prohibited by mandatorily applicable law, the right to redress is limited by the warranty period provided under clause 6.1. 10.2. All other claims must be brought before the competent courts by the Buyer within one years from the delivery, except in cases statutory law provides for a shorter period of limitation.
11 Intellectual property rights
No rights in relation to Kilobaser GmbH’s existing or future intellectual property rights (which include copyright, database rights, topography rights, design rights, trade marks, patents, domain names and any other intellectual property rights of a similar nature, whether or not registered, subsisting anywhere in the world in or associated with its products) are granted or conferred to the Buyer.
The Buyer shall indemnify and hold harmless Kilobaser GmbH from any claims, damages or losses arising out of or in connection with any infringement of industrial property rights of any design data, design drawings, models or other specifications provided by the Buyer.
12 Export control regulations
The Buyer acknowledges and agrees that any delivery made by Kilobaser GmbHis subject to and the Buyer is obliged to comply with all applicable export control regulations.
The Buyer may not resell, (re)export or otherwise transfer any products of Kilobaser GmbH in violation of applicable export control regulations and shall beliable to and keep indemnified and hold harmless Kilobaser GmbH from any claim arising out of the breach of this provision.
The Buyer agrees to comply with all applicable laws, statutes, regulations, codes and other legal requirements, including without limitation, health, safety, security and environment, anti-corruption and anti-bribery.
14 Applicable law and jurisdiction
The contract is subject to Austrian law excluding its conflict of laws provisions. The application of the UN Convention on Contracts for the International Sale of Goods is renounced.
All disputes arising out of or in connection with the present contract shall be exclusively brought before the competent courts in Graz, Austria.
If a provision of these Terms is or becomes ineffective, invalid or unenforceable, the other provisions of these Terms shall remain unaffected. The ineffective, invalid or unenforceable provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the commercial intention of the invalid, illegal or unenforceable term or provision.
The Buyer shall keep in strict confidence all information, including quotations, tender documents and the like,obtained in the course of its relationship with Kilobaser GmbH and shall immediately return any information to Kilobaser GmbH upon request or in case the Buyer does not place the respective order with Kilobaser GmbH.
The Buyer may not assign its rights and obligations arising out of or in connection with an order to any third party without Kilobaser GmbH’s prior written consent.