::: General Terms :::
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General Terms of Delivery
of the Association of Austrian Machinery and Steel Construction Industries Of 1st March, 1963, as amended up to 1st May, 1994 (Drafted with reference to the General Conditions of Contract, Document No. 188 A and 730 published and recommended by the United Nations Economic Commission for Europe) These General Terms of Delivery are basically drafted for legal transactions between commercial enterprices.
 

Should these Terms of Delivery exceptionally serve as a basis, for legal transactions with consumers under the provisions of Section 1, Paragraph 1, lit. 2, Consumer Protection Act, Federal Law Gazette 49/1979, they only shall prevail insofar as they are not contradictory to the provisions of the first part of the said Act.
 
1 Preamble
1.1 These general terms shall apply, save as varied by
express agreement accepted in writing by both
parties.
1.2 The following provisions concerning the delivery of
goods shall also apply correspondingly to the
performance of services.
1.3 For erection and assembly work the pertinenr special
terms of the Association of Austrian Machinery and
Steel Construction Industries shall be applicable in
supplement of these general conditions.
2 Conclusion of Contract
2.1 The contract shall be deemed to have been entered
into when, upon receipt of the order, the vendor has
mailed his acknowledgment of such order.
2.2 To be valid any changes in the contract and
supplements there to require the acknowledgment of
the vendor in writing. Any purchasing conditions
stipulated by the purchaser shall only be binding on
the vendor if they have been specifically
acknowledged by the latter.
2.3 Offers made by the vendor are subject to
confirmation. The offers are made subject to prior
sale.
2.4 In the event of import licences, export licences,
foreign exchange authorizations or the like being
required for the implementation of the contract, the
party responsible for the procurement of the supplies
shall undertake all reasonable steps in order to abtain
the requisite licences and authorizations in due time.
3 Drawing and Descriptive Literature
3.1 Data concerning weights, measures, capacities,
prices, performance ratings and the like found in
catalogues, leaflets, circulars, advertisements,
illustrated, price lists etc. Shall be binding only when
they are expressly referred to in the acknowledgment
of the order.
3.2 Drawings, sketches and other technical documents, as
well as samples, catalogues, leaflets, illustrations and
the like always remain the intellectual property of the
vendor, i.e. they must not be reproduced, distributed,
published or used for the purpose of demonstrations
without the express consent of their owner.
4 Packing
4.1 Unless otherwise specified
a) prices quoted shall be deemed to apply to
unpacked goods;
b) goods will be packed in the customary manner in
such a way as to prevent their being damaged
under normal transport conditions until they
reach the destination stated in the contract, such
packing to be charged to the purchaser, with
packing materials taken back only by prior
mutual agreement.
5 Passing of Risk
5.1 In the cases listed below, the moment at which the
risk passes shall be determined as follows.
a) On a sale „ex works“ the risk shall pass from the
vendor to the purchaser when the goods have been
placed at the disposal of the latter. The vendor
shall advise the purchaser of the date from which
the goods will be at the latter`s disposal. Notice to
this effect must be given in due time so as to enable
the purchaser to take the necessary steps
customarily required for the purpose of taking
delivery.
b) On a sale „ex wagon, lorry, barge“ (agreed point of
departure), „frontier“ or „place of destination“, or
on a sale „carriage paid up to ...“ („free ...“), the
risk shall pass from the vendor to the purchaser at
the moment at which the means of transport loaded
with the goods in question is taken over by the first
carrier.
c) On a sale „F.O.B.“ or „C.I.F.“ or „C. & F.“, the
risk shall pass from the vendor to the purchaser
when the goods have effectively passed the
ship`s rail at the agreed port of shipment.
5.2 Unless otherwise stipulated, the goods shall be
considered as sold „ex works“.
5.3 The vendor shall be obligated to arrange for
insurance coverage of the goods only if and in so far
as this has been agreed upon in writing.
5.4 As for the rest, the INCOTERMS as amended up to
the day of the conclusion of the contract shall apply.
6 Delivery
6.1 Unless otherwise agreed, the delivery period shall run
from the latest of the following dates:
a) date of the acknowledegment of the order;
b) date on which all technical, commercial and
finacial obligations incumbent on the purchaser
have been met;
c) date of receipt by the vendor of such payment in
advance of delivery as is stipulated in the
contract and/or at which a stipulated letter of
credits is opened.
6.2 The vendor is entitled to make partial- and advance
deliveries.
6.3 Should a delay in delivery be caused by the vendor as
a result of any of the circumstances mentioned in
Clause 11 as constituting a ground for relief, a
reasonable extension of the delivery period shall be
granted.
6.4 Should the vendor be responsible for any delay in
delivery, the purcaser shall be entitled to demand
either specific performance or, after having granted
the vendor a reasonable period of time to meet his
obligations, to withdraw from the contract. In fixing a
period of grace allowance has to be made for the fact
that in the case of special fabrications the vendor may
not be able to find any alternative use for components
which have already been partly completed.
6.5 Should the vendor culpably fail to deliver the goods
within the period of grace provided for in Clause 6.4,
the purchaser shall be entitled to terminate the
contract by the simple act of sending a written notice
to that effect to the vendor, both in respect of all
goods undelivered and in respect of goods which,
though delivered, cannot be properly used without the
underlivered goods. In such cases the purchaser is
entitled to recovery of any payments he has made
both in respect of all goods undelivered and in respect
of goods which by themselves cannot be used
appropriately and, in so far as the delay in delivering
the goods may be due to the gross negligence of the
vendor, to the recovery of the expenses incurred by
him up to the termination of the contract and in the
performance of the later inasmuch as there is no
futher use for them. Goods already delivered and
goods that cannot be used must be returned by the
purchaser to the vendor.
6.6 Any claims of the purchaser against the vendor with
respect to the latter`s default, other than those
mentioned in Clause 6, are precluded.
6.7 Where the purchaser does not take delivery of the
goods at the place and time provided for by the
contract for any reason other than an act of
commission or omission of the vendor, the latter shall
be entitled to either claim specific performance or,
after granting a reasonable period of time for taking
delivery, to withdraw from the contract.
On appropriation of the goods to the contract, the
vendor shall arrange for their furthermore – to the
exclusion of any other claims against the purchaser
for the latter`s failure to take delivery of the goods –
to recover any expenses properly incurred in the
performance of the contract and which are not
covered by payment received.
7 Prices
7.1 Unless otherwise agreed upon, prices are to be
understood as „ex works“ of the vendor, not
including packing and loading charges. If delivery to
the consignee has been agreed upon, the prices shall
not include unloading and handling charges.
7.2 Prices are based on the costs at the time the quotation
is made. Should there be any changes as regards
costs prior to the time of delivery, the differences are
not be charged to the debit or credit of the purchaser,
as the case may be.
7.3 Where the prices are not fixed in the contract, current
selling prices as prevailing on the day of delivery
shall be charged.
8 Payment
8.1 Payment shall be made in the manner and at the time
or times agreed by the parties. Unless different times
of payment have been expressly agreed upon by the
written acknowledgment of the vendor in his
acceptance of the order, one half of the purchaser
price shall be payable on receipt of the
acknowledgment of the order, with the balance due
on receiving nitce that the goods are ready for
shipment.

8.2 The purchaser is not entitled to withhold payment
because of claims of warranty or other counterclaims
not recognized by the vendor as valid.
8.3 If th purchaser falls in arrears in making the agreed
payments or delays in meeting any other contract and
a) postpone meeting his own obligations until such
payment is made and other commitments
fulfilled,
b) demand a reasonable extension of the delivery
period,
c) fix a due date for payment of he entire balance of
the selling price still outstanding,
d) in so far as the purchaser is not able to claim any
grounds of release as provided for in Clause 11,
recover interest on arrears at the rate of 7,5%
over and above the bank rate charged from the
time fixed for payment.
Or, after granting a reasonable period of grace,
terminate the contract.
8.4 Should the purchaser – after the period of grace
specified in Cause 8.3 – fail to make payment or to
meet any other obligation, the vendor shall be
entitled to terminate the contract by given notice in
writing. On being asked to do so by the vendor, the
purchaser must return to the vendor any goods that
have already been delivered and reimburse the latter
for the depreciation of the goodsin addition to
defraying all expenses properly incurred by the
vendor in the performance of the contract. As regards
goods which have not yet been delivered, the vendor
shall be entitled to place the finished or unfinished
parts, as the case may be, at the disposal of the
purchaser and debit the purchaser`s account with the
correponding share of the selling price.
8.5 The vendor retains legal title to the goods until such
time as the purchaser shall have completely
discharged all his financial obligations. The purchaser
is obligated to comply with all required formalities
conducive to ensuring the retention of title by the
vendor. In case of attachment, seizure or other
distraint, the purchaser is under obligation to file the
vendor`s retention of title to ownership of the good
and to notify him of ssame without delay.
8.6 Claims of the vendor against the purchaser, other than
those mentioned in Clause 8, arising from the latter`s
default are not admissible.
9 Guarantee
9.1 Subject as herein after set out, the vendor undertakes
to remedy any defect resulting from design, materials
or workmanship.
9.2 This liability is limited to defects which appear
during a period of six months in single-shift operation
or three months in multiple-shift operation
(„Guarantee Period“), commencing from the passing
of risk or, in the case of delivery that includes
installation, from the time of completion of erection
and assembly work.
9.3 The purchaser can only avail himself of his rights
under this Clause if he notifies the vendor in writing
and without delay of any defects that have become
apparent. On receipt of such notification, the vendor
– if the defect is one which, under the provisions of
this Clause, is to be remedied by him – shall at his
own option:
a) repair the defective goods in situ or
b) have the defective goods or parts returned to him
for repair; or
c) replace the defective goods; or
d) replace the defective parts.
The repair of any defects does not result in an
extension of the guarantee period.
9.4 Where the vendor has defective goods or parts
returned to him for replacement or repair, the
purchaser shall, unless otherwise agreed, bear the cost
and risk of carriage. Unless otherwise agreed, the
return to the purchaser of goods or parts sent by way
of replacement or of repaired goods or parts shall take
place at the cost and risk of the vendor.
9.5 Defective goods or parts replaced in accordance with
the provisions of this Clause shall be placed at the
disposal of the vebdor.
9.6 The vendor shall not be under any obligation to
defray the cost of repairs carried out by the purchaser
himself or undertaken by him unless the vendor has
consented to do so in writing.
9.7 The guarantee obligation of the vendor shall apply
only to defects that become manifest under operating
conditions as stipulated in the contract and in the
course of normal use. In particular his guarantee
obligation does not extend to defects arising from
faulty installation carried out by the purchaser or the
latter`s agent, poor maintenance, faulty repairs of
alterations, or thos made without the written consent
of the vendor by persons other thanthe vendor or his
agent, nor is he liable for normal deterioration.
9.8 For those parts of the goods which he himself has
obtained fromm subsuppliers, the vendor shall only
be liable to the extent of the guarantees granted him
by the sub-suppliers.
Where goods are made to order by the vendor in
accordance with design- and construction
specifications, drawings or models supplied by the
purchaser, the liability of the vendor does not extend
to the correctness of the design but to its execution in
accordance with the instructions of the purchaser. In
such cases the purchaser is fully responsible to the
vendor for all damages or claims that may result from
any infringement of patent rights.
The vendor assumes no warranty liability in
accepting repair orders or orders for alterations and
modifications of goods that are not new or have not
been manufactured by the vendor.
9.9 From the commencement of the guarantee period the
vendor assumes no further liabiltiy, save as provided
for in this Clause, nor shall he be liable even in
respect of defects due to causes existing prior to the
passing of the risk.
10 Liability
10.1 It is expressly agreed that the purchaser shall have no
claims on the vendor in respect of persomal injury or
of damage to goods that are not subject of the
contract, for any other damage and for loss of profit,
unless it is evident from the circumstances of the case
that the vendor has been guilty of gross misconduct.
10.2 The article bought shall provide only that degree of
safety that can be derived from licensing
requirements, operating instructions, vendor`s
recommendations for proper treatment of the article,
especially with regard to obligatory checks, and from
other information or restrictions.
10.3 In the case of the agent`s ordinary negligence
damages shall be limited to a maximum amount of
€ 7.267,3 for an amount of order of € 145.346,- and
up to 5 % of the amount of order in the case of an
amount of order exceeding € 145.346,- , but shall be
limited to a total amount of € 363.365,-
10.4 Any claim for damages resulting from defects in
delivery and/or services have to be judically asserted
within one year after expiry of the guarantee period
according to the contract, otherwise claims shall be
precluded, if the defect has not expressly been
acknowledged by the agent.
11 Reliefs
11.1 The following shall be deemed grounds of relief if
they intervene after the formation of the contract and
impede its performance:
Industrial disputes and all other circumstances that
are beyond the control of the parties, e.g. fire,
mobilization, requisition, embargo, currency
restrictions, insurrection, general shortage of
materials and restrictions in the use of power.
11.2 The effects of the said circumstances with respect to
the obligations of the contracting parties are defined
in Clause 6 and 8.
12 Jurisdiction, Law Applicable, Place of
Performance
12.1 Disputes arising out or in connection with the
contract shall be under the jurisdiction of the Austrian
court of law having original jurisdiction over the
headquarters of the vendor.
The vendor may also appeal, however, to another
court of law having jurisdiction over the purchaser.
12.2 The parties can also agree aas to the competency of a
court of arbitration.
12.3 The contract shall be governed by the law of the
vendor`s country.
12.4 Tzhe place of the vendor`s headquarters shall be
deemed to be the place of performance for purposes
of delivery and payment even when delivery is – by
mutual agreement – made at some other place.