1. Scope and validity, Conclusion
1.1. These general terms and conditions of the company SEIKO - Flowcontrol Ges.m.b.H. (herein after called SEIKO) are effective in the version from the time when the contract is concluded regarding all concluded agreements. Furthermore they are valid for all services performed by SEIKO or one of their assigned subcontractors within the bounds of this contract. They are also valid for future agreements even if not referred to specifically but known to the contractual partner because of previous business dealings.
1.2. Variations of these standard terms are only effective when agreed upon by written consent of SEIKO. Standard terms used by contractual partner are invalid.
1.3. Offers are subject to change without notice and not binding. Technical modifications as well as other changes stay within the bounds of what can be reasonably imposed on the customer and are offers made by SEIKO, whether in written or oral agreement or by telephone, which are valid from stock.
1.4. A contract will only be accomplished if SEIKO sends within the term of acceptance a written confirmation of order or delivers the ordered subject matter of contract. The confirmation of order contains all important articles of agreement. If the confirmation of order differs from the order/purchase order, the terms of the confirmation of order are valid.
1.5. The contract with business enterprises is closed with reservation in case of wrong or improper delivery (to own address) it shall not or only partially be fulfilled. The business enterprises will be informed immediately in case of non-availability or partial availability of services. Return services will be reimbursed immediately.
All prices are stated in EURO, from production/from stock, not including packaging and without VAT/turnover tax. The legal turnover tax will be additionally calculated. Subsequent modifications to the contract will result in price changes.
3. Terms of payment
3.1. Invoices of SEIKO are payable within 30 days from billing date without further reduction. As far as payment on account is demanded or partial payments are made, they have to be paid immediately. Payments are made in cash or as bank transfer free of charge for SEIKO to the account given on the invoice. Bills and cheques, even though accepted by SEIKO, are effective only with redemption and credit note from the account of SEIKO in full satisfaction of debt.
3.2. The business enterprise has no right of retention of payment. Offsets are excluded unless the named counterclaim has been determined in court or accepted by SEIKO in writing.
4. Delayed performance
If contractual partner is delayed with payment or any other service, a rate of 15% p.a. interest on arrears is stipulated. The following may also apply:
a) SEIKO may suspense the fulfillment of their own duties until delayed payment or other services are made;
b) SEIKO may exercise a reasonable extension of the period of deliver;
c) SEIKO may request the total purchase price for payment; or
d ) after stating a reasonable grace period may withdraw from the contract .
5. Terms of delivery
5.1..Delivery and dispatch are principly carried out conditional to SEIKOS’s designating a carrier, on account of and at buyer’s risk, commencing once, merchandise leaves SEIKO. Stipulated delivery dates are valid from date of the confirmation of order, in case of differences about the kind of perform-ance from the date of the final agreement. SEIKO is not liable for delays caused by unforeseeable circumstances in production, in transportation, especially not in failure or delay or circumstances caused by force majeure.
5.2. Force majeure or other unforeseeable impediments in the sphere of SEIKO or their subcontractors will discharge SEIKO from fulfillment of stipulated delivery times. Business disruption and transportation delays as well as improper delivery or delayed suppliers or subcontractors are to be considered as force majeure and release SEIKO from duty of delivery, for the time of obstruction or at SEIKO disgression even ultimately from the obligation of delivery; Customer is not eligible for requirements incurring from SEIKO ’s rescission of contract.
5.3. If no fixed-date purchase has been agreed upon, announced delivery times are to be considered as merely estimated. Reasonable and factually justified changes in service or delivery obligations made by SEIKO, especially reasonable exceedance of delivery time are stipulated in advance by customer.
6.Product liability, limitation and release of liability
6.1. The product offers safety only according to licensing requirements, operating instructions, regulations of SEIKO on the treatment of product - particularly with regard to stipulated checking through the German Technical Inspection Authority (TÜV) - and other references. As far as legally permitted, obligations to pay damages for loss of property (based on the product liability law) which the contracting party suffers as contractor as well as claims of product liability that could be transferred from other regulations, are excluded. The contractual partner is obligated to inform SEIKO on all claims of the injured party immediately and in detail.
6.2. If any defect of the product for the purpose of the product liability law is known to the contractual partner, he has to inform SEIKO immediately, stating the particulars of his purchase of the product at SEIKO (Date, delivery note, invoice number etc.). In case of resale of product, the contractual partner is obliged to assign the obligation to inform immediately about any defects and notification on claims of the injured party, towards his purchaser, and to oblige his purchaser likewise.
6.3. If the buyer is not a customer according to Dismissals Protection Law (KSchG), liability for property damages caused by a product defect will be ruled out, according to § 8 of the Product Liability Law, as well as for all business enterprises that participate in production, import and distribution. The customer is obliged, in this case, to assign the obligation of exclusion of liability to his sub-purchaser. In case of absence of such an assignment of obligation, the contractual partner is obliged to prevent any complaints or legal claims concerning all product liability claims towards business enterprises and to the product, as well as reimburse all resulting expenses.
6.4. If a claim is asserted to the contractual partner, within the scope of product liability, the contractual partner explicitly abandons recourse and recourse receivables are ruled out for the purpose of § 12 product liability law, to the exception that the party eligible for recourse is able to prove that the damage has been caused within the sphere of the supplier or was caused by gross negligence.
6.5. Outside the scope of application of the Product Liability Law, liability of SEIKO is limited to wilful act and gross negligence. SEIKO explicitly states exclusion of protection in favour of a third party, exclusion of liability for consequential and financial loss, exclusion of liability for slight negligence as well as exclusion of liability for loss out of third party claims by customers. Limitations of liability named in item 6.5. are ruled out in case of physical injury or loss of health traceable to SEIKO or loss of life of contractual partner.
6.6. When selling imported merchandise, the supplier is obliged to inform the customer on written request about the prior owner, within 14 days.
7.1. The contractual partner is obliged to carry out, and document in writing, a trial run of the product immediately after receiving it and before taking it into operation. Occurring damages have to be reported in writing within 1 week after receipt of merchandise, including the documentation, at loss of other rights. SEIKO has to be informed in writing, within a period of 1 week from discovery, about hidden defects.
7.2. SEIKO warrants business enterprises for defects that are subject to warranty, in the first instance to our own choice as improvement or replacement. Wear parts and accessories are excluded from warranty as well as repairs or modifications subsequent to unauthorised third party interferences. Complaints about quantity of products are to be lodged immediately after receipt of delivery at loss of the right to complain and other rights. To be eligible for requirements, the customer bears full burden of proof for all claims, especially for deficiency of product, for the time of ascertain-ment of damage and for the timeliness of filing a claim.
7.3. The customer has to assert in court his right to warranty for movable or unmovable property according to § 933 of ABGB (Law relating to Standard Terms and Conditions) within 1 year delivery of merchandise.
7.4. SEIKO bears the costs for proper repair of the product of the claim, not including costs incidental to cleaning or assembling of various equipments and suchlike. SEIKO is not legally liable for guarantees. Manufacturer warranties will remain unaffected.
8. Reservation of ownership
8.1. SEIKO retains title to all delivered merchandise, in spite of passage of risk, until full payment of all demands incurring from deliveries is made, the contractual partner is liable as custodian in trust .
8.2. Unless he is delayed in payment, the contractual partner is entitled to resell the delivered merchandise, though it is subject to reservation, within his proper business transaction. He assigns (in advance) all claims arising out of resale to third parties at the amount of each invoice value agreed upon by contractual partner and SEIKO. In case of processing and transference of delivered merchandise, the claim incurred replaces the merchandise and is assigned in advance for protection of demands at the amount of each stipulated invoice value. Other assignments are ruled out. The contractual partner is entitled to collect these receivables, unless he is delayed in payment.
8.3. The contractual partner is obliged to inform the next purchaser in writing about stipulated reservation of ownership. Costs emerging SEIKO from the assertion of rights belonging to the reservation of ownership are for the contractual partner’s account.
9. Final provisions
9.1. Place of fulfilment for delivery, payment and all obligations of contractual partner, as well as sole place of jurisdiction is 2000 Stockerau, Austria. Language of contract is German.
9.2. Unless otherwise agreed, the legal provisions between full merchants will be applied. All contracts concluded in consideration of these standard terms and conditions are subject to Austrian substantive law. The UN Convention (on Contracts for the international sale of goods) will not be applied.
9.3. The customer has to inform SEIKO immediately about a change of his address.9.4. The above provisions are applicable only in so far as, regarding the purchase to customers in terms of the consumer protection law, there are no mandatory provisions that have to be applied.
9.5. Invalidity of single provisions, wholly or in part, of this contract including these standard terms and conditions concluded with the purchaser, is without prejudice to the remaining provisions. Settlements wholly or in part ineffective will be replaced by a settlement whose economic success will be as close as possible to that of the ineffective settlement. (Effective: March 2005)