§ 1 Scope
(1) The following conditions shall apply exclusively to purchases made by Hödlmayr International AG and its subsidiaries (hereinafter referred to as HÖDLMAYR). Changes can only be agreed in writing.
(2) The current Terms and Conditions of Purchase of HÖDLMAYR are available at www.hoedlmayr.com . Upon special request, these are also sent in paper form.
(3) By accepting an order, these Terms and Conditions of Purchase become part of the contract and take precedence over the terms and conditions of delivery of the Contractor (hereinafter referred to as the Contractor). Any conditions of the seller are hereby expressly contradicted.
§ 2 Offer, order and order confirmation
(1) Offers are to be submitted twice, for HÖDLMAYR without obligation and free of charge. The Contractor shall adhere to the request or to the invitation to tender in terms of quantity, quality and execution and shall expressly refer to this in the event of a deviation. He is bound to his offer for 3 months.
(2) In order to be binding, the order must be in writing. Oral agreements are valid if they are confirmed by HÖDLMAYR in writing.
(3) Orders must be confirmed by the Contractor immediately in writing. HÖDLMAYR reserves the right to withdraw the order if the confirmation is not received within 14 days.
§ 3 Prices
(1) The prices mentioned in the order or in a quotation are considered as maximum prices, which have to be adjusted in case of changes in favor of HÖDLMAYR. If the price of the ordered deliveries or services falls between the offer and the time of delivery or service, this price reduction shall be passed on to HÖDLMAYR in full. The obligation to reduce prices applies in particular to changes in list prices and price changes due to changes in currency parities. Customs, taxes, legal fees and transport costs, packaging, insurance or other costs which are not mentioned in the offer and in the order shall be charged to the Contractor. Prices do not include VAT.
(2) The Contractor undertakes to bear the costs for the disposal of the packaging, to give the ARAN number or to take back the packaging free of charge from the delivery address.
(3) All product presentations, test sets and test runs - even before the conclusion of the contract - are free of charge for HÖDLMA YR.
(4) Unless otherwise agreed in writing, delivery shall be free of charge.
§ 4 Payment terms
(1) For each order, an invoice must be sent separately to the delivery address after complete orderly delivery or fulfillment and acceptance, specifying the HÖDLMAYR order number. The invoice shall include the full names of the purchase order lines, the quantity and the price of each line. Incomplete invoices or delivery bills that have not been submitted or are deficient in content will not be accepted and will not trigger a due date.
(2) The invoice must be issued in the currency of the order.
(3) Invoices concerning work time benefits or assembly work require a confirmed and countersigned time sheet, otherwise the invoice is incomplete. The names on the evidence shall be enclosed in plain text and the date.
(4) Unless otherwise agreed, payments shall be made only after complete fulfillment free of defects 20 days after receipt of invoice with 4% discount, 30 days after receipt of invoice with 3% discount, 60 days net. Deliveries or services will be paid for exclusively in euros as of January 1, 2002.
(5) The mere acceptance (orally or in writing) of deliveries or services, or payments made, do not effect an acceptance or any waiver of rights.
§ 5 Delivery dates
(1) The delivery time stated in the order is binding. If delivery takes place before the agreed delivery date, HÖDLMAYR reserves the right to return the goods at the expense and risk of the supplier. If no return is made in the event of premature delivery, the goods shall be stored at HÖDLMAYR at the supplier’s expense and risk.
(2) The supplier is obliged to inform HÖDLMAYR immediately in writing if circumstances arise or become apparent to HÖDLMAYR, which result in the fact that the agreed delivery time cannot be met.
(3) If HÖDLMAYR is in default of acceptance or debtor, the claim for compensation due to the supplier is limited to 0.2% of the delivery value per completed week, as far as the delay is not based on intent or gross negligence.
§ 6 Delay in delivery
(1) HÖDLMAYR is entitled, irrespective of the Contractor’s fault and irrespective of proof of actual damage, to charge a penalty in the amount of 0.5% per calendar day or part thereof of delay in delivery or performance, but not more than 10% of the total order amount.
(2) The penalty shall be calculated from the order value of the part delivered late, provided that the part delivered on time is economically viable in isolation and can be used. The Contractor shall provide proof of this.
(3) HÖDLMAYR reserves the right to claim compensation for damages exceeding the fees, even in the event of fulfillment. In the event of a delay in delivery or a part thereof, HÖDLMAYR shall be entitled to withdraw from the contract or parts thereof after a reasonable set of grace periods.
§ 7 Acceptance, retention of title
(1) In the case of services, the risk passes with the acceptance. Acceptance shall be effected only upon signature of the acceptance protocol by the persons named in the order. The names on the acceptance report shall be attached in clear text together with the date. The acceptance report must be sent to the address stated in the order (to the fax number). An order represents a total service, defects of a part entitle HÖDLMAYR to refuse the acceptance of the entire order. Unless expressly used goods are required in the order, the Contractor guaranties to deliver only factory-new products.
(2) The ownership of the service object is transferred to HÖDLMAYR. A retention of title by the Contractor shall be void. Upon handover, HÖDLMAYR may use, pledge, transfer, sell, install and/or process the service item for safety.
§ 8 Defective delivery, warranty
(1) If values for delivery quantity, dimensions, weights and quality were determined by HÖDLMAYR during the acceptance test, these shall be decisive unless the Contractor proves them to be incorrect. A later assertion of defects is not excluded by the acceptance test.
(2) By way of derogation from § 933 ABGB, the contractual partners agree that defects can be asserted not only in court but also in writing to the Contractor. The warranty claims asserted in writing within the warranty period can thus be asserted in court even after expiry of the warranty period.
(3) § 377 ff HGB are not applicable. HÖDLMAYR is therefore not subject to any obligation to inspect and give notice of defects. The defectiveness of the delivered goods can also be asserted despite their longer use or after their processing. Warranty claims shall be deemed to have been made in due time if HÖDLMAYR has sent a written notification of the defect within the warranty period. The written assertion of defects shall suspend the warranty period until such defects have been fully remedied and payment periods shall be interrupted.
(4) The warranty period for movable goods is at least 1 year, for immovable goods at least 3 years from the acceptance of the delivery or service, whereby a guaranty is agreed for the first 6 months. For services under the title of warranty or guarantee, these periods begin anew!”).
(5) The Contractor guarantees that the delivered products comply with the relevant standards (e.g. ÖNORMEN, ÖVE regulations, EU standards, etc.). Equipment, systems or products supplied by the Contractor shall be provided with the CE marking in accordance with European directives and applicable laws.
(6) If the delivery is defective, HÖDLMAYR is entitled to choose between rescission of the contract, price reduction and elimination of the defect by repair or delivery of flawless goods. The improvement or the delivery of replacement items shall be carried out immediately and at the expense of the Contractor. In urgent cases, HÖDLMAYR is entitled to remedy the defects at the Contractor’s expense.
(7) HÖDLMAYR is entitled in any case to modify the contract or parts thereof even in the case of correctable defects after unsuccessful setting of a grace period of 14 days for the correction of defects.
(8) If the delivery cannot be used by HÖDLMAYR due to its defectiveness, the Contractor shall pay a penalty of 0.5% of the total price for each week commenced, but not more than 10% of the total price, for the period until the defect is rectified. If the contract is modified, 10% of the total price must be paid as a penalty.
(9) If HÖDLMAYR is able to prove a damage exceeding the penalty, it must also be compensated independently of a fault. The Contractor is also liable for its suppliers. The claim for damages may also be used to claim the disadvantage resulting from the decrease in value of the delivered item due to its defect.
§ 9 Special provisions for hardware and software deliveries
(1) The supplier guarantees that all delivered components meet the requirements of HÖDLMAYR stated in the order. Hardware and software are always one unit, unless the order explicitly requires only hardware or software.
(2) The Contractor shall be liable to HÖDLMAYR for the fact that if the hardware and software supplied are used correctly, no rights of third parties, no matter what kind, are violated and do not contain any restrictions on use. The Contractor undertakes to indemnify HÖDLMAYR from all claims of third parties which are based on alleged or actual violations of the aforementioned rights as a result of the use of the hardware and software acquired by HÖDLMAYR. In this respect, the Contractor shall indemnify and hold HÖDLMAYR harmless in its entirety. Likewise, HÖDLMAYR is to be reimbursed for all attorney and court costs which become necessary in connection with a defense against third party claims.
(3) Software is to be delivered on data carriers requested by HÖDLMAYR without copy protection. Complete documentation in German language, understandable for persons familiar with the subject matter, is in any case one of the main performance obligations.
(4) The Contractor grants HÖDLMAYR a right of use which is unlimited in time and place. Software created exclusively for HÖDLMAYR is to be delivered including source code, compile and link job files in machine-readable form, including operating and system documentation.
(5) All rights of exploitation of the object of the order or of the partial results achieved in this respect shall be transferred to HÖDLMAYR without restriction, in full and exclusively upon receipt of the agreed order sum. This also applies to any subsequent changes or improvements or other modifications. A transfer - even only of program parts - to third parties by the Contractor is only permitted with the written consent of HÖDLMAYR.
(6) A software order is only fulfilled and is accepted if the software has run satisfactorily and without error messages for at least fourteen days in trial operation in accordance with the agreed specifications. The trial operation is free of charge.
(7) The Contractor is obliged to provide HÖDLMAYR with all updates free of charge within the warranty period. The Contractor guaranties to maintain the delivered software for at least 5 years for a separate order and separate fee.
§ 10 Exemption from the obligation to perform, withdrawal from the contract
(1) Force majeure exempts the contractual partners from the performance obligations for the duration of the disturbance and to the extent of its effect. The contractual partners are obliged to provide the necessary information without delay and to adapt their obligations to the changed circumstances in good faith.
(2) HÖDLMAYR shall be exempt from the obligation to accept the ordered delivery in whole or in part and shall be entitled to withdraw from the contract if the delivery is no longer usable for the ordered delivery due to the delay caused by the force majeure, taking into account the economic aspects.
(3) HÖDLMAYR is entitled to terminate all contractual relationships without notice or to withdraw from an order if composition proceedings, bankruptcy or a general or partial execution has been instituted or granted with respect to the supplier, or if performance of the order in accordance with the order cannot be expected due to the behavior of the supplier or external circumstances.
(4) Furthermore, HÖDLMAYR may rescind the contract if the Contractor offers or grants benefits of any kind to an employee or agent of HÖDLMAYR involved in the preparation, conclusion or performance of the contract, or to a third party in the Contractor’s interest.
(5) In the event of a justified cancellation, either due to the immediate termination of the contract or due to warranty defects, goods delivered so far will be returned at the expense of the supplier. Alternatively, goods or software already delivered can be retained for payment of the fee, so that only a partial withdrawal takes place.
§ 11 Intellectual property rights, business secrecy
(1) The Contractor shall ensure that no rights of third parties are infringed in connection with its delivery.
(2) If HÖDLMAYR is used by a third party in this respect, the supplier is obliged to exempt HÖDLMAYR from these claims on first request. HÖDLMAYR is not entitled to enter into any agreements with the third party, in particular to conclude a settlement, without the consent of the Contractor.
(3) The Contractor’s duty of exemption relates to all expenses necessarily incurred by HÖDLMAYR in connection with the claim by a third party.
(4) Our orders and all related commercial and technical details are to be treated by the Contractor as business secrets. The Contractor may only refer to the business connections if HÖDLMAYR has expressly agreed to this.
§ 12 Applicable law, place of jurisdiction
(1) Austrian law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods and all norms of national law which refer to it. As the place of jurisdiction for Hödlmayr International AG and its Austrian subsidiaries, Linz is agreed as the exclusive place of jurisdiction.