1. Offers, order acknowledgements, contract conclusion
1.1. All offers are without obligation. We reserve the right to modify, supplement or discontinue our production at any time.
1.2. Our written acknowledgement of order constitutes a contract, an acknowledgement of order by facsimile is sufficient also. The content of the acknowledgement of order shall at the same time be the content of the contract unless the customer raises an objection against it immediately after receipt. Otherwise, our acknowledgement of order and our Terms and Conditions of Sale, Delivery and Payment shall be deemed to have been accepted.
1.3. After the acknowledgement of order has been sent, the order placed with us can no longer be modified or cancelled.
1.4. The present Terms and Conditions of Sale, Delivery and Payment shall supersede any purchasing conditions of our customers in any case.
1.5. The prices are understood as ex works, unpackaged, carriage forward and without VAT.
1.6. In case of an increase in costs during the period between the acknowledgement of order and delivery, we shall be entitled to make the respective price adjustments.
1.7. In case that a component of a fitting ordered is not needed, the price deduction shall not be made according to the component price but according to our price calculation.
1.8. Declarations made or to be made by HERZ to our contract partners come into force once the declarations have been sent to the mailing address provided to us even if this mailing address has changed and we were not notified of this change immediately.
1.9. Changes and additions to this contract are only valid with written confirmation by persons at our company registered as authorised representatives in the commercial register. Our other employees are not authorised to agree on changes or ancillary agreements.
2. Conditions of Payment
2.1. As long as nothing else is given in the order confirmation, payments are net cash at receipt of the invoice and without any discount.
2.2. In the event of late payment, we reserve the right to charge interest on default in the amount of 10% above the respective Austrian bank rate per annum, however no less than 1% per month. Only payments made to the respective point of payment specified in the invoice shall be recognised by us. In the case of bank transfers, the payment is only considered made when the invoice amount has been irrevocably credited to our account.
2.3. Bills of exchange, cheques and payments by payment order shall only be recognised on account of payment.
2.4. Upon payment by acceptance or customer’s bill, the arising discounting charges shall be bourne by the debtor.
2.5. The date of the invoice shall be relevant for the date of payment in any case, even if goods are received with a delay for reasons not to be attributed to us.
2.6. Missing the payment deadline, loss of creditworthiness of the ordering party or other legitimate reasons entitle us, at our discretion, to withdraw from the contract or to declare all of our claims to be due immediately without consideration of the agreed payment deadline, all without hereby justifying a claim to performance or compensation for damages against us.
3. Retention of Title
3.1. The goods supplied by us shall remain our property until payment in full has been made for any and all goods supplied. This shall also apply to the payment of any bills of exchange accepted in payment by us. Our ownership right transfers in the event of sale by the purchaser to the proceeds obtained by the purchaser and in the event of further processing to the end product (proportionally). In the event of sale by the purchaser, the purchaser must inform its buyer of the existence of the reservation of ownership.
3.2. The purchaser must inform us immediately if third parties assert claims to the goods delivered under reservation of ownership or claim rights thereto. Any legal expenses shall be borne by the purchaser.
4. Packing and Dispatch
4.1. The goods will be packed to commercial standards at the purchaser’s expense. Packing materials will not be taken back. The packing shall be dimensioned assuming customary transport conditions.
4.2. The goods will be dispatched ex-works at the risk of the purchaser, even in case of delivery freight prepaid.
4.3. The seller shall be obliged to take out insurance only if and to the extent that this has been agreed upon in writing.
5. Product Modifications
5.1. We reserve the right to make design modifications, to change tolerances and to make improvements.
5.2. In case of special designs manufactured according to customer sample, model or drawing, we reserve the right to supply up to 5 % more or less than the quantity ordered.
6.1. Defects or damage discernible during a proper receipt inspection must be reported immediately after receipt of the goods; indiscernible defects must be reported immediately after their discovery. However, any warranty claim shall expire three months after delivery.
6.2. Deviations in the quantity of units supplied or in weight must also be reported to the transporter or forwarding company (carrier) upon receipt of the goods and the differences must be documented. Any defective units shall be returned to us without delay freight prepaid.
7.1. We will perform our warranty obligation by replacing free of charge any items which verifiably become entirely unusable within three months due to defective material or defective production, if the defective parts are returned within four months from delivery.
8. Returned goods
8.1. Returned goods shall only be accepted with our prior written consent and only carriage paid to our plant in Vienna in undamaged condition.
8.2. Return of items made to order will not be accepted in any case.
9. Late delivery and release from the delivery obligation
9.1. The obligation to deliver and to adhere to the delivery period shall be suspended by any extraordinary events and circumstances not to be attributed to us which causes a relevant interruption of operations or makes the dispatch of goods impossible.
9.2. In the event that dispatching of goods is impossible, we shall be entitled to store any goods already manufactured at the expense and risk of the buyer. In that case, the goods will be invoiced to the buyer as if they had already been supplied.
9.3. If we are late with the delivery, the purchaser must agree to a reasonable deadline extension of not less than six weeks. The purchaser is no longer entitled to withdraw from the contract – even after setting of an extended deadline – if we have already begun production of the ordered goods.
10. Quality of a Consignment
10.1. The quality of a consignment cannot be assessed on the basis of the quality of individual items.
11. Damages, Limitation of Warranty
11.1. The amount of any claims is limited according to the net invoice value of the item in question.
11.2. We are entitled to resolve any guarantee claims by providing replacement articles. There is no entitlement to a price reduction.
11.3. Demands for compensation for damages arising from installation costs, processing costs, maintenance costs, etc. shall not be accepted or compensated by us under any circumstances.
11.4. Claims of the customer to compensation for damages, regardless of their legal basis, in particular due to late performance, impossibility of delivery, positive breach of obligation, negligence upon contract conclusion, consequential harm caused by defects, defects or prohibited actions are excluded insofar as they are not based on intent or gross negligence on our part. The existence of intent or gross negligence must be proven by the customer. Information issued by us (installation and maintenance instructions, details of areas of use for products, etc.) must be strictly adhered to. Where instructions are disregarded or ignored, the official conditions release us from any liability.
11.5. We accept no liability for damages arising from improper handling or use, excessive loading or natural wear. Furthermore, we do not assume liability with respect to any loss or damage caused by negligence nor any indirect or consequential loss.
11.6. Our liability for property damage from a product defect according to the Product Liability Act is excluded for all companies participating in the production and sale of our products as well as for all purchasers of our products, insofar as they are businesses. Our contract partners, insofar as they are businesses, accept the obligation to impose this liability disclaimer clause on their buyers, insofar as these in turn are businesses and our products are involved.
12. Place of Fulfilment and Jurisdiction
12.1. The place of fulfilment for all claims arising under the contract is Vienna, insofar as the goods are obtained from the plant in Vienna; if the goods are obtained from the plant in Kemeten, the place of fulfilment is Kemeten.
12.2. Vienna is agreed as the exclusive place of jurisdiction for all claims under the contract for contract partners from countries of the European Union as well as from countries of the European Economic Area and for contract partners registered in a country that has concluded an enforcement agreement with Austria.
12.3. Vienna is agreed as the place of jurisdiction for contract partners coming from countries that are not covered under item 12.2. The seller reserves the right to also assert the claim under the contract in the respective country before the respectively competent court.
12.4. Austrian law shall apply exclusively as subsidiary to these Terms of Sale, Delivery and Payment. The application of the Vienna UN Convention on Contracts for the International Sale of Goods is excluded.