Schwingshandl shall provide the Client with two copies of the documents required for operating and servicing the system. The documentation shall comply with the terms of the EU directive.
Insofar as any of documents available at the time of acceptance are only provisional, the final documents shall be supplied within the 6 weeks following acceptance.
The contract shall be deemed fulfilled on acceptance of the products and services supplied. These shall be accepted as per the agreed schedule. The Client shall be notified in writing that the items ordered are ready for acceptance. They must be accepted within 2 weeks of this notification being made. If this deadline is exceeded on grounds which are not Schwinghandl’s responsibility, the system shall be deemed to have been accepted without defects. This shall also apply when the system is used. Acceptance may only be refused if a significant defect is found.
The warranty period is 24 months, with the system being in use for two daily shifts. The warranty period shall commence when the system is used, and no later than the day of acceptance or 2 weeks after notification being issued that the system is ready for acceptance. If any repairs have to be made during the warranty period, the warranty period shall only commence anew for the parts which had to be repaired. Wear parts are excluded from the warranty. Any work associated with the warranty shall be performed during normal working hours. A duty to fulfil warranty obligations shall only exist if the Client proves that the inspection and maintenance obligations described in the system documentation have been complied with.
In the context of our business liability insurance, we shall be solely liable for property damage, personal injury and resulting financial losses incurred in direct connection with the products and services we supply; our liability in such instances shall be limited to EUR 3 million. Any liability for consequential damage resulting from defects, damage incurred as the result of delays in completing the system (specifically loss of profit) and damage caused by production downtimes and/or operational hindrances is herewith expressly excluded. In the event of breaches of confidentiality, SCHWINGSHANDL shall only accept liability in cases where SCHWINGSHANDL, SCHWINGSHANDL’s staff, SCHWINGSHANDL’s subcontractors or their staff acted wilfully or with gross neglect. Claims against staff working for SCHWINGSHANDL or SCHWINGSHANDL’s subcontractors are herewith excluded insofar as this is legally admissible, even if they are based on an unauthorised action. The installation staff may only perform tasks exceeding the scope of our contract with our agreement. We accept no liability for work carried out by our installation personnel or other auxiliaries if this work is not included in the services provided or if the defects are the result of the Client’s intervention. The Client shall ensure that the installation area is safe. He shall be liable to us for material damage and personal injury arising from any breach of this obligation.
The finished system together with all parts supplied by us shall remain our property until the Client has met all financial obligations due to us in full.
This shall also apply if the products supplied by us are permanently connected with or integrated into the Client’s property. As long as the products remain our property, they may not be sold on, pledged, transferred as collateral, leased or otherwise disposed of without our written consent. In the event of the system or parts supplied by us being pledged or otherwise availed of by third parties, the Client shall undertake to assert our property rights and to notify us thereof immediately. In the event of the goods subject to retention of title being sold, the receivable arising in connection with the sale shall be ceded to us without the Client expressly taking action to do so.
The latest point at which the risk shall be transferred is the time at which the system is used. In the event of delivery being refused or any kind of use of the system or parts thereof by the Client or any third party, the risk shall pass to the Client at this point. The Client shall be liable for all equipment and material provided by us until the installation work is complete and/or until the work tools are removed; he shall bear the risk of damage, destruction or loss thereof up to incidents of force majeure.
These terms and conditions of purchase apply to all contracts concluded by us, in particular purchase and work contracts, however these may be referred to in detail. Insofar as the term “contractor” is used in the following, it is understood to mean the contractual partner commissioned by us in particular with a delivery, work or service.
The content of the contract is primarily determined by the rules individually negotiated between the contractual partners, which are recorded in our order letter and a related offer from the contractor. However, if no such agreements have been made, these terms and conditions of purchase apply exclusively as the content of the contract. Deviating terms and conditions of the contractor will not be accepted by us, even if we have not expressly contradicted them. These “General Terms and Conditions of Purchase” also apply to follow-up orders - whether issued in writing or orally - without our having to point them out separately.
In the event of contradictions in the contractual basis, the following order applies:
Orders are only legally binding for us if they are made in writing and signed by the company. The written form is also considered fulfilled if the order is placed by email or fax. In general, legally significant declarations may be transmitted electronically between the contracting parties; However, if such declarations from the contractor are received outside of our business hours, we shall only be deemed to have received them at the next start of business hours. Business hours can be found on our website. Our order number must be quoted in all documents relating to the order, in particular invoices, otherwise we are entitled to return them without processing and in case of doubt they are deemed not to have been received by us. In the case of orders by telephone (without an order number), the name of the purchaser must be given.
The order placed may not be passed on, either in whole or in part, to subcontractors without our consent. Affiliated companies do not count as subcontractors in this case.
Offers made to us are free of charge, regardless of what preparatory work was necessary. Agreed prices are fixed prices that cannot be increased for any reason whatsoever. Packaging and transport costs are only accepted if there is a corresponding agreement on the delivery conditions.
Deliveries must be made free of all expenses and risk of the contractor to the receiving point specified by us. The contractor must ensure that packaging is appropriate. Unless otherwise regulated, shipping and packaging costs are to be borne by the contractor (Incoterms 2020 DDP). All deliveries must be accompanied by appropriate shipping documents (in particular precise information on the contents), otherwise we are entitled not to accept deliveries. The delivery or service is to be handed over on the agreed date at the specified receiving point in the acceptance times: Mon-Thu from 7:00 a.m. to 4:30 p.m., Fri from 7:00 a.m. to 11:30 a.m. In the event of delivery deviating from this date, we reserve the right to charge the contractor with the resulting additional costs (e.g. storage costs). Any additional costs will be proven to the contractor on request. All deliveries to us must be made free of retention of title.
Invoices must comply with the statutory provisions, in particular the Value Added Tax Act, and any separate agreements made; they must not be enclosed with the delivery and must be sent to us immediately after the goods have been dispatched. In any case, invoices must contain the complete order number and the order / order date. The payment period begins at the time of receipt of the invoice or goods or when the service has been completed, whichever is the later; for delivery before the agreed date, but at the earliest with the agreed delivery date. The payment of the delivered deliveries or services takes place within the agreed payment period. The payment does not imply an acknowledgment of the correctness of the delivery and no waiver of any kind of claims. The supplier is prohibited from assigning claims against Schwingshandl to third parties unless we agree to the assignment in writing. If the supplier fails to perform in accordance with the contract, we are entitled to offset payments due with counterclaims from the present business case and from other of our business cases.
If the contractor can see before the agreed date that a timely delivery will not take place in whole or in part, he must notify us immediately, stating the reasons and the expected duration of the delay. The prerequisite for the customer's withdrawal from the contract, unless a more specific regulation has been made, is a delay in delivery that is due to gross negligence on the part of the contractor and the unsuccessful expiry of a reasonable grace period that has been set.
In deviation from any Incoterms 2020 that may be used, the transfer of risk and risk takes place with delivery of the goods at the destination.
The contractor provides a guarantee of 2 years for the delivery / service to be carried out in accordance with the order and for compliance with all relevant statutory and ÖNORM regulations. In the context of this, he must in particular be responsible for ensuring that the delivery / service has the properties usually assumed and guaranteed in the contract, as well as corresponds to the underlying samples. The warranty period begins with the uncontested acceptance of the delivery / service by us. There is no obligation on our part to check the delivery / service immediately upon delivery and to report any defects (commercial notice of defects). Rather, we are entitled to assert a warranty at any time due to defects that occur within the warranty period. In the event of a guarantee, we have the right to primarily request free improvement or replacement of the defective delivery / service, secondly to have the defect improved by another party at the expense of the contractor, to change the contract immediately or to request a corresponding discount. If the contractor remedies the defect, the warranty period begins anew after we have accepted the improvement for the affected part or for the affected service.
The contractor is liable for all damage that we incur as a result of a delayed or defective delivery / service due to his fault or the fault of assistants involved in the fulfillment of the order. The contractor's liability for lost profit and loss of production is excluded.
Samples, models, drawings and other aids that we make available to the contractor to fulfill his contractual obligations remain our material and intellectual property, which we are free to use. These aids may only be used to carry out our orders and may not be made accessible or left to third parties outside the company without our consent. After the order has been executed, they are to be returned to us free of charge or deleted upon request. The contractor undertakes to safeguard all of our trade and business secrets that become known to him in the course of carrying out the order.
If the contractor provides his services in countries with minimum wage regulations and these are applicable to his services, he undertakes to comply with these regulations. The contractor guarantees the constant and timely payment of the minimum wage. If the contractor uses a subcontractor to fulfill his contractual obligations as agreed, he is obliged to also oblige him to comply with the minimum wage regulations. Upon first request, the contractor releases us from all claims, penalties and costs that result from a claim on our part from the relevant provisions.
The supplier is prohibited from directly or indirectly recruiting our employees or directly or indirectly offering them employment without prior written approval.
Any type of publication, referencing and advertising by the supplier with deliveries and services intended for the client, as well as with the business relationship, requires our written consent.
The supplier guarantees that all products delivered by him comply with the recognized rules of technology (e.g. Austrian standards and EN standards for technical content), the relevant statutory and official regulations, implementation provisions and the applicable EU provisions, as well as any implementation thereof in national law correspond.
We would like to point out that the supplier's data is stored in an IT system and is only used for the purpose of the contract.
The supplier is obliged to inform us of any obligations to approve re-exports of his goods in accordance with German, European, US export or customs regulations, as well as the export and customs regulations of the country of origin of his goods in his business documents. To this end, the supplier shall at least provide the information required and necessary according to the relevant customs and export regulations in his offers, order confirmations and invoices for the relevant goods items. At our request, the supplier is obliged to provide all further foreign trade data on his goods and their components in writing and to inform us immediately in writing of any changes to the above data.
Austrian law is applicable to this contract, but not the UN sales law. Disputes are to be settled before the competent court in Wels / Austria.
If individual provisions of the contracts should be ineffective, the effectiveness of the remaining provisions and the contract as a whole will not be affected.