General Terms of Sales
1. Scope of delivery
1.1 Seller's offers shall not be binding unless expressly declared to be binding.
1.2 The scope of deliveries and services is determined exclusively by the written order confirmation provided by the seller or secondarily by the seller's written offer. Additional agreements and subsidiary agreements must also be made in writing.
Unless otherwise agreed, an agreement is deemed to be concluded upon provision of written order confirmation from the seller. The agreement consists of the order confirmation and these General Terms of Sale.
All deliveries and services are based exclusively on these General Terms of Sale. Buyer's Terms of Purchase are expressly objected to herewith. These Terms of Sale shall also apply to future business relations, even if they are not expressly agreed upon again. Deviations from these Terms of Sale shall require the explicit written consent of the seller.
1.3 All information provided in product catalogues, price lists and illustrations, tables of measurements, durability and weight, and on the company’s home page are only binding if expressly referred to. Said product information is intended only as a description and is not a guarantee.
1.4 The seller shall reserve all property rights and copyrights to all technical and commercial documents, e.g. plans, samples, drawings, cost estimates and any similar information in written or oral form, including in electronic form. This information shall not be made available to third parties without the prior written consent of the seller and must be returned to the seller immediately and at any time upon the seller's request.
1.5 Unless otherwise agreed, acceptance inspections as agreed upon shall occur at the place of manufacture and in accordance with the industry standards customary in the respective country of manufacture. All costs incurred by the buyer, e.g. through participation in inspections, shall be borne by the buyer.
2. Delivery period, delays in delivery and force majeure
2.1 The delivery period agreed upon shall begin on the date of the seller's written order confirmation, however, not before all commercial and technical issues between the contractual partners have been settled and all necessary documentation, information on existing conditions, permits, releases and payment securities have been provided by the buyer and the agreed down payment has been received. Should this not be the case, the delivery period shall be extended accordingly, unless the seller is responsible for the delay.
2.2 The delivery date shall be observed if the seller itself has been supplied punctually with the correct deliveries. Any foreseeable delays shall be communicated to the buyer as soon as possible.
2.3 Delivery periods are deemed observed when the actions required of the seller pursuant to the trade terms agreed upon have been performed. If acceptance is required, the date of acceptance – or alternatively, the notification of readiness to accept – shall be decisive, except in the case of a justified rejection of acceptance.
2.4 In the event that the buyer is responsible for causing a delay in shipping and/or acceptance of the goods for delivery, the seller is entitled, after a period of one month after notification of readiness for dispatch, to charge the buyer for all expenses incurred as a result of the delay.
2.5 Delivery periods shall be extended accordingly in cases of force majeure, labour disputes or other events and circumstances beyond the seller's control. In the case that said events continue for more than three months, the seller is entitled to withdraw from the agreement. Claims for damages on the part of the buyer resulting from such a withdrawal shall be excluded.
2.6 Under ordinary circumstances, it is not possible for the buyer to cancel an order once placed. Should the seller, in extraordinary circumstances, permit the cancellation of an order, the seller shall retain a cancellation fee equalling 25% of the total invoice value (without discount), irrespective of the buyer’s fault. This shall not exclude the assertion of claims for damages exceeding said amount.
3. Performance and shipment
Place of performance and transfer of deliveries is the plant located in Gumpoldskirchen. If agreed upon, goods can be loaded by us for shipping at this location. At the time of transfer of the goods to the first freight carrier, liability for risk and accident shall be transferred to the buyer and the goods are considered to have been placed at the buyer's disposal. Loading and shipping (even in the case of freight prepaid deliveries) are always at the buyer’s own risk (uninsured). The choice of shipping route and type of conveyance is subject to our discretion, excluding all liability, unless the buyer specified a particular manner of shipping when the order was placed.
4. Prices and payments
4.1 Unless otherwise agreed, all prices are ex works (INCOTERMS 2000), including packaging, but excluding freight and insurance. Type of packaging is at the seller’s discretion. The seller shall be notified by the buyer of particular packaging specifications within a reasonable period of time prior to shipment. Any additional expenses resulting from these packaging specifications shall be borne by the buyer.
4.2 Invoices, including invoices for partial shipments, shall be paid in full, without deduction of any discount, within 30 days of invoice date, unless otherwise agreed upon. In the event of default of payment, the buyer shall pay 13% default interest to the seller, starting from the 31st day after the invoice date, or from a different due date, as agreed upon separately. The seller is not required to provide proof of actual interest charged.
It is not permitted to offset unpaid invoices against alleged counterclaims of the buyer. The buyer is only entitled to offset in the case of counterclaims which have been recognized by the seller or are legally ascertained.
Payments shall be credited towards the oldest claim, first towards supplementary fees, then towards interest, and finally towards the capital.
Place of payment is Gumpoldskirchen or Vienna.
5. Retention of title
5.1 The goods shall remain the seller’s property until all payments resulting from the supply agreement have been settled. The buyer is not entitled to pledge the goods subject to retention of title or transfer them by way of security.
5.2 The goods subject to retention of title shall not be sold, pledged or transferred by way of security by the buyer. The buyer shall notify the seller immediately in the event of attachment, confiscation or other dispositions by third parties.
5.3 In the event of a breach of contract by the buyer, in particular in the event of default in payment, the seller is entitled to repossess the goods after demand for payment, and the buyer is obliged to surrender possession of the goods.
5.4 In the event of the opening of insolvency proceedings against the buyer’s company or against the buyer personally, the seller is entitled to withdraw from the agreement and to demand the immediate return of the goods.
6. Claims based on defects
Precluding further claims, the seller warrants for material defects and defects in title – subject to the provisions of item 7 of these Terms – as follows:
6.1.1 The seller shall be obliged to repair defective pairs, replace them with non-defective parts or reduce the purchase price accordingly. The seller is entitled to use its reasonable discretion as to how the defect shall be corrected. However, this warranty shall apply only if immediate written notification of the existence of said defect was provided - otherwise the warranty is void – or to defects resulting from circumstances occurring before risk was passed on to the customer. Replaced parts shall become the seller’s property. The correction of defects has no extending effect on the warranty period. The right to claim cancellation on the part of the buyer shall be excluded. The condition for the warranty by KLINGER Fluid Control GmbH is therefore complete payment of the goods by the buyer.
6.1.2 The seller shall not be liable for defects if the buyer does not allow for the period and opportunity reasonably required to repair or replace the defective part and arranges for repairs or replacement itself or through a third party. Only in urgent cases in which operational safety is compromised and/or to prevent disproportionately greater damages (in which case the buyer shall notify the seller immediately), or if the seller is in default with regard to the correction of the defect, shall the buyer have the right to arrange for repairs or replacement itself or through a third party and to demand reimbursement from the seller for the resulting costs.
6.1.3 The seller shall not be liable for parts which, due to their material composition or their intended use, are subject to prior use, e.g. stem/shaft sealing (stuffing boxes, packing sleeves, O-rings) or other gaskets (seat rings, collars, valve rings, sealing elements) and other parts made of materials such as rubber, plastics, nonferrous metals, graphite and similar materials.
Furthermore, the warranty does not extend to normal wear and tear or to damages resulting from inappropriate operating or installation conditions, incorrect assembly by third parties or insufficient maintenance by the customer.
6.2 Defects in title
6.2.1 In the event that the use of the goods results in an infringement of industrial property rights or copyrights, the seller shall, at its own expense, either obtain the necessary rights for the buyer to continue use of the goods or alter the goods in a manner acceptable to the buyer, so that the infringement of property rights is no longer given. In the event that this is not economically feasible or not possible within a reasonable period of time, seller and buyer shall be equally entitled to withdraw from the agreement.
Furthermore, the seller shall indemnify the buyer from any claims of the respective holder of property rights that are undisputed or legally ascertained.
6.2.2 The seller’s obligations shall exist only if the buyer notifies the seller immediately of asserted violations of property rights and/or copyrights, and supports the seller to an appropriate degree in defending the claim that has been asserted in connection therewith or allows the seller to conduct modification measures as stipulated under item 6.2.1, as long as the seller may reserve the right to resort to all defence measures at its disposal including settlement out of court, and if the defect in title is not the result of instruction of the buyer, and if the infringement of property rights is not the result of modifications made by the buyer itself or in a manner not conforming with the agreement.
For damages that did not occur on the goods themselves, the seller shall only be liable, for any legal reason whatsoever, in the event of intent, gross negligence on the part of the company owner / executive bodies or executive officers, in the event of negligent injury to life, body, health, in the event of defects maliciously concealed by the seller or in the case of defects of the goods insofar as liability is given for personal injury and damages to privately used property pursuant to the Product Liability Act (Produkthaftungsgesetz, PHG).
In the case of negligent violation of material contractual obligations, the seller is also liable in the event of gross negligence, in the latter case limited to reasonably foreseeable damages, as per standard agreement provisions.
Further claims are excluded. In particular, liability for damages to other objects occurring as a result of manufacturing defects, as well as any claims to damages on the part of the buyer as pursuant to § 12 of the Product Liability Act are herewith explicitly excluded.
In the case of damages cuased by defective products or components supplied by the seller, the liability of the seller is limited to the amount paid by the product liability insurance of the seller.
8. Warranty period and limitation period
All claims of the buyer - for any legal reason whatsoever – are limited to a six-month period starting from the date of delivery (transfer of risk). For damage claims as stipulated in item 7.2, paragraph 2, the legal limitation periods shall apply. These limitations shall also apply to defects of buildings or to goods that were used in an appropriate fashion for construction and caused the defectiveness of the building.
9. Applicable law and jurisdiction
Austrian substantive law shall apply exclusively to all legal relations between seller and buyer. The application of the Vienna Convention on Contracts for the International Sale of Goods (UN Sales Convention) shall be excluded.
Place of jurisdiction shall be the court competent for the seller's registered office.
Amendments to these Terms of Sale shall be valid only if provided by or agreed upon by the seller in individual cases; amendments to these Terms of Sale through written or oral request of the buyer shall only be valid after written approval by the seller. This agreement is subject to Austrian law.