1. Legal Scope
1.1. Commercial transactions involving Oberhofer Stahlbau Ges.m.b.H. headquartered in Saalfelden am Steinernen Meer with a business address of 5760 Saalfelden am Steinernen Meer, entered into the corporate registry of Landesgericht Salzburg under FN 53629t (hereinafter referred to as "Oberhofer") are subject exclusively to the following terms of business (hereinafter referred to as "Terms").
1.2. The Terms are binding upon all current and future business transactions between Oberhofer and a legal or natural person (hereinafter referred to as "Contractual Party") who has entered into a contractual relationship with Oberhofer, even if the Terms are not expressly referenced.
1.3. Any divergent or supplemental conditions other than those contained in these Terms shall only become a component of the contract if they have been expressly stipulated in writing by both contractual parties.
1.4. Upon conclusion of the contract, any and all Terms previously furnished by the Contractual Party are immediately invalidated with respect to the agreement at hand, even if said Terms are not expressly rejected by Oberhofer.
2. Orders and Contracts with a Contractual Partner
2.1. Only orders and contracts with contractual partners which have been stipulated to by Oberhofer in writing are valid. Subsequent amendments to orders or contracts require the expressed written agreement of Oberhofer.
2.2. The Contractual Party is to confirm in writing any order or contract within a maximum of five days after entering into such an agreement. Failure to do so may result in Oberhofer withdrawing from said agreement.
2.3. Deliveries and services by the Contractual Party are only considered punctual if they are provided by the agreed date & time at the place of receipt stipulated by Oberhofer. Deliveries that require assembly or erection by the Contractual Party are only considered punctual if these are accepted by Oberhofer by the stipulated date & time.
2.4. With respect to deliveries by the Contractual Party to Oberhofer, the risk for potential loss is only transferred to Oberhofer pursuant to delivery and acceptance in full.
3. Time, place and consequences of delay with respect to delivery/services by the Contractual Party
3.1. If the time and place of delivery or service is not complied with for reasons attributable to the Contractual Party, for each commenced week of the delay the Contractual Party is obligated to pay Oberhofer a delay penalty in the amount of 2 % (two percent) of the gross contractual amount, though not to exceed more than 10 % (ten percent).
3.2. If the Contractual Party does not meet its contractual delivery and/or service obligations, Oberhofer is entitled, pursuant to a written demand and stipulation of a one-week grace period, to withdraw from the agreement and to purchase replacement at the expense of the Contractual Party.
3.3. If the delivery or service provided by the Contractual Party is delayed by more than six months due to force majeure, Oberhofer is entitled to withdraw from the agreement even without having stipulated a grace period.
4. Time, place and consequences of delay with respect to delivery/services by Oberhofer
4.1. If Oberhofer obligates itself to provide a delivery or service by a specific deadline, this shall apply except in the event of unforeseeable circumstances and/or circumstances beyond Oberhofer’s control such as, though not confined to, all instances of force majeure, energy shortages, delays caused as a consequence of transportation, customs clearance and delivery.
4.2. Should Oberhofer experience a delay in providing delivery or service, this does not constitute grounds for the Contractual Party to assert damage claims or delay penalties. The Contractual Party may only rescind the contract pursuant to stipulation of a grace period appropriate to the circumstances of the individual case in question.
4.3. Unless otherwise stipulated and regardless of which contractual party is responsible for transportation costs, usage and risk for deliveries from Oberhofer transfer to the Contractual Party immediately upon shipment from the Oberhofer premises.
5.1. All prices stipulated between the contractual parties are in euros
5.2. Prices for orders which have been placed by Oberhofer are firm prices, CIF/DDP in accordance with Incoterms 2000. Subsequent changes to these prices require Oberhofer’s prior written consent.
5.3. If no prices are listed in an order placed by Oberhofer, these must be cited in the order confirmation and are only deemed to have been agreed upon if they have subsequently been expressly reconfirmed by Oberhofer in writing.
6. Payment Conditions
6.1. Insofar as no divergent payment methods have been stipulated, payments are due net and in full within 14 days of completed delivery/performance.
6.2. Insofar as Oberhofer remits a payment, this does not constitute a confirmation that the delivery or service was correct or free of defect, nor does such a payment indicate willingness to forego assertion of claims with respect to fulfillment, warrantee or compensation.
6.3. The Contractual Party is not entitled to withhold payments due to warrantee- or other claims, or to offset payments with claims directed against Oberhofer.
6.4. If the Contractual Party is in payment default, the Contractual Party will owe 9.2 interest above the ECB base lending rate.
6.5. Expenses and fees associated with payments to and from Oberhofer are borne by the Contractual Party. This applies in particular to costs associated with payment instruments (such as checks, exchange or letters of credit).
6.6. If Oberhofer becomes aware of circumstances pertaining to the Contractual Party which may diminish the Contractual Party’s credit worthiness, Oberhofer is entitled to declare all open receivables due with immediate effect and to delay delivery/performance until such time as full payment has been received or secured.
7. Warrantee Obligations borne by the Contractual Party
7.1. Deliveries or services that are ordered or commissioned by Oberhofer shall be subject to a warrantee period of 24 (twenty-four) months.
The warrantee period begins
- with respect to deliveries/performance provided directly to Oberhofer, upon acceptance of the delivery/ performance by Oberhofer;
- with respect to deliveries/performance utilized for construction of a facility at a third-party location, upon acceptance of that facility by said third-party;
- with respect to deliveries that require no erection or assembly, as soon as the delivery is used for its intended purpose.
7.2. If Oberhofer is required to offer a third-party a warrantee of more than 24 months, the warrantee for which the Contractual Party bears responsibility shall be extended accordingly. As far as possible, Oberhofer will inform the Contractual Partner about this prior to conclusion of the contract.
7.3. Oberhofer is not required to inspect deliveries/performance for deficiencies immediately upon receipt thereof; Oberhofer reserves the right to assert warrantee claims of whatever nature and for the entire warrantee period regardless of when the defect became apparent.
7.4. In urgent cases or in order to minimize damage, damages will be remedied directly by Oberhofer or by a third-party contracted by Oberhofer to do so; Regardless of whether the Contractual Party was afforded the opportunity to attempt repairs of their own, the Contractual Partner shall compensate Oberhofer for all costs incurred.
8. Warrantee Obligations borne by Oberhofer
8.1. Deliveries or services that are ordered or commissioned from Oberhofer shall be subject to a warrantee period of 12 (twelve) months. The warrantee period begins upon acceptance of the delivery/performance by the Contractual Party.
8.2. The precondition for a warrantee claim by the Contractual Party against Oberhofer is prompt written notification of the deficiency to Oberhofer. At its choosing, Oberhofer is entitled to remedy the deficiency either by (i) replacing the product in its entirety (ii) replacing individual components or (iii) making corrections.
8.3. Any and all warrantee claims that go beyond the scope of the Contractual Party’s warrantee entitlements, especially with respect to compensation for damages or resulting from product liability, are excluded insofar as this was not the result of gross negligence or premeditation on the part of Oberhofer.
9. Property and Third-Party Rights
9.1. Tools, drawings, plans and data provided by Oberhofer remain the physical and intellectual property of Oberhofer. Such resources may only be used in order to execute Oberhofer’s contracts, may not be made accessible or handed over to third-parties, and must be returned immediately upon the request of Oberhofer, and by no later than upon completion of the contract.
9.2. If Oberhofer is required to deliver a product, said product remains the property of Oberhofer until payment has been received in full. In the event of resale of Oberhofer property by the Contractual Party, the latter shall immediately relinquish all rights resulting from the sale with respect to the purchaser to Oberhofer until payment has been made in full; shall clearly record this relinquishment in its ledgers; and shall notify the purchaser that payments of the purchase price must be remitted directly to Oberhofer until the debt has been discharged in full.
9.3. With respect to disputes pertaining to third-party rights, in particular trademark, design, patent and copyright protections, associated with delivery/performance by the Contractual Party, the Contractual Party shall fully indemnify Oberhofer and shall guarantee the unrestricted use of the delivery/performance for which it was intended.
10. Applicable Law and Jurisdiction
10.1. These Terms are subject to Austrian law under exclusion of reference provisions.
10.2. All disputes resulting from or in connection with these Terms, including disputes about the existence or non-existence of these Terms as well as violation, dissolution or nullification thereof, are subject to the exclusive jurisdiction of Landesgericht Salzburg.
11. Concluding Provisions
11.1. Should any provision of these Terms be or become invalid or unenforceable, this shall in no way prejudice that validity or enforceability of the remaining provisions within these Terms. In such an instance, the invalid or unenforceable provision will automatically be replaced by a valid or enforceable provision that most closely approximates the original intent of the provision in question.
11.2. Amendments, appendixes and/or side agreements pertaining to these Terms must be in written form. This also applies to any amendment or abrogation, either wholly or in part, of the aforementioned written requirement. Oral side agreements with respect to these Terms do not exist.