These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTCSD”) constitute an integral part of all legal transactions between the customer and PREFA Aluminiumprodukte Gesellschaft m.b.H. and/or PREFA Group affiliated companies (hereinafter referred to as “PREFA”) involved in the sale and delivery of goods or the provision of other services by PREFA.
Any contractual provisions or other regulations of the customer that deviate from the GTCSD shall only apply when and in so far as they are expressly acknowledged by PREFA in writing in individual cases and only for business transactions for which the contractual provisions or other regulations of the customer have been accepted by PREFA. Confirmation of orders does not in any way constitute recognition of deviating contractual provisions or other regulations.
For transactions with consumers within the meaning of Consumer Protection Act provisions relevant to this in individual cases, the GTCSD shall only apply to the extent that they do not contradict the mandatory regulations of such provisions.
2. WRITTEN FORM
Declarations, consultations and agreements concluded by PREFA shall only be binding for PREFA upon written confirmation. Declarations made by the customer on the basis of the GTCSD such as complaints about defects and similar shall require the written form to be deemed valid.
During the initiation of new business opportunities by PREFA, price and other information or notifications shall solely be considered to be non-binding estimate proposals to give the customer a general idea, and shall not oblige PREFA to enter into a contract.
PREFA’s offers are always non-binding and only become binding upon written order confirmation by PREFA. PREFA shall be entitled to confirm or decline customer orders within a period of 30 days. During this period, the customer shall remain bound by their order. An order confirmation is deemed accepted by the customer if the customer does not raise a written objection within three days of receipt. Changes to an order accepted by PREFA may only be made by the customer with PREFA’s express written agreement.
3. DELIVERY QUANTITIES
To enable PREFA to take specific technical characteristics into account during production, deviations in quantities of ±10% above or below the ordered quantity shall be permitted without the customer being entitled to refuse to accept or pay for the delivered quantity. PREFA shall be entitled to carry out partial and advance deliveries.
In framework supply contracts, the customer shall be committed to accepting the agreed delivery quantities in their entirety, failing which, the customer shall be obliged to pay PREFA the full price for any unaccepted quantities plus any additional costs accrued from accepting less than the contracted quantity.
4. SHIPPING, TRANSFER OF RISK
In the absence of an alternative rule in the order confirmation or supply contract, deliveries shall be made by PREFA from the relevant factory. The customer shall assume the costs and risks of shipping. In the absence of specific instructions, as the customer’s representative, PREFA shall specify the mode and route of transport. The delivery may only be covered by transport insurance upon the express instruction of the customer and at the customer’s expense.
The risk of destruction, loss of, or damage to, the delivery shall be transferred to the carrier; if the goods are shipped or collected by the customer itself, this risk shall be transferred to the customer at the latest upon departure of the delivery from the PREFA factory. In the event of default of acceptance by the customer, the transfer of risk shall commence on the date on which the customer is objectively in default.
Unless special packaging has been expressly agreed with the customer, the goods shall simply be packaged in PREFA’s customary standard packaging. There shall be no liability for damage arising from defective packaging where this complies with the customer’s instructions, or otherwise liability shall only apply in cases of wilful intent or gross negligence.
In principle, each delivery shall be deemed to have been delivered in proper condition. In the absence of evidence to the contrary, any damage shall be considered as having occurred during transport. Pursuant to the delivery conditions agreed upon (Incoterms), insofar as the damage occurs in the area in which PREFA bears the risk, the customer shall be obliged to assert all claims raised by PREFA against the carrier, forwarder or transport insurer, otherwise all claims against PREFA shall be forfeited.
5. DELIVERY DATES, DELAY AND FORCE MAJEURE
In the absence of any specific agreement, delivery dates shall be deemed approximate and non-binding. PREFA shall be entitled to exceed the confirmed delivery date by up to eight working days simply by sending written notice to the customer, without the customer being entitled to take any measures whatsoever as a result of the delay.
If the delivery date is delayed any further than this (delayed delivery) — except in cases of force majeure — the customer shall only be entitled to withdraw from the contract in respect of the quantities concerned by the delivery delay after setting an appropriate grace period of at least four weeks. Any further claims by the customer against PREFA, particularly for damage, shall be limited to wilful intent and gross negligence and, depending on the amount, shall not exceed the net invoice value of the quantities affected by the delivery delay.
The customer must immediately accept goods declared ready for shipment, failing which, PREFA shall be entitled at its own discretion to place the goods in storage at the expense and risk of the customer and to charge for them immediately. Broken tools and machinery, delayed deliveries or delivery failures on the part of sub-suppliers, labour shortages, energy shortages or shortages of raw materials, strikes, lockouts, traffic disruptions, official decrees and other cases of force majeure shall release PREFA from the obligation of delivery for the duration of the disruption and to the extent of its effect. If, because of this, the delivery is delayed by more than two months, the customer shall be entitled, having granted an adequate grace period, to withdraw from the contract, however it shall remain obliged, during this period, to accept any goods that have already been prefabricated for the agreed price. In these cases, the assertion of claims for damages by the customer shall be excluded without exception.
If the customer is in default in respect of fulfilment of its obligations or if circumstances regarding the customer are disclosed giving rise to legitimate doubt regarding the customer’s ability to correctly fulfil its future obligations in due time, PREFA shall be entitled, without prejudice to further claims, to immediately suspend deliveries and to demand payment of all outstanding financial claims and other entitlements.
The condition of the delivery item shall be determined by the order confirmation as well as by the technical production possibilities at PREFA’s factory. Unless otherwise agreed, in the case of mass produced items, the customary error rate within the acceptance limits respectively specified by PREFA (standard AQL values) does not represent a warranty defect.
PREFA’s guarantee period shall commence on the date on which the risk associated with the delivery is transferred to the customer, and shall end six months after this date. For any parts of a delivery which have been outsourced by PREFA, PREFA shall only be liable for their freedom from defects within the context of PREFA’s own warranty claims vis-à-vis the sub-supplier concerned.
The customer must immediately examine every delivery for defects. Obvious defects must be notified in writing eight days after receipt of the delivery, other defects must be notified in writing immediately after their detection, albeit within the guarantee period, under exclusion of any other claim. If the customer fails to give notice of the defect or the delivery is treated or processed by the customer or blended with other goods, the delivery shall be deemed accepted without reservation. The notice of defect does not release the customer from its payment obligation nor does it entitle the customer to refuse further deliveries from the agreement in question or from another agreement. In the event of improper handling, treatment or processing of the delivery, any claims against PREFA shall be excluded. If PREFA acknowledges a defect, it shall be at PREFA’s discretion to decide whether to take back the delivery at the agreed price, whether to deliver a replacement after the delivery has been returned or whether to remedy the defect itself. The remedy of defects by the customer shall only be compensated by PREFA if PREFA has approved of this in writing in advance.
PREFA shall not be liable for damage to persons or equipment (particularly damage as a result of interruption of business operations), where this involves loss of profit or damage to third parties, and otherwise only if the defect is due to an intentional act or gross negligence; PREFA’s liability is further limited to the net amount invoiced for the delivery concerned by the defect.
Subject to any alternative regulations in the GTCSD, PREFA’s liability for damage caused by slight negligence and for all indirect damage shall be excluded and otherwise limited to the net order value.
8. PRODUCT LIABILITY
PREFA’s liability for material damage as a result of a product defect sustained by the customer as a business shall be excluded. Claims for reimbursement by the customer as a result of the defectiveness of the delivery asserted against PREFA shall be limited to wilful intent and gross negligence. In the event of any duty to pay damages, the customer shall be obliged to also impose this waiver in PREFA’s favour on its potential purchasers. The restriction on product liability by PREFA also applies to goods and packaging.
9. INDUSTRIAL PROPERTY RIGHTS
All documentation, technical drawings and other documents created by PREFA during the preparation or performance of the delivery order and any technology applied to the production and design of the products shall always remain the intellectual property of PREFA even if statutory property rights do not exist. The customer may not use, disclose or make accessible to third parties in any other way such technology which has been made available to it through the provision of designs, deliveries, information about the manufacturing process or similar knowledge made available for its own production purposes — where applicable, also following further technical developments. If the customer violates this obligation, PREFA shall be entitled to assert the rights against the customer which the Austrian Patent Act grants to a patent owner in the event of a patent infringement.
The customer shall always hold PREFA fully harmless with respect to all third-party claims from patent infringements or other property right infringements by components, assemblies or other goods or services which were not developed by PREFA.
10. ADVICE ON TECHNICAL APPLICATIONS
Any advice on technical applications provided orally or in writing by PREFA is non-binding, including in respect to any third-party rights of protection, and does not relieve the customer of its obligation to check that a delivery is suitable for the intended operation and/or purpose. Any relevant liability of PREFA in this regard shall be limited to wilful intent and gross negligence and to the net amount invoiced for the delivery causing the defect.
11. RETENTION OF TITLE
Any delivery shall remain the property of PREFA until it has been paid for in full, including payment of incidental charges such as interest and costs. The customer shall be obliged to store the goods subject to retention of title by PREFA separately and appropriately and to take out insurance for the value of the goods.
The customer shall be entitled to treat, process or dispose of the goods subject to retention of title, however a lien of transfer by the customer shall only be permitted with PREFA’s prior written consent. The retention of title by PREFA shall also include goods produced through the treatment or processing of products delivered by PREFA. In the event of processing, connecting or blending of the goods subject to retention of title with other materials, PREFA shall acquire joint ownership of the resulting product at the ratio of the value of PREFA’s delivery to the value of the other materials. In all these cases, the customer shall be regarded as the custodian and shall be obliged to cooperate with all measures necessary or useful for protecting PREFA’s property. If a third party wishes to claim or exert rights to the goods subject to retention of title, in the event of any duty to pay damages, the customer must inform PREFA of this without delay.
The customer hereby assigns all claims arising from the sale of goods subject to retention of title to PREFA. Upon request, the customer shall be obliged to disclose to PREFA the names and addresses of its purchasers and the existence and amount of any resulting claims. The customer shall also be obliged to enter this assignment in its accounts and, upon request, to provide PREFA with documentary evidence of this. PREFA shall be entitled to inform the respective debtors of such assignments at any time. Until further notice is given by PREFA, the customer shall be entitled to collect the assigned claims on its own behalf but for the account of PREFA without this changing PREFA’s exclusive entitlement to claim. The customer shall not be entitled to assign to third parties any claims from the resale of goods subject to retention of title. This type of assignment has no effect with regards to PREFA in any case.
Upon asserting the retention of title, goods may be recovered by PREFA for scrap whereby the cost of the return transportation shall be borne by the customer. However any proceeds of sale above scrap value shall be credited to the customer.
Any tools made by PREFA to manufacture the ordered products shall remain the property of PREFA even if the customer pays the tool costs.
PREFA’s prices are quoted net, ex works from the respective PREFA factory and in the currency specified in the offer or otherwise in the local currency of the respective PREFA delivery company.
The agreed prices are based on the production costs at the time of the written order confirmation. In the event of a change in material and energy prices, wages, freight costs, duties, taxes or other price-determining costs, PREFA shall reserve the right to adjust the cost structure at the time of delivery. The prices only apply to the agreed quantities. Corresponding additional charges shall be calculated for reduced quantities.
In the case of offers made in currencies other than euro, PREFA shall reserve the right to adjust the prices in line with exchange rate differences with the euro which occur up to the time of delivery (or in the event of delayed payment by the customer, up to the time of payment).
In the absence of an alternative rule in the order confirmation or delivery agreement, invoice amounts shall be due for payment to PREFA within eight days from the date of invoicing without discount. PREFA shall be entitled to make deliveries dependant on immediate payment upon takeover. Payments made by bill of exchange or cheque require a separate agreement whereby all interest and costs shall be borne by the customer; payment by bill of exchange shall not entitle the customer to a cash discount.
In the event of delayed payment, interest for late payment shall be calculated according to article 352 of the Austrian Commercial Code. If PREFA experiences greater loss, compensation for this must be provided by the customer. In the event of delayed payment, the customer must provide compensation for all reminder and collection expenses.
Expenses arising in connection with bank transfers, documentary collection or documentary letters of credit shall be borne by the customer. Any prohibitions of assignment expressed by the customer shall not apply to PREFA.
14. PLACE OF FULFILMENT, APPLICABLE LAW, PLACE OF JURISDICTION, PARTIAL INVALIDITY
The place of fulfilment for all deliveries and services shall be the registered office of the respectively invoicing PREFA company, where all current and future claims arising from agreements with the customer are to be fulfilled.
All concluded contracts and deliveries are subject to the national law of the country in which the respective invoicing PREFA company has its registered office to the exclusion of any principles on conflicts of law or provisions of the UN Convention on the International Sale of Goods. The place of jurisdiction for all disputes arising from the contractual relationship with the customer shall be agreed as the court having local jurisdiction for the registered office of the respective invoicing PREFA company. However, PREFA shall also be free to call upon another local court having jurisdiction.
In the case of deliveries to countries of destination outside the European Union, at PREFA’s discretion, without recourse to ordinary courts of law, all legal disputes arising from the contractual relationship with the customer shall be finally resolved in accordance with the arbitrating and mediating procedures of the International Arbitration Court of the Austrian Chamber of Commerce by one or more arbitrators nominated under those rules. The language of the arbitration proceedings is German; the place of arbitration is Vienna. The customer hereby waives the use of article 611 of the Austrian Code of Civil Procedure.
If any provisions of the GTCSD are or become wholly or partly invalid, this shall not affect the remaining provisions and the validity of the GTCSD shall remain unaffected.