These General Terms and Conditions for Sales and Delivery (“T&C”) are an integral part of all legal transactions between the customer and Stölzle-Oberglas GmbH and/or companies affiliated with Stölzle Glasgruppe (all “STO”) concerning the sale and delivery of goods or the provision of other services by STO.
Any contractual terms or provisions issued by the customer that deviate from the T&C shall only be valid if and to the extent expressly accepted in writing by STO for each individual transaction, and only for the respective transaction for which the contractual terms or other provisions issued by the customer have been accepted by STO. Confirmation of orders shall under no circumstances be deemed to constitute an acceptance of alternative contractual terms or other provisions.
For business transactions with consumers as defined by the consumer protection provisions relevant to each case, the T&C shall only apply insofar as they do not contradict the mandatory rules of these provisions.
2. Written form, offers and conclusion of contract
Declarations, consultations and contracts concluded by STO shall only be binding once they confirmed in writing. Declarations issued by the customer on the basis of the T&C, such as complaints and similar, must be made in writing in order to be effective.
Any disclosures, information or announcements regarding pricing and other matters provided by STO in the course of initiating a business transaction shall be deemed a non-binding estimate for the purposes of customer guidance only, and do not oblige STO to enter into a contract.
Offers made by STO are always non-binding and only become binding after STO has confirmed the order in writing. STO is entitled to confirm or decline customer orders within a period of 30 days. During this period, the customer is bound by his or her order. An order confirmation shall be deemed acknowledged by the customer if no written objection is submitted within three days upon receipt. Any changes to an order already accepted by STO by the customer are subject to express written consent by STO.
3. Quantity of delivered goods
In order to take the special technical characteristics of STO production processes into account, the quantity of goods delivered may deviate from the quantity ordered by +/- 10% without entitling the customer to refuse to pay for or to accept the delivery of the goods. STO is entitled to make delivery in part or in advance. The binding quantities of delivered goods agreed upon in the framework delivery contracts shall be accepted by the customer in their entirety, in default of which the customer is obliged to pay STO the agreed amount for the non-accepted quantities as well as any possible expenses incurred by acceptance of a lower quantity.
4. Shipping, transfer of risk
In the absence of any alternative provisions stated in the order confirmation or delivery contract, deliveries shall be made from the respective STO production site. The customer shall assume the costs and risks of shipping. In the absence of any specific instructions, STO shall, as the customer’s agent, determine the transportation mode and route. The delivery shall only be covered by transport insurance if expressly instructed by the customer and at the customer’s expense.
The risks of loss, destruction of or damage to the goods shall be transferred to the carrier upon pick-up of the delivered goods; or, if the goods are by us or collected by the customer, these risks shall be transferred to the customer once the delivery has left STO premises. If the customer delays acceptance of the delivery, these risks shall be transferred as soon as the customer has objectively caused a delay.
Unless special packaging has been expressly agreed with the customer, the goods shall be packaged in the standard packaging used by STO in each case. STO shall not be liable for damages resulting from defective packaging as long as this complies with the customer’s instructions, and shall otherwise only be liable in cases of malice or gross negligence.
In general, every delivery shall be deemed shipped in good condition. Any damages shall be deemed to have occured during shipping unless proven otherwise. If damages have occurred within STO’s area of risk as defined by the agreed terms of delivery (INCOTERMS), the customer is obliged to assert any claims of STO towards the carrier, shipping company and transport insurance company, or forfeit any such claims against STO.
5. Delivery dates, delays, force majeure
In the absence of any specific agreement, all stated delivery dates shall be deemed approximate and non-binding. A promised delivery date shall entitle STO to delay this date by up to 8 working days by simply informing the customer in writing, without the customer being entitled to assert default claims of any kind on the basis of such delays.
If the delivery date is exceeded by more than this period (delayed delivery), the customer – except in cases of force majeure – shall only be entitled to withdraw from the contract concerning the amount of goods affected by the delay and only after a reasonable grace period of no less than 4 weeks. Any further claims raised by the customer against STO, especially claims for damages, shall be limited to malice and gross negligence and may not exceed the net invoice value of the amount of goods affected by the delay.
The customer must request delivery of goods as soon as they have been declared ready for shipment, otherwise STO shall be entitled to store them at STO’s own discretion and at the customer’s expense and risk, and to invoice the customer for the goods immediately.
Tool or glass trough breakages, delayed or failed deliveries on the part of sub-suppliers, labor, energy or raw material shortages, strikes, lockouts, traffic disruptions, official decrees and other cases of force majeure shall release STO from their delivery obligations for the duration and to the extent of any such disruption. If a delivery is delayed for more than 2 months as a result, the customer is entitled to withdraw from the contract following a reasonable grace period, but is nonetheless obliged to take delivery of any goods produced up to this time at the agreed price. Assertion of any claims for damages by the customer shall be precluded in these cases without exception.
In the event that the customer should fail to fulfill his or her obligations or if circumstances become known that raise reasonable doubt as to whether the customer will fulfill their obligations in a timely and proper manner in the future, STO shall without prejudice to further claims be entitled to immediately cancel deliveries, and to require the immediate settlement of all outstanding monetary and any other claims.
The properties of the delivered goods shall be determined by the order confirmation as well as by the technical manufacturing capacities available at the STO production site. In the absence of alternative written agreements, common defects in mass produced parts that do not exceed the respective acceptable quality limits as determined by STO (standard AQL values) do not constitute a warranty defect.
STO’s warranty period begins on the date the delivery risk is transferred to the customer and ends 6 months after that date. STO shall be liable for the absence of defects in those delivered goods that have been purchased by STO only in connection with the warranty claims that STO is entitled to assert against the respective sub-suppliers.
The customer is obliged to inspect every delivery for defects immediately. Complaints for visible defects must be submitted in writing within 8 days after receipt of delivery and immediately upon discovery for other defects, in any event within the warranty period, otherwise all warranty claims shall be excluded. If the customer does not submit a complaint, or if the delivered goods are processed or mixed or combined with other goods, the delivery shall be deemed accepted without reservation. Submission of a complaint does not release the customer from their payment obligations, nor does it entitle the customer to refuse delivery of other goods from the same or any other contract. Inappropriate handling or processing of the delivered goods will result in the preclusion of all claims whatsoever against STO. If a defect is acknowledged by STO as being justified, STO may at their sole discretion either take back the delivered goods at the agreed price or provide substitute goods upon return of the original goods or remedy the defect on their own. STO shall only reimburse the customer for remedying defects on their own subject to prior written agreement.
STO shall not be liable for consequential damages affecting persons or facilities (in particular damages resulting from business interruptions) if these constitute loss of earnings or third-party damages, and otherwise only to the extent that the defect is due to malice or gross negligence; furthermore, the amount of compensation on the part of STO shall be limited to the net invoice value of the delivered goods affected by the defect.
7. Compensation for damages
Subject to alternative provisions in the T&C, STO’s compensation for damages arising from simple negligence and for all indirect damages shall be precluded and otherwise limited to the net invoice value.
8. Product liability
Liability of STO for damages to property resulting from a faulty product, which the customer suffers as an entrepreneur, shall be excluded. Recourse against STO by the customer for a delivery of faulty goods shall be limited to malice and gross negligence. The customer shall equally impose this waiver in STO’s favor on any of their customers or otherwise be liable for damages. Limitation of STO’s product liability shall apply in the same measure to goods and packaging.
9. Industrial property rights
All documentation, technical drawings and other documents created by STO in the course of preparing or implementing the delivery order as well as all technologies used in the production and design of the products represent the sole intellectual property of STO, even if no statutory property rights exist. The customer may not use such technologies which have been made available to our customer through the provision of designs, delivery, information on the manufacturing process and the like for their own production or disclose or make such technology accessible to third parties in any way. If the customer violates this obligation, STO shall be entitled to those rights that are granted to a patent holder by the Austrian Patent Act in cases of patent infringement.
The customer shall fully indemnify and hold STO harmless against any third-party claims arising from patent infringements or other infringements of property rights caused by components, assemblies or other goods or services that were not developed by STO.
10. Advice on technical applications
Any advice on technical applications provided by STO orally and in writing shall be non-binding and shall not release the customer from their own obligation to verify the suitability of the delivered goods for the intended processes and/or purposes. This shall also apply to any potential third-party property rights. Any liability of STO in this respect shall be limited to malicious intent and gross negligence and to the net invoice value of the delivered goods that have caused the damage.
11. Retention of title
All delivered goods shall remain property of STO until all payments relating to the delivery have been made, including subsidiary costs such as interest and expenses. The customer shall store goods subject to STO’s retention of title separately and in a proper manner and provide for appropriate insurance thereof.
The customer is entitled to process or sell goods subject to retention of title in the proper course of business; however, the customer shall only be permitted to pledge these goods or offering them as collateral subject to STO’s prior written approval. STO’s retention of title shall also extend to the products which result from further processing and adaptation. If the goods subject to retention of title are processed or joined to or mixed with other materials, STO shall obtain joint ownership in the resulting product in the same proportion as that of the value of the goods supplied by STO to the value of the other materials. In all such cases, the customer shall be deemed custodian of the goods and as such is obliged to participate in all measures which may be necessary or useful to the protection of STO’s property. If third parties assert or wish to assert rights over the goods subject to retention of title, the customer shall inform STO accordingly without delay, otherwise being liable for damages.
The customer shall now assign to STO all claims from the sale of goods subject to retention of title. The customer is obliged to, upon request, inform STO of the name and address of their customers as well as of the existence and value of receivables resulting from sales. The customer shall furthermore be obliged to note the assignment in their accounts and, upon request, provide STO with documentary evidence thereof. STO shall be entitled to inform the respective debtors of such assignments at any time. The customer is entitled, until revoked by STO, to collect claims assigned to STO in their own name but for STO’s account without this affecting STO’s exclusive right to the claims in any way whatsoever. The customer may not assign claims arising from the resale of goods subject to retention of title to third parties. Such assignments shall have no effect on STO in any case.
In the event of an assertion of the right of retention, the delivered goods shall be returned to STO and redeemed for their scrap value, the transport costs shall however be paid for by the customer. Any redemption proceeds that exceed the scrap value shall, however, be credited to the customer.
Any tools used by STO to produce the ordered goods shall remain the property of STO even if the customer pays for the costs of the tools.
STO’s prices shall refer to the currency determined in the offer and otherwise to the applicable currency for the respective STO company making the delivery, and shall be net prices from the respective STO site.
The agreed prices are based on the manufacturing costs at the time of the written order confirmation. In the event of any change of material and energy prices, wages, shipping costs, duties, taxes or other price-determining costs, STO reserves the right to adjust the prices to the cost structure at the time of delivery. The prices shall only apply for the agreed volumes. Surcharges will be charged accordingly for lower quantities.
If offers are made in currencies other than Euro, STO shall retain the right to modify prices to reflect those exchange rate fluctuations that occur up to the date of delivery.
In the absence of any alternative provisions stated in the order confirmation or delivery contract, invoiced amounts shall be paid to STO without deduction within 8 days after the date of invoice. STO shall reserve the right to deliver goods dependent on immediate payment upon delivery. Payments may only be paid by check or bill of exchange subject to separate agreement, and in this case all interest and fees shall be paid by the customer; payment by bill of exchange shall not entitle the customer to a deduction.
In the event of late payments, default interest shall be charged in accordance with section 352 of the Austrian Commercial Code. If STO suffers higher damages as a result of the default, these must be reimbursed by the customer. The customer shall reimburse STO for all payment reminder and collection fees in connection with late payments.
Any charges for bank transfers, documentary collection or documentary credits shall be borne by the customer.
If the costs of the expected production volume include the distributed costs for tools as per agreement, the unpaid costs that may result in the event that the customer only purchases part of the quantity needed to amortize the tool costs or not at all, shall be charged to the customer and payable immediately.
Any prohibition of assignment made by the customer shall not apply to STO.
14. Place of performance, governing law, jurisdiction, partial invalidity
The place of performance for all delivered goods and services, where all present and future claims resulting from contracts with the customer are to be fulfilled, shall be the respective company headquarters of the invoicing STO company.
All contracts and deliveries shall be governed by the national laws of the country where the headquarters of the invoicing STO company are located, under exclusion of any reference provisions and the UN convention on the international sale of goods.
All disputes arising out of the contractual relationship with the customer shall be settled by the materially and locally competent court at the headquarters of the invoicing STO company. STO shall, however, be entitled to select an alternative materially and legally competent court.
If deliveries are made to countries outside of the European Union, all disputes arising out of the contractual relationship with the customer shall be finally settled at STO’s discretion under the Rules of Arbitration and Conciliation of the International Arbitration Court of the Austrian Federal Economic Chamber by one or more arbiters appointed in accordance with these rules, and to the exclusion of recourse to ordinary courts of law. The language of the arbitration shall be German; arbitration shall take place in Vienna. The customer shall waive the application of section 611 of the Austrian Civil Procedure Code. Should any of the provisions of the T&C be or become invalid, such invalidity shall not affect any other provision or the validity of the T&C as such.
Date: 16 May 2017