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VORAN Maschinen GmbH
I. General
1. The offers, deliveries and services of VORAN Maschinen GmbH, A-4632 Pichl/Wels, hereinafter referred to as „seller“, are effected exclusively on the basis of the conditions specified hereafter, even if not expressly mentioned in oral discussions or on the telephone. Any deviations from these conditions must be expressly confirmed by us in writing in order to be valid.
2. Any conditions of purchase of the buyer are herewith expressly objected and shall not be binding upon us, not even, if we do not object them again on entering into the contract. By the time of receiving our goods our Conditions of Sale and Delivery are deemed to be expressly accepted.
3. Any prohibition of assignment as may be set forth in our customers’ „General Terms of Business and Purchase” as well as any other terms of contract concerning the assignment of claims are deemed to be void.
Transactions on a commission basis:
1. If goods are not sold but delivered on a commission basis, the following shall apply:
a) The commission agent is obliged to store the goods delivered to him properly and in such a way that they can be sold as new by Voran in case they have to be taken back.
b) The commission agent shall be liable for any decrease in value of the device that occurred in his sphere of responsibility, either by weathering or poor storage.
c) Any parts missing as well as any decrease in value shall be paid by the commission agent within 14 days after written notification on the basis of the valuation stipulated by Voran.
d) The respective goods on consignment shall be documented in the books of the commission agent as goods on consignment specifying the type and equipment of the machine.
e) Voran shall be free at any time to inspect or have inspected the delivered goods for their number of items and condition.
f) Until payment in full Voran retains title to the object of delivery handed over on a commission basis, which shall become the property of the commission agent only after payment in full.
2. The commission agent shall be entitled to resale under the following conditions:
a) The commission agent shall inform Voran of each resale immediately, however not later than 8 days after placement of the order on the part of the customer.
b) In case of resale without Voran having been informed within a period of 8 days, Voran shall be entitled to call in from the commission agent the full sales price including default interest.
c) For any resale and/or taking over by the commission agent proper these Conditions of Sale and Delivery shall apply.
3. If a commission period has been agreed for the respective goods on commission, Voran shall be entitled after elapse of this period to call back the goods or to extend the period of commission. If no period of commission has been agreed, Voran shall be entitled to dispose of the goods at any time. Any return consignment on the part of the commission agent is subject to the express consent of Voran and shall be effected by the commission agent free of charge and freight paid.
4. On the commission agent’s request the sold devices shall be replaced as far as possible by new deliveries.
II. Conclusion of the contract
1. The order shall be considered as finally accepted and irrevocable, as soon as the contracting party has received the written order or the invoice for the delivered contractual goods. Any alterations and amendments of this agreement must be confirmed by Voran in writing in order to be valid.
2. Any dimensions, weights, capacities, prices and similar as specified in price lists, catalogues, leaflets and other publications are not binding.
3. Any offers of the seller are subject to confirmation and to prior sale.
4. The seller reserves modifications of design at any time, without being obliged to install such modifications in products that have been finished before any such modification of design. The warranted characteristics of an object of delivery are restricted to those expressly warranted in the confirmation of the order.
5. The orderer shall be bound by the seller’s confirmation of the order. If there is any well-grounded doubt regarding the solvency, the seller shall be entitled to either retain the delivery until payment in full of the purchase price or to resign from the contract.
6. If the seller’s confirmation of the order deviates from the order, either written or oral, by telephone or telegram, the deviation shall be deemed to be accepted by the orderer, if the seller is not informed to the contrary within 10 days after dispatch of the confirmation of the order.
7. The seller undertakes not to resell the purchased subject abroad, neither directly nor indirectly, neither in the same nor in any modified form.
III. Prices
1. All prices are subject to confirmation, are quoted in EURO and are, for Austria, including packing for means of transport, free trader, not unloaded, and ex works in case of destinations abroad. Goods of a net order value less than EUR 1,000.00 as well as accessories and spare parts are deemed to be sold ex works storage. Orders less than EUR 50.00 are invoiced gross for net, i.e. there are not any discounts granted.
2. For final accounting the prices valid on the date of delivery are taken as a basis.
IV. Dispatch and passing of the risk
1. Delivery is deemed to be completed when the object of delivery has been handed over to the carrier or forwarder. All deliveries are made at the risk of the buyer, even in case of deliveries with freight paid.
V. Delivery
1. The dates and terms of delivery are not binding. The term of delivery commences on the date of the confirmation of the order, provided, however, that all documents and pieces of information to be provided by the orderer have been received by the seller.
2. The seller is entitled to carry out part deliveries or early deliveries and is entitled to realize modifications of design even during the term of delivery.
3. Events of force majeure including a lack of raw material and industrial action give the seller the right to defer the fabrication and delivery by the period of obstruction including a reasonable starting period or to resign from the contract with respect to the part of the contract not yet fulfilled, without any claims of compensation whatsoever arising thereof for the orderer.
4. If the buyer resigns from the purchase agreement entered into with legally binding effect for whatever reason, the seller shall have the right to claim a cancellation fee of 10% of the gross sales price in case of series production; in case of custom-built parts the fabrication costs incurred may be claimed additionally, in which case the already fabricated parts are at the buyer’s disposal.
5. If there is a delay in delivery for which the seller is liable, the buyer may either claim performance or declare rescission from the contract after granting a reasonable period of grace of at least four weeks. The declaration of rescission must in any case be sent by registered letter. In this case the buyer is entitled to repayment in full of his payments on account, however not including any claims for interest and without being entitled to any claim for compensation of whatever kind because of the delay in delivery.
VI. Payment
1. All payments must be made exclusively to the seller, as provided by the agreed terms of payment. If no terms of payment have been agreed, the purchase price and other receivables of the seller are due for payment immediately after invoicing.
2. The buyer is not entitled to retain payments because of warranty claims or other counterclaims not accepted by the seller.
3. If the buyer is in default with respect to the agreed payments, the seller may:
a) defer the performance of his own contractual obligations,
b) claim an extension of the term of delivery,
c) apply a loss of date to the outstanding rest of the purchase price and
d) immobilize the delivered/installed goods via already deposited control program or a control program programmed via subsequent access,
e) charge default payment amounting to 6% exceeding the applicable bank rate, or resign from the contract after granting a reasonable period of grace of at least two weeks.
4. Moveover, any dunning costs and collection costs have to be borne by the buyer.
Vll. Reservation of title
1. Until payment in full of all accounts receivable due to him under the business relation with the buyer, regardless of the legal title and time of arising thereof, the seller retains title to all goods delivered by him. This shall apply in particular to the settlement of any balance of a current account and/or, in case of acceptance of bills of exchange or cheques, until final payment thereof without any further recourse.
2. The contracting party may process or resell the materials delivered by the seller in the ordinary course of business. As long as there is a reservation of title existing, the machining or processing of the goods subject to reservation of title may be performed on behalf of the seller. The seller is entitled to ownership or co-ownership in the new objects thus created. In case of joining or mixing of the goods subject to reservation of title with other things the seller is entitled to co-ownership in the new things in proportion to the value of the goods subject to reservation of title and the value of the other things at the time of joining and/or mixing. The things created by processing or joining and/or mixing are deemed to be goods subject to reservation of title as defined by these provisions. In case of resale the contracting party assigns to the seller already at this time any accounts receivable out of the retale of the delivered goods to any third party. The contracting party is entitled to dispose of the goods subject to reservation of title in case of resale with deferment of the purchase price only, if he informs the second buyer about the assignment for security at the time of resale or if he makes a note of the assignment in his books of account.
3. The contracting party must not pledge the goods subject to reservation of title, nor assign them for security, and must immediately inform us about any pledges that have been made at the instigation of a third party.
4. In case of violation of the contract continuing in spite of admonition or in case of insolvency of the contracting party we are entitled to request surrender of the object of delivery in our property and to collect it, without this implying any avoidance of the purchase agreement.
VIII. Warranty, compensation
1. Upon handing over to the contracting party, his messenger or his carrier the delivery must be checked immediately with due care pursuant to §§ 377,378 Commercial Code, and any detectable defects / losses must be noted in detail on the advice of delivery, the delivery note or the consignment note, otherwise any claims are excluded. If inspection is not possible immediately upon taking over, this circumstance must be noted on the advice of delivery, the delivery note or the consignment note, otherwise any claims are excluded, and any defect detected during the following inspection must be notified in detail and in writing within three days after delivery.
Moreover, pursuant to §§ 377 f Commercial Code the customer must inspect the goods after delivery without delay, but not later than within 6 working days. Any defects detected on such inspection must be notified to us in writing without delay, but not later than within 3 working days after detection, specifying the kind and scope of the defect. Concealed defects must be notified to us in writing without delay, but not later than 3 working days after detection. If a notice of defect is not given or not given in time, the goods are deemed to be accepted.
2. If the delivery is defective, or if there are any defects occurring within the period of warranty, the buyer shall be entitled only to remedy and/or replacement free of charge within a reasonable period. There are not any other or further claims, particularly such for reduction of payment, on which legal ground whatsoever, unless specifically agreed upon in writing.
3. The buyer is obliged to observe the submitted directions of use and to seek our advice in case of doubt. We cannot be held liable in any case for defects or damage caused by the non-compliance with our instructions or the failure of seeking our advice.
4. The buyer shall renounce any damages, unless he furnishes evidence that we are liable for damage caused intentionally or by gross negligence. However, this does not include consequential damage or other collateral damage and indirect damage.
5. At any rate, the amount of damages shall be limited by the amount of the insurance coverage.
6. Warranty claims of the customer will, in all cases at our discretion, be fulfilled either by exchange or repair within a reasonable time or by price reduction. Rescission (avoidance of the contract) can be claimed by the customer only in case of major defects and in case that the defect cannot be remedied by exchange or repair and if the customer cannot be reasonably expected to accept a reduction of price. Customer’s claims for damages aiming at remedy of the defect by way of improvement or exchange can be asserted only, if we are in default regarding the fulfilment of the warranty claims.
To the extent of the provisions hereof the seller gives a warranty for the usability and design of the delivered goods for such defects as occur within a period of 24 months after delivery.
The buyer is not entitled to claim from the seller a compensation of cost for remedy of defects performed on his own.
If the customer alleges the existence of a defect, any claims resulting thereof, particularly on the grounds of warranty or compensation, can be asserted only, if the customer furnishes evidence that the defect has already existed at the time of delivery of the goods. This shall also be applicable within the first six months after delivery of the goods.
Our obligation to warranty expires in any case at the end of the warranty period. Any recourse of the customer pursuant to § 933b General Civil Code because of self-fulfilled warranty obligations shall be excluded.
If the legal transaction is based on goods not corresponding with the original condition, partly incomplete or already used, any claims for warranty and compensation shall be generally excluded, unless otherwise set forth in the confirmation of the order.
For parts not fabricated by the seller, the seller will assume warranty only to the extent of the warranty claims granted to him towards the supplier or manufacturer.
Natural wear or damage caused by negligence, improper handling or the use of additional equipment shall be excluded from warranty.
7. Warranty becomes extinct:
a) if the goods have been modified by the orderer or by any third party without the prior consent of the seller or if remedy has been done
b) in case of resale within the period of warranty.
c) if the orderer is in default of payment or other obligations to be performed by him
d) if there was no proper claim according point VIII 1).
IX. Product liability
The buyer undertakes to strictly observe the operating instructions including the terms of safety submitted to him. The buyer is aware of the fact that any non-compliance with or infringement of the operating instructions and the safety directions entails the extinction of our liability pursuant to the Product Liability Act. As far as the buyer as an entrepreneur suffers damage from the use of the goods delivered by us, any claims against us under the product liability provisions shall be excluded as far as legally admissible. The buyer undertakes not to sell, leave or otherwise transfer goods that were exclusively made for entrepreneurial use to consumers and/or persons other than entrepreneurs, on which legal ground whatsoever. Any protective effect under this contract in favour of third parties shall be excluded. The buyer undertakes in case of resale to agree with any further person acquiring the goods the same conditions and exclusions of liability, and he agrees, in case of violation of this obligation, to hold us fully harmless with respect to any and all disadvantages incurred by us in this context.
X. Choice of law
For all contractual relationships of VORAN Maschinen GmbH, Inn 7, 4632 Pichl/Wels the provisions of the laws of Austria shall exclusively apply. This is also applicable to export transactions, regardless of the provisions of the country of the buyer or the commission agent and the place of signature.
XI. Venue
The exclusive place of venue for contracts entered into with VORAN Maschinen GmbH, Inn 7, 4632 Pichl/Wels, shall for both parties be the court of Wels/Upper Austria having jurisdiction as regards the subject matter.
XII. Consumer protection
1. The terms of the contract in hand shall apply without restriction to entrepreneurs as defined by the individual acts of consumer protection.
2. If, in the individual case, these Conditions of Sale and Delivery are supplementary to a legal transaction with a consumer as defined by the various acts of consumer protection (General Civil Code, Consumer Protection Act, Civil Code, Law Regarding General Terms and Conditions of Trade or Business, Consumer Credit Act, Law Regarding Revocation of Door-to-Door and Similar Dealings) the above Conditions of Sale and Delivery shall apply only to the extent that they are admissible according to these acts.
XIII. Data processing
The computer-aided processing of the data gained within the scope of our business enterprise is effected pursuant to the provisions of the Data Protection Act 1978, federal statute No. 565 dated 18.10.1978 (and/or the Federal Data Protection Act 1977, Federal Law Gazette 1201 dated 27.1.1977), strictly observing the interests of the parties concerned meriting protection. To preserve the data protection secrets the appropriate measures of data security have been taken.