General Terms and Conditions of Delivery and Trade (Last revised: March 2013)
These General Terms and Conditions of Delivery and Trade apply to all concluded sales transactions and associated initial and follow-up deliveries between ANP - SYSTEMS GmbH, Elsbethen, hereinafter referred to as "ANP”, and its respective customers, hereinafter referred to as “Customer". By placing an order, the customer accepts these General Terms and Conditions of Delivery and Trade. Deviations from these terms and conditions are legally binding only if they are expressly confirmed as such by a written declaration of ANP. Purchase conditions of customers are not valid, even where they are not contradicted by ANP.
2. Offers and conclusion of contract:
In the absence of an express agreement to the contrary, offers from ANP, prices and delivery dates are non-binding and subject to change without notice. The Customer's order is deemed to be an offer which can be accepted by ANP within 2 weeks. The announcement of delivery will be deemed to be acceptance of such an offer in the same way as a written order confirmation.
3. Prices and billing:
Offer and invoice prices quoted are net of VAT at the statutory rate. In the absence of an express agreement to the contrary, all prices quoted are ex warehouse/works excluding the costs of packaging, corrosion protection and shipment. Invoicing is based on the dimensions and volume of the products actually delivered. If shipment is included in the supply agreement, the Customer will be invoiced separately for the transport costs.
ANP will abide by the stated and promised delivery dates to the extent possible and to the best of its ability. If this should prove impossible, the Customer will be entitled to withdraw from the contract after setting a reasonable period of grace. The Customer waives its right to assert a claim for compensation arising out of an enforceable judgement of default in delivery.
In the event of strikes or lockouts within ANP or a company working for ANP, of energy shortages, transport disruptions, official decrees and late delivery by its own suppliers to ANP itself, and in any cases of force majeure, ANP is under absolutely no obligation to observe the agreed delivery periods. In these cases, the delivery time will be extended by the duration of the hindrance, and neither compensation nor any contractual penalty may be demanded. If these circumstances should render delivery or performance impossible, ANP will be exempted from its obligation to deliver or perform.
In the event of a default on acceptance by the Customer, ANP is entitled to store the goods at the expense and risk of the Customer, to submit an invoice for the goods and require immediate payment of the invoice in accordance with the contract or to withdraw from the contract and sell the goods elsewhere.
Delivered at Place means delivery without unloading by the supplier. Unloading must be carried out properly and without delay using equipment and staff provided by the Customer. The risk will in all cases of despatch pass over to the Customer at the point at which the goods leave the factory.
5. Returned goods and reimbursement:
Goods supplied by ANP will be taken back only with prior written consent and in pristine condition by carriage-free return. Goods taken back will be credited less a handling fee of 20%.
6. Cancellation of the order:
In the case of full or partial withdrawal of the Customer from the concluded contract a cancellation fee of 20% is deemed to be agreed. The Customer will be invoiced in full for special parts which are unsuitable for resale.
Payments are due immediately upon receipt of the invoice and without deductions. The Customer will be invoiced immediately for partial deliveries. These thus become due for payment regardless of the completion or otherwise of the total delivery. As long as older due invoices remain open, all payments received will be used to settle them. Payments will be applied first to accrued interest, costs and charges, and then to the capital. ANP is not obliged to assign payments earmarked by the Customer to specific invoice amounts.
In the event of an obvious lack of creditworthiness on the part of the Customer, or if the Customer should default on an agreed payment, ANP is entitled
a) to defer the fulfilment of its own commitments until such time as the outstanding payment has been made
b) to make the further fulfilment of the order contingent on the submission of an appropriate payment guarantee
c) in the event of failure to comply with a reasonable period of grace, to withdraw from the contract.
Complaints and defects do not exempt the Customer from its payment obligations, either in whole or in part. The Customer is not entitled to offset its own claims against those of ANP unless such claims have been expressly acknowledged by ANP or declared final and absolute by a court of law.
The deduction of cash discounts requires a special express agreement.
It is agreed that default interest in line with standard business rates will apply in the event of default on payment. The Customer shall reimburse ANP for any and all costs of extrajudicial measures.
9. Retention of title
Until such time as complete payment has been received, the goods supplied will remain the property of ANP. The retention of title agreed here is intended to provide security for all claims of ANP in respect of the Customer. In the event of breach of contract by the Customer, in particular in the event of default on payment, ANP is entitled to withdraw from the contract and reclaim the goods. The Customer gives its consent to ANP in this case to collect the goods from the former’s storage facility or the construction site where the goods are being stored.
The Customer is entitled to resell the goods in the ordinary course of business or to process and install them. At the point of conclusion of the contract it assigns to ANP all receivables in the amount of the sum total of the invoice arising out of a resale to a third party and undertakes to make a note to that effect in its books and on its invoices. In the event of installation and processing, the Customer shall assign to ANP any entitlement to claim labour cost payments from its own customers in the amount of the sum owed to ANP.
In the event of the seizure of goods subject to retention of title by creditors of the Customer, the latter shall notify ANP immediately thereof and pay any costs incurred by ANP for the release of these goods from third-party rights.
In the event of the opening of insolvency proceedings in respect of the assets of the Customer or in the event of a default on payment of more than 30 days after the due date, ANP is entitled to collect the goods subject to retention of title from the Customer and turn them to account in a manner analogous to the application of the provisions on the return of goods. If ANP should take back the goods supplied on the basis of retention of title, the Customer is liable for any reduction in proceeds resulting from the resale of these goods. The Customer shall compensate ANP for the costs of return and onward transport.
10. Warranty and liability:
ANP warrants for the warranted characteristics and freedom from defects of the delivered goods in accordance with the state of the art.
The goods must at the point of acceptance be checked for quantity and composition by the Customer or its authorised representatives. Rejected goods must be not installed or otherwise used. ANP must be notified at the latest within three days. For the purpose of rectification of any defects to the delivered goods which have been correctly identified in a timely manner, ANP can it its discretion and within a reasonable period of grace effect improvement, retrospectively supply any missing goods or supply replacements. Further claims, in particular to cancellation or a reduction in price, are expressly excluded. The warranty will become void with the processing or alteration of the delivery item by the Customer or third parties.
All warranty claims without exception will lapse 6 months after delivery. They will, moreover, become void if installation instructions, fact sheets and technical information for the installation, handling and use are not followed, or if incorrect installation or further processing work is carried out by the Customer or third parties.
The Customer can demand compensation from ANP only for intentional or grossly negligent acts. Any liability whatsoever for consequential damage is excluded.
11. Place of performance, place of jurisdiction and applicable law
The place of fulfilment is the registered office of ANP in Elsbethen. 5020 Salzburg is agreed as the place of jurisdiction. The applicable law is the law of Austria.
12. Partial invalidity:
Should individual provisions of these Terms and Conditions of Delivery and Trade be wholly or partially invalid, the other terms will remain fully effective. The affected provision is to be reduced without sacrificing its validity. The agreement is to be amended and interpreted in such a way as to ensure that the outcome desired by the parties is achieved to the fullest possible extent.