General Terms and Conditions of Sale (GTCS)
of Schoeller-Bleckmann Oilfield Technology GmbH
Status January 2019
Table of contents
- Object
- Formation of the contract and formal requirements
- Contract fulfillment
- Payment
- Retention of title
- Warranty and liability
- Termination and force majeure
- Compliance and Code of Conduct
- Severability clause
- Place of jurisdiction and choice of law
1st object
The following General Terms and Conditions of Sale (hereinafter referred to as “GTCS”) of Schoeller-Bleckmann Oilfield Technology GmbH, FN 152516p, Hauptstraße 2, 2630 Ternitz, Austria (hereinafter referred to as “SBOT”) apply, in the version valid at the time of conclusion of the contract, to all business relations between SBOT and its customers (hereinafter referred to as “Customers”), in particular with regard to the conclusion and fulfillment of the contract as well as all inquiries and orders. Deviations from these GTC in other agreements with the Customer are only effective if they are approved by SBOT in writing.
The customer’s general terms and conditions are deemed to be waived and do not apply unless they are expressly recognized by SBOT in the relevant contract. SBOT rejects the customer’s terms and conditions. SBOT’s GTCS also apply if SBOT carries out the delivery without reservation in the knowledge of deviating terms and conditions of the Customer.
Should parts of these GTCS be invalid, lose their validity due to subsequent circumstances, gaps exist or the application of (certain provisions of) these GTCS be denied by a court, the validity of the remaining provisions and the contracts based on them shall remain unaffected and the invalid provisions or gaps shall be replaced by provisions that best correspond to the industry standard in comparable cases or, subsidiarily, by statutory provisions.
Should parts of these GTCS be invalid, lose their validity due to subsequent circumstances, gaps exist or the application of (certain provisions of) these GTCS be denied by a court, the validity of the remaining provisions and the contracts based on them shall remain unaffected and the invalid provisions or gaps shall be replaced by provisions that best correspond to the industry standard in comparable cases or, subsidiarily, by statutory provisions.
These GTC shall also apply to future business relationships between SBOT and the customer, even if no express reference is made to them. The customer agrees that the GTC shall always apply in their current version, i.e. the version available at sbot.co.at/agb.
2 Formation of the contract and formal requirements
Unless expressly agreed otherwise, any offer (request) made by the customer is merely an invitation to SBOT to submit an offer to the customer. The Customer may then accept the offer in the form of a corresponding order. Cost estimates, price lists and other information on goods and services are only binding insofar as they are included in SBOT’s offer; all prices and delivery options quoted by SBOT prior to the submission of the offer are non-binding. The contract is concluded with the order confirmation within 5 (five) working days from receipt of the customer’s order; otherwise the order is deemed to have been rejected after expiry of the deadline. SBOT is not obliged to submit an offer or accept an order from the customer.
Offers, orders and confirmations must be submitted in writing or by EDI, e-mail or fax by an authorized representative of SBOT or the customer. The confirmation must include an order confirmation number. These requirements also apply to all amendments and supplements.
The customer confirms that the persons acting on its behalf in its purchasing department are duly authorized to make legally binding declarations and to effect the performance of the contract internally in accordance with the agreement with SBOT.
SBOT does not accept the cancellation or suspension of orders unless this has been mutually agreed. If SBOT incurs costs or disadvantages as a result of this, these will be borne by the customer (even in the case of an agreed cancellation or suspension).
SBOT does not accept the cancellation or suspension of orders unless this has been mutually agreed. If SBOT incurs costs or disadvantages as a result of this, these will be borne by the customer (even in the case of an agreed cancellation or suspension).
3. fulfillment of the contract
3.1. Goods and services
The following terms and conditions apply to the provision of products by SBOT to the customer in fulfillment of the contract, whereby in the event that both goods and services are owed, these are to be applied analogously to the latter, according to the nature of the products.
The type, quantity and specifications of the products, including the designs and choice of materials, are agreed in the contract between SBOT and the customer. Production-related deviations in dimensions, weights, technical properties and specifications are permitted within the permissible tolerances and in compliance with the relevant market standards.
SBOT has a quality management system certified to EN ISO 9001:2015 and is authorized to use the official API quality stamps API Spec Q1® and API-7-1. SBOT assumes no responsibility for the fitness for purpose, economy and suitability of the products, either in terms of their application or the region (field) of their use. This applies regardless of whether the products have been manufactured and/or developed according to the Customer’s designs or specifications or are from SBOT’s own product range. The Customer shall provide SBOT with all information and documents required for the manufacture and/or development of the products in full and in good time.
The customer must inform SBOT of all circumstances relevant to the execution of the order, even if these only become known in the course of the execution of the order. In addition, the Customer shall bear the risk for its designs or specifications as well as subsequent changes to them that do not correspond to the state of the art, and shall bear all costs incurred by the Customer as a result of work having to be carried out again or delayed by SBOT due to incorrect, incomplete or subsequently changed designs and/or specifications of the Customer.
The Customer is obliged to check the designs and specifications provided or to be provided for the execution of the order for copyrights, trademark rights or other rights of third parties. The customer is also obliged to check the products for their legality, e.g. for compliance with competition law, trademark law, copyright law and administrative law. SBOT is not liable for infringements of such rights and/or legal provisions. If SBOT is held liable for a violation of these rights and/or legal provisions, the customer must fully indemnify and hold SBOT harmless and compensate SBOT for all damages incurred by SBOT as a result of third-party claims. The Customer must also ensure, on the basis of the designs and/or specifications provided or to be provided and the correct selection of the Products, that the environmental, design and suitability requirements in the country or region (the Field) to which the Products are to be shipped and/or in which the Products are to be used are fully complied with. in which the Products are to be used are fully met and to hold SBOT harmless in this respect.
If the actual costs are found to exceed those in SBOT’s written estimate by more than 15 (fifteen) %, SBOT shall notify the Customer of this cost overrun. The additional costs shall be deemed to have been accepted by the customer if the customer does not object to them within 3 (three) working days of the notification. Cost increases of up to 15 (fifteen) % do not require separate notification. Such deviations from the cost estimate are deemed to have been accepted by the customer from the outset.
Technical consultations by SBOT are basically a service of a purely informative nature and serve exclusively as a technical orientation aid. No claims of any kind can be derived from the content of the technical advice unless this content has been expressly included in the contract.
The Customer is obliged to check the designs and specifications provided or to be provided for the execution of the order for copyrights, trademark rights or other rights of third parties. The customer is also obliged to check the products for their legality, e.g. for compliance with competition law, trademark law, copyright law and administrative law. SBOT is not liable for infringements of such rights and/or legal provisions. If SBOT is held liable for a violation of these rights and/or legal provisions, the customer must fully indemnify and hold SBOT harmless and compensate SBOT for all damages incurred by SBOT as a result of third-party claims. The Customer must also ensure, on the basis of the designs and/or specifications provided or to be provided and the correct selection of the Products, that the environmental, design and suitability requirements in the country or region (the Field) to which the Products are to be shipped and/or in which the Products are to be used are fully complied with. in which the Products are to be used are fully met and to hold SBOT harmless in this respect.
If the actual costs are found to exceed those in SBOT’s written estimate by more than 15 (fifteen) %, SBOT shall notify the Customer of this cost overrun. The additional costs shall be deemed to have been accepted by the customer if the customer does not object to them within 3 (three) working days of the notification. Cost increases of up to 15 (fifteen) % do not require separate notification. Such deviations from the cost estimate are deemed to have been accepted by the customer from the outset.
Technical consultations by SBOT are basically a service of a purely informative nature and serve exclusively as a technical orientation aid. No claims of any kind can be derived from the content of the technical advice unless this content has been expressly included in the contract.
SBOT is authorized to subcontract, but may agree with the customer certain approval requirements with respect to specific goods or services or specific subcontractors
3.2. Delivery and transfer of risk
Unless otherwise agreed, the place of performance shall be SBOT’s plant in Ternitz, Austria, or, if applicable, the place of dispatch of the goods. Delivery shall be ex works in accordance with Incoterms® 2010 and during regular business hours. Except in the case of retention of title pursuant to Section 5 of these GTC, risk and title shall pass upon (secured) loading on the truck (or wagon) at the said works.
The Customer shall bear all costs and risks associated with transportation, e.g. in connection with customs duties, transportation fees and charges, transportation insurance, legally required export control permits, customs clearance, special and dangerous goods transportation, special shipping measures, etc. SBOT and the customer may agree that SBOT shall take out suitable transportation insurance; however, the customer shall bear the costs thereof. Each shipment must be accompanied by the usual shipping documents, in particular the delivery bill with the order number shown.
Delivery shall be made within the periods or on the date specified in the contract. In any case, delivery shall be made within 30 (thirty) working days from the conclusion of the contract. Unless expressly agreed as binding, the stated delivery periods are only approximate and non-binding. Delivery periods and dates are approximate and require confirmation by SBOT.
SBOT reserves the right to postpone delivery periods and dates by the period of time necessary to fully clarify all issues relevant to the contract, in particular with regard to the granting of legally required approvals or consents, or which the Customer requires in order to fulfill its obligations, in particular ancillary and cooperation obligations. The same shall also apply for the purposes of transportation efficiency (bundling of deliveries) for up to 5 (five) working days. After notification of a postponement, the customer can coordinate with SBOT in order to find a joint solution for the postponement period.
SBOT reserves the right to postpone delivery periods and dates by the period of time necessary to fully clarify all issues relevant to the contract, in particular with regard to the granting of legally required approvals or consents, or which the Customer requires in order to fulfill its obligations, in particular ancillary and cooperation obligations. The same shall also apply for the purposes of transportation efficiency (bundling of deliveries) for up to 5 (five) working days. After notification of a postponement, the customer can coordinate with SBOT in order to find a joint solution for the postponement period.
In the event of default, the customer shall only be entitled to compensation if the default is due to at least grossly negligent breach of contract by SBOT. Delays in delivery and additional costs caused by incorrect, incomplete or subsequently changed information or other causes for which SBOT is not responsible shall not be borne by SBOT and shall not constitute default on the part of SBOT. The resulting costs are to be borne by the customer.
If the Customer is unable to accept delivery of the Products within the delivery period or on the delivery date, the Customer shall notify SBOT, stating the reasons and, if possible, the date on which the Customer will be able to accept delivery. SBOT will store the products at the customer’s risk and expense and will insure the products at the customer’s request and expense.
3.3. Transportation and packaging
If SBOT and the customer agree that transportation is to be commissioned by SBOT, this shall be at the customer’s risk and expense and, to the extent permitted by law, SBOT shall not be liable for the selection of the forwarder or carrier.
In any case, only recognized freight forwarders specializing in international transport may be used for the completion of formalities and transport as well as for the associated support. SBOT reserves the right to inspect and reject individual carriers and their vehicles if they do not offer an adequate level of safety or if the means of transportation are unsuitable for the transport, for example due to their general condition, lack of load securing devices, etc. No claims will arise from such a rejection. Such a rejection does not give rise to any claims against SBOT.
SBOT uses packaging that is suitable for the safe and undamaged delivery of the products and complies with international standards and the legal requirements in the European Union (EU). The Customer must dispose of the packaging at his own expense, unless SBOT is obliged to collect and recycle it in a specific case.
SBOT uses packaging that is suitable for the safe and undamaged delivery of the products and complies with international standards and the legal requirements in the European Union (EU). The Customer must dispose of the packaging at his own expense, unless SBOT is obliged to collect and recycle it in a specific case.
The customer must check the products for completeness immediately upon receipt. In the event of obvious packaging damage, this must be reported and documented to the supplier/forwarder/freight service immediately after handover or acceptance must be refused and SBOT must be contacted as soon as possible in order to safeguard claims for compensation for transport damage or insurance claims.
4. payment
4,1. Terms of payment
Unless otherwise agreed, SBOT’s claim to payment for each product arises upon receipt of the invoice. This also applies to all invoiced cash outlays and other costs. SBOT is entitled to demand advance payments to cover its expenses.
The prices for the Products are exclusive of value added tax (VAT), fees and charges and ex works (EXW) in accordance with Incoterms® 2010.
Payment must be made in accordance with Section 4.2 of these GTC within 25 (twenty-five) days of receipt of the invoice, but not before delivery of the Products by SBOT. Delivery by SBOT may be made in installments. Timeliness of payment is determined by receipt of payment in a bank account of SBOT. In the event of a delay in payment for which the customer is responsible, SBOT is entitled to interest at a rate of 9.2 percentage points above the prime rate of the Austrian National Bank (pursuant to § 456 UGB), but at least 9.6% p.a., calculated from the time of the first objective delay in payment. Furthermore, the customer undertakes to reimburse SBOT for the dunning and collection fees, insofar as they are necessary for the collection of the claims.
Payment must be made in accordance with Section 4.2 of these GTC within 25 (twenty-five) days of receipt of the invoice, but not before delivery of the Products by SBOT. Delivery by SBOT may be made in installments. Timeliness of payment is determined by receipt of payment in a bank account of SBOT. In the event of a delay in payment for which the customer is responsible, SBOT is entitled to interest at a rate of 9.2 percentage points above the prime rate of the Austrian National Bank (pursuant to § 456 UGB), but at least 9.6% p.a., calculated from the time of the first objective delay in payment. Furthermore, the customer undertakes to reimburse SBOT for the dunning and collection fees, insofar as they are necessary for the collection of the claims.
In the event of late or incomplete payment, SBOT is also entitled to terminate the contract. The right to assert other rights or claims remains unaffected. If the customer is in default of payment, SBOT may demand immediate payment for the products from the other contracts concluded with the customer. If payment by installments has been agreed, SBOT reserves the right to demand immediate payment of the entire outstanding claim if installments or ancillary claims are not paid on time (forfeiture clause). Furthermore, SBOT is not obliged to deliver further products until the outstanding amount has been paid. In this context, reference is made to the right of retention pursuant to § 471 ABGB and § 369 UGB. If the right of retention is exercised unjustly, SBOT is only liable for damages caused by gross negligence up to the amount of the outstanding claim.
Notwithstanding the foregoing, all claims shall become due immediately if circumstances arise which give rise to justified doubts as to the Customer’s creditworthiness or which could impair the realizability of claims, e.g. in the event of a substantial reduction or complete cancellation of credit insurance limits by reputable insurers, in the event of restructuring, insolvency or other proceedings with a similar effect which are applied for or opened in relation to the Customer, or in the event of such proceedings not being opened due to a lack of assets to cover the costs. The customer must inform SBOT immediately of the occurrence of any of these circumstances. Furthermore, in such cases SBOT is entitled to make further deliveries only against advance payment or the provision of suitable and acceptable security.
4.2. Invoicing
The customer agrees that invoices will be sent in electronic form to the e-mail address provided to SBOT. The invoices comply with the requirements of § 11 UStG in the currently valid version (if applicable) and show the VAT and the order confirmation number.
The customer is not entitled to offset its claims against counterclaims arising from the same transaction or other transactions unless the counterclaims have either been legally established by a court of law or expressly recognized by SBOT.
5. reservation of title
The products remain the unrestricted property of SBOT until full payment of the purchase price, including all costs, fees, expenses and ancillary liabilities to be reimbursed by the customer.
If SBOT replaces individual components of the delivered products within the scope of subsequent performance, SBOT also remains the owner of the replaced components.
If SBOT replaces individual components of the delivered products within the scope of subsequent performance, SBOT also remains the owner of the replaced components.
If payment is not made in full and the products are further processed by the customer or combined with other products (including third-party products), SBOT reserves a co-ownership share in the newly created items in the ratio of the invoice value to the value of the new, processed items.
If the retention of title expires, for whatever reason, the customer must assign to SBOT all its (pro rata) ownership and expectant rights and keep them separate from its own in accordance with the legal provisions for the effectiveness of the assignment or make a corresponding entry in its books.
The Customer’s right to resell the products subject to retention of title is limited to the ordinary course of business. The customer automatically assigns to SBOT the claims acquired through the resale of the products subject to retention of title in the amount of the respective invoice values. This also applies to all other claims and proceeds, such as insurance benefits in the event of destruction or damage, which the customer receives in connection with the products subject to retention of title. The pledging of the products and the transfer of the assigned rights or claims are not permitted.
In the event of seizure or other interference by third parties with the products that have not yet been paid for, the customer must inform SBOT immediately in writing so that SBOT can take the necessary further steps. Notwithstanding this, the customer must inform third parties (creditors) in advance of the existing rights in relation to the products.
Notwithstanding the assignment, the customer remains entitled to collect the assigned claims until revoked by SBOT. In the event of revocation, the customer must immediately inform the third party of the assignment and provide all information and documents that SBOT requires to exercise its rights (including the collection of the assigned claims). SBOT may also prohibit any further processing, combination and sale of the products subject to retention of title and enter the customer’s production site to retrieve the products.
In the event of seizure or other interference by third parties with the products that have not yet been paid for, the customer must inform SBOT immediately in writing so that SBOT can take the necessary further steps. Notwithstanding this, the customer must inform third parties (creditors) in advance of the existing rights in relation to the products.
Notwithstanding the assignment, the customer remains entitled to collect the assigned claims until revoked by SBOT. In the event of revocation, the customer must immediately inform the third party of the assignment and provide all information and documents that SBOT requires to exercise its rights (including the collection of the assigned claims). SBOT may also prohibit any further processing, combination and sale of the products subject to retention of title and enter the customer’s production site to retrieve the products.
SBOT is entitled to withdraw in the following cases: Non-compliance with payment terms by the customer (in this or any other transaction) or the occurrence of circumstances which could cast reasonable doubt on the customer’s creditworthiness or impair the realizability of claims, e.g. in the event of a substantial reduction or complete cancellation of credit insurance limits by reputable insurers, restructuring, insolvency or other proceedings with a similar effect being applied for or opened in respect of the customer, or in the event of such proceedings not being opened for lack of assets to cover costs. The customer must inform SBOT immediately of the occurrence of any of these circumstances.
6 Warranty and liability
6.1. Warranty
SBOT warrants that, at the time of delivery, the products fully comply with the provisions expressly set out in the contract and the characteristics set out in section 3.1 of these GTC. All representations on the Internet, in catalogs and in brochures are not warranted characteristics, but only product information.
Warranty claims can be asserted within a period of 24 (twenty-four) months for movable goods and 36 (thirty-six) months for immovable goods from delivery. If an improvement or replacement is made, the warranty period shall begin anew from delivery for the improved or replaced items, but not for other items of the same delivery. During the entire warranty period, the customer shall bear the burden of proof that defects in the products already existed at the time of delivery.
Warranty claims can be asserted within a period of 24 (twenty-four) months for movable goods and 36 (thirty-six) months for immovable goods from delivery. If an improvement or replacement is made, the warranty period shall begin anew from delivery for the improved or replaced items, but not for other items of the same delivery. During the entire warranty period, the customer shall bear the burden of proof that defects in the products already existed at the time of delivery.
The customer is obliged to carefully inspect the products in accordance with §§ 377 et seq. of the Austrian Commercial Code (UGB) and to report any defects found, including a description of the defect, to SBOT in writing or by EDI, e-mail or fax within a reasonable period of time, but no later than 5 (five) working days from delivery; otherwise the product is deemed to have been accepted and warranty claims and claims for damages as well as claims based on error can no longer be asserted. The same applies if the defects could have been detected upon careful inspection.
Defects that are not recognizable despite careful inspection (hidden defects) must be reported by the customer within a reasonable period of time, but no later than 3 (three) months from delivery. Standardized complaints will not be accepted by SBOT.
In order to assert warranty and liability claims, the original proof of purchase must be submitted. In addition, the customer is obliged to make the products complained about available to SBOT for examination of the defect before asserting warranty claims, at SBOT’s discretion in the customer’s store, by sending them to SBOT or by sending them to a third party designated by SBOT. If the customer refuses to cooperate, SBOT shall be released from its warranty obligation.
SBOT shall remedy duly notified and justified defects within a reasonable period of time, taking into account the time required for processing the warranty claim, transportation to and from SBOT’s factory, production schedules and production times customary in the industry, either by improvement or replacement, at its own discretion. The customer shall allow SBOT to take all steps necessary to remedy the defect.
Defects that are not recognizable despite careful inspection (hidden defects) must be reported by the customer within a reasonable period of time, but no later than 3 (three) months from delivery. Standardized complaints will not be accepted by SBOT.
In order to assert warranty and liability claims, the original proof of purchase must be submitted. In addition, the customer is obliged to make the products complained about available to SBOT for examination of the defect before asserting warranty claims, at SBOT’s discretion in the customer’s store, by sending them to SBOT or by sending them to a third party designated by SBOT. If the customer refuses to cooperate, SBOT shall be released from its warranty obligation.
SBOT shall remedy duly notified and justified defects within a reasonable period of time, taking into account the time required for processing the warranty claim, transportation to and from SBOT’s factory, production schedules and production times customary in the industry, either by improvement or replacement, at its own discretion. The customer shall allow SBOT to take all steps necessary to remedy the defect.
If an improvement or replacement cannot be carried out or can only be carried out inadequately, or if SBOT and the customer agree that improvement or replacement would be inappropriate for the intended purposes due to the insignificance of the defect, SBOT may choose a price reduction in the amount of the loss in value caused by the defect.
To the extent permitted by law, the right of rescission is limited to cases in which the defect significantly impairs the usability of the products and the rescission is mutually agreed between SBOT and the customer.
SBOT may choose whether to have the improvement or replacement carried out in its own works or in the works of another company of the SBO Group. Unless otherwise agreed, the customer shall bear the additional costs incurred by SBOT for the rectification of defects in products located at a place other than the place of performance.
To the extent permitted by law, the right of rescission is limited to cases in which the defect significantly impairs the usability of the products and the rescission is mutually agreed between SBOT and the customer.
SBOT may choose whether to have the improvement or replacement carried out in its own works or in the works of another company of the SBO Group. Unless otherwise agreed, the customer shall bear the additional costs incurred by SBOT for the rectification of defects in products located at a place other than the place of performance.
Excluded from the warranty are, in particular, defects or damage caused by operational and normal wear and tear, improper use, operating errors and negligent behavior on the part of the customer, unless the customer can prove that these circumstances are not the cause of the complaint. Furthermore, the warranty shall expire if the serial number, type designation or similar markings are removed or made illegible.
Unless otherwise stipulated, the customer waives the right to assert further claims. SBOT is therefore not liable for consequential damages.
6.2. Contractual penalty
The customer undertakes to pay a contractual penalty of 5 (five) % of the total order value in the event of breaches of Section 8 of these GTC, in particular with regard to the Code of Conduct (Section 8.1) and confidentiality and intellectual property (Section 8.4).
6.3. Limitation of liability
To the extent permitted by law, SBOT (including its subsidiaries, affiliated companies, legal representatives, board members, employees, vicarious agents, etc.) shall not be liable, regardless of the legal grounds, for damages due to delay, impossibility, breach of obligation, culpa in contrahendo, defective or incomplete performance, for financial losses incurred by the customer due to slight negligence, for compensation for consequential or subsequent damages (in particular as a result of production disruptions or business interruptions), for lost profit, for savings not achieved, interest or turnover, and for compensation for pure financial losses, regardless of whether this is due to production disruptions or business interruptions. We shall be liable for consequential damages (in particular as a result of production disruptions or business interruptions), for loss of profit, for unrealized savings, interest or sales, and for compensation for pure financial losses, regardless of whether these are indirect or direct damages. Recourse claims by the customer or third parties attributable to the sphere of the customer arising from product liability are excluded, unless the party entitled to recourse proves that the product defect was caused by gross negligence or intent on the part of SBOT. In particular, SBOT is not liable for legal costs, lawyers’ fees, costs of publishing judgments and internal costs of the customer or for any claims for damages or other claims of third parties; the customer must indemnify and hold SBOT harmless in this respect.
In addition, SBOT’s total liability, regardless of the legal grounds and irrespective of any cover provided by the property damage liability insurance, is limited to a maximum of 100% of the order value of the specific delivery that caused the damage (excluding any surcharges for shipping, packaging, storage and customs). This limitation of total liability also includes any claims for reimbursement of expenses, warranty claims or individually agreed guarantee claims.
Claims in connection with the products shall lapse no later than 18 (eighteen) months after delivery, with the exception of claims arising from mandatory provisions of product liability, which provide for a longer period.
7. termination and force majeure
In addition to the individual rights of withdrawal set out in these GTCS and the contract, SBOT expressly reserves the right to terminate the contract for good cause at any time with immediate effect. This applies in particular to
– serious breach of material contractual obligations by the customer
– serious breach of material contractual obligations by the customer
– Failure to comply with the terms of payment (in this or any other transaction between SBOT and the customer in its capacity as customer),
– the occurrence of circumstances that could give rise to justified doubts about the customer’s creditworthiness or impair the realizability of claims, e.g. in the event of a significant reduction or complete cancellation of credit insurance limits by reputable insurers, in the event of restructuring, insolvency or other proceedings with a similar effect that are applied for or opened in relation to the customer, or if such proceedings are not opened due to a lack of assets to cover the costs,
– significant changes in the ownership structure or shareholding structure of the customer which make it unreasonable for SBOT to continue to fulfill the contract, for example due to the threat of damage to reputation or standing or (possible) serious effects on SBOT’s relationship with other customers or suppliers,
– significant negative changes in the technical, legal or economic conditions / circumstances that make it unreasonable for SBOT to adhere to the contract, or
– Impossibility of delivery of the products for reasons for which the customer is responsible or in the event of default which continues after the expiry of the grace period of 14 (fourteen) days.
Non-performance and delay in delivery shall not entitle the Customer to withdraw from the contract (with the exception of the following cases) or to any other claims such as damages in cases of force majeure or other unforeseeable events that cannot be prevented even by reasonable precautions, such as unforeseen production stoppages, material shortages, procurement bottlenecks for raw materials and other external services required by SBOT for timely delivery, regardless of whether they occur at a supplier or a named subcontractor, as well as war, strike, riot, forces of nature, fire, embargoes and trade restrictions. In all these cases, the delivery periods and dates shall be automatically extended by the duration of these disruptions. If a force majeure event lasts longer than 4 (four) weeks, SBOT and the customer shall negotiate an amicable solution. If no amicable solution can be reached, the customer may withdraw from the contract in whole or in part after a total of 3 (three) months. Such a withdrawal does not entitle the customer to further claims, in particular not to claims for damages due to non-performance or delay, unless intent or gross negligence can be proven.
If the contractual relationship ends prematurely, for whatever reason, SBOT is entitled to remuneration for the products delivered up to that point. If the customer is responsible for the premature termination of the contractual relationship, SBOT will receive, in addition to the pro rata remuneration, a lump-sum compensation amounting to 25 (twenty-five) % of the value agreed for the products not yet delivered, without prejudice to further claims by SBOT.
8 Compliance and Code of Conduct
8.1. Code of Conduct
SBOT undertakes to comply with the Code of Conduct of the SBO Group, the current version of which is available at www.sbo.at/compliance. In accordance with Section 1, the Code of Conduct also applies to persons working for or on behalf of SBOT.
The customer hereby acknowledges the Code of Conduct and agrees to comply with it mutatis mutandis.
8.2. Taxes and customs duties
Unless otherwise agreed, all amounts quoted are in EUR. Value added tax is charged in accordance with the statutory provisions. If SBOT does not show VAT in an invoice and it subsequently transpires that VAT should have been charged in accordance with the applicable legal situation, SBOT is entitled to invoice the customer for this at a later date. In this case, the customer irrevocably waives the limitation period for the subsequently charged VAT.
Pursuant to Section 4.1 of these GTCS, the Customer is responsible for the export and import of the Products. All taxes, duties and fees incurred on the export or import of the Products shall be borne by the Customer, including any taxes, duties and fees incurred due to changes in the law after SBOT has made an offer or the Contract has been signed. SBOT and the customer may mutually agree on details.
Deliveries within the EU to commercial customers can be made VAT-free if the buyer’s VAT number is provided.
For every delivery to non-EU countries that SBOT organizes for the customer, SBOT issues the invoice without Austrian VAT. The prices are understood to be duty unpaid and untaxed.
For deliveries to non-EU countries, additional country-specific customs duties, taxes and fees may apply. The amount of the fees depends on the country of destination. These fees are to be borne by the customer. Furthermore, additional service and handling fees may be incurred depending on the forwarding agent commissioned, which SBOT cannot influence and which are also to be borne by the customer.
8.3. Export control and sanctions
The customer is obliged to comply with all applicable national and international export control regulations with regard to the products and any associated services for the benefit of third parties.
The fulfillment of the contract is subject to the proviso that the necessary export licenses are granted. Furthermore, it is subject to the express reservation that there is no conflict with applicable import or export control regulations, such as sanctions (primary and secondary sanctions), embargoes and other trade barriers. This applies regardless of whether these barriers apply directly to SBOT, to a company of the SBO Group or to the SBO Group as such, and regardless of whether there are any effects for SBOT.
The Customer acknowledges that any erection of such barriers to trade constitutes an event beyond the control of SBOT and therefore relieves SBOT of its contractual obligations. This release shall not entitle the Customer to any damages or other claims against SBOT, such as those for reimbursement of direct or indirect costs or consequential damages incurred by the Customer in connection with such release and/or non-delivery of the Products. However, SBOT and the customer may agree in good faith on legally compliant alternative delivery options.
8.4. Confidentiality and intellectual property
The Customer respects the confidentiality of SBOT’s trade secrets. “Trade Secrets” shall be interpreted broadly to include trade secrets and intellectual property, business ideas, processes, forecasts and strategies, customer, supplier and product information including price lists and pricing mechanisms, capacity and production information, machinery, research and development (R&D) information and plans, executive and employee records, etc. Any transfer, duplication, disclosure or publication of documents or information provided by SBOT to the customer is strictly prohibited and requires the approval of SBOT. Furthermore, the customer undertakes to retrieve and use the intellectual property of SBOT made available to him only within the scope of the fulfillment of the contract, but not to retrieve, use, appropriate or register it beyond that. The intellectual property rights remain with SBOT.
The above provisions apply for an indefinite period of time, which may also extend beyond the termination of the business relationship with SBOT. After termination, all documents and information received or created in the course of the business relationship must be returned or handed over to SBOT. If this is impossible or impracticable, they must be destroyed (deleted). If destruction is not carried out due to public law provisions or a separate agreement with SBOT, SBOT must be informed immediately.
The Customer grants the unrestricted right of access and use for the intended purposes for all designs and technical documents provided by it and which are the subject of intellectual property rights. However, SBOT declares that it will only access and use the customer’s intellectual property made available to it in the course of fulfilling the contract, but will not access, use, appropriate or register it for any other purpose. The intellectual property rights remain with the customer.
SBOT is entitled to name the customer as a reference for an unlimited period of time on all advertising media and in all advertising and PR activities, in particular on the website, in publications and on reference lists of all kinds, to disclose its cooperation with the customer and to mention its name, show its logo and link to its website, without this giving rise to a claim by the customer for payment; however, the customer has the right to revoke its consent at any time.
8.5. Data protection
Regulation (EU) No. 2016/679 (EU General Data Protection Regulation), which came into force on May 25, 2018, forms the basis for the protection of natural persons with regard to the processing of personal data by SBOT.
The customer acknowledges that its personal data and that of its employees will be processed by SBOT as necessary for the purposes of the business relationship with the customer. This does not restrict the processing of personal data for other purposes if these are compatible with the purpose for which they were collected, nor the processing by other companies of the SBO Group for these purposes.
Further information on the processing of personal data by SBO and the associated rights can be found at www.sbo.at/privacypolicy.
SBOT requires the Customer to comply with its Privacy Policy and, as a result, to process data in a manner that ensures appropriate security of personal data by means of appropriate technical and organizational measures, including protection against unauthorized or unlawful processing and against accidental loss, destruction and damage (integrity and confidentiality).
When processing personal data, the customer must comply with the principles of (a) lawfulness, processing in good faith, transparency, (b) purpose limitation, (c) data minimization, (d) accuracy and (e) storage limitation, in each case in accordance with the provisions of the EU General Data Protection Regulation, in addition to the obligation of integrity and confidentiality.
The processing of personal data – including the use and transfer to SBOT – must be based on a valid legal basis and the data subject must be duly informed in accordance with Article 13f of the EU General Data Protection Regulation. SBOT may require the customer to provide evidence necessary to comply with the EU General Data Protection Regulation.
The customer shall indemnify and hold SBOT harmless for any penalties or damages incurred by SBOT or its officers or employees as a result of the customer’s failure to comply with data protection obligations.
9. severability clause
Should provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provisions shall automatically be replaced by valid, effective, lawful and enforceable provisions that come closest to the purpose of the provisions to be replaced. SBOT and the customer may expressly agree effective provisions that meet these requirements.
10 Place of jurisdiction and choice of law
All disputes arising out of or in connection with the business relationship, these GTC and the contract between SBOT and the customer, including questions of conclusion, validity, termination or nullity of the contract, shall be governed by Austrian law to the exclusion of the international conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG), as amended from time to time.
The place of jurisdiction is the court responsible for the subject matter of the contract at SBOT’s registered office.