General Terms and Conditions of Sale (GTCS)
of Schoeller-Bleckmann Precision 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 Precision Technology GmbH, FN 152516p, Hauptstraße 2, 2630 Ternitz, Austria (hereinafter referred to as “SBPT”) apply, in the version valid at the time of the conclusion of the contract, to all business relations between SBPT 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 Client are only effective if they are approved by SBPT in writing.
General terms and conditions of the customer shall be deemed waived and shall not apply unless they are expressly recognized by SBPT in the relevant contract. SBPT rejects the customer’s terms and conditions. SBPT’s GTCS shall also apply if SBPT 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 judicially denied, 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 judicially denied, 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 SBPT and the client, even if no express reference is made to them. The client 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, each offer (each inquiry) of the customer is merely an invitation to SBPT to submit an offer to the customer. The customer can then accept the offer in the form of a corresponding order. Cost estimates, price lists and other information about goods and services are only binding insofar as they are included in SBPT’s offer; all prices and delivery options stated by SBPT 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 order; otherwise the order is deemed to have been rejected after expiry of the deadline. SBPT 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 SBPT or the customer. The confirmation must include an order confirmation number. These requirements also apply to all amendments and additions.
The client confirms that the persons acting on his behalf in his purchasing department are duly authorized to make legally binding declarations and to effect internally the performance of the contract in accordance with the agreement with SBPT.
SBPT does not accept cancellation or suspension of orders unless this has been mutually agreed. If SBPT incurs costs or disadvantages as a result, these shall be borne by the client (even in the case of an agreed cancellation or suspension).
SBPT does not accept cancellation or suspension of orders unless this has been mutually agreed. If SBPT incurs costs or disadvantages as a result, these shall be borne by the client (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 SBPT 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 SBPT 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.
SBPT 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. SBPT assumes no responsibility for the fitness for purpose, economy and suitability of the products, either in relation to their application or to the region (field) of their use. This applies irrespective of whether the products have been manufactured and/or developed according to the customer’s designs or specifications or originate from SBPT’s own product range. The customer shall provide SBPT with all information and documents required for the manufacture and/or development of the products in a complete and timely manner.
The client must inform SBPT 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 bears the risk for his designs or specifications as well as subsequent changes to them that do not correspond to the state of the art, and all costs incurred as a result of work having to be carried out again or delayed by SBPT due to incorrect, incomplete or subsequently changed designs and/or specifications of the customer shall be borne by 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 client is also obliged to check the products for their legality, e.g. for compliance with competition law, trademark law, copyright law and administrative law. SBPT is not liable for violations of such rights and/or legal provisions. If SBPT is held liable for a violation of these rights and/or legal provisions, the client must fully indemnify and hold SBPT harmless and compensate SBPT for all damages incurred by SBPT as a result of claims by third parties. The Client must also ensure, based on the designs 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. the products are to be used, and to indemnify SBPT in this respect.
If it turns out that the actual costs exceed those in SBPT’s written estimate by more than 15 (fifteen) %, SBPT shall notify the Client of this cost overrun. The additional costs shall be deemed 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 a separate notification. Such deviations from the cost estimate shall be deemed to have been accepted by the customer from the outset.
Technical consultations by SBPT are basically a service with a purely informative character and serve exclusively as a technical orientation aid. No claims of any kind can be derived from the contents of the technical consultations, unless these contents have 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 client is also obliged to check the products for their legality, e.g. for compliance with competition law, trademark law, copyright law and administrative law. SBPT is not liable for violations of such rights and/or legal provisions. If SBPT is held liable for a violation of these rights and/or legal provisions, the client must fully indemnify and hold SBPT harmless and compensate SBPT for all damages incurred by SBPT as a result of claims by third parties. The Client must also ensure, based on the designs 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. the products are to be used, and to indemnify SBPT in this respect.
If it turns out that the actual costs exceed those in SBPT’s written estimate by more than 15 (fifteen) %, SBPT shall notify the Client of this cost overrun. The additional costs shall be deemed 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 a separate notification. Such deviations from the cost estimate shall be deemed to have been accepted by the customer from the outset.
Technical consultations by SBPT are basically a service with a purely informative character and serve exclusively as a technical orientation aid. No claims of any kind can be derived from the contents of the technical consultations, unless these contents have been expressly included in the contract.
SBPT is entitled to subcontract, but may agree with the client certain approval requirements regarding specific goods or services or specific subcontractors
3.2. Delivery and transfer of risk
Unless otherwise agreed, the place of performance shall be SBPT’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. Risk and title shall pass, except in the case of retention of title pursuant to Section 5 of these GTC, upon (secured) loading on the truck (or wagon) at the said works.
The customer assumes all costs and risks associated with transportation, e.g. in connection with customs duties, transport fees and charges, transport insurance, legally required export control permits, customs clearance, special and dangerous goods transports, special shipping measures, etc. SBPT and the customer may agree that the customer shall bear all costs and risks associated with the transport. SBPT and the customer may agree that SBPT will take out suitable transport 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.
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 are subject to confirmation by SBPT.
SBPT 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 permits or approvals, or which the customer needs to fulfill his 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 SBPT in order to find a joint solution for the postponement period.
SBPT 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 permits or approvals, or which the customer needs to fulfill his 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 SBPT in order to find a joint solution for the postponement period.
In case of delay, the customer is only entitled to compensation if the delay is due to at least grossly negligent breach of contract by SBPT. Delays in delivery and additional costs caused by incorrect, incomplete or subsequently changed information or other causes for which SBPT is not responsible shall not be borne by SBPT and shall not constitute a default on the part of SBPT. 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, he must notify SBPT of this, stating the reasons and, if possible, the time at which he will be able to accept delivery. SBPT shall ensure the storage of the products at the risk and expense of the customer and shall insure the products at the customer’s request and expense.
3.3. Transportation and packaging
If SBPT and the customer agree that transportation is to be commissioned by SBPT, this shall be at the risk and expense of the customer and SBPT shall not be liable, to the extent permitted by law, 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. SBPT reserves the right to inspect and reject individual forwarders 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 SBPT.
SBPT uses packaging that is suitable for the safe and undamaged delivery of the products and that 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 SBPT is obliged to collect and recycle it in a specific case.
SBPT uses packaging that is suitable for the safe and undamaged delivery of the products and that 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 SBPT 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 immediately after handover to the supplier/forwarding agent/freight service or acceptance must be refused and SBPT 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, SBPT’s claim for payment for each product arises upon receipt of the invoice. This also applies to all invoiced cash expenses and other costs. SBPT 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) according to Incoterms® 2010.
Payment must be made within 25 (twenty-five) days of receipt of the invoice, but not before delivery of the products by SBPT, in accordance with section 4.2 of these GTCS. Delivery by SBPT may be made in installments. For the timeliness of payment, the receipt of payment on a bank account of SBPT is decisive. In the event of a delay in payment caused by the customer, SBPT is entitled to interest in the amount of 9.2 percentage points above the base interest rate of the Austrian National Bank (according to § 456 UGB), but at least in the amount of 9.6% p.a., calculated from the time of the first objective delay in payment. Furthermore, the customer undertakes to reimburse SBPT for the reminder and collection fees, insofar as they are necessary for the collection of the claims.
Payment must be made within 25 (twenty-five) days of receipt of the invoice, but not before delivery of the products by SBPT, in accordance with section 4.2 of these GTCS. Delivery by SBPT may be made in installments. For the timeliness of payment, the receipt of payment on a bank account of SBPT is decisive. In the event of a delay in payment caused by the customer, SBPT is entitled to interest in the amount of 9.2 percentage points above the base interest rate of the Austrian National Bank (according to § 456 UGB), but at least in the amount of 9.6% p.a., calculated from the time of the first objective delay in payment. Furthermore, the customer undertakes to reimburse SBPT for the reminder and collection fees, insofar as they are necessary for the collection of the claims.
In the event of late or incomplete payment, SBPT 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, SBPT may demand immediate payment of the products from the other contracts concluded with the customer. If payment by installments has been agreed, SBPT reserves the right to demand immediate payment of the entire outstanding amount if installments or ancillary claims are not paid on time (forfeiture clause). Furthermore, SBPT 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 according to § 471 ABGB and § 369 UGB. If the right of retention is exercised unjustly, SBPT shall only be liable for damages caused by gross negligence up to the amount of the outstanding claim.
Notwithstanding the above, all claims shall become due immediately if circumstances arise that could give rise to justified doubts about the creditworthiness of the customer 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 in the event of non-opening of such proceedings due to a lack of assets to cover costs. The customer must inform SBPT immediately of the occurrence of any of these circumstances. Furthermore, in such cases SBPT is entitled to make further deliveries only against advance payment or provision of suitable and acceptable securities.
4.2. Invoicing
The client agrees that invoices will be sent in electronic form to the e-mail address provided to SBPT. 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 his claims against counterclaims from the same transaction or other transactions, unless the counterclaims have either been legally established by a court of law or expressly recognized by SBPT.
5. reservation of title
The products remain the unrestricted property of SBPT until full payment of the purchase price including all costs, fees, expenses and ancillary liabilities to be reimbursed by the customer.
If SBPT replaces individual components of the delivered products as part of the supplementary performance, SBPT also remains the owner of the replaced components.
If SBPT replaces individual components of the delivered products as part of the supplementary performance, SBPT 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), SBPT 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 shall assign to SBPT all his (pro rata) property rights and expectant rights to SBPT and, in accordance with the legal provisions for the effectiveness of the assignment, shall keep them separate from his own or make a corresponding entry in his 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 SBPT 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 interventions by third parties in the products not yet paid for, the customer must inform SBPT immediately in writing so that SBPT 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.
Irrespective of the assignment, the customer remains entitled to collect the assigned claims until revoked by SBPT. In the event of revocation, the customer must immediately inform the third party of the assignment and provide all information and documents required by SBPT to exercise its rights (including the collection of the assigned claims). SBPT 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 interventions by third parties in the products not yet paid for, the customer must inform SBPT immediately in writing so that SBPT 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.
Irrespective of the assignment, the customer remains entitled to collect the assigned claims until revoked by SBPT. In the event of revocation, the customer must immediately inform the third party of the assignment and provide all information and documents required by SBPT to exercise its rights (including the collection of the assigned claims). SBPT 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.
SBPT 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 that could cast reasonable doubt on the customer’s creditworthiness or affect 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 being 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 costs. The client must inform SBPT immediately of the occurrence of any of these circumstances.
6 Warranty and liability
6.1. Warranty
SBPT 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 ff UGB (Austrian Commercial Code) and to notify SBPT in writing or by EDI, e-mail or fax of any defects found, including a description of the defect, within a reasonable period of time, but no later than 5 (five) working days from delivery; otherwise the product shall be deemed 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 SBPT.
In order to assert warranty and liability claims, the original proof of purchase must be presented. In addition, the customer is obliged to provide SBPT with the products complained about for inspection of the defect before asserting warranty claims, at SBPT’s discretion in the customer’s store, by sending them to SBPT or by sending them to a third party designated by SBPT. If the customer refuses to cooperate, SBPT is released from the warranty obligation.
SBPT will 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 SBPT’s factory, production schedules and production times customary in the industry, either by improvement or replacement, at its own discretion. The customer allows SBPT to take all necessary steps 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 SBPT.
In order to assert warranty and liability claims, the original proof of purchase must be presented. In addition, the customer is obliged to provide SBPT with the products complained about for inspection of the defect before asserting warranty claims, at SBPT’s discretion in the customer’s store, by sending them to SBPT or by sending them to a third party designated by SBPT. If the customer refuses to cooperate, SBPT is released from the warranty obligation.
SBPT will 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 SBPT’s factory, production schedules and production times customary in the industry, either by improvement or replacement, at its own discretion. The customer allows SBPT to take all necessary steps to remedy the defect.
If an improvement or replacement cannot be carried out or can only be carried out insufficiently, or if SBPT and the customer agree that improvement or replacement would be inappropriate for the intended purposes due to the insignificance of the defect, SBPT may choose a price reduction in the amount of the loss in value caused by the defect.
The right to rescission is, as far as legally permissible, limited to cases in which the defect significantly impairs the usability of the products and the rescission is mutually agreed between SBPT and the customer.
SBPT 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 SBPT for the rectification of defects in products located at a place other than the place of performance.
The right to rescission is, as far as legally permissible, limited to cases in which the defect significantly impairs the usability of the products and the rescission is mutually agreed between SBPT and the customer.
SBPT 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 SBPT 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. SBPT 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, SBPT (including its subsidiaries, affiliated companies, legal representatives, board members, employees, vicarious agents, etc.) is not 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, interest or turnover not achieved, and for compensation for pure financial losses, regardless of whether these are 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 of 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 willful misconduct in the sphere of SBPT. In particular, SBPT shall not be liable for legal costs, attorney’s fees, costs of publishing judgments and internal costs of the customer as well as for any claims for damages or other claims of third parties; the customer shall indemnify and hold SBPT harmless in this respect.
In addition, SBPT’s total liability, irrespective of the legal grounds and irrespective of coverage by the property damage liability insurance, is limited to a maximum of 100% of the order value of the delivery specifically causing 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 stipulated in these GTC and the contract, SBPT 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 SBPT and the client in its capacity as client),
– 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 the continuation of the fulfillment of the contract unreasonable for SBPT, for example due to the threat of damage to reputation or reputation or (possible) serious effects on the relationship of SBPT with other customers or suppliers,
– significant negative changes in the technical, legal or economic conditions / circumstances that make it unreasonable for SBPT 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-fulfillment and delay in delivery do not justify any right of withdrawal for the customer (with the exception of the following cases) or other claims such as compensation for damages, if there are cases of force majeure or other unforeseeable events which cannot be prevented even by reasonable precautions, e.g. unforeseen production stoppages, material shortages, procurement bottlenecks for raw materials and other external services required by SBPT 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, SBPT and the customer will 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 to further claims, in particular not to claims for damages due to non-fulfillment or delay, unless intent or gross negligence can be proven.
If the contractual relationship ends prematurely, for whatever reason, SBPT shall be entitled to remuneration for the products delivered up to that point. If the customer is responsible for the premature termination of the contractual relationship, SBPT shall 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 of SBPT.
8 Compliance and Code of Conduct
8.1. Code of Conduct
SBPT 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 SBPT.
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. The levying of value added tax is based on the statutory provisions. If SBPT does not show VAT in an invoice and it subsequently turns out that VAT should have been charged according to the applicable legal situation, SBPT is entitled to invoice the customer 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 shall be 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; this also applies to all taxes, duties and fees incurred due to changes in the legal situation after SBPT has made an offer or the contract has been signed. SBPT 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 SBPT organizes for the customer, SBPT 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, depending on the forwarding agent commissioned, additional service and handling fees may be incurred which SBPT 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 SBPT, to a company of the SBO Group or to the SBO Group as such, and regardless of whether there are any effects for SBPT.
The Client acknowledges that any erection of such barriers to trade constitutes an event beyond the control of SBPT and therefore releases SBPT from its contractual obligations. This release shall not entitle the Client to any damages or other claims against SBPT, such as those for reimbursement of direct or indirect costs or consequential damages incurred by the Client in connection with such release and/or non-delivery of the Products. However, SBPT 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 SBPT’s trade secrets. “Trade secrets” is to be interpreted broadly and includes 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 development plans, executive and employee records, etc. Any transfer, duplication, disclosure or publication of documents or information provided by SBPT to the client is strictly prohibited and requires the approval of SBPT. In addition, the customer undertakes to retrieve and use the intellectual property of SBPT 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 SBPT.
The above provisions shall apply for an indefinite period of time, which may also extend beyond the termination of the business relationship with SBPT. After termination, all documents and information received or created in the course of the business relationship must be returned or handed over to SBPT. If this is impossible or impracticable, they must be destroyed (deleted). If the destruction is omitted due to public law provisions or a separate agreement with SBPT, SBPT must be informed immediately.
The customer grants the unrestricted right of access and use for the intended purposes for all designs and technical documents that he provides and that are the subject of intellectual property rights. However, SBPT declares that it will only access and use the customer’s intellectual property made available to it within the scope of the fulfillment of the contract, but will not access, use, appropriate or register it beyond that. The rights to the intellectual property remain with the customer.
SBPT is entitled to name the client as a reference 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, for an unlimited period of time, to disclose its cooperation with the client and to mention its name, show its logo and link to its website, without this giving rise to a claim for payment by the client; however, the client 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 SBPT.
The customer acknowledges that its personal data and that of its employees will be processed by SBPT 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.
SBPT obliges the client to comply with its privacy policy and thus to process data in a manner that ensures adequate security of personal data by means of appropriate technical and organizational measures, including protection against unauthorized or unlawful processing and against accidental loss, accidental destruction and accidental 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 SBPT – 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. SBPT may require the client to provide evidence necessary to comply with the EU General Data Protection Regulation.
The Client shall indemnify and hold SBPT harmless for any penalties or damages incurred by SBPT or its officers or employees as a result of the Client’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. SBPT and the client 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 SBPT and the client, including questions of conclusion, validity, termination or nullity of the contract, shall be governed by Austrian law, excluding 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 the registered office of SBPT.