SBOT warrants that products fully comply with the provisions explicitly set out in the contract and those properties set out in Section 3.1 of these GTCS at the time of delivery. All information on the Internet or catalogues or brochures does not represent guaranteed properties, but only product descriptions.
Warranty may be claimed for defects emerging within a period of 24 (twenty-four) months for movable items, and 36 (thirty-six) months for immovable items from delivery. Improvement or replacement shall let commence the warranty period anew from delivery for the improved / replaced items, but not for all items of the same delivery. Throughout the entire warranty period, Customer shall bear the burden of proof that any defects in the products were already present at the time of delivery.
Customer shall have the duty, in line with sections 377 ff of the Austrian Commercial Code / UGB, to carefully inspect the products and notify SBOT in writing, including via EDI, e-mail or fax, within an appropriate period of time not exceeding 5 (five) business days from delivery any defects detected, including a description of the defect, otherwise the product shall be deemed accepted and the assertion of any warranty claims or claims for damages as well as the right to assert claims on grounds of mistake shall be precluded. The same shall apply where defects would have been detected if inspection was made carefully.
Defects not recognizable during careful inspection (i.e. hidden defects) shall be notified by Customer within an appropriate period of time, however no later than 3 (three) months following delivery. Any standard complaints shall not be acceptable to SBOT.
To assert warranty and liability claims, the submission of the original proof of purchase shall be required. Furthermore, Customer is obliged before the enforcement of the warranty claims to provide SBOT with the claimed products for the examination of the defect, namely at the choice of SBOT in Customer’s office, by sending it to SBOT or a third party designated by SBOT. If Customer refuses to cooperate, SBOT will be exempted from the obligation to provide warranty.
SBOT shall remedy properly notified and valid defects within a reasonable period of time, taking into consideration the time necessary for the handling of the warranty request, shipment from / to the facility of SBOT, production schedules and production times customary in the industry, at SBOT’s choice, either by improvement or replacement. Customer will allow SBOT all necessary measures to remedy the defect.
Can improvement or replacement not be effected sufficiently, or would, according to agreed understanding between SBOT and Customer, the following lead to the same outcome, given the insignificance of the defect to the purposes it is used for, SBOT may decide for a price reduction representing the loss in value caused by the defect.
To the extent permissible by law, any right to rescission shall be restricted to cases where the defect considerably affects the usability of the products and provided rescission is mutually agreed between SBOT and Customer.
SBOT may decide to have improvement or replacement affected either at its own facility or the facility of any other company of the SBO Group. Unless otherwise agreed, Customer shall bear any additional costs which SBOT incurs for remedying defects on products located in a place other than the place of performance.
unless Customer proves that these circumstances are not the cause of the complaint. The warranty is also void if the serial number, type designation or similar markings are removed or made illegible.
Unless otherwise stated, Customer waives the assertion of further claims. SBOT is therefore not liable for consequential damages.
6.2. Liquidated Damages
Customer agrees to the payment of liquidated damages of 5 (five) % of the total contract value upon first notification by SBOT for violations with respect to Section 8 of these GTCS, in particular, as it refers to the Code of Conduct (Section 8.1) and Confidentiality and Intellectual Property (Section 8.4).
6.3. Limitation of Liability
To the extent permissible by law, SBOT (including its subsidiaries, affiliates, officers, directors, employees, agents, subcontractors, etc.) shall not be held liable, irrespective of the legal grounds, for any claims to damages due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance or pecuniary loss suffered by Customer due to slight negligence, replacement of consequential / subsequent damages (in particular resulting from production disruptions or interruptions in operations), lost profit, non-achieved savings, loss of interest / revenues and replacement of pure financial loss, be it indirect or direct damages. Claims for recourse of Customer or of third parties attributable to Customer arising from product liability shall be excluded unless the recourse claimant proves that the product defect is the result of gross negligence or wilful misconduct on the part of SBOT. SBOT shall in particular not be liable for costs of legal proceedings, lawyer’s fees of Customer, costs of publication of judgments and internal expenses, for claims for damages, if any, or other claims of third parties; Customer shall indemnify and hold harmless SBOT in this respect.
Furthermore, total liability of SBOT, irrespective of the legal grounds and irrespective of existing coverage in the property damage liability insurance, shall be limited to a maximum of 100 % of the contract value of the individual damage-causing delivery (to the exclusion of any surcharges for shipping, packaging, storage and customs). This limitation of total liability shall include any reimbursement of expenses, claims to warranty or individually agreed guarantees.
Claims in connection with the products shall become time-barred after 18 (eighteen) months following delivery at the latest, with the exception of mandatory provisions to product liability requiring a longer period.
7. Termination and Force Majeure
In addition to the individually stipulated rights of withdrawal set forth in these GTCS and the contract, SBOT explicitly reserves the right to terminate for good cause at any time with immediate effect, which shall apply, in particular, but not restricted to
– severe infringement of major contractual obligations by Customer,
– failure to comply with payment terms (in this or any other transaction between SBOT and Customer in his role as customer),
– when circumstances occur that justifiably make doubt Customer’s creditworthiness or that may essentially endanger the realization of entitlements, e.g. substantial reduction or entire cancellation of credit insurance limits by renowned credit insurers, restructuring, insolvency or other proceedings with similar effect applied for or opened upon Customer or a petition for opening of such proceedings is dismissed for lack of assets to cover the costs,
– major changes in the ownership structure / shareholding relationships of Customer that make it unreasonable for SBOT, e.g. as a result of imminent loss of reputation or image or (possible) serious effects on the relationship of SBOT with other customers or suppliers, to continue execution of the contract,
– major negative changes in the technical, legal or economic basic conditions / circumstances which make it no longer tolerable for SBOT to adhere to the contract, or
– impossibility of delivery of the products due to reasons for which Customer is responsible or further delay even after the grace period of 14 (fourteen) days.
Non-fulfilment or late delivery shall not entitle Customer to withdrawal (other than set out below), or other claims such as damages, in cases of force majeure or other unforeseeable events that cannot be prevented by reasonable means, including, but not limited to unforeseen interruptions to production, material shortages, insufficient supply of raw materials and other third-party services required by SBOT for timely delivery, no matter whether they occur at a supplier or one of the designated sub-suppliers, as well as war, strikes, riots, acts of god, fire, embargos and restrictions to trade. In any and all of those cases, delivery periods and dates shall automatically extend by the duration of those effects. If an event of force majeure lasts longer than 4 (four) weeks, SBOT and Customer shall enter into negotiations for amicable solution. After in total 3 (three) months, provided that no amicable solution can be reached, Customer may withdraw from the contract in whole or in part. Such withdrawal shall not entitle to any additional claims, especially not claims for damages on the ground of non-performance or default, unless intent or gross negligence can be proved.
If the contractual relationships end prematurely for any reason, SBOT shall be entitled to remuneration for the products delivered until then. Should Customer be responsible for premature termination of the contractual relationship, SBOT shall receive a lump-sum compensation of 25 (twenty-five) % of the value agreed for the products not yet delivered, subject to further claims by SBOT, in addition to the pro rata remuneration.
8. Compliance and Code of Conduct
8.1. Code of Conduct
SBOT commits itself to SBO Group’s Code of Conduct available at www.sbo.at/compliance in the latest applicable version. According to Article 1 of the Code of Conduct, it shall also apply to persons undertaking activities for or on behalf of SBOT.
Customer herewith acknowledges the Code of Conduct and agrees to its application mutatis mutandis.
8.2 Taxes, Tariffs and Customs
All quoted amounts are, unless otherwise agreed, in EUR. The sales tax is levied according to the legal regulations. If SBOT does not declare VAT in an invoice, but in retrospect it turns out that VAT had to be charged according to the legal situation, SBOT shall be entitled to charge this to Customer at a later date. In this case, Customer irrevocably waives the plea of limitation regarding the subsequently calculated VAT.
Pursuant to Section 4.1 of these GTCS, Customer shall be responsible for export and import of the products. Any taxes, tariffs and customs duties incurred by export or import of the products shall be borne by Customer, including any taxes, tariffs and customs duties incurred by changes to respective laws after SBOT has made an offer or the contract has been signed. SBOT and Customer may mutually agree upon details.
For deliveries in the EU to commercial customers, a VAT-free delivery can be made when the buyer’s UID is specified.
For each delivery that SBOT arranges for Customer to the non-EU foreign country, SBOT creates the invoice net, without Austrian VAT. The prices are duty unpaid and untaxed.
Deliveries to non-EU countries may incur additional country-specific duties, taxes and fees. The amount of the fees depends on the country of delivery. These fees shall be borne by Customer. In addition, depending on the contracted carrier, additional service and processing fees may arise which SBOT has no control over and which shall also be borne by Customer.
8.3. Export Control and Sanctions
Customer shall be obliged to comply with all applicable national and international export control regulations with respect to the products and any connected performance to the advantage of third parties.
Performance of the contract shall be subject to any required export permits issued. Furthermore, it shall be subject to the express proviso of no conflict with any applicable import or export control regime, including, without limitation, sanctions (primary and secondary sanctions), embargos and other barriers to trade. This shall apply whether those barriers apply to SBOT directly or to any SBO Group company or the SBO Group as such, with or without effect on SBOT.
Customer acknowledges that the imposition of any of those barriers constitutes an event beyond the control of SBOT, the effect of which is to have SBOT released from its contractual obligations. Release shall not incur any damages or other claims against SBOT, such as reimbursement of any costs or expenses, direct, indirect or consequential, which arise to Customer in connection with such release and / or failure to deliver the products. However, SBOT and Customer may consult in good faith regarding compliant alternative delivery options.
8.4. Confidentiality and Intellectual Property
Customer acknowledges the confidentiality of business secrets of SBOT. Business secrets are to be understood in a broad sense and shall cover trade secrets and intellectual property (IP), business ideas, processes, forecasts and strategies, customer, supplier and product information including price lists and price determination mechanisms, capacity and production information, machines, research and development (R&D) information and development plans, manager and employee related records, etc. Any transfer, duplication, disclosure or publication of documents or information provided by SBOT to Customer shall, in general, be prohibited and subject to approval by SBOT. Furthermore, Customer agrees to neither access, use, appropriate nor register intellectual property (IP) made accessible by SBOT other than access and use for performance of the contract. Ownership of the intellectual property (IP) shall remain with SBOT.
The aforementioned provisions shall apply for an indefinite period of time, which may go beyond termination of business with SBOT. Upon termination, all documents and information received or created in course of the business shall be returned (handed over) to SBOT. Where this is impossible or impractical, it shall be destroyed (deleted). Should destruction not take place, whether due to mandatory provisions under public law or separate agreement with SBOT, SBOT shall be informed immediately.
Should Customer provide drawings and technical documents subject to intellectual property (IP) rights, he agrees to grant the unrestricted right to access and use for the purposes they have been provided for. However, SBOT agrees to neither access, use, appropriate, nor register intellectual property (IP) made accessible by Customer other than access and use for performance of the contract. Ownership of the intellectual property (IP) shall remain with Customer.
SBOT shall be entitled to make reference to Customer to point out the cooperation with Customer and mention his name, display the logo and link the reference to Customer’s website on all advertising means and in any advertising and promotion measures, in particular on the website, in publications and reference lists of all kinds, for an unlimited period of time without Customer being entitled to any payment in this respect, but with Customer having the right to revoke his consent at any time.
8.5. Data Protection
On 25 May 2018, Regulation (EU) No 2016/679 (EU-General Data Protection Regulation) has entered into effect which forms the basis for SBOT’s protection of natural persons in the processing of personal data.
Customer acknowledges that his and his employees’ personal data are processed by SBOT as required for the purposes of the business relationship with Customer. This shall not restrict to have personal data processed for other purposes if those are compatible with the purpose for which those were collected, including by any other SBO Group company for those purposes.
Further information on personal data processing by SBO and the rights relating thereto has been made available at www.sbo.at/privacypolicy.
SBOT requires Customer to comply with the same, who shall therefore process data in a manner that ensures appropriate security, including protection against unauthorized or unlawful processing and against accidental loss, destruction and damage, using appropriate technical and organizational measures (integrity and confidentiality).
As regards processing of personal data, he shall, in addition to the requirements of integrity and confidentiality, comply with the principles (a) lawfulness, fairness and transparency, (b) purpose limitation, (c) data minimization, (d) accuracy, and (e) storage limitation, all of them as stipulated and specified in the EU-General Data Protection Regulation.
Processing of personal data – including use and transmission to SBOT – shall only be made based on a valid legal ground and the data subject shall be properly informed in line with Articles 13 f of the EU-General Data Protection Regulation. SBOT may request evidence by Customer as required to comply with the EU-General Data Protection Regulation.
Customer shall indemnify and hold harmless SBOT for any penalties imposed on or damages arisen to SBOT or any of its managers or employees due to non-compliance with obligations on data protection by Customer.
9. Salvatory Clause
Should provisions of these GTCS be or become void or ineffective in whole or in part, the effectiveness of the remaining provisions shall not be affected thereby. The void or ineffective provisions shall automatically be replaced by valid, effective, lawful and enforceable provisions which come closest to the purposes of the provisions to be replaced. SBOT and Customer may expressly agree on valid and effective provisions meeting those requirements.
10. Legal Venue and Choice of Law
All disputes arising out of or in connection with the business relationship, these GTCS and the contract between SBOT and Customer, including the question of the conclusion, the validity, the dissolution or nullity of the contract, shall be subject to Austrian laws, excluding international conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG), as amended.
Legal venue shall be the court having jurisdiction over the subject matter at the seat of SBOT.