PAYER International Technologies GmbH
General Terms and Conditions
Version: February 2004
1. Scope / Offer / Formal requirements / General terms and conditions of contractual partners
1.1. We conclude contracts solely on the basis of these General Terms and Conditions ("GTC") regardless of the nature of each legal transaction. These GTC do not apply only to those legal transactions within the meaning of § 1 of the Austrian Act on Consumer Protection. All our declarations, in particular our declarations of intent, are based on the GTC. Deviations from the GTC are valid only if in writing.
1.2. Our offers are noncommittal and subject to confirmation. Oral commitments, subsidiary arrangements and their like deviating from the GTC, especially those executed by sales personnel, deliverer etc., do not bind us. The content of the pamphlets, technical descriptions etc. used by us does not form an integral part of the executed agreements, save expressly referred to therein in writing.
1.3. General terms and conditions, conditions of sale, as well as conditions of delivery etc. of our contractual partners are non-binding on us, even if we have not expressly objected to their application.
2.1. We deliver ex works ("EXW") within the meaning of Incoterms 2000 the application of which is hereby expressly stipulated if and to the extent of which these GTC do not stipulate otherwise; we deliver at our own option from one of our factories, the exact location of which will be given to our contractual partner at the latest with our notification that the goods are made available.
2.2. Only delivery dates which were assured in writing are binding. In case we are inhibited to deliver on time due to business disruptions, in what form ever, strike or lockout in our enterprise as well as by vis major or other for us inevitable instances we are freed of our delivery obligation. In these cases we are entitled to withdraw from a contract without giving rise to any liabilities or deliver to our contractual partner as soon as possible. We will inform our contractual partner about these circumstances in due course.
3. Transfer of perils - Passing of the risk
The passing of the risk (Gefahrenübergang) complies with the provisions of the stipulated Incoterms 2000 for deliveries ex works ("EXW").
4. Conditions of payment
4.1. Save stipulated otherwise our invoices are due on their issue date. Without a special agreement the deduction of a discount is inadmissible. A discount is inadmissible in any case, if senior, due invoices have not been fully paid. We are entitled to credit incoming payments to those invoices, which are the most senior and due, and this independent to any dedication of the obligor of the said payments.
4.2. In case of a delay of payment we are entitled to charge interest at least in the amount of 10 % pa. All further claims, inter alia for higher statutory interest or interest based on damages, are reserved.
4.3. All costs and expenses which we incur through reminders and collections of due invoices, inter alia cost of a collection bureau, legal fees, court fees etc, have to be borne by the obligor.
5. Retention of title
5.1. The transfer of title is reserved until all obligations of our obligor have been completely fulfilled.
5.2. Our contracting partner does not gain proprietary with respect to our delivered goods before complete fulfilment of all obligations, even if he belabours or processes it. We acquire co-ownership on the so resulted new product at the ratio of the value of our delivered goods to the other processed goods at the time of processing or belabouring.
5.3. In case we assert our proprietary we are entitled to collect our delivered goods at any time from any place without notice. Provided that we collect delivered goods in assertion of our proprietary we credit our contractual partner the net value of the delivered good reduced by a 50 % reduction.
5.4. Before complete fulfilment of all his obligations our contractual partner is not entitled without prior express consent, which is given for each individual case separately, to pass on the delivered good to third parties, whether against a consideration or free of charge.
5.5. In case our contractual partner disposes of the delivered goods which are in our proprietary, whether against these provisions or with our express consent, he cedes to us all there from resulting claims against third parties with his consent to the contract with us.
5.6. Our contractual partner is under the obligation to point out our proprietary to third parties and to inform them of the cession of all his claims to us.
6. Warranty / Indemnity / Product information
6.1. All defects of our delivered goods have to be promptly rebuked to us in writing. Otherwise a claim of warranty or indemnity ceases to exist. Furthermore, warranty and/or indemnity claims against us require that the goods delivered by us are passed on to the end consumer being original packed and together with the instruction manual and the other notices thereto and for their usage.
6.2. In case of defects, in which form ever, as well as in case of deliveries of shortfall quantities or falsely delivered goods we are entitled to emend, (partially) replace or deliver the missing quantities in addition. Our contracting partner is only entitled to withdraw from the contract if he has given us a written period of grace of at least 14 days.
6.3. Claims for damages can only be asserted against us if we grossly negligently or intentionally caused the damage. Claims for damages what so ever cannot be asserted against us, if 10 years have lapsed since the day of delivery or other actions, which served the fulfilment of our contractual obligations. As far as shorter time periods are statutorily provided for within such claims have to be asserted against us, these statutory periods shall apply. Despite that we are liable or damages only in the overall maximum amount of EURO 2,000.000,00 (euro two millions).
6.4. Our products fulfil all requirements to put them in circulation in Austria On demand of our contractual partner and against reimbursement of all costs and expenses resulting thereof, we provide the respective certificates (certificates of conformity) for Austria and all other states, in which our products fulfil the requirements as well. In case our contractual partner intents to put our products in circulation in such countries, in which certificates are necessary or technical examination of our products are required, which we do not possess or have not conducted, it is the sole responsibility of our contractual partner that our products can be put in circulation in such countries. On demand and against reimbursement of all costs and expenses resulting thereof, we are willing to assist our contractual partner therein.
6.5. Most of our products are equipped with rechargeable batteries, which are as a general rule fully charged before dispatch. In case of non-usage of the devices the rechargeable battery is discharging itself continuously. To prevent a total discharge the rechargeable battery has to be charged in case of long-time storage. If no such recharge is conducted we do not give warranty for the devices or take liability for damages resulting there from.
6.6. Products being equipped with rechargeable batteries may not be stored and kept at temperatures above + 40Celsius. This can lead to irreparable damages to the rechargeable batteries as well as to the devices. In case of improper storage we do not give warranty for the devices or take liability for damages resulting there of.
7. Securities / Set-off
7.1. We are entitled to draw on all securities, e.g. bank guaranties, bill of exchange, pledges, and bonds etc, given to us with respect to all outstanding receivables regardless of a possible dedication of the securities of the obligor.
7.2. The set-off against our receivables with possible claims against us is inadmissible.
8. Severability clause
In case all or some of the provisions of the GTC are or become invalid, whether partially or in whole, this will not affect the validity of the remaining provisions of the GTC.
9. Place of jurisdiction / Place of delivery
9.1. For all disputes arising out of or in connection with contracts executed with us the sole jurisdiction of the competent court in Graz is stipulated. We reserve the right to choose - at our own option - another statutory jurisdiction for actions brought against our contractual partner.
9.2. The place of delivery is always the registered place of business of our company.
10. Legal forum
The laws of the Republic of Austria excluding the conflict provisions, in particular the provisions of the Austrian Act on International Private Law, as well as excluding the provisions of the UN-Convention on Contracts for the International Sales of Goods (CISG) shall exclusively apply.
Only the German version of the GTC is binding; other translated versions, in particular this English version there of, are for convenience only. In case of discrepancies between the German version and other translated versions of the GTC, the German version prevails.