Tyrolit Construction Products GmbH.
FB-Nr.: FN 458897 z
UID-Nr: ATU 71414007
Fachgruppe: Stein- und keramische Industrie
1.1 These Terms and Conditions of Offering and Delivery shall apply to all deliveries of bonded grinding, cutting-off, sawing and drilling tools and machines as well as other goods (hereinafter referred to as "products") effected by Tyrolit Construction Products GmbH (hereinafter referred to as "Tyrolit"). They shall also apply to deliveries effected as a result of contracts formed by electronic transaction.
1.2 By placing an order, the orderer expressly recognizes the validity of these Terms and Conditions of Offering and Delivery for all future contracts as well. At any rate, the orderer's terms and conditions of ordering and delivery are not binding upon Tyrolit, even if the order is based upon them and Tyrolit has not expressly objected to their contents. No performance on the part of Tyrolit shall be regarded as constituting consent to the orderer's terms and conditions. Tyrolit is not prepared to form the contract upon any but the present terms and conditions. The application of divergent terms and conditions requires an explicit written agreement. Should individual terms and conditions be modified in writing, all terms and conditions that have not been modified shall remain binding on both parties. Modifications shall only be valid with regard to the business transaction for which they were agreed. Verbal agreements shall be binding upon Tyrolit only if they have been confirmed in writing by Tyrolit.
1.3 The Quality Management System of Tyrolit has been certified in accordance with ISO 9001 and includes a certified Environmental Management System according to ISO 140
2.1 The offers made by Tyrolit are subject to confirmation and to a 30-day limit. Orders placed by customers require an acceptance by written confirmation on the part of Tyrolit in order to become effective. Such confirmation of the order shall contain a comprehensive specification of all deliveries and services in connection with the order. Any further deliveries and services shall be charged separately. Particulars regarding measures and weights, illustrations and descriptions in printed matter, advertising material and other publications are not binding.
2.2 Unless otherwise agreed separately, deliveries under call orders shall be called within twelve months after confirmation of the order. If deliveries are not called within that time limit, Tyrolit shall have the right to bill the orderer for the remainder of the order.
2.3 Contracts based on orders without a prior offer made by Tyrolit will only be formed on the basis of these Terms and Conditions of Offering and Delivery and a written order confirmation issued by Tyrolit.
3.1 Tyrolit is entitled to make deliveries exceeding or falling short of the quantities ordered by 10% per order.
3.2 Tyrolit is entitled to make partial deliveries or advance deliveries and to submit separate invoices for such deliveries.
3.3 In cases of force majeure and other events outside Tyrolit's sphere of influence, including without limitation delays in delivery on the part of any of Tyrolit's suppliers, as well as strikes, lockouts and other circumstances that make it materially more difficult, or impossible, for Tyrolit to effect the delivery, Tyrolit shall have the right to cancel any promises of delivery as yet unfulfilled or to postpone delivery for as long as the obstruction continues. In the latter case, the orderer is entitled to demand from Tyrolit a statement as to whether Tyrolit wishes to terminate the contract or to effect delivery within a reasonable period. If Tyrolit fails to issue such a statement within a reasonable period, the orderer may terminate the contract, granting a grace period of at least 4 weeks. Any claims on the part of the orderer in excess of this are excluded.
3.4 The products shall be packed according to Tyrolit's discretion and the packing materials will not be taken back. Any packing expressly requested by the orderer shall be charged separately.
3.5 Deliveries shall be effected ex works ("exw" according to INCOTERMS 2000). The point of delivery and of the passing of the risk shall be the Tyrolit works.
3.6 The day on which the products are placed at the orderer's disposal at the works according to agreement shall be regarded as the date of delivery. The risk shall pass to the orderer at the time the products are placed at the orderer's disposal.
3.7 As a matter of principle, samples and specimen products are only delivered against payment, unless the parties have otherwise agreed in writing. In any case, they remain the property of Tyrolit until full payment has been effected.
3.8 In case of forwarding of products, Tyrolit is entitled to choose the means of transport and the forwarding route; any liability in this connection is excluded.
4.1 The prices are net prices, ex works (exw), according to INCOTERMS 2000, without taxes, including standard product packaging.
4.2 For prices and terms of payment, the specifications in the order confirmation shall be decisive.
4.3 Payment shall be effected free from charges, without deductions, either in cash or by bank transfer within 14 days upon billing. Bills of exchange or cheques will be accepted, but only upon express agreement in writing and provided that credit to the orderer's debt will be made only after actual receipt of the funds. Discount and bill charges shall be borne by the orderer.
4.4 In case of a delay in payment, default interest of 1% per month of the invoiced amount, calculated for the period between the due date and the date of payment, shall be regarded as agreed between the parties, and Tyrolit shall have the right to declare the entire claim to be due and payable. All collection charges, including costs of collection agencies, are to be borne by the orderer.
4.5 Payments by the orderer shall be appropriated to claims vis-à-vis the orderer, if any, first to unpaid interest and charges and then, in every case, to the oldest invoice item(s).
4.6 Insofar as, in cases of deliveries to an orderer in a member state of the European Union, no VAT needs to be charged, the orderer shall be obligated to submit to Tyrolit immediately all proof required by Tyrolit under the applicable statutory provisions, particularly with regard to VAT, in order to demonstrate the tax exemption of the delivery to the financial authorities. This refers in particular to evidence of the introduction of the goods into another member state of the European Union, the value-added tax identification number, or a personal tax exemption of the orderer.
4.7 In case of non-compliance with the agreed terms of payment, of a material deterioration in the financial condition of the orderer, or of the subsequent disclosure of straitened circumstances that already existed at the time the contract was signed, Tyrolit shall have the right to declare all claims to be due and payable forthwith and to refuse performance until the consideration has been paid or the relevant security provided. In case of non-compliance with agreements regarding payment or of delay in payment, as well as if the time agreed for payment is exceeded or if the orderer is or becomes insolvent or overindebted, Tyrolit shall additionally be entitled to terminate any contract for delivery without granting a grace period.
4.8 The setting-off of counterclaims of the orderer against Tyrolit's receivables from goods delivered shall be excluded unless the counterclaim has been admitted by Tyrolit or recognized by final and absolute declaratory judgment.
5.1 Tyrolit reserves the ownership in the products delivered until the purchase price has been paid in full, plus all ancillary charges and fees including default interest and costs. If the delivered product is processed or converted and united with other objects, Tyrolit shall be entitled to the resulting co-owner's share in the new object created thereby, in proportion to the purchase price of the delivered product as compared to the value of the other incorporated objects at the time of processing or conversion and union.
5.2 The orderer shall take the required measures to ensure the retention of title. Upon Tyrolit's request, the orderer shall procure adequate insurance for the products. In particular, the orderer shall have no right to pledge the products, to assign them to third parties by way of security or to dispose of the products, for the benefit of third parties, in any way except by sale in the course of an orderly conduct of affairs.
5.3 In case of an enforcement of claims by third parties, the orderer shall be obligated to draw attention to Tyrolit's title to the products and to inform Tyrolit immediately in writing, in order to enable Tyrolit to claim its property. Insofar as the third party is not able or not obligated to compensate Tyrolit for the costs of asserting its rights of ownership, the orderer shall reimburse Tyrolit for the costs incurred. This applies equally if the assertion of rights was rendered necessary by any action on the part of the orderer.
5.4 If the products are resold before the purchase price including all ancillary charges and fees has been paid in full, the claim against the third party for the purchase price created by the resale transaction shall be regarded as having been assigned to Tyrolit in place of the reservation of title. Such assignment for security purposes shall be entered in the account books of the orderer (customer account as well as list of outstanding items), indicating the date of formation of the contract and the full firm name of Tyrolit (assignee). The orderer undertakes to inform the third party of the assignment and Tyrolit of the sale as soon as possible, but not later than on the date the contract with the third party is entered into. Additionally, the orderer irrevocably authorizes Tyrolit to inform the third party of the assignment in its name. It further undertakes to deposit the proceeds realized, if any, separately and to hand them over to Tyrolit as soon as the claims of Tyrolit fall due.
6.1 Notice of defects shall be given in writing by the orderer immediately, but not later than within ten working days after receipt of the products. In case of defects that are only discernible upon use of the product, the time limit for giving notice of defects shall end after ten working days from the first use of the product, but not later than six months after the products have left the Tyrolit warehouse.
6.2 If products are proven to have been delivered ex works in a defective condition, Tyrolit will, at its option, replace or repair such products free of charge, or credit the orderer with the invoiced amount, provided that notice of defects has been given in time. This shall not apply to products that are subject to premature consumption or wear and tear due to the nature of their material or their use, nor in case of damage due to natural wear and tear, wrong orders, improper handling and non-observance of scheduled service output values by the orderer or its employees, or to excessive operational demands or chemical, electro-chemical or electric influences of any kind whatsoever. Rescission of the contract and reduction of the purchase price are excluded in any case. Any return of goods requires the express written consent of Tyrolit and shall be carried out at the expense and risk of the orderer.
6.3 If notice of defects is given in time, the orderer is entitled to raise claims based on warranty within a maximum period of six months after the products were placed at the disposal of the orderer by Tyrolit in its works according to agreement. Tyrolit shall be liable exclusively for the contractually stipulated qualities. Any processing or conversion of the goods shall result in an exclusion of warranty.
6.4 If a warranty claim is raised within the context of the relationship of the orderer with its customers, recourse against Tyrolit as predecessor in title ("Vormann") after expiry of the limitation period for buyers in actions for breach of warranty (sec. 933 b of the [Austrian] "ABGB" [General Civil Code] or any comparable foreign legal provision) shall be excluded. The orderer shall likewise exclude vis-à-vis its customers (insofar as they are not consumers) recourse against the predecessor in title ("Vormann") after expiry of the limitation period for buyers in actions for breach of warranty (sec. 933 b of the General Civil Code or any comparable foreign legal provision).
6.5 Any claims for damages are excluded, unless the orderer proves that Tyrolit caused the damage in question through at least gross negligence. However, this provision shall not be applicable if and insofar as the actual damage is covered by insurance and the insurer is under an obligation to pay. In any case, the liability of Tyrolit shall be limited to the value of the order.
6.6 The orderer shall be obligated to comply with the FEPA safety recommendations regarding the proper use of grinding tools. Liability for any damage resulting from non-compliance with the said safety recommendations shall be excluded. A copy of the FEPA safety recommendations shall be supplied by Tyrolit at the request of the orderer.
7.1 Tyrolit is entitled to correct obvious errors (errors in spelling and calculation) in offers, cost estimates , delivery notes, invoices etc. at any time.
7.2 If individual provisions of these Terms and Conditions of Offering and Delivery turn out to be partly or entirely invalid or unenforceable, the remaining provisions shall remain unaffected thereby. In place of an invalid or unenforceable provision, a provision realizing as far as legally possible the economic purpose of the invalid or unenforceable provision shall be regarded as having been agreed by the parties.
7.3 Written declarations shall be regarded as having been received if they are sent to the address most recently communicated by the relevant other contractual party.
7.4 Any deviation from these Terms and Conditions of Offering and Delivery as well as from the formal requirements mentioned in these Terms and Conditions of Offering and Delivery requires an express written agreement. The orderer is aware of the fact that persons employed by Tyrolit or third parties whose services are used by Tyrolit are not entitled to give promises which are at variance with the contractually agreed main points of performance (such as agreements concerning payments, quality undertakings, terms and conditions of delivery).
7.5 The use of Tyrolit trademarks by the orderer requires the prior written consent of Tyrolit.
7.6 These Terms and Conditions of Offering and Delivery supplement the contracts entered into by and between Tyrolit and the orderer. In case of contradictions to the provisions of the contract or if the contract contains more detailed provisions, the contract shall take precedence over the Terms and Conditions of Offering and Delivery.
7.7 Tyrolit is entitled to modify the Terms and Conditions of Offering and Delivery. Tyrolit will inform the orderer with regard to such modifications and the date of the modification at least one month before the date of the modification. The modification shall take effect unless the orderer raises an objection to it within one month of receiving the relevant information. Tyrolit will draw the attention of the orderer to the possibility of raising such an objection.
The subject-matter contractual relationship shall be governed by Austrian law with the exception of the (Austrian) "IPRG" (Act on Private International Law) and other conflict of laws provisions. The applicability of the UN Convention of April 11, 1980, on Contracts for the International Sale of Goods ("UNCISG") is expressly excluded.
9.1 The exclusive place of jurisdiction for all disputes and claims arising directly or indirectly from the delivery contract, including without limitation disputes and claims regarding the validity of these Terms and Conditions of Offering and Delivery, shall be the court at Innsbruck, Austria, having subject-matter jurisdiction.
9.2 Furthermore, Tyrolit expressly reserves the right to file suit against the orderer with any other court having jurisdiction over the orderer.
If there is any conflict or discrepancy between the German version of the Terms and Conditions of Offering and Delivery for products marketed by Tyrolit Schleifmittelwerke Swarovski KG and this English translation, the German version prevails.
Rev. as of 13 December 2016