General Terms and Conditions of Sale
of ZRUNEK Gummiwarengesellschaft m.b.H. Vienna
(hereinafter referred to as ZRUNEK)
1. Contract
1.1 These conditions of sale (in the applicable version) apply to all (including
future) transactions between ZRUNEK and their Customers who are not consumers
within the meaning of Section 1 Para. 1 2 Consumer Protection Act (KSchG) for
goods which are produced or traded in by ZRUNEK. Terms and conditions provided
by the Customer are only binding in the case of writ-ten acknowledgement by
ZRUNEK.
1.2 Offers by ZRUNEK, in particular the communication of advertising material
and price lists are not binding unless designated as binding.
1.3 Oral or telephone agreements, as well as written and oral agreements with
employees and representatives of ZRUNEK are binding on ZRUNEK only if confirmed
in writing by ZRUNEK. Provision of information via e-commerce shall be deemed
to have been received 12 hours af-ter receipt on the local ZRUNEK mail server
server on working days.
1.4 The content of the agreement shall be order and acceptance (order and confirmation
of order), the named goods, the resulting price, the designated ZRUNEK quality
description and the general terms and conditions of sale applicable. Changes
and/or amendments of this content of contract shall require the written agreement
of the parties. The applicable ZRUNEK quality description will be sent to the
Customer by ZRUNEK at any time upon request.
1.5 These General Terms and Conditions of Sale shall be acknowledged by the
Customer on placing the order at the latest, however, with acceptance of first
delivery of the goods.
1.6 ZRUNEK, upon request, is obliged to send to the Customer the applicable
version of the Gen-eral Terms and Conditions of sale of ZRUNEK. These are also
available on the website (www.zrunek.at).
2. Goods
2.1 Goods are supplied according to the agreed specifications, in the case of
lack of such specifi-cations, goods shall be supplied according to the quality
customary in trade.
ZRUNEK is entitled to make changes which may improve the goods either for the
Customer or for their general use. The ingredients of the gum mixtures, in order
to achieve qualities such as for example light permeability, permeability to
the weather or to oil, shall meet, in the ab-sence of definite specifications
of the Customer, the recommended standards given in techni-cal literature. Upon
request of the Customer, ZRUNEK shall send copies of its data sheets from which
follow the ZRUNEK standard specifications. Regarding admissible deviations in
limits and measures the standard set by DIN (Deutsche Industrie-Norm) referring
to the appli-cable article in particular DIN 7715 and ISO-33021 in the applicable
version, shall apply that is to say, the maximum admissible deviations in measure
and limits.
The quantity of ordered goods which is produced according to the specifications
of the Cus-tomer making the order may include a variable of plus or minus 10%.
2.2 Orders placed according to specimen shall be identified by the Customer
shall be placed with a written indication of the desired composition of the
goods and the dimensions.
2.3 The Customer placing the order shall keep the goods in an appropriate way,
that is to say, according to the required storage, cleaning and maintenance
requirements within the meaning of the applicable DIN for the article concerned,
in particular those of DIN 7716 in the applica-ble version. The onus of proof
that the requirements for appropriate storage have been met lies with the Customer.
2.4 Upon request of the Customer placing the order, ZRUNEK shall send copies
of the applicable DIN.
2.5 The goods are not intended to be built into out of the ordinary facilities,
as for example in air-craft equipment. The responsibility for making the correct
choice of goods and the achieve-ment of the results intended lies with the Customer.
2.6 The goods are not intended for shipment to the USA and Canada and fitting
and use in these countries and neither the Customer nor its direct and indirect
successors shall ship the goods to these countries. The Customer shall indemnify
ZRUNEK against any and all damages re-sulting from a breach of this obligation.
3. Price
3.1 The agreed price applies net ex-works and/or ex-supply warehouse ZRUNEK,
without packag-ing, exclusive of VAT, albeit, without costs of loading, transport
and insurance ex-works costs.
3.2 The packaging in wooden boxes, crates, pails and other repositories will
be billed at cost price. The cost of packaging material returned shall not be
refunded. Transportpackaging and re-packaging within the meaning of the “Verpackungsverordnung”
shall be returned to the factory or the warehouse of ZRUNEK. The obligation
of return is deemed to be an obligation to be performed at ZRUNEK’s place
of business. The Customer agrees that a return made any-where outside the factory
or warehouse of ZRUNEK shall be precluded.
3.3 Variations from Points 3.1 and 3.2 may only be excluded expressly and not
by reference to terms otherwise common to the trade branch, like FOB, CIF, etc.
4. Conditions of payment
4.1 ZRUNEK’s prices as well as all offers and invoices are quoted in EUROS.
4.2 In the case that payment is agreed in foreign currency, ZRUNEK is entitled
to demand pay-ment either at the Euro exchange rate (foreign notes purchase
rate) at due date or at the Euro exchange rate (foreign notes purchase rate)
on date of payment.
4.3 The amounts billed are due within 30 days from the date of invoicing without
any deduction and payable without cost of freight and free of deduction. Rebates
granted, special conditions, prompt-payment discounts, respites and times allowed
for payment shall be deemed to have been revoked in the case of commencement
of bankruptcy proceedings or the rejection of the application for bankruptcy
due to lack of funds. Employees and representatives of ZRUNEK shall only be
entitled to accept payment if they possess a power of attorney for receipt of
pay-ment.
4.4 Advance payments do not carry interest.
4.5 Payments shall be made by the Customer at its own risk and expense to the
ZRUNEK factory, Vienna and/or to a bank account designated by ZRUNEK. The place
of performance for the Customer shall be Vienna. Money obligations are deemed
to be an obligation to be performed and discharged at ZRUNEK’s place of
business.
4.6 The risk of retention of payments or compensation by the Customer due to
counter-claims shall be expressly excluded. The contractual exclusion of setoff
shall not apply to counter-claims which have been explicitly and with legally
binding effect acknowledged by ZRUNEK and it shall not apply to counterclaims
which have been declared by binding and enforceable judgment.
4.7 In case of delayed payment by the Customer or if ZRUNEK becomes aware of
facts which raise doubts as to its liquidity, ZRUNEK has the right to immediately
set off outstanding amounts due and/or demand pre-payment or security for future
performance and supplies. In case the Customer does not meet this request, ZRUNEK
is entitled to rescind the contract and/or demand damages due to non-performance.
Furthermore, in case of delayed payment by the Customer ZRUNEK is entitled to
demand payment of interest rates in the amount of 8 % above the applicable basis
interest rate (“Basiszinssatz”) as published by the Austrian Na-tional
Bank (“Österreichische Nationalbank”), whereby the basis interest
rate published for the last calendar day of a half-year shall apply to the following
calendar half-year. This late pay-ment interest rate shall apply to any and
all claims of ZRUNEK against the Customer. The right to demand increased costs
for acquisition of credit is reserved. A Customer in delay shall bear all costs
of reminders for outstanding invoices, expenses of collection, inquiries or
re-quests for information.
5. Delivery
5.1 Deadlines of supply or dates of delivery are only binding if they are designated
as such ex-pressly in writing. Periods of delivery start with the acceptance
of the order (date of the confir-mation of order) insofar as there are no obligations
of pre-performance of the Customer. In this case, the delivery periods only
start with the performance of the pre-performance obligation (as the obligation
for supply of further specifications for drawing up of designs and production
material, the issuing of letters of credit and bank guarantees, the payment
of down-payments, etc.) of the Customer. This provision applies equally to performance
requirements of the Cus-tomer during the production.
5.2 The supply is made ex-works or warehouse ZRUNEK, part deliveries and the
rendering of accounts for part deliveries shall be admissible.
5.3 Should ZRUNEK be in delay with a delivery, the Customer shall in writing
grant ZRUNEK an-other period of 4 weeks for performance. Should ZRUNEK not deliver
within the period, the Customer may rescind the contract by written statement.
5.4 Delivery periods and dates shall be prolonged, and/or, deferred in circumstances
beyond the control of ZRUNEK in particular in case of force majeure, measures
by the authorities, strikes, riots, war, lock-outs, damages to machinery, lack
of utilities and any other disruptions in pro-duction, in transport and elementary
events as well as delays of delivery on the part of suppli-ers for the duration
of such hindrance. In case the duration of such hindrance is longer than four
(4) weeks, ZRUNEK or the Customer for whom the further performance of the contract
is unreasonable, may rescind the contract.
5.5 On concluding a framework supply agreement, should there be no other agreement,
the quan-tity promised by ZRUNEK shall be accepted by the Customer, at the latest
within a year after conclusion of the framework agreement. The prices agreed
in a framework supply agreement, in the absence of any other agreement, shall
apply for a year. Following the end of this period, the ZRUNEK list prices shall
apply.
6. Transfer of risk
6.1 The handing over of the goods to the Customer shall be made in the factory
or at the delivery warehouse of ZRUNEK. In case delivery to a different venue
is agreed, the transfer of goods is effected by the handing over to the forwarding
agent or carrier, who shall be commissioned, should there be no more detailed
designation by the Customer without liability for the choice of the carrier,
on account of the Customer placing the order, with the dispatch note.
6.2 With the handing over of the goods the total risk (delivery and payment),
in particular the risk of loss by chance and transport is transferred to the
Customer.
6.3 On taking over the goods, and in case of dispatch by delivery by a forwarding
agent, a carrier or post, the Customer shall without delay investigate the goods
and draw attention to any ob-vious defects or defects which can be identified
by proper inspection in breach of ZRUNEK’s guarantee obligation immediately
in writing providing a detailed description. This drawing of at-tention to defects
shall be made vis-à-vis ZRUNEK as well as vis-à-vis the forwarding
agent, carrier or the post, so that damages and defects which occurred in the
course of the transport, and for which ZRUNEK is not liable, may be ascertained
immediately.
6.4 Should the Customer placing the order not accept the goods within the period
and on the con-ditions agreed, ZRUNEK is entitled to grant to the Customer either
an adequate period for ac-ceptance and after expiry thereof dispose of the goods,
or alternatively provide the Customer with an adequately extended period for
delivery or invoice the Customer for the goods imme-diately and store them at
his expense and risk.
6.5 Notwithstanding this, ZRUNEK is entitled to rescind the contract under the
legal conditions and/or demand payment of damages for non-performance.
7. Property in production utilities and reserved retention of title
7.1 Forms, production utilities and other equipment which serve the production
are the property of ZRUNEK even if the Customer has paid a contribution to the
costs for the form and the pro-posals and designs for the article to be produced
were made by him. The Customer indemni-fies ZRUNEK should these forms, production
utilities and equipment which were produced or used according to proposals and
designs of the Customer infringe intellectual property or rights of third persons.
The costs for the recoupment, and/or repair of such forms, production utilities
and other equipment which were damaged or destroyed as a result of force majeur
are to be borne by the Customer.
Industrial forms, production utilities and other equipment which due to separate
agreement are the property of the Customer shall become the property of ZRUNEK
two years after the last utilisation for the Customer.
7.2 ZRUNEK retains the title in the goods supplied on the basis of this contract
until any and all claims from the contract concluded are satisfied. In case
of payment by cheque or bills of ex-change, the retention of title is only lost
with final honouring of the amounts of the bills of ex-change or cheque (after
encashment or discounting) provided to ZRUNEK.
7.3 In case of processing, combining or mixing, the retention of title pertains
to the whole of the goods processed, connected or mixed.
7.4 The purchaser is entitled to sell goods the title in which is retained.
In case of sale, the Cus-tomer shall assign any claims thereon arising to him
vis-à-vis his contractual partner to ZRUNEK without any consideration
whether or not these goods shall be resold with or without processing, connection
or mixing, and whether they shall be resold to one or more purchasers. In case
of resale, the Customer is obliged to inform his contractual partner of the
retention of title in favour of ZRUNEK and enter a notice of assignment in its
books and its invoices as well as keeping ZRUNEK informed of further developments.
7.5 The consent for re-sale, processing, combining or mixing is revoked as soon
as insolvency proceedings are commenced regarding the funds of the Customer.
7.6 Until the retention of title is revoked, the Customer shall insure the goods
sufficiently, in par-ticular against fire and theft, and assigns its claims
against the insurer in case of the occur-rence of an insured event in the amount
of the value of the goods to ZRUNEK. The Customer will make apparent the assignment
by appropriate entry in its books and will immediately notify ZRUNEK of the
occurrence of an event insured against.
7.7 Until the retention of title is revoked, the transfer of property for security
purposes or the pledge of the goods shall be precluded.
8. Representations and Warranties
8.1 In accordance with Point 6 above, ZRUNEK shall for the duration of 6 months
from the trans-fer warrant that the goods sold to the Customer are free of production
or material defects. The Customer shall immediately investigate the goods after
receipt as to whether or not they are complete and free of defects. At the risk
of loss of any claims and right to damages, obvious defects shall be notified
to ZRUNEK in writing, with a detailed description to ZRUNEK immedi-ately, hidden
defects immediately following identification.
8.2 If the Customer proves that he stored the goods properly (Point 2.3), ZRUNEK
will at its dis-cretion either cure the defects or supply fault-free goods instead
of the faulty goods. Further warranty shall not exist. By the repair or the
substitute delivery, the course of the agreed 6-month period is not extended
and no new warranty period for the replaced or fixed product starts. Several
improvements or substitute supplies are admissible. Goods replaced become the
property of ZRUNEK.
8.3 The return of the faulty goods replaced shall be made at the expense of
the Customer.
8.4 On the delivery of secondary or lot goods, warranty claims are strictly
excluded.
8.5 If the goods are built into exceptional, out of the ordinary equipment,
as for example flying devices, warranties, as far as legally admissible, shall
be excluded.
8.6 In the case of goods which according to order have been made “according
to specimen” have been produced without written information on the desired
composition (mixture) and volume, the warranty for the composition (mixture)
and volume is, as far as legally admissible, ex-cluded.
8.7 If a complaint for fault is validly made, payments may only be retained
by the Customer to such an extent as is in reasonable proportion (regarding
value) to the defects.
9. Damages
9.1 ZRUNEK is liable for its own negligent defects and for its willingness to
perform the contract, however, not for slight negligence. No liability is accepted,
not even in case of gross negli-gence, for the loss of profit due to delayed
or faulty delivery for detriment suffered by disrup-tion in production, for
costs of transport, damage occurring in connection with the replacement of faulty
goods by fault-free goods, for possible costs of removal and re-installing,
for the care and damages through processing of goods which are with ZRUNEK for
processing as well as for damages claimed by the purchaser of the Customer placing
the order made against the lat-ter.
9.2 Claims for damages of ZRUNEK vis-à-vis the purchasers or its Customer
placing the order are excluded in the same proportion as those against the Customer.
The Customer of ZRUNEK is furthermore obliged to similarly restrict possible
claims of its purchasers in case of resale.
9.3 The liability for damages of ZRUNEK is according to the Product Liability
Act excluded for damages without consideration for negligence to objects of
an undertaking. Should ZRUNEK be liable jointly and severally with the purchaser
and/or its successor according to the terms of the Product Liability Act, it
is entitled to have recourse to any of them provided that the respec-tive purchase
or successor held liable does not prove that the product fault resulting in
dam-age was already in existence before ZRUNEK brought the product into commercial
use and did not infringe its duty of giving due warning.
9.4 Claims for damage for infringement of a pre-contractual duty of warning
by ZRUNEK can only be made if the Customer has notified the purpose of the goods
to be supplied before the order is made in detail. If the Customer refrained
from doing so, he foregoes all damage claims vis-à-vis ZRUNEK which may
be based on the infringement of the duty of giving due warning.
9.5 In case of export of goods to countries outside the EU, any damage and other
liability claims are insofar as legally admissible excluded unless ZRUNEK consented
to the export to the country of designation in writing.
10. Choice of law, forum
10.1 The legal relations between ZRUNEK and the Customer are exclusively governed
by the sub-stantive laws of Austria, excluding international private law provisions
and the Vienna Conven-tion on Sales of Goods.
10.2 It is agreed to submit, insofar as admissible all legal disputes arising
out of these legal rela-tions to the exclusive competence of the Courts in Commercial
Matters for the First District of Vienna. ZRUNEK is further entitled to submit
legal disputes against the Customer before the local courts at the Customer’s
main seat or at any branch office of the Customer.
11. Data protection provisions
11.1 The data in connection with the business relationship, in particular name,
address, telephone and fax number, e-mail addresses, addresses of order, supply
and bill, dates of order, ordered and supplied goods or services, numbers, price,
dates of delivery, data of reminder and pay-ment, etc., are stored and processed
in ZRUNEK’s computer server. The Customer empowers ZRUNEK expressly to
gain information about it, in particular his financial situation with third
parties, (for example banks and creditor protection associations) and process
this data. The Customer will at any time upon request forgo his rights to banking
secrecy or obligations of confidentiality with third parties.
11.2 The Customer expressly declares its consent that any data concerning it
or an undertaking connected to its inner group of companies (including balance
sheet data), may be forwarded to insurance companies insofar as this is necessary
for insuring claims against the Customer, to creditor protection associations
for the purposes of keeping, connecting and forwarding data for protection of
creditor interests, as well as our banking relations for assessment of claims
and other risk. The Customer empowers ZRUNEK expressly to forward data of address,
tele-phone, telefax, e-mail and other data of the firm (seat, Commercial Registry
No., etc.), as well as statistics about the orders to third parties, specifically
the insurance companies, creditor protection associations and banks mentioned
above.
11.3 The Customer agrees that its business name and other trader’s names
(logos, etc) may be used by ZRUNEK for advertising purposes, specifically for
reference lists, customer lists and other correct references to ZRUNEK’s
customers. ZRUNEK is also entitled to do so if the business name and other trader’s
names are protected by trade mark laws or any other intel-lectual property laws.
12. Electronic commerce
12.1 Information and non-binding offers given by ZRUNEK by way of network supported
or elec-tronic data processing are made by ZRUNEK on the basis of the existing
sortiment and avail-ability in storage as well as the applicable pricing list,
etc. are as up-to-date as possible, but shall not be binding.
12.2 Orders and any other legal statements of the Customer may be sent validly
by using our elec-tronic forms, as well as via e-mail, however, require the
faultless receipt on ZRUNEK’s server for the validity (according to Point
3.1). Defects of transmission are at the risk of the Customer.
12.3 The content of the order and of the confirmation of order and receipt sent
by ZRUNEK, possi-bly also electronically, and any other statements, shall be
checked by the Customer, who will immediately warn of deviations from the statement
sent to it. Otherwise, the transaction as confirmed by ZRUNEK shall be deemed
concluded. The text of agreements will be recorded and saved by ZRUNEK.
12.4 ZRUNEK reserves the right to revoke the validity of a particular statement
or statements made during a certain period due to a possible malfunction of
the data processing equipment, with-out delay and by appropriate means, (individual
notice, notification on the ZRUNEK website, etc.) and shall effect another valid
transmission of such statements, and/or solicit such trans-mission.
13. Confidentiality
13.1 The Customer is obliged to keep confidential all business or technical
information which are not in the public domain of which it becomes aware in
the course of the business relationship.
05/2006