General Terms & Conditions | Prochaska Formularmaschinen GmbH
The actual valid general terms of delivery.
GENERAL TERMS & CONDITIONS
under which all transactions for the supply of goods or services are conducted by PROCHASKA Forms Machinery („The Company”).
In these conditions “the end user” shall mean the person, firm or company that uses the goods following finalisation of the transactions referred to herein. “The Finance Company” shall mean any hire purchase, leasing, hiring or other company providing similar financial services to which the Company supplies goods at the request of direction of the end user and “the customer” shall mean the end user when the contract of sale is between the Company and the end user and shall mean the Finance Company when the contract of sale is between the Company and the Finance Company.
2. ACCEPTANCE AND LIMITS OF CONTRACT
a) No quotation made by the Company shall constitute an offer by the company.
b) No order will be accepted except upon the Company’s acknowledgement of order form which incorporates these conditions.
Any terms and conditions offered by the customer are hereby excluded. Any order placed by a customer whether in writing, verbally, by fax or shall be deemed to
constitute an offer by the customer to enter into a contract upon these conditions of trade which shall be deemed to have been accepted by the Company when
the company despatches an acknowledgement of order form. The customer shall not transfer his rights to any third party.
c) The Company reserves the right for vary the price of goods by nay amount attributable to:
(i) A suspension of or an alteration to work by reason of a change in instructions or lack of instructions.
(ii) Any variation in the cost of materials, labour, transport, duties, taxes, exchange rates or any other costs of whatsoever nature between the date of the contract
and the date of delivery or completion of payment.
3. HIRE PURCHASE AND SIMILAR TRANSACTIONS
If the dale of the goods proceeds by way of a sale by the Company to the Finance Company and the Company agrees to deliver the goods to the end user the provisions hereof shall so far as relevant apply to any relationship between the Company and the end user and for the avoidance of doubt the end user hereby agrees that the Company shall not be liable to the end user for negligence, misrepresentation (negligent of otherwise) breach of contract (collateral of otherwise) or breach of warranty (express or implied).
The Company will use its best endeavours to despatch or complete by the estimated date set out in the Company’s acknowledgement or order form but time is not of the essence of the contract and the Company shall not incur any liability whatsoever for failure to despatch or complete by such date.
5. DELIVERY AND PASSING OF PROPERTY
a) Expect as otherwise specifically agreed in writing the price does not include the cost of transport, erection or installation.
b) Should delivery of the goods by the Company, its servants or agents or carrier be effected at the end users premises the Customer shall be responsible for and
indemnify the Company against all damage to property or injury to persons resulting therefrom and occasioned to those premises save and except for death or
injury incurred by the negligence of the Company, its servants or agents it shall be the responsibility of the end user:
(i) to provide unimpeded access to the position in his premises where he wishes the goods to be installed and adequate labour for the
loading and unloading of all goods.
(ii) to prepare the site for the erection and installation of the goods
(iii) to provide all necessary mains services and connection of the same to the goods
c) Goods shall remain the property of the Company until the whole of the contract price has been paid but after delivery the Customer shall be responsible for and
shall indemnify the Company against the loss of or damage to the goods from whatsoever cause occurring.
d) In the event of the Customer making any sale of the goods the property in which has not passed to the Customer the following terms shall apply:
(i) All monies reserved by the Customer from such sale shall be held in trust for the Company absolutely and shall be placed to the credit of
a separate bank account and until property in the goods has passed to the Customer in accordance with these Conditions such monies
shall not be withdrawn or charged.
(ii) the Customer shall take such action steps or proceedings arising out of any such sale as the Company may consider appropriate for the
recovery of any sums due to the customer in respect of any such sale.
e) The Company is irrevocably authorised to enter upon any premises where the goods are situated and take possession of and remove the goods at the Customers
(i) at any time after the purchase price (or any part thereof) has become due and has not been received in full
(ii) if the purchase price has hot been received in full (whether or not the purchase price has become due) upon the appointment of a
receiver of the whole or any part of the Customer’s undertaking or upon the Custer entering into liquidation or upon the Customer
compounding with its creditors or taking or suffering any similar action in consequence of debt.
6) LOSS OR DAMAGE IN TRANSIT
No liability will be accepted by the Company for any discrepancy in the quantity of goods or damage thereto in transit unless notification is received by the Company in writing in the case of end users within the European Community within fourteen days of delivery and in the case of other end users within twenty eight days of delivery. Goods damaged during transit must be kept together with te packing for inspection by or on behalf of the Company.
7) TERMS OF PAYMENT
a) Unless otherwise specified by the Company in writing the purchase price of goods is payable:
(I) 30 % with order and
(II) 70 % by means of an irrevocable letter of credit confirmed by an Austrian Bank payable at sight against presentation of shipping documents.
b) No discount or allowance will be made unless specifically stated and agreed by the Company in writing. Interest will be charged on all outstanding accounts at
the rate of one and a half per cent per month.
c) In the event of the Customer failing to comply with the Company’s terms of payment the Company reserves the right to cancel this and any other contract without
prejudice to the Company’s rights to recover any monies then owing to the Company by the Customer.
8) UNDERTAKINGS AND WARRANTIES
a) Save in the cases hereinafter set out the Company undertakes that if within the written specified guarantee period any part of the goods becomes defective
(other than through fair wear and tear) and notice in writing thereof is received by the Company within fourteen days of such discovery and if between the date
of delivery and the receipt by the Company of such notice the goods have at all times been used with reasonable care and by competent persons and
nobody has attempted to repair or alter or otherwise interfere with the goods (without the consent of the Company) the Company will send a replacement for
the defective part. All labour, transport and packing costs incurred in sending and installing such replacement shall be paid by the Customer.
b) The above warranty and undertaking are not given and are specifically excluded in the following cases:
(i) when the goods are new and a manufacturer’s guarantee is available whether taken up by the Customer or not.
(ii) when the goods are second hand and are bought “as is” that is in the conditions in which the goods are at the date of contract including
any defects and available for inspection either at the premises of a third party or at the premises of the Company, whether is fact the
end user or the Finance Company so inspects or not.
9) LIMITATION OF LIABILITY
Save as set out in paragraph 8) above:
a) The Company shall not be liable in any way whatsoever from any failure to comply with the terms of this Contract which is due to circumstances out of
the Company’s control.
b) The Company shall not be liable in any circumstances for loss of profits, interest paid or payable by the Customer, loss of orders, consequential loss, loss of profits
or loss or expenses consequent upon disruption of business.
c) The Company shall not be liable for any damage to anything arising from the goods or any defects in them of use made of them and the Customer shall indemnify
the Company against any claim in respect thereof.
d) The Company shall not be liable for negligence by itself, its servants or agents either arising from any matters in the course of pre-contract dealings with either
the end user of the Finance Company or in regard to the performance of the contract
e) All conditions, representations, warranties or undertakings in connection with the goods whether implied by statute common law, Customer or for any reason
whatsoever and whether as to quality, condition, fitness for use or otherwise whatsoever are hereby excluded.
f) The sale or supply of goods is strictly on the terms that the Customer has had every opportunity to examine the goods and has satisfied himself as to their condition
and suitability and the customer acknowledges that all specifications and details in catalogues, quotation, acknowledgements of order or similar documents or by
word of mouth and all dates manufacture, dates on which goods were first used and specific forecasts of performance howsoever given are approximate only and
do not form part of the contract between the Customer and the Company.
g) The Company shall not be liable for any misrepresentation negligent or otherwise.
10) HEALTH AND SAFETY REGULATIONS
When it is necessary to alter or add to the goods so that they comply withal applicable health and safety regulations such alterations or additions will be carried out by the Company but all costs and expenses incurred by the Company therein shall be borne by the Customer and paid to the Company on demand.
11) LEGAL CONSTRUCTION
These conditions and any contract in which these conditions are incorporated shall be governed by and construed in accordance with Austrian Law and the Customer agrees to submit to the Jurisdiction of the Austrian Courts.