General
ALPYN electronics GmbH is a distributor of electronic components.
These general terms and conditions of sale (GTC) apply to all orders accepted by ALPYN electronics GmbH (seller) and apply to all goods and services delivered to the buyer. To the extent that these GTC do not contain applicable provisions, the General Terms and Conditions of Delivery of the Electrical and Electronics Industry of Austria (AEEI) and Austrian law shall apply in addition. Buyer acknowledges and agrees that all terms and conditions set forth in any purchase order or other document submitted by Buyer are hereby rejected by Seller and superseded by the GTC, which shall govern in all respects. Buyer's acceptance of the Goods and Services shall constitute final acceptance of the GTC.
Conclusion of contract, cost estimate, scope of delivery
Quotations of the Seller are subject to change unless otherwise stated. All offer and project documents of the Seller shall remain the property of the Seller and may not be reproduced or made available to third parties without the consent of the Seller. Upon request, these documents shall be returned to the Seller without delay.
Any cost estimate submitted by the Seller shall be non-binding. Cost estimates are subject to a charge, except where Seller is contracted to perform all of the services set forth herein.
Contracts between Buyer and Seller shall not be concluded until Seller either issues an order confirmation or delivers the ordered goods to Buyer. Only the written order confirmation is authoritative for the scope of delivery.
The Seller may change the confirmed order, provided that the products fulfill the same functions and are approved by the Buyer.
The Seller shall be entitled to make partial deliveries as well as to deliver quantities in the range of ten percent more or less of the ordered quantity, as well as to round up to manufacturer-specific packaging units.
The Seller shall be entitled, at its option, to accept or execute orders only against security or advance payment by the Buyer.
It is the responsibility of Buyer or the carrier acting as Buyer's agent to procure all necessary export and import licenses and to comply with all other legal requirements.
Buyer shall be solely responsible for the designation and identification of the goods required to comply with European Union Restriction of Use Directive 2002/95/EC on its purchase order by compliant part number, date code or other such markings of hazardous substances (“RoHs”) or other environmental laws and regulations. Seller shall deliver the ordered part without inquiry as to whether or not such part complies with the requirements.
Tariffs and terms of payment
All prices are in EUR ex Seller's warehouse, exclusive of VAT, shipping, insurance, installation, commissioning, consulting, training and application support, unless otherwise agreed. All prices are fixed prices. Services ordered by the Buyer which are not part of the contract shall require an additional reasonable consideration.
The Seller shall be entitled to adjust the agreed prices in accordance with increased wage, labor, and material costs (also due to currency fluctuations when importing raw materials or components from third parties).
The Buyer shall be responsible for the proper and environmentally sound disposal of waste. If this recycling is separately assigned to the Seller, the Seller shall be entitled to an appropriate consideration, unless otherwise agreed.
Invoices are due for payment within 30 days of the date, without any deductions. Discounts may only be granted upon express written agreement.
The Buyer shall not be entitled to withhold payments for any reason whatsoever. In the event of default in payment, the Seller shall be entitled, without prejudice to the assertion of further damages, to charge interest on arrears at the rate of 10% per annum as well as all pre-judicial and extra-judicial collection costs.
If the Buyer is in default of payment, the Seller reserves the right to deliver orders only against advance payment or to withdraw from the contract.
The Buyer is not entitled to offset counterclaims unless these counterclaims have been legally assigned or expressly acknowledged by the Seller in writing.
Retention of Title
The Seller retains title to the delivered goods until the purchase price has been paid in full.
In case of further processing of the delivered goods (according to clause 4.1) into new products, the Seller and the Buyer shall have co-ownership in the ratio of the processed value shares. The same shall apply if the goods are processed or mixed with other goods not owned by Seller.
Buyer shall not be entitled to resell such goods (as defined in Clause 4.1) to third parties unless Seller has (i) been informed in due time stating the name and address of the third party and (ii) expressly agreed in writing to such resale. In this case, Buyer's purchase price claim shall be assigned to Seller (by way of security). The Buyer shall be obliged to make a corresponding reference in its business books and invoices.
In the event that the Buyer acts in breach of contract, in particular in the event of default in payment, the Seller shall be entitled, after setting a reasonable deadline, to demand the return of the goods and to withdraw from the contract. If the Seller asserts the reserved title, the Seller shall not automatically withdraw from the contract unless this is expressly declared.
The Buyer shall notify the Seller in writing without undue delay if insolvency proceedings have been opened or if the delivered goods (pursuant to clause 4.1.) have been seized by a court or by a third party.
The Seller shall be entitled to resell the reserved goods without any restrictions. All proceeds from such resale shall be credited to the Buyer's account; if a handling fee of 10% is deducted.
Time of Delivery
Delivery dates are binding only if confirmed by the seller. All delivery dates shall be extended appropriately in the event of hindrances that lie outside the sphere of the Seller, e.g., missing or non-contractual information from the Buyer, natural events, epidemics, accidents, operational disruptions, labor disputes, work hindrances or retirement of relevant employees, late or defective deliveries and official measures.
Delays in delivery do not entitle the buyer to withdraw from the contract without setting a reasonable deadline. Such withdrawal must be made by registered mail. A right of withdrawal shall only apply to that part of the Buyer's orders which are in delay of delivery. In this case, the purchaser is not entitled to claim any damages arising therefrom.
The Buyer is aware that in the event of a shortage of goods, manufacturers supply a reduced allocation of goods, over which the Seller has no influence. The Seller must pass on this reduced allocation of goods to the Buyer; the Buyer shall therefore not be entitled to any claims, in particular for damages.
If delivery on call has been agreed, the ordered products shall be delivered within six (6) months after the dates provided for in the delivery call, but no later than twelve (12) months after the order has been placed, unless otherwise agreed.
- Fulfillment, Transfer of Risk, Acceptance
The Buyer is obliged to accept the Seller's deliveries in accordance with the order.
Terms of delivery are “ex works” (INCOTERMS 2010), unless otherwise agreed, benefit and risk shall pass to the Buyer upon leaving the Seller's warehouse.
Default in acceptance
If the Buyer is in default of acceptance of Products for more than two weeks (e.g., by refusal of acceptance, default in advance payments) and does not remove the obstacles to the delay within a reasonable grace period, the Seller may dispose of such Products otherwise.
If the Buyer is in default of acceptance of Products, the Seller shall be entitled to store such Products and charge the Buyer an updated storage fee.
Seller's rights (i) to demand payment for Products delivered and services rendered and (ii) to rescind the contract after granting a reasonable grace period shall remain unaffected.
Seller shall be entitled to a contractual penalty (lump sum) in the amount of 40% (calculated from the order value) if Seller (justifiably) withdraws from the contract. The Buyer shall be obliged to pay this contractual penalty irrespective of his fault. The Seller is not obliged to prove the actual damage.
Warranty
The Buyer is obliged to inspect the delivered products and notify the Seller of any defects in writing. The delivery shall be deemed to be in accordance with the contract if the Buyer fails to notify the Seller of any defects within 10 working days after delivery. In this case, the Buyer shall forfeit any warranty, damages and defect claims.
The warranty period is twelve (12) months from the transfer of risk. In addition, the manufacturer's warranty conditions shall apply, which the seller shall make available upon request. The presumption rule of the Austrian Civil Code (ABGB) is excluded. The buyer must prove that the products were defective upon delivery.
The Seller shall not assume any responsibility or warranty for defects caused by natural wear and tear, force majeure, improper handling and use, interventions by the Buyer or third parties, excessive use, operation of the products outside the “Manufacturer's Data Sheet”, unsuitable operating materials or extreme environmental influences.
The Seller shall remedy any product defects under warranty if the Buyer complies with the agreed terms of payment. The Seller shall remedy any defects at its option either by improvement (repair) or replacement at its premises or at the Buyer's premises (the Buyer is obliged to provide free access to its premises). Replaced parts shall become the property of the Seller. The warranty period shall not be extended thereby.
If the Seller cannot remedy the defect, the Buyer is entitled to replacement of the defective product or price reduction. Further claims under the title of warranty are excluded. In particular, the buyer may not withdraw from the contract or claim compensation for consequential damages.
Product returns to the Seller are only permitted with the prior written consent of the Seller.
Product returns to the Seller are only permitted with the prior written consent of the Seller.
Repair or defect removal costs incurred by the Buyer or a third party shall not be reimbursed by the Seller.
Sec. 933 b ABGB (Austrian Civil Code) shall not apply.
Liability
The Seller shall only be liable for damages outside the scope of application of the PHG in the event of proven intent or gross negligence and within the scope of the statutory provisions. Any liability of the Seller for slight negligence, compensation for consequential and pecuniary damages as well as damages resulting from claims of third parties against the Buyer shall be excluded.
Any damages shall be asserted in court within six months after the Buyer has become aware of the damage and the damaging party. All claims that are not asserted within this period shall expire.
For whatever legal reason – to the extent permitted by law – is limited to a maximum amount of USD 1,000,000 (one million)
Seller's installation instructions, faulty installation or commissioning, improper maintenance or natural wear and tear.
If Buyer is entitled to indemnification by its insurance company, Buyer shall be obligated to do so. In this case, the Seller shall only be liable for any pecuniary disadvantages incurred by the Buyer as a result of the insurance claim (e.g., higher insurance premium).
All advice given by the Seller, such as suggestions for solutions, product proposals or “crossing/transcoding” of product information, is given to the best of the Seller's knowledge and with the utmost care. Such advice is free of charge and does not constitute a part of the contract between Seller and Buyer (the recipient of the advice). It remains the sole decision of the Buyer whether the products or solutions offered by the Seller are suitable for the Buyer's application. Reference is made to the product specification according to the manufacturer's information.
Export Control
The buyer is solely responsible for compliance with export regulations and for obtaining any export licenses that may be required.
Templates, Forms, etc.
Outlays for templates, forms, tools, mechanical devices, etc. (“Equipment”) are due for payment immediately upon invoicing. The Equipment shall remain the property of the Contractor even after payment of the invoice, regardless of the products manufactured using the Equipment.
If no further order is placed within one year after the last use of the Equipment, the Seller, or the Manufacturer, as the case may be, shall be entitled to dispose of the Equipment without restriction.
Intellectual Property, Confidentiality
Plans, sketches, cost estimates and all other materials provided or contributed by the Seller shall remain the intellectual property of the Seller.
Any use of the material (under clause 12.1) – or parts thereof – outside its intended scope, e.g., passing on, duplication, publication or other making available, shall require the express consent of the Seller.
The Buyer undertakes to treat as confidential all information which it receives on the basis of the business relationship with the Seller. The confidentiality obligation shall continue to apply for 3 years after termination of the business relationship.
Severability Clause
The invalidity of individual provisions of the GTC shall not result in the invalidity of the entire contract. Such invalid provisions shall be replaced by valid and enforceable provisions which come as close as possible to the economic purpose of the invalid provision.
Data Protection
The buyer expressly consents to the electronic recording and processing of any company data. This consent may be revoked in writing at any time.
Credit assessment
The buyer expressly agrees that his data will be transmitted to the Austrian creditor protection associations for the purpose of credit assessment. The seller is entitled to refuse acceptance of orders after checking the creditworthiness of the buyer.
Applicable law and place of jurisdiction
- The place of fulfillment is Salzburg.
Austrian law shall apply exclusively to the entire legal relationship between Buyer and Seller. The provisions of the UN Convention on Contracts for the International Sale of Goods and conflict of laws provisions under Austrian law shall not apply.
The place of jurisdiction shall be the place where the Seller has its registered office. However, the Seller may, at its option, also bring an action before the court at the Buyer's place of business.