General Terms and Conditions for Austria

General Terms & Conditions of Delivery, Amadys Telecom Austria GmbH

(as of July 2023, V1.02)

For cables, connection components and services of Amadys Telecom Austria GmbH,
hereinafter also referred to as the Seller or Provider.

1. Scope

1.1 These general terms and conditions apply to the delivery of goods and, accordingly, also to the provision of services.

1.2 Deviations from these terms and conditions shall only be effective if acknowledged by the Seller in writing.

1.3 Subsidiarily, in the absence of other agreements, the “General Terms and Conditions of Delivery” issued by the Austrian Association of the Electrical and Electronics Industry (Fachverband der Elektro- und Elektronikindustrie Österreichs), edition April 2017, shall apply.

2. Offer

2.1 Offers are generally non-binding. Any documents made available in connection with an offer may neither be reproduced nor made accessible to third parties without the Provider’s consent. If an order is placed otherwise, these documents must be returned to the Provider immediately.

3. Conclusion of Contract

3.1 The contract shall be deemed concluded when the Seller, upon receipt of the order, has issued a written order confirmation or the delivery has been made.

3.2 Subsequent amendments and additions to the contract require written confirmation to be valid.

4. Prices

All deliveries are made on the basis of the prices valid at the time of delivery, taking into account the surcharges and/or discounts set out below.

4.1 We are entitled on our own initiative, and obliged upon the Customer’s request, to adjust the contractually agreed remuneration if changes of at least 5% occur with regard to
(a) wage costs due to law, regulation, collective agreement, works agreements, or
(b) other cost factors necessary for performance, such as material costs due to recommendations of the parity commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc., since conclusion of the contract.
The adjustment shall be made to the extent that the actual production costs at the time of contract conclusion change compared to those at the time of actual performance, provided that we are not in default.

4.2 Metal surcharges or discounts are invoiced on the basis of the metal contents stated in our data sheets, using the last valid Austrian metal quotation at the time of ordering – LME reference rate of the previous day – and the current handling surcharge, as well as the BFIX Frankfurt conversion rate. This is published weekly on our website. Our prices include a copper base of EUR 130.00 per 100 kg of copper.

4.3 Prices apply exclusively to packaging, loading and VAT and do not include unloading and carrying. Any costs for transport, fire insurance, fees, taxes and other charges shall be borne by the Buyer.

4.4 The Seller charges a small-quantity surcharge of EUR 25.00 per order if the minimum net order value of EUR 500.00 is not reached.

4.5 Prices apply for total acceptance of the offered quantities and services.

4.6 In the event of price changes between order confirmation and delivery of the goods due to circumstances beyond our control (collective agreements, material prices, customs duties, taxes, charges, etc.), the Seller is entitled to adjust the price stated in the order confirmation up to the time of delivery.

5. Delivery Lengths

Over-deliveries of up to 10% of the ordered length must be accepted by the Buyer and acknowledged for invoicing. For deliveries in coils, the Seller is entitled to deliver up to 10% of the ordered quantity in coils that deviate from standard lengths.

6. Packaging

6.1 Packaging and transport aids (such as squared timber, supports, wedges, crates and cartons) are invoiced separately and are not taken back.

6.2 Drums and sheathing are invoiced at cost and must be paid together with the goods. If the reusable empty drum is returned carriage paid and in flawless condition to the Seller’s plant, an appropriate reimbursement dependent on the period of absence will be paid.

7. Shipping

7.1 Shipping is ex works Schwechat. Use and risk pass to the Buyer upon dispatch from the works or warehouse, regardless of the pricing basis agreed for delivery.

8. Delivery

8.1 The delivery period begins on the latest of the following dates:
a) date of order confirmation
b) date of fulfilment of all technical, commercial or other prerequisites incumbent on the Buyer, in particular the provision of official approvals, etc.
c) date on which the Seller receives an advance payment or security to be provided before delivery of the goods.

8.2 The Seller is entitled to make and invoice partial deliveries or advance deliveries.

8.3 Compliance with the agreed delivery period is subject to unforeseeable circumstances or circumstances independent of the parties’ will, such as all cases of force majeure, warlike events, official interventions and prohibitions, transport and customs delays, energy and raw material shortages, rejection of a major workpiece, as well as labour disputes (strike and lockout). These circumstances also entitle the Seller to an extension of the delivery period if they occur at suppliers.

8.4 Notification of readiness for dispatch at the delivery date shall be deemed equivalent to delivery if delivery cannot be carried out at the agreed delivery date for reasons for which the Seller is not responsible.

8.5 Credit notes for delivered goods can only be issued after prior agreement and confirmation by the Seller. Returned goods must be unused, in perfect condition, in original packaging, and not older than 3 months. Credit notes are issued subject to a handling fee of 25% of the new price.

8.6 Special items, i.e. items manufactured specifically for the Buyer or cut lengths, cannot be taken back. The Customer bears the costs of return shipment to our warehouse. Unpaid shipments will not be accepted.

9. Payment Terms

9.1 The Seller is entitled to demand an advance payment. Payments must be made to the Seller or to the bank institutions specified by the Seller.

9.2 Payments must be made in cash, without any deduction, free of charge at the Seller’s payment office, in the agreed currency. Any acceptance of cheques or bills of exchange is always only on account of payment. All related expenses (e.g. deposit and discount charges) are borne by the Buyer. Granted discounts or bonuses are given on the condition of timely payment in full.

9.3 The Seller may declare all claims against the Buyer due and payable if the Buyer fails to comply with payment terms or if facts become known suggesting that the claims are at risk due to the Buyer’s insufficient ability to pay. In the latter case, the Seller is entitled to make further deliveries dependent on cash on delivery payment or the provision of appropriate security.

9.5 If facts become known after conclusion of the contract—especially payment default regarding earlier deliveries—which, according to prudent business judgment, indicate that the purchase price claim is at risk due to the Buyer’s insufficient ability to pay, the Seller is entitled, by setting a reasonable deadline, to demand at the Buyer’s choice payment concurrently (cash against delivery) or appropriate security and, in case of refusal or expiry of the deadline, to withdraw from the contract, whereby invoices for already effected partial deliveries become immediately due.

9.6 The Buyer is not entitled to withhold payments or set off payments due to warranty claims or other counterclaims.

10. Retention of Title

10.1 Until full payment of the total invoice amount including ancillary charges and until encashment of bills of exchange and cheques given for this purpose—regardless of whether these were issued by the Seller or not—the Seller retains title to the delivered items and the right to choose the form in which this retention of title is made visible and secured vis-à-vis third parties. It is expressly agreed that the retention of title does not lapse even in the event of processing of items delivered under retention of title, even if the delivered items become independent components of a principal item. It is expressly agreed that, in the event of late and incomplete settlement of the delivery amount and/or the purchase price, the Seller is entitled to remove the delivered items remaining its property and/or to render them non-functional, and the Buyer may neither prevent this nor assert any claims for damages.

10.2 The Buyer must pass on this retention of title and the right of removal and/or rendering non-functional to third parties, together with the additional obligation to pass it on further.

11. Warranty

11.1 The warranty period is 1 year from commissioning and/or completion of installation, but no more than 1.5 years from delivery and/or notification of readiness for dispatch, subject to the conditions below.

11.2 The Buyer must inspect the delivered items carefully for defects immediately upon arrival.

11.3 For defects not recognizable even with such careful inspection, warranty is provided only for defects which under normal conditions, with proper handling, have led to malfunction and which can be proven to be material defects, or which are attributable to cable installation according to production, or to laying/installation of the cables by the Seller. If installation or laying work is not performed by the Seller or if the defect only becomes apparent after laying/installation has begun, the Buyer is only entitled to assert claims against the Seller if the Buyer proves that the defect already existed prior to laying/installation of the cable.

11.4 Complaints of defects pursuant to 11.2 and 11.3 must be asserted immediately—under 11.2 at the latest within 10 days after delivery, and under 11.3 at the latest within 10 days after discovery—in writing and by registered mail to the Seller; otherwise they are invalid and no rights can be derived from them.

11.5 The Buyer also forfeits all defect-based claims in the following cases:
11.5.1 if, after discovering a defect, the Buyer takes or omits measures that prevent the Seller from properly examining the defect or damage and its cause; or
11.5.2 if the goods are used in violation of relevant technical standards or statutory provisions in their respective valid version, or subsequent regulations, or if work was not carried out by authorized specialists such as officially licensed companies; or
11.5.3 if any conditions for installation, commissioning and use (e.g. contained in installation instructions) or official approval conditions are not complied with.

11.6 The Seller is not liable for defects reported later than 1.5 years after delivery of the goods— in the event of acceptance delay by the Buyer, 1.5 years after the delivery date.

11.7 If a claim exists under the above conditions, it is limited to repair or replacement of the defective part by the Seller within a reasonable time. All costs and work beyond direct repair or replacement, such as structural measures, excavation work or the like, are borne by the Buyer. Replaced goods or parts thereof become the property of the Seller again.

11.8 The Seller is only responsible for defects proven to be attributable to material defects or improper work by the Seller. If laying and installation of the cables and components were not performed by the Seller’s personnel or authorized companies, or if components of third-party origin were used by the Buyer, the Seller is, in case of doubt, entitled to assume third-party fault as the cause of the malfunction.

11.9 Any further claims of the Buyer beyond the Seller’s obligations described above are excluded. Suspension or interruption of the warranty period shall not occur in any case.

12. Liability

12.1 The Seller is liable within the scope of the Product Liability Act. Cables, connection components and insulated conductors may only be used in accordance with relevant technical standards or statutory provisions in their respective valid version and only by authorized specialists such as officially licensed companies.

12.2 For damages outside the scope of the Product Liability Act, the Seller is liable only if intent or gross negligence is proven, within the framework of statutory provisions. Liability for slight negligence is excluded, as is compensation for consequential and financial damages, lost profits or savings, loss of interest, or damages arising from third-party claims against the Buyer.

12.3 If any conditions for installation, commissioning and use (e.g. contained in operating instructions) or official approval conditions are not complied with, any liability for damages is excluded.

13. Pass-Through Obligations

13.1 The provisions on retention of title (10) as well as the warranty and liability limitations (11 and 12) must be passed on in full in writing to any purchasers of the Buyer, together with the additional obligation to pass them on further in the event of resale, etc. Upon request, the Buyer must provide documentary proof of this to the Seller.

14. Applicable Law, Place of Performance and Jurisdiction

For all legal relationships between Seller and Buyer, unless otherwise agreed, only Austrian law applicable to domestic parties shall apply. Trade customs deviating from the terms of sale and delivery as well as the UNCITRAL United Nations Convention on Contracts for the International Sale of Goods are mutually excluded, as are any conflicting purchasing conditions. The place of performance for the Buyer’s payment obligation and the exclusive place of jurisdiction for both parties is the competent court at the Seller’s registered office. The place of performance for all contractual obligations is the place of the Seller’s respective delivery point.

15. Deviating Procurement Conditions

Deviating procurement conditions of the Buyer shall only be valid if expressly agreed in writing between Buyer and Seller.

16. Additional Costs Incurred

16.1 Chargeable hours for work outside the offered activities are billed according to effort at the currently valid hourly rate.

16.2 Downtimes for delays during installation not caused by the Seller are billed at the currently valid hourly rate.

16.3 Additional travel time and/or travel expenses are billed according to the currently valid travel expense lump sums based on effort.

General Terms & Conditions of Delivery, TIBA Produktions- und Vertriebs GmbH

1. Scope of Application

1.1 These general terms and conditions apply to legal transactions between companies, in particular to the delivery of goods and, mutatis mutandis, also to the provision of services.

2. Offer

2.1 The seller’s offers are non-binding and subject to change.

2.2 All quotation and project documents may neither be reproduced nor made accessible to third parties without the seller’s consent. They may be reclaimed at any time and must be returned to the seller without delay if the order is placed elsewhere.

3. Conclusion of Contract

3.1 The contract shall be deemed concluded when, after receiving the order, the seller has sent a written order confirmation or dispatched the delivery.

3.2 Information contained in catalogues, brochures, etc., as well as other written or verbal statements, shall only be binding if expressly referred to in the order confirmation.

3.3 Subsequent amendments and additions to the contract require written confirmation to be valid.

4. Prices

4.1 Prices are ex works or ex warehouse of the seller, excluding VAT, packaging, loading, dismantling, take-back and proper recovery and disposal of waste electrical and electronic equipment for commercial purposes within the meaning of the Waste Electrical Equipment Ordinance. If fees, taxes or other charges are levied in connection with the delivery, these shall be borne by the buyer. If delivery to the recipient is agreed, this service and any transport insurance requested by the buyer shall be charged separately; however, this does not include unloading and carrying to the place of use. Packaging will only be taken back by express agreement.

4.2 In the event of an order deviating from the overall offer, the seller reserves the right to adjust the prices accordingly.

4.3 Prices are based on costs at the time of the initial quotation. If costs increase up to the time of delivery, the seller is entitled to adjust the prices accordingly.

4.4 For repair orders, the services deemed appropriate by the seller shall be performed and invoiced based on the actual effort incurred. This also applies to services and additional services the expediency of which only becomes apparent during execution of the order, without any special notice to the buyer being required.

4.5 The effort for preparing repair quotations or for inspections/expert assessments shall be invoiced to the buyer.

5. Delivery

5.1 The delivery period begins on the latest of the following dates:
a) date of the order confirmation
b) date on which all technical, commercial and other requirements incumbent upon the buyer have been fulfilled;
c) date on which the seller receives any down payment or security to be provided prior to delivery of the goods.

5.2 Official approvals and any permits required from third parties for the execution of installations must be obtained by the buyer. If such approvals are not obtained in due time, the delivery period shall be extended accordingly.

5.3 The seller is entitled to make partial deliveries or advance deliveries and to invoice them. If call-off delivery is agreed, the goods shall be deemed called off no later than one year after the order date.

5.4 If unforeseeable circumstances or circumstances beyond the parties’ control occur (e.g. force majeure) that hinder compliance with the agreed delivery period, such period shall in any event be extended by the duration of such circumstances. This includes in particular armed conflicts, official interventions and prohibitions, delays in transport and customs clearance, transport damage, shortages of energy and raw materials, labor disputes, and failure of a key supplier that is difficult to replace. These circumstances also entitle the seller to an extension of the delivery period if they occur at suppliers.

6. Transfer of Risk and Place of Performance

6.1 Use and risk shall pass to the buyer upon dispatch of the delivery from the seller’s works or warehouse, irrespective of the agreed delivery terms/pricing basis (e.g. carriage paid, CIF, etc.). This also applies if delivery takes place as part of installation or if transport is carried out or organized, managed and directed by the seller.

6.2 For services, the place of performance is where the service is rendered. Risk for a service or an agreed partial service passes to the buyer upon performance.

7. Payment

7.1 Unless payment terms have been agreed, one third of the price is due upon receipt of the order confirmation, one third at half of the delivery period, and the remainder upon delivery. Irrespective of this, VAT shown on the invoice must in any case be paid no later than 30 days after invoicing.

7.2 In the case of partial invoicing, the corresponding partial payments are due upon receipt of the respective invoice. This also applies to amounts invoiced which arise due to subsequent deliveries or other agreements exceeding the original total contract sum, irrespective of the payment terms agreed for the main delivery.

7.3 Payments shall be made without any deduction, free of charge to the seller’s payment office, in the agreed currency. Any acceptance of cheques or bills of exchange shall always be for collection only. Any interest and expenses incurred in this connection (e.g. collection and discount charges) shall be borne by the buyer.

7.4 The buyer is not entitled to withhold payments or to offset them against warranty claims or other counterclaims.

7.5 A payment shall be deemed made on the day the seller can dispose of it.

7.6 If the buyer is in default with an agreed payment or other performance from this or other transactions, the seller may, without prejudice to its other rights,
a) postpone performance of its own obligations until such payment or other performance has been effected and claim a reasonable extension of the delivery period,
b) declare all outstanding receivables from this or other transactions immediately due and charge default interest on these amounts from the respective due date at a rate of 1.25% per month plus VAT, unless the seller proves higher costs.
In any case, the seller is entitled to charge pre-litigation costs, in particular reminder fees and attorney’s fees.

7.7 Any discounts or bonuses granted are conditional upon timely full payment.

7.8 The seller retains title to all goods delivered by it until full payment of the invoiced amounts plus interest and costs.
The buyer hereby assigns to the seller, as security for the seller’s purchase price claim, its receivables from any resale of goods subject to retention of title, even if such goods have been processed, transformed or mixed. In the event of resale with deferred payment of the purchase price, the buyer is only authorized to dispose of the goods subject to retention of title on the condition that, simultaneously with the resale, it informs the subsequent purchaser of the security assignment or records the assignment in its business books. Upon request, the buyer shall disclose to the seller the assigned receivable together with the debtor and provide all information and documents required for collection of the receivable, and notify the third-party debtor of the assignment. In the event of seizure or other claims, the buyer is obliged to point out the seller’s title and to notify the seller without delay.

8. Warranty and Liability for Defects

8.1 Provided that the agreed payment terms are complied with, the seller is obliged, in accordance with the following provisions, to remedy any defect impairing functionality that exists at the time of transfer and is based on a fault in design, material or workmanship. No warranty claims may be derived from information in catalogues, brochures, advertising materials, or written or verbal statements that have not been incorporated into the contract.

8.2 The warranty period is 12 months unless special warranty periods have been agreed for individual delivery items. This also applies to items of delivery and performance that are permanently connected to a building or to land. The warranty period begins at the time risk is transferred pursuant to Clause 6.

8.3 Warranty claims require that the buyer has notified the seller of the defects in writing within a reasonable time and that the notice is received by the seller. The buyer must prove the existence of the defect within a reasonable time, in particular by providing the seller with the documents and/or data available to it. If a defect subject to warranty exists pursuant to Clause 8.1, the seller may, at its discretion, repair the defective goods or defective part at the place of performance, or have them sent to it for repair, or grant an appropriate price reduction.

8.4 All ancillary costs incurred in connection with remedying defects (e.g. for removal and installation, transport, disposal, travel and travel time) shall be borne by the buyer. For warranty work at the buyer’s premises, the necessary auxiliary staff, lifting equipment, scaffolding and small materials, etc. must be provided free of charge. Replaced parts become the property of the seller.

8.5 If goods are manufactured by the seller on the basis of the buyer’s design information, drawings, models or other specifications, the seller’s liability extends only to performance in accordance with the specifications.

8.6 The warranty excludes defects arising from arrangements and installation not carried out by the seller, inadequate set-up, failure to observe installation requirements and conditions of use, overstraining parts beyond the performance specified by the seller, negligent or incorrect handling, and the use of unsuitable operating materials; this also applies to defects attributable to materials supplied by the buyer. The seller is also not liable for damage attributable to acts of third parties, atmospheric discharges, overvoltage and chemical influences. The warranty does not cover replacement of parts subject to natural wear and tear. In the sale of used goods, the seller assumes no warranty.

8.7 The warranty expires immediately if the buyer itself or a third party not expressly authorized by the seller carries out modifications or repairs to the delivered items without the seller’s written consent.

8.8 Claims pursuant to Section 933b of the Austrian Civil Code (ABGB) shall in any case become time-barred upon expiry of the period specified in Clause 8.2.

8.9 Clauses 8.1 to 8.8 apply mutatis mutandis also to any liability for defects on other legal grounds.

9. Withdrawal from the Contract

9.1 Unless a more specific provision has been agreed, the buyer may withdraw from the contract only if there is a delay in delivery attributable to gross negligence on the part of the seller and a reasonably set grace period has expired without success. Withdrawal must be declared by registered letter.

9.2 Without prejudice to its other rights, the seller is entitled to withdraw from the contract
a) if execution of the delivery and/or commencement or continuation of performance becomes impossible for reasons attributable to the buyer or is further delayed despite a reasonable grace period being set,
b) if doubts arise as to the buyer’s solvency and, upon the seller’s request, the buyer neither makes advance payment nor provides adequate security prior to delivery, or
c) if the extension of the delivery period due to the circumstances listed in Clause 5.4 amounts in total to more than half of the originally agreed delivery period, but at least 6 months.

9.3 For the reasons stated above, withdrawal may also be declared with respect to any remaining part of the delivery or performance.

9.4 If insolvency proceedings are opened over the assets of a contractual party, or an application to open insolvency proceedings is rejected due to insufficient assets, the other party is entitled to withdraw from the contract without setting a grace period.

9.5 Without prejudice to the seller’s claims for damages including pre-litigation costs, in the event of withdrawal, services or partial services already rendered must be settled and paid for in accordance with the contract. This also applies insofar as delivery or performance has not yet been accepted by the buyer, and to preparatory acts performed by the seller. Alternatively, the seller is also entitled to demand the return of items already delivered.

9.6 Any other consequences of withdrawal are excluded.

9.7 The buyer’s assertion of claims due to laesio enormis, mistake, and frustration of the basis of the transaction is excluded.

10. Seller’s Liability

10.1 The seller shall be liable for damages outside the scope of the Product Liability Act only if intent or gross negligence is proven, within the scope of the statutory provisions. Liability for slight negligence, compensation for consequential damages, pure financial losses, lost profit, unrealized savings, loss of interest, and damages arising from claims of third parties against the buyer are excluded.

10.2 If any conditions for installation, commissioning and use (e.g. contained in operating instructions) or official approval conditions are not complied with, any claim for damages is excluded.

10.3 If contractual penalties are agreed, any further claims under the respective title are excluded.

11. Industrial Property Rights and Copyright

11.1 If goods are manufactured by the seller on the basis of the buyer’s design information, drawings, models or other specifications, the buyer shall hold the seller harmless and indemnified in the event of any infringement of protective rights.

11.2 Execution documents such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations, etc., remain the seller’s intellectual property at all times and are subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. Clause 2.2 also applies to execution documents.

12. General

If individual provisions of the contract or of these terms and conditions are invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended purpose.

13. Place of Jurisdiction and Applicable Law

For all disputes arising from the contract—including disputes concerning its existence or non-existence—the court with subject-matter jurisdiction at the seller’s registered office shall have exclusive jurisdiction; in Vienna, this shall be the court in the district of the District Court Innere Stadt. The contract is governed by Austrian law, excluding its conflict-of-law referral rules. The application of the UNCITRAL United Nations Convention on Contracts for the International Sale of Goods is excluded.

14. Embroidery and Printing Orders

We point out that in the case of goods provided by the customer, no incoming inspection will be carried out with regard to quantity, quality, or size breakdown.