SKE Engineering GmbH | General Terms and Conditions EU

General Terms and Conditions of Sale and Delivery of SKE Engineering GmbH

 

1. Scope of Application

1.1.      These general terms and conditions of sale and delivery (= general terms and conditions = GTC) are an integral part of all purchase and delivery contracts between SKE Engineering GmbH (hereinafter referred to as SKE) and its contracting partners.

1.2.      These GTC apply to all business relations between SKE and natural and/or legal persons who act as contracting partners of SKE (hereinafter referred to as entrepreneur).

1.3.      Contracts for deliveries and/or services of SKE are concluded exclusively under the validity of these GTC.

1.4.      By accepting an offer from SKE or by placing an order, the entrepreneur explicitly acknowledges the validity of these GTC.

1.5.      Deviating, contrary, or additional terms and conditions of contract – in particular business and/or delivery conditions of the entrepreneur – shall not become part of the contract unless SKE has explicitly agreed to their validity in a written form.

 

2. Conclusion of Contract/Offer

2.1.      Offers made by SKE are non-binding unless they are explicitly designated as binding.

2.2.      When ordering by e-mail, the entrepreneur receives an order confirmation from SKE and this constitutes a binding order confirmation.

2.3.      Changes to the order by the entrepreneur after conclusion of the contract require the explicit written consent of SKE to become effective, which may not be unreasonably refused.

2.4.      The entrepreneur shall bear all additional costs resulting for SKE from subsequent changes to the order/contract at the request of the entrepreneur.

2.5.      In case of subsequent changes by the entrepreneur, SKE is not liable for compliance with the original delivery times, unless otherwise agreed.

2.6.      SKE is entitled to refuse acceptance and/or execution of the order – for example after checking the creditworthiness of the entrepreneur or for other reasons.

2.7.      In the case of contracts concluded electronically, the text of the contract is not stored by SKE after the contract has been concluded.

2.8.      Information contained in catalogs, brochures, product descriptions, etc. shall only be binding if reference is made to this information in the order confirmation from SKE.

 

3. Retention of title

3.1.      All services and deliveries of SKE are subject to retention of title.

3.2.      The delivered goods remain the property of SKE until the purchase price including additional charges has been paid in total. Any material and immaterial good, in particular also documents, services and software, shall be deemed to be goods.

3.3.      The retention of title also extends to products created by processing the goods delivered by SKE. If the goods are processed, combined and mixed, SKE acquires co-ownership of the resulting products in the ratio of the value of the delivered goods to the newly created item.

3.4.      Pledging, transfer by way of security or other debiting of the goods subject to retention of title by the entrepreneur is not permitted for the duration of the retention of title by SKE. Access by third parties to the goods subject to retention of title must be reported immediately and the entrepreneur is obliged to assert the right of ownership of SKE.

3.5.      SKE is entitled to demand the return of the delivered but not yet completely paid goods if the entrepreneur does not fulfil his payment obligations (despite at least two reminders) towards SKE or if bankruptcy or composition proceedings are applied for or opened against the assets of the entrepreneur and are not settled or cancelled within a reasonable period of time or if the entrepreneur stops his payments.

 

4. Prices and price change clause

4.1.      Prices are exclusive of the applicable statutory value-added tax.

4.2.      Prices on existing orders are binding and guaranteed by SKE for a period of 3 months from the legally effective conclusion of the contract (= transmission of an order confirmation to the entrepreneur by SKE). After the expiry of these 3 months from the conclusion of the contract, SKE is entitled to change the price and to notify the entrepreneur. In case of a price change the entrepreneur has the right to withdraw from the contract. The entrepreneur must notify SKE in written form of this right of withdrawal within 14 days after notification of the price change.

 

5. Payment/Delay in payment

5.1.      SKE invoices the deliveries and/or services on the day of (also partial) delivery or if the goods are stored or held ready on call for the contractor. Invoicing is carried out in EURO. The invoice price may differ from the order price if subsequent changes are made on the initiative of the entrepreneur after receipt and confirmation of the binding order by the entrepreneur (cf. clause 3).

5.2.      Unless other bank details are indicated on the invoice, payments shall be made without exception to the following bank account

Creditor:                      SKE Engineering GmbH

Bank name:                 Allgemeine Sparkasse Oberösterreich Bankaktiengesellschaft

IBAN:                           AT87 2032 0321 0049 4867

BIC:                              ASPKAT2LXXX

For telebanking transfers, the “invoice number” must be entered in the “customer data” field.

5.3.      The offsetting of any counterclaim(s) by the entrepreneur is explicitly permitted.

5.4.      In the event of delay in payment, SKE is entitled to make all outstanding invoices – including those not yet due – for delivered goods immediately due and payable and to make further work on current orders dependent on the payment of advance payments as well as the settlement of all outstanding invoice amounts. Furthermore, SKE is entitled to retain the undelivered goods until full payment of all outstanding advance payments, partial payments and invoice amounts and to stop further work on current orders in case of non-payment of the proportional payments. SKE is entitled to these rights even if the entrepreneur does not make any payments.

5.5.      If the entrepreneur concludes the contract with SKE on behalf of a third party, the entrepreneur shall be liable as a guarantor for the collectability of the claim against this third party. Only after two (unsuccessful) reminders from the third party, SKE can demand payment of the outstanding debt from the entrepreneur.

5.6.      In the event of offsetting against third parties, the entrepreneur shall be jointly and severally liable with the invoice recipient for payment of the invoice amount.

 

6. Delivery and Force majeure

6.1.       The delivery dates and delivery periods stated in the order or the delivery schedule are binding.

6.2.      Force majeure such as strikes, riots, official measures, pandemics, wars and other unforeseeable, unavoidable and/or uncontrollable extraordinary events coming from outside shall release SKE from its obligation to perform for the duration of the disruption/event and to the extent of its effect and shall lead to a reasonable extension of the delivery period or to a justified postponement of delivery dates.

6.3.      SKE is obligated to provide its contractual partners with the necessary information without delay within the bounds of what is reasonable.

 

7. Obligation to accept and consequences of default in acceptance

7.1.      The entrepreneur is obliged to accept (or collect) the goods on the contractually agreed delivery date or, in the absence of such, on the delivery date announced by SKE at least one week in advance. SKE is not obliged to explicitly offer the goods to the entrepreneur for acceptance.

7.2.      If the entrepreneur is in default of acceptance, the risk shall pass to the entrepreneur and all adverse consequences shall be borne by him. In particular, SKE is entitled to demand compensation from the entrepreneur for the additional expenses which SKE had to incur for the unsuccessful offer (for example: delivery attempt) and for the storage and preservation of the goods. In any case, the entrepreneur is obliged to reimburse storage costs customary in the locality. SKE has the right to choose the location of the warehouse.

7.3.      Upon the occurrence of default in acceptance, SKE shall in any case be entitled to demand payment of the entire purchase price (including VAT and ancillary costs) with regard to the goods caught in default, notwithstanding any other agreements.

7.4.      Furthermore, SKE is entitled to withdraw from the contract in case of default of acceptance by granting a reasonable grace period. In any case, a grace period of one month shall be deemed reasonable.

 

8. Cancellation of the order – withdrawl from the contract

8.1.      The entrepreneur is not entitled to cancel orders placed and confirmed by SKE, even if only conclusively (to withdraw from the purchase contract).

8.2.      If SKE agrees to the cancellation of the order (withdrawal from the contract) in an individual case, SKE is entitled to demand a cancellation fee from the entrepreneur in the amount of 10% (ten percent) of the purchase price (including VAT and pro rata additional costs) attributable to the cancelled goods. The cancellation fee shall be due for payment within 14 days of receipt of the relevant invoice. The application of § 1336 para. 2 ABGB is excluded.

8.3.      The consent of SKE to the cancellation of the order (the withdrawal from the contract), even if repeated or regular, does not establish a business habit between SKE and the entrepreneur.

 

9. Limitation of Liability

9.1.      Claims for damages by the entrepreneur are excluded unless the damage was caused by intentional or grossly negligent actions or omissions on the part of SKE. In case of slight negligence SKE is only liable for injury to life, body and health, but without any limitation of liability.

9.2.      The liability of SKE is, except in the case of intent or gross negligence attributable to SKE, limited to the amount of the order value per case of damage. Liability for loss of profit is excluded.

9.3.      In the event of liability, only monetary compensation may be claimed.

9.4.      The limitations of liability also apply to pre-contractual obligations, i.e. even if no contract is concluded.

9.5.      The liability of SKE is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, improper assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear. Likewise, the exclusion of liability exists for omission of necessary maintenance.

8.6.      SKE shall be fully liable for all claims of third parties regarding intellectual property rights in the delivered goods and shall indemnify and hold the entrepreneur harmless for any such claims or disputes. SKE grants, or causes Huawei to grant, to the entrepreneur an irrevocable, perpetual, non-exclusive, royalty-free license, transferable to its successors in title, to use and reproduce all intellectual property rights in the supplied goods for the purposes of installation, operation, maintenance, repair or general use of the supplied goods.

 

10. Severability Clause

10.1.    Should single provisions of the contract, including these GTC, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision that comes as close as possible in its economic content to the wholly or partially invalid provision.

 

11. Place of Performance and Jurisdiction

11.1.    The exclusive place of performance for all obligations and disputes arising from or in connection with any contractual relations between SKE and the entrepreneur shall be the registered office of SKE according to the commercial register.

11.2.    The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between SKE and the entrepreneur customer is the court locally competent for the registered office of SKE.

11.3.    The entrepreneur must immediately notify RACO in writing of any changes to his name, company name, address, legal form or other relevant information.

 

 

12. Applicable law and interpretation

12.1.    The UN Convention on Contracts for the International Sale of Goods is excluded.

 

13. Final Provisions

13.1.    All order agreements, amendments or supplements to the contract and these General Terms and Conditions must be in written form to be effective. This also applies to a waiver of the written form requirement.

 

 

 

 

 

 

 

 

 

 

 

Version September 2023