Terms and Conditions
1.1. These General Terms and Conditions of Sale and Delivery apply exclusively to all orders. Any deviating agreements, in particular any contradictory terms and conditions of sale of the Purchaser, shall not be binding on the Seller unless they have been expressly acknowledged in writing by the Seller.
1.2. For the purpose of these Terms and Conditions, the ‘Seller’ is understood to be Thöni Industriebetriebe Ges.mbH.
2.1. Offers made by the Seller always apply without engagement.
2.2. Offers, especially the first one, are normally free of charge.
3.1. Orders shall only be deemed as accepted once they are confirmed in writing by the supplier plant.
3.2. Agreements and changes to accepted orders made verbally or by telephone are only valid if they have been confirmed in writing by the supplier plant. In particular, changes concerning the cross-section, manufacture, or further processing of the ordered extruded aluminium profiles to be performed by the supplier plant can normally only be accepted subject to a commensurate extension of the delivery period.
3.3. The nominal linear-metre weight of the extruded aluminium profiles determined by the Purchaser or the Seller is non-binding.
4.1. Prices are without engagement in the sense that they can be amended without prior notice when changes to the order have been accepted.
4.2. Furthermore, in the event of changes in crude metal or market prices, the prices that apply on the day of delivery will be charged.
4.3. Prices are exclusive of Value Added Tax.
For profiles, prices are normally understood to include simple packaging. Additional charges for special packaging (e.g. boxes, small cartons) will be made by arrangement.
6.1. Delivery times stated in offers and order confirmations are made in our best judgement but without any obligation on the part of the Seller and are understood as ex works. Non-adherence to them shall neither entitle the Purchaser to cancel the order nor to assert any claims due to delay, non-delivery or late delivery. The Seller shall be entitled to set an extension to the delivery time at his own discretion if the Purchaser fails to immediately forward to him all information essential for manufacturing, including approval of drawings and samples, after the Purchaser has been given the opportunity to do so by the Seller.
6.2. Force majeure events, war, mobilisation, interruptions to operations, strikes and blockades at the site of the Seller, supplier plant or his subsuppliers, raw material deficiencies or deficiencies in electric power etc. entitle the Seller to revoke his delivery obligations in whole or in part in accordance with the respective extent of the predicament.
6.3. Shipment is always made at the risk of the Purchaser; the Purchaser also bears the risk of any delay, similarly with carriage paid shipments. Otherwise the provisions of ‘Incoterms 1953’ shall be applied correspondingly.
6.4. If the Purchaser does not accept the goods at the agreed place within the agreed acceptance period, the Seller shall be entitled, according to his own choosing, either to withdraw from the contract or to demand immediate payment of the goods, even if they have not yet arrived. In the latter case, the goods shall be stored at the cost and risk of the Purchaser. The same rights shall accrue to the Seller in the case of sale on a call-off basis when the goods are not called off in the arranged manner and time.
6.5. A certain percentage of excess or shortfall in the delivered quantity is permissible depending on the volume of the order.
6.6. For invoicing purposes, the dispatch weight or dispatch quantity determined in the supplier plant shall be decisive.
7. Terms of Payment
7.1. The settlement of due payments may not be refused for any reason; nor is the Purchaser entitled to make any offsets. Payment must be made at the latest 30 days after acceptance of the goods and receipt of invoice.
7.2. In the event of any change in the financial circumstances of the Purchaser, in the event of default in payment or if the Purchaser is not or is no longer creditworthy, the Seller shall be entitled to declare any outstanding payments due and payable immediately and to avail himself of any acceptances furnished. In such a case, the Seller shall furthermore not be under obligation to perform any further deliveries from any ongoing contracts. In the case of default in payment, extrajudicial collecting charges of the Seller must be borne by the debtor; in addition, the Seller shall be entitled to charge interest on arrears of up to 6% over the discount rate of the Österreichische Nationalbank (bank rate).
7.3. The Seller is entitled to offset payments – even in the case of contrary notification – against invoices, interest and default interest in their chronological order, at his own discretion.
7.4. Checks will only be accepted on account of payment. The Seller will only accept bills of exchange on the basis of prior agreements and only on account of payment. Discount interest and charges will be charged to the Purchaser.
7.5. The goods shall remain the property of the supplier plant until all claims against the Purchaser arising from an order completion are settled. The Purchaser shall be entitled to resell the goods in the course of his everyday business activity. Extraordinary disposals, such as pledging and assignment as collateral are not permitted. The Seller must be notified immediately of any accesses by third persons of the goods delivered under reservation of title. The Purchaser hereby assigns any claims of the Purchaser against his customers obtained through sale of the goods to the Seller here and now as security until the purchase price demand of the Seller has been paid in full. The Seller hereby accepts this assignment. The authority to collect these claims vis-a-vis third parties from delivered reserved goods is deemed expressly transferred to the Seller. The Purchaser must ensure that the assignment is clearly discernible in the respective customer account. Any assignment charges shall be at the expense of the Purchaser.
8. Analyses and Measuring Tolerances
8.1. In general, it is the analyses and analysis methods of the Seller that are decisive. If their correctness is in dispute, arbitral analysis must take place through a jointly determined authority.
8.2. For the agreed dimensions, the tolerances – if available – of the DIN standards, or by arrangement the VSM standards, shall apply. Otherwise the guide tolerances of the supplier plant shall apply.
9. Tools, Patent and Design Protection
9.1. Unless otherwise specially agreed, tools shall remain the property of the Seller, even if the Purchaser covers a share of the costs.
9.2. It is not for the Seller to clarify whether material described by the Purchaser is capable, whether in terms of its nature or whether by virtue of particular further processing or use, of leading to an infringement of patent, design or other industrial property rights. In such cases, the Purchaser shall be solely liable; neither the offer nor the delivery of the material triggers any liability on the part of the Seller.
10.1. If a product of the Seller is manufactured on the basis of design specifications, drawings or models of the Purchaser, the liability of the Seller shall not extend to the correctness of the design but to whether the execution is performed in accordance with the Purchaser’s specifications.
10.2. Claims relating to the order – in particular the delivery, weight, quantity and/or quality of the delivered product – shall only be valid if they are brought to the Seller’s attention in writing within 14 days of receipt of the product. The Seller’s warranty shall expire if the supplied product is modified and/or subjected to improper handling or processing.
10.3. If the claim or complaint is justified, the Seller shall replace the contested or defective product without charge. Beyond this, the Purchaser shall not be entitled to any further claims. In particular, the Purchaser shall not be entitled to cancel the contract or to claim a reduction in price or any compensation or damages, especially on grounds of loss of profit. The Purchaser shall have no right to claim any compensation for costs incurred by him directly or indirectly through the acceptance, use or processing of the contested or defective product. A replaced product becomes the property of the supplier plant.
11. Applicable Law, Place of Fulfilment and Place of Jurisdiction
11.1. The relationships between the Seller and the Purchaser are governed solely by Austrian law.
11.2. The place of fulfilment is the domicile of the supplier plant.
11.3. The place of jurisdiction for all disputes arising from the contract is Telfs. However, the Seller may also bring action at another court with competent jurisdiction for the Purchaser.