GTC

1. Validity of the conditions
and general regulations

1. 1 The deliveries, services and offers of Gebrüder Gratz GesmbH shall be made exclusively on the basis of these General Terms and Conditions. These GTC shall apply in their currently valid version and thus also to future contracts for the sale and/or delivery of movable goods with the same purchaser, even if they are not expressly agreed again. Gebrüder Gratz GesmbH does not recognize or hereby expressly rejects any terms and conditions of the customer that conflict with or deviate from these GTC. Acts of fulfillment of the contract by Gebrüder Gratz GesmbH shall not be deemed as consent to contractual conditions deviating from these GTC.

1.2 Deviations from these GTC shall only be effective if expressly confirmed in writing by Gebrüder Gratz GesmbH.

1.3 Insofar as personal designations are used in the masculine form in this text, this form is used in a generalized manner for reasons of reader-friendliness and expressly refers to all gender forms in the same way.

1.4 These GTC shall apply to all further orders until they are amended, even if no separate reference is made to them.

2. Offers, order
and conclusion of contract

2.1 All offers made by Gebrüder Gratz GesmbH are subject to change, non-binding and without obligation; they are subject to printing errors and other errors. Contracts, orders or other agreements shall only be deemed concluded if the customer’s order or offer is confirmed in writing by Gebrüder Gratz GesmbH or is actually fulfilled by dispatching the goods. The same shall apply to supplements, amendments or ancillary agreements.

2.2 If, after conclusion of the contract, orders, etc., Gebrüder Gratz GesmbH becomes aware of facts which give rise to justified doubts as to the solvency of the customer, Gebrüder Gratz GesmbH shall be entitled to demand full payment or a corresponding security deposit prior to delivery or to withdraw from the contract – subject to all rights, such as compensation for damages – after setting a deadline to no avail. In addition to a delay in payment that has already occurred, the reduction of the customer’s credit limit with the trade credit insurer of Gebrüder Gratz GesmbH and also information provided by the bank – with the due diligence of a prudent businessman – shall be deemed proof of a significant deterioration in assets. If the delivery has already been made, the invoice amounts in question shall be due for payment immediately against return of securities, acceptances, etc., irrespective of the agreed terms of payment.

2.3 Information in brochures, price lists, information sheets, etc. is generally non-binding and shall not become part of the contract unless expressly agreed otherwise.

2.4 Scrap is a secondary raw material. The purity in terms of quality and material is limited to the possibility of sorting the material according to appearance and origin, which is carried out with customary professional care. A guarantee of grade or alloy purity is not possible. Further quality claims are excluded.

2.5 Unless otherwise agreed, any cost estimates shall be non-binding.

3. Prices, shipping costs

3.1 All prices stated/quoted by Gebrüder Gratz GesmbH are net prices excluding VAT.

3.2 Gebrüder Gratz GesmbH shall be entitled to increase the agreed prices in the event of changes in the cost bases on which its calculations are based that are beyond its control, in particular in the event of changes in wage costs due to changes in collective bargaining agreements or due to internal company agreements or in the event of changes in other costs associated with the provision of services, e.g. for materials, energy, transportation, external work, waste recycling costs, financing, etc., or fees, taxes and levies, e.g. contaminated site contribution, site levy, road pricing, etc., to the extent of these changes.

4. Terms of payment,
Default interest

4.1 Payment can be made in advance (immediate bank transfer) or on account.

4.2 Unless otherwise agreed, payment claims of Gebrüder Gratz GesmbH shall be due immediately after invoicing without deduction. All costs and expenses for the bank transfer shall be borne by the customer.

4.3 In the event of late payment by the customer, Gebrüder Gratz GesmbH shall be entitled to charge interest on arrears at a rate of 5% p.a. above the base interest rate. This shall not affect any further claims that Gebrüder Gratz GesmbH may have as a result of late payment.

5. Dunning and collection charges

5.1 In the event of default in payment, the customer undertakes to reimburse Gebrüder Gratz GesmbH for the dunning and collection expenses incurred by Gebrüder Gratz GesmbH, insofar as they are necessary for appropriate legal prosecution. In the case of business transactions, this shall in any case include a lump sum of € 5 as compensation for collection costs in accordance with § 458 UGB. The assertion of further rights and claims remains unaffected.

6. Terms of delivery

6.1 Gebrüder Gratz GesmbH shall be obliged to make partial deliveries and render partial services at any time.

6.2 Unless deadlines have been agreed in writing as fixed deadlines, deadlines are generally subject to change. Gebrüder Gratz GesmbH shall be entitled to exceed any separately agreed fixed dates and delivery periods by up to 10 days. Only after this period has expired shall the customer be entitled to withdraw from the contract after setting a reasonable grace period.

6.3 Gebrüder Gratz GesmbH shall not be liable for delays in delivery and performance due to force majeure and due to events which, without any fault on the part of Gebrüder Gratz GesmbH or attributable to Gebrüder Gratz GesmbH, make delivery substantially more difficult or impossible, such as, for example, subsequent difficulties in procuring materials, operational disruptions, lockouts, official orders, etc., even if they occur at suppliers of Gebrüder Gratz GesmbH or their sub-suppliers, provided that Gebrüder Gratz GesmbH is not responsible for them. They shall entitle Gebrüder Gratz GesmbH to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time.

6.4 If a hindrance within the meaning of paragraph 3 lasts longer than 3 months, both contracting parties shall be entitled to withdraw from the contract with regard to the part of the contract still to be fulfilled. In addition, the contractual partner may withdraw from the entire contract if it cannot reasonably be expected to accept the partial performance already rendered.

6.5 The customer shall ensure that the access road and the place of use are easily passable and that their load-bearing capacity and condition meet the requirements of the equipment and vehicles used by Gebrüder Gratz GesmbH.

6.6 All containers provided by Gebrüder Gratz GesmbH shall remain the property of Gebrüder Gratz GesmbH and shall be treated with care and diligence. Gebrüder Gratz GesmbH shall not be liable for the tightness of the containers.

7. Transfer of risk, shipment

7.1 Unless otherwise agreed, the risk shall pass to the contractual partner upon notification of readiness for shipment as soon as the seller has delivered the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment.

7.2 Unless delivery “ex works” has been agreed, Gebrüder Gratz GesmbH shall choose the means of transportation and type of shipment.

8. Weight and quantity determination

8.1 The weights or quantities determined by Gebrüder Gratz GesmbH shall be decisive.

9. Compensation, liability,
acceptance, defects

9.1 In cases of slight negligence, claims for damages of any kind against Gebrüder Gratz GesmbH shall be excluded. This shall not apply to personal injury. The existence of slight or gross negligence shall be proven by the injured party. The provisions on damages contained in these GTC or otherwise agreed upon shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.

9.2 Compensation by Gebrüder Gratz GesmbH for consequential damage (due to defects) and other damage to property and financial loss shall be excluded.

9.3 Complaints due to obvious defects must be reported by the contractual partner in writing immediately, at the latest within 3 days of receipt of the goods, with precise specification of the defect, otherwise all rights of the customer under the title of compensation, warranty, error, laesio enormis and the like shall lapse.

9.4 In the event of a defective delivery, the purchaser shall – at the discretion of Gebrüder Gratz GesmbH – be entitled to a replacement delivery or rectification of the defect (subsequent performance). If the supplementary performance fails, the customer may, at his discretion, demand a reduction of the purchase price or withdraw from the contract.

9.5 If the goods are mixed with third-party goods before a notice of defects has been made by the customer, the customer shall provide evidence that the defect already existed before the mixing, that the defect relates to the goods delivered by Gebrüder Gratz GesmbH and that Gebrüder Gratz GesmbH is responsible for the defect.

9.6 Warranty claims must be asserted by the customer within 6 months of delivery of the goods in the event of any other loss.

10. Reservation of title

10.1 All goods shall be delivered by Gebrüder Gratz subject to retention of title and shall remain the property of Gebrüder Gratz GesmbH until all claims have been settled.

10.2 The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared. If goods are taken back, Gebrüder Gratz GesmbH shall be entitled to charge any transportation and handling costs incurred. In the event of seizure of the goods subject to retention of title by third parties – in particular through attachment – the customer undertakes to point out Gebrüder Gratz GesmbH’s right of ownership and to notify Gebrüder Gratz GesmbH immediately. The customer may not dispose of the reserved goods, in particular not sell, pledge, give away or lend them, until the outstanding purchase price claim has been settled in full. The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

10.3 The retention of title shall also remain in force if the individual claims of Gebrüder Gratz GesmbH are included in a current account.

11. Copyright and confidentiality

11.1 Gebrüder Gratz GesmbH shall be notified in writing of any changes to the residential or business address as long as the contractual legal transaction has not been completely fulfilled by both parties. If such notification is omitted, declarations shall be deemed to have been received even if they are sent to the last known address.

11.2 Plans, sketches or other technical documents as well as samples, catalogs, brochures, illustrations, etc. shall always remain the intellectual property of Gebrüder Gratz GesmbH; the customer shall not be granted any rights of use or exploitation whatsoever.

11.3 All contracts concluded and all documents provided by Gebrüder Gratz GesmbH for this purpose shall be regarded as business secrets and shall be treated confidentially. The customer shall be liable for all damages arising from the breach of any of these obligations.

12. Right of retention

12.1 In the event of a justified complaint, the customer shall not be entitled to withhold the entire purchase price – except in cases of rescission – but only to the extent of the complaint.

13. Place of performance, contract language,
choice of law, place of jurisdiction

13.1 The place of performance shall be the registered office of Gebrüder Gratz GesmbH, 4650 Edt bei Lambach, Linzerstraße 21

13.2 The contract language is German.

13.3 The contracting parties agree to Austrian domestic jurisdiction. The court having subject-matter jurisdiction at the registered office of Gebrüder Gratz GesmbH shall have exclusive local jurisdiction to decide all disputes arising from this contract.

13.4 This contract shall be governed by Austrian substantive law to the exclusion of the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods.

14. Offsetting, assignment

14.1 The customer shall only be entitled to set-off if his counterclaims have been legally established or recognized by Gebrüder Gratz GesmbH. Offsetting shall additionally require express written consent. Any further offsetting by the customer shall be excluded.

14.2 The assignment of individual rights and obligations arising from the legal relationship between the customer and Gebrüder Gratz GesmbH and/or these GTC shall only be permitted with the express written consent of Gebrüder Gratz GesmbH.

15. Severability clause

15.1 Should provisions of these Terms and Conditions be legally ineffective, invalid and/or void or become so in the course of their term, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, all parties undertake to replace the legally ineffective, invalid and/or void provision with a provision that comes as close as possible and legally permissible to the economically intended purpose of the replaced provision.