GENERAL TERMS AND CONDITIONS
1. Scope of Application
1.1 These Terms and Conditions of Sale apply to all items delivered by EMO Ges.m.b.H. to the customer. In addition, they apply to future business, even if no express reference is made.
1.2 Any terms deviating therefrom or in addition to them, in particular, purchasing terms and conditions of the customer as well as any verbal agreements apply only, if EMO has confirmed them in writing.
2.1 Partial Deliveries
Deliveries are carried out subject to coordination with the customer. EMO reserves itself the right to make partial deliveries.
2.2 Delivery Times
The delivery times stated apply always ex works. The delivery times are effective from the date the order was received or rather clarification of all business and technical documents necessary to fulfil the order. Force majeure or any other unforeseen hindrance at EMO’s factory or its sub-supplier releases the supplier from keeping the agreed upon delivery time. EMO shall not be liable for damages in case of delayed delivery.
2.3 Mode of Shipment and Route
The customer shall pay for any additional costs due to customer’s special shipping requests such as express shipments, special delivery, express or special means of transport. Special requests concerning the type of shipment and route must be announced in a timely fashion. The obligation to deliver is satisfied when the goods have left EMO’s factory or EMO has reported that it is ready to ship.
2.4 Transfer of Risk
The risk transfers to the customer as soon as the goods leave the factory, even if the shipment is delivered postage paid or under similar conditions.
Unless EMO confirms otherwise in writing, the stated prices are ex work Micheldorf. The customer shall be responsible for all ancillary costs such as freight charges, insurance, export, import, or any other permits. In addition, the customer is responsible for the payment of all kinds of taxes, dues, fees, and duty.
4. Payment Terms
EMO’s invoices must be paid net 30 days from the date of the invoice. If the payment is received late, then EMO is entitled to charge late interest in the amount of the applicable bank rate of interest. The customer is not entitled to offset any warranty or damage claims against the customer’s obligation to pay or the customer cannot withhold performance for this reason, unless EMO has provided its express consent in exact numbers and in writing. Promissory notes are accepted only, if EMO provided its written consent. The customer is responsible for any fees. Promissory notes and checks are accepted for payment only. If the customer does not fulfil the customer’s obligation to pay EMO on one order, then EMO is entitled to render all receivables due and payable immediately, even if other payment terms had been agreed upon. Moreover, this shall apply to any promissory notes payable. Whenever the payments are in arrears, any payments made are always applied to the oldest invoices due.
5. Place of Performance, Jurisdiction
Place of performance for payment and delivery is the location of EMO Ges.m.b.H. in A-4563 Micheldorf Müllerviertel 2. In case of any disputes, both parties agree that jurisdiction shall be Kirchdorf, Upper Austria. Austrian law shall apply.
6. Warranty and Damage Compensation
Any defects must be reported in writing immediately after the product was received, but at least within 14 days after transfer. Any claims that have been reported later cannot be accepted. Any items that are returned to EMO must have EMO’s prior written consent. EMO shall not be liable for any delivered items or parts thereof, which the purchaser or a third party has modified or repaired. EMO replaces or corrects any defects if deliveries were wrong or defective. If it cannot replace the item or rectify the defect, the customer can either ask for a reduction in price or rescind the contract. Any defects caused by normal wear and tear, improper storage, and operation, excessive wear and improper handling by the customer or any third party are not covered under the warranty. The statute of limitation for warranty and liability claims shall be 6 (six) months from the date of receipt of the delivery. Any liability for subsequent damages is expressly excluded. EMO shall not be liable for other damage claims. In particular, the conditions of the Product Liability Act are excluded. Moreover, subsequent damages such as loss of revenue, material damages and bodily injury are excluded from liability.
7. Retention of Title
7.1 EMO retains ownership on all goods delivered until all invoices including all ancillary receivables from the customer’s business relations with EMO are paid in full by the customer. In addition, this includes all receivables from customer in the future.
7.2 The customer must obtain EMO’s express written consent for any sale, disposal, or processing of the goods delivered by EMO under the provision of title retention. In this case, the customer already assigns today to EMO any claims the customer has toward the purchaser or third party due to such sale. This is irrespective whether those retained goods are sold following further processing or modification. Until EMO revokes its right, the customer is entitled to collect the receivables assigned to EMO. EMO agrees not to collect these receivables as long as the customer fulfils its payment obligation in an orderly fashion. Otherwise, the customer is not entitled to pledge, to assign as collateral, or dispose of the items delivered under the retention of ownership.
7.3 EMO agrees to release any securities to which it is entitled upon the customer’s request, if its value exceeds 20% (twenty percent) of EMO’s total invoice to be secured toward the customer.
7.4 If EMO takes back the products on which it retained ownership or if EMO seizes these products, then it does not constitute a rescission of the contract.
8.1 Agreement Modifications
For its effectiveness, any contractual additions, modifications or verbal agreements must be confirmed by EMO in writing. If one or more or the aforementioned clauses is unenforceable or becomes unenforceable, then it does not affect the effectiveness of the remainig clauses.