General Terms of Delivery and Payment
1. General, Conclusion of Contract
1.1 The Terms and Conditions set out below shall apply exclusively to all deliveries and services provided by Eppendorf Austria. The version valid at the time of conclusion of the contract shall be decisive. Deviations from these Terms and Conditions and other supplementary agreements with the Customer shall only be valid if confirmed in writing by Eppendorf Austria. With the award of the contract to Eppendorf Austria, not later however than upon acceptance of our delivery, our Terms and Conditions shall be deemed accepted by the Customer.
1.2 Terms and Conditions of the Customer will not be accepted by us, unless otherwise expressly agreed in writing with us. No special objection to the GTC of the Customer by Eppendorf Austria shall be required.
1.3 Declarations made to Eppendorf Austria must be in writing (also fax) to be legally valid.
1.4 If goods are ordered electronically, we will confirm the receipt of the Customer‘s order. The confirmation of receipt however still does not constitute a binding acceptance of the order.
2. Prices, Terms of Payment, Reservation of title
2.1 Our prices are net prices in euro ex works excluding the statutory VAT. If no price is indicated in individual cases, the price shall be calculated pursuant to the price list of Eppendorf Austria valid at the date of delivery or performance. Goods are dispatched at the expense and risk of the Customer ex works or warehouse.
2.2 The purchase price shall be due for payment immediately upon delivery or performance, unless special terms of payment have been agreed in writing in individual cases.
2.3 In the case of late payment by the Customer, the Seller reserves the right to charge default interest at the rate of 10 per cent per year or at the higher statutory rate. Furthermore, if the Customer defaults in payment, it shall reimburse Eppendorf Austria for all reminder fees and collection costs incurred to the extent they are necessary for bringing appropriate legal action, including in particular the costs of two reminders in the amount of EUR 25.00 each and the costs of a reminder drawn up by a lawyer entrusted with the collection of the outstanding amount pursuant to Sect. 1333 ABGB (Austrian Civil Code). Eppendorf Austria reserves the right to assert further rights and claims. If payment by installments has been agreed, Eppendorf Austria reserves the right to demand immediate payment of the entire debt outstanding (loss of right to pay by installments) if the Customer fails to pay installments or ancillary claims in time.
2.4 The Customer may set off his claims against claims Eppendorf Austria has against the Customer only if these counterclaims have been accepted in writing by Eppendorf Austria or if they have been established by a court judgment.
2.5 The goods delivered by Eppendorf Austria shall remain the property of Eppendorf Austria until the purchase price and all ancillary claims have been fully paid. The Customer shall inform us immediately in writing about all enforcement measures by third parties and about any damage or change in possession in respect of the goods. As long as the reservation of title is in force, the goods may only be sold, pledged or otherwise disposed of if any such measure and the name/corporate name and business address of the buyer/beneficiary have been notified to us in advance and if we have given our consent thereto. In the event of resale of the retained goods, the claim to the selling price shall be deemed assigned to us already at this stage and we shall be entitled at any time to inform the third party about this assignment. In that case, the Customer shall concurrently include a corresponding note in his books or on his invoices. After the assignment, the Customer shall be authorized to recover the debt; we however reserve the right to recover the debt ourselves as soon as the Customer fails to fulfill its payment obligations.
3. Delivery / Performance
3.1 Unless expressly agreed as binding, indicated times for delivery or performance shall be approximate and not binding on Eppendorf Austria. Partial deliveries shall be permissible.
3.2 If delivery/performance by Eppendorf Austria is delayed for reasons not attributable to Eppendorf Austria and in the event of force majeure and other unforeseeable events that cannot be avoided by reasonable measures, such as strikes, breakdowns, disruption to traffic and acts of government authorities, Eppendorf Austria shall not be obliged to perform delivery for the time and to the extent the cause of non-compliance with time limits continues and the time limits shall be extended accordingly. If such delays continue for more than two months, the ordering party and Eppendorf Austria shall be entitled to withdraw from the contract.
3.3 If Eppendorf Austria is in default, the ordering party may withdraw from the contract only after the fruitless expiry of a further period for performance of at least 14 days granted to Eppendorf Austria in writing. Claims for damages of the ordering party for non-performance or default shall be excluded, unless the ordering party proves that Eppendorf Austria has acted with intent or gross negligence.
3.4 The registered office of Eppendorf Austria shall be the place of performance for all services performed under this contract. The risk in respect of all goods sold and dispatched under this contract shall pass to the ordering party as soon as we have handed over the goods to the carrier appointed by us.
3.5 In the absence of other agreements in individual cases, we will take back packaging materials only if we are obliged to do so under the law. Should we be obliged to take back waste equipment under the electrical equipment order (Ordinance on the disposal of waste electrical equipment), waste equipment may only be returned to us concurrently with the purchase of equivalent new equipment and payment of an expense allowance in the amount of EUR 200.00.
4.1 Liability of Eppendorf Austria for material or property damage, whether direct or indirect, loss of profit or consequential losses caused by a defect, incurred by the ordering party shall be excluded in cases of minor negligence. In cases of minor negligence, Eppendorf Austria shall be liable for damage to persons incurred by the ordering party only to the extent such damage is covered by the existing public liability insurance, which is limited to the insured sum of EUR 1.5 million.
4.2 In cases of gross negligence, Eppendorf Austria shall be liable for material or property damage incurred by the ordering party only to the extent such damage is covered by the existing public liability insurance, which is limited to the insured sum of EUR 1.5 million. It is up to the injured party to prove that Eppendorf Austria has acted with gross negligence.
4.3 This exemption from liability pursuant to clauses 4.1 and 4.2 shall not apply in the case of a liability for damages pursuant to the PHG (Product Liability Act). Any liability for damages of Eppendorf Austria to the ordering party or third parties arising under the PHG shall be excluded, unless the party seeking redress proves that the defect was caused at least by gross negligence on the part of Eppendorf Austria.
5.1 Drawings, illustrations, measures and weights are only approximate, unless they have been expressly designated as binding.
5.2 The ordering party shall notify us in writing of any defects specifying them immediately upon receipt of delivery, not later however, than within eight days of delivery; hidden defects shall be notified to us immediately after they have been identified; otherwise the goods shall be deemed accepted. In such case, warranty claims and claims for damages as well as the right to avoid the contract on account of a mistake as to the defect-free nature of the goods delivered shall be excluded.
5.3 If a delivery is defective, Eppendorf may fulfill its primary warranty obligations, at its choice, either by rectification/repair or replacement of the defective goods.
5.4 The warranty period shall be 6 months from the time of delivery. The right to seek regress from Eppendorf Austria pursuant to Sect. 933 para. 1 ABGB shall expire one year after delivery/ performance.
5.5 Complaints shall not entitle the complainant to withhold the entire, but only half of the purchase price for the defective delivery.
6. Intellectual Property Rights and Copyrights / Documents
6.1 If a third party raises justified claims against the ordering party on the ground of a violation of intellectual property rights by deliveries performed by Eppendorf Austria, which are used in accordance with the contract, Eppendorf Austria will, at its choice and expense, either obtain a permission to use them, modify them so that no intellectual property right is violated or replace them pursuant to the warranty provisions laid down in clause 5. Should this not be possible at reasonable terms, the ordering party shall have the statutory right to either cancel the contract or claim a price reduction.
6.2 Rights of the ordering party shall be excluded if the violation of the intellectual property rights is caused by special conditions of the ordering party, a use of the delivered goods that Eppendorf Austria could not foresee or by a modification of the delivered goods by the ordering party or a use thereof together with goods not supplied by us.
6.3 The ordering party guarantees that the fabrication drawings submitted by it do not infringe intellectual property rights of third parties; it shall hold us harmless against claims for compensation raised by third parties.
6.4 Documents handed over by us shall not be made accessible to third parties or reproduced or used otherwise than for the agreed purpose.
7. Jurisdiction, Governing Law
7.1 The court having subject matter jurisdiction for the first district of Vienna shall have jurisdiction over all disputes arising in connection with this contract. Eppendorf Austria shall be entitled to sue the ordering party at its place of general jurisdiction.
7.2 This contract and all claims arising thereunder shall be governed by Austrian substantive law excluding the UN Sales Law.
8. Arbitral Clause
8.1 All disputes arising out of this contract or related to its violation, termination or nullity with customers who have their registered seat outside states falling under the Brussels I Regulation or the Lugano Convention, shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these Rules. Austrian substantive law shall apply; the language to be used in the arbitral proceedings shall be German.
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