I CONCLUSION OF CONTRACTS
These conditions apply to all present and future contracts between RUBBLE MASTER HMH and the suppliers unless the contracting partners have expressly agreed other conditions in writing. Customer’s additional or differing terms of business are hereby expressly excluded and are not contractual. All our deliveries and services, including future deliveries and services, shall be performed solely on the basis of the conditions below.
The contract shall be deemed concluded as soon as RUBBLE MASTER HMH, having received an order, sends a written order confirmation. The contract is also concluded when goods ordered by the customer are dispatched.
Drawings, sketches or other technical documentation, and any samples, catalogues, brochures, photographs or similar remain the intellectual property of RUBBLE MASTER HMH; the customer does not receive any kind of rights to employ or exploit them.
II TRANSFER OF LIABILITY
Goods are sold “ex-works”, unless agreed otherwise. RUBBLE MASTER HMH is obliged to open an insurance policy only if agreed in writing, and only to the extent agreed in writing. Otherwise the INCOTERMS valid on the day of contract conclusion apply. If the goods are made available as a consignment, the dealer is responsible for transport insurance and storage. In the event that delivery has been agreed, liability passes to the customer as soon as the goods are ready to be unloaded at the place of delivery.
Delivery periods are binding only if they have been expressly promised in writing. RUBBLE MASTER HMH is not obliged to deliver goods or services until the customer has fulfilled all obligations necessary prior to delivery, especially all technical and contractual issues such as fulfilling the agreed payment conditions.
Delivery shall in every case be deemed to have been performed as soon as notice has been given that the goods are ready for dispatch. The customer is obliged in every case to accept the goods without delay.
RUBBLE MASTER HMH is entitled to make partial and preliminary deliveries.
If the delivery is delayed for a reason outside RUBBLE MASTER HMH’s control, representing a chapter IX case of relief, a suitable extension to the delivery period will be made, or RUBBLE MASTER HMH can withdraw completely or partially from the contract.
If RUBBLE MASTER HMH is responsible for delayed delivery, the customer can either demand fulfilment or, after expiry of a suitable catch-up period in which delivery is to be effected, may withdraw from the contract. In the case of custom-made orders the catch-up period should allow for the fact that RUBBLE MASTER HMH will not be able to use already manufactured parts elsewhere.
If the customer does not accept the goods made available as specified in the contract at the agreed location, or at the agreed time, and the delay is not due to action or negligence attributable to RUBBLE MASTER HMH, HMH may either demand fulfilment of contract, or set a period within which the goods are to be accepted before withdrawing from the contract.
If the goods have been segregated, RUBBLE MASTER HMH is permitted to store the goods at the expense and liability of the customer. RUBBLE MASTER HMH is also entitled to demand reimbursement of all justifiable expenses needed to implement the contract not covered by the payments received, excluding all other claims against the customer for the delay incurred.
Delivery shall be subject to the applicable EURO norms. Goods shall be delivered unpacked.
All prices are net and exclude any discount.
Payments are to be made according to the agreed terms of payment. Unless agreed otherwise, half of the purchase amount is payable on receipt of the order acknowledgement, the remainder as soon as the goods are ready for dispatch. Discounts require special agreement. Any agreements regarding discounts expire as soon as payment or part payment is delayed.
The customer is not entitled to withhold payments against warranty claims or other counterclaims not recognised by RUBBLE MASTER HMH. Any claims of RUBBLE MASTER HMH may only be set off with due and uncontested counterclaims of the customer.
If the customer delays payment (or provision of services), RUBBLE MASTER HMH may insist on fulfilment of the contract and postpone fulfilment of RUBBLE MASTER HMH’s own obligations until the outstanding payments (or services) have been provided, extend the delivery period accordingly, claim the whole of the remaining purchase price as overdue, providing there is no case of relief on the customer’s side as per article IX, charge interest on arrears at 7.5 % above the relevant rate issued by the Austrian National Bank from the date due, or, having granted a suitable extension, declare withdrawal from the contract.
If the customer has not made the outstanding payment or other provision by the time the extension expires, RUBBLE MASTER HMH can advise in writing that it is withdrawing from the contract. On the request of RUBBLE MASTER HMH the customer must return goods already delivered, and pay compensation for the loss in value of the goods, and reimburse all justified expenses that RUBBLE MASTER HMH incurred in the course of implementing the contract. Regarding goods not yet delivered, RUBBLE MASTER HMH is entitled to make available to the customer the components already completed or manufactured, but not yet assembled, and demand the corresponding proportion of the sales price.
RUBBLE MASTER HMH supply all goods on the basis of retention of ownership and the goods remain RUBBLE MASTER HMH property until all payments have been received. Goods for which payment has already been received shall serve as surety against outstanding payments. If goods are recovered RUBBLE MASTER HMH is entitled to charge for all transport and handling costs. If a third party attempts to seize goods which are still RUBBLE MASTER HMH property, the customer is obliged to inform the third party accordingly and advise RUBBLE MASTER HMH immediately.
In the event that the customer processes or modifies the goods RUBBLE MASTER HMH shall be entitled to a share of ownership of the newly created product that increases proportionately to the value of the goods following processing or modification compared to the value of the goods delivered.
The customer has no other rights to employ or exploit the retention of title goods, especially not to transfer the goods as surety or to pledge the goods. Assignment is in every case inadmissible.
V WITHDRAWAL FROM THE CONTRACT
If acceptance is delayed, or for other substantial reasons such as, in particular, bankruptcy of the customer or rejection of a petition in bankruptcy on grounds of insufficient assets, or delayed payment, RUBBLE MASTER HMH shall be entitled to withdraw from the contract providing it has not been fully fulfilled by either party. In the event of a withdrawal where the customer is at fault, RUBBLE MASTER HMH may at its discretion demand a fixed rate of damages of 15 % of the gross invoice amount or compensation for the loss actually incurred. If the customer delays payment RUBBLE MASTER HMH shall be released from all further obligations to perform and deliver and is entitled to hold back outstanding deliveries or services and to demand payment in advance and/or deposits, or to withdraw from the contract after setting a reasonable extended time limit. If the customer withdraws from the contract without just cause, or demands its cancellation, RUBBLE MASTER HMH shall have the right to choose between insisting on the fulfilment of the contract and cancellation of the contract. In the latter case the customer shall be obliged at RUBBLE MASTER HMH’s discretion to pay either a fixed rate of damages of 15 % of the gross invoice amount or compensation for the loss actually incurred.
VI DELIVERY, TRANSPORT, DELAYED ACCEPTANCE
Unless agreed otherwise, prices quoted do not include packaging.
RUBBLE MASTER HMH sales prices do not include costs for delivery, assembly or installation. If required, however, a separate agreement can be reached to the effect that RUBBLE MASTER HMH shall provide or arrange these services against separate payment. If the customer has not accepted the goods as agreed (delayed acceptance), RUBBLE MASTER HMH is entitled, after failure to meet an extended time limit, to store the goods on its premises and charge a storage fee of 0.1 % of the gross invoice amount per calendar day or part day.
VII WARRANTY, OBLIGATION TO INSPECT AND REGISTER COMPLAINTS
RUBBLE MASTER HMH shall meet all warranty claims by the customer at its discretion either through replacement, repair within a reasonable period, or price reduction. The customer may demand cancellation of the contract only if the defect is major and cannot be remedied through replacement or repair, and the customer cannot reasonably be expected to accept a price reduction. Claims for damages by the customer aimed at remedying the defect through improvement or replacement may not be asserted until RUBBLE MASTER HMH is in arrears with meeting the claims under warranty. Claims under warranty concerning moveable objects must be legally asserted within one year of delivery of the product concerned.
If the customer claims that a defect exists, the claims asserted as a result, in particular claims under warranty or claims for damages, shall be possible only if the customer proves that the defect already existed at the time of delivery of the goods; this shall also apply within the first six months after delivery of the goods. Furthermore, pursuant to section §§ 377 f UGB (Unternehmensgesetzbuch, the Austrian Company Code) the customer must inspect the goods immediately after delivery, and within 6 working days at the latest. Any defects found must be notified to RUBBLE MASTER HMH in writing without delay, within 3 working days of being discovered at the latest, stating the nature and extent of the defect. Notification of hidden defects is to be submitted in writing without delay, within three working days following their discovery and within three months after receipt of the goods at the latest. No liability for defects, howsoever these arise, shall be accepted after expiry of this three-month period. Any processing or modification of the defective goods is to cease forthwith. If no complaint relating to a defect is made, or it is not made in time, the goods shall be deemed approved.
RUBBLE MASTER HMH’s obligations to provide warranty shall expire in any case after elapse of the warranty period; a special recourse of the customer extending beyond this, pursuant to §§ 933b ABGB (Austrian general civil code) because of obligations fulfilled by the customer under warranty, shall be excluded.
Rectification of the defect shall not result in an extension of the warranty period.
If RUBBLE MASTER HMH agrees to defective goods or parts being returned for improvement or replacement, the customer is to cover the costs and risk of transport, unless agreed otherwise.
RUBBLE MASTER HMH’s obligation to provide a warranty applies only to defects that occur during normal operation while operating the facility as specified. The obligation to provide a warranty does not apply to defects caused by: poor setting up of the machines by the customer or their representative, poor maintenance, repairs or modifications made by persons not authorised in writing by RUBBLE MASTER HMH, normal wear and tear.
All parts of the goods bought in by RUBBLE MASTER HMH from suppliers are covered by warranty only to the extent that RUBBLE MASTER HMH is able to make a warranty claim to the suppliers.
Unless agreed otherwise, no other or further claim, especially a claim for price reductions, shall be admissible. Any other claims for compensation are limited to direct loss and the customer shall be entitled to such claims only if RUBBLE MASTER HMH is guilty of gross negligence or wilful intent. No compensation will be provided for consequential loss due to defects and these are excluded.
If the customer does not give us any opportunity to confirm existence of the defect all rights to claim compensation for defects shall become invalid. Claims for compensation for defects against us lapse three months at the latest after RUBBLE MASTER HMH has dismissed in writing the written notification of defects.
No guarantee shall be given for subclassed material.
Further on we point to the current guarantee and liability terms
VIII (PRODUCT) LIABILIT
The product will operate safely providing it is operated as specified in the licence, operators’ manuals, and documentation provided by RUBBLE MASTER HMH specifying how the product is to be operated – especially in regard to safety checks – and all other safety warnings.
Unless mandatory legal requirements to do so subsist in the Austrian Produkthaftungsgesetz (product liability law) valid at the time, RUBBLE MASTER HMH shall accept no liability.
If a claim is brought against a foreign customer as a result of a fault or defect in a product delivered by RUBBLE MASTER HMH to him as an importer, any claim for compensation brought against us shall be subject to Austrian federal law.
This contract does not have any protective consequences for third parties.
The obligation of RUBBLE MASTER HMH to supply goods is subject to correct and punctual supply to RUBBLE MASTER HMH. All circumstances that prevent RUBBLE MASTER HMH from performing a delivery entitle the company either to postpone delivery for a suitable period or to withdraw from those parts of the contract affected by non-performance.
IX FORCE MAJEURE
Incidents attributable to force majeure, such as strikes, major operational failures and any circumstances that seriously hamper delivery or render it impossible, irrespective of whether these occur at the premises of RUBBLE MASTER HMH or at those of one of its suppliers, also entitle RUBBLE MASTER HMH either to delay delivery for the duration of the hindrance and of a reasonable catch-up period or to withdraw from that part of the contract affected by non-performance.
The customer is entitled to require RUBBLE MASTER HMH to declare whether it intends to withdraw from the contract or perform delivery within a suitable period. If RUBBLE MASTER HMH issues no such declaration the customer is entitled to withdraw from the contract.
X COURT OF JURISDICTION, APPLICABLE LAW, LOCATION OF FULFILMENT
Austrian material law shall apply solely and exclusively. Application of the UN convention on the international sale of goods shall be expressly excluded. The contracting partners agree to the Austrian, domestic jurisdiction of the materially competent court in A-4030 Linz. Language of contract is German, or English if requested.
XI PARTIAL NULLITY
If one of the foregoing provisions of this contract is inapplicable or becomes inapplicable or should this contract be incomplete this shall not affect the applicability of any of the other provisions of this contract. The invalid provision shall be replaced by the relevant legal dispositive norm. In the event that such a norm does not exist, usual commercial practice or fair and traditional practices observed at the premises of RUBBLE MASTER HMH shall apply instead. Any omissions in the contract shall be rectified in the same manner.
XII DATA PROTECTION, CHANGE OF ADDRESS
The customer agrees that the personal data included in the sales contract may be electronically stored and processed by RUBBLE MASTER HMH in the course of performing the contract. The customer shall be obliged to inform RUBBLE MASTER HMH about changes of residential and/or business address as long as the contractual legal transaction has not been fulfilled by both parties. In the event that this notification is not provided, declarations shall count as delivered if they are sent to the last notified address.