GENERAL
TERMS OF SALE
AND DELIVERY
for business partners
of
REMUS Innovation GmbH
(hereinafter referred to as „REMUS“)
Ruhmannstraße 11
8570 Voitsberg
E: office@REMUS.at
T: +43 (0)5 05 201 – 0
Company register number: 119590 v
Court of registration: Regional Civil Court of Graz
VAT identification number: ATU36895703
- List of Abbreviations
ACC (ABGB) Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch)
Order ordering of goods or commissioning of development services
or the manufacture of toolsClient Buyer of goods or Client contracting development services
or the manufacture of toolsDP (DSG) Data Protection Act (Datenschutzgesetz)
GDPR General Data Protection Regulation
Development service services related to the development of (new)
goods, simulations, tests and / or conceptsForce majeure in particular interventions by public authorities, difficulties
with energy supply and raw materials, labour disputes,
accidents, epidemics, unforeseeable production difficulties,
IT failures (for instance as a result of a hacker attack) and all
other occurrences that make delivery significantly more difficult
or impossible, to the extent that REMUS is not grossly at fault
in respect of the occurrence of these eventsInformation material catalogues, brochures, advertisements, circulars and price lists
Supply plant the plant specified in the order confirmation
PL (PHG) Product Liability Act (Produkthaftungsgesetz)
Relevant turnover is the turnover REMUS achieves in the calendar year concerned
within the scope of an order placed by the Client with the order
item to which the defective or faulty goods belong, less the
purchase price for directed parts and excluding the elements
mentioned in points 4.2 and 4.3REMUS REMUS Innovation GmbH
(FN 119590 v)Directed parts parts to be used by REMUS as part of execution of the order,
which are made available by the Client or which REMUS must
procure from one or more suppliers designated by the ClientCC (UGB) Commercial Code (Unternehmensgesetzbuch)
Terms of sale the present general terms of sale and delivery
Contracting Parties REMUS and the Client
Goods all goods and services with the exception of development
services and toolsTool all purpose-built forms, items, tools and devices for the
manufacture of one or more good(s) - Scope of application
2.1. The present General Terms of Sale and Delivery (hereinafter referred to as ‚Terms of Sale‘) apply to legal transactions between REMUS on the one hand and Buyers or Clients (hereinafter referred to as ‚Clients‘) on the other hand, who are companies or corporations under public law, in particular to legal transactions for the supply of goods, development services and the manufacture of tools.
2.2. REMUS concludes contracts with the Client only on the basis of the following terms of sale. All orders and assignments received by REMUS (hereinafter ‚Order‘) are only accepted
subject to full acknowledgement of these Terms of Sale.2.3. The version valid at the time of contract conclusion is authoritative. The Client expressly acknowledges that these Terms of Sale are part of the contract. These Terms of Sale may only be amended or supplemented by mutual agreement and in writing, without prejudice to the content of the contract.
2.4. Unless the Contracting Parties have expressly agreed otherwise in writing, the Terms of Sale shall also apply to all future orders, even if no express reference is made to them in such orders.
2.5. Any Terms of Sale of the Client, even if known, will not be accepted, unless expressly
agreed otherwise in writing in individual cases. REMUS expressly objects to the Client‘s Terms of Sale; no further objection to the Client‘s Terms of Sale by REMUS is required.2.6. The employees of REMUS are not authorised to make agreements that deviate from the Terms of Sale. In any event, any such agreements require the written confirmation of
REMUS‘s management. - Offer and order confirmation
3.1. All offers from REMUS are non-binding until confirmation of the order in accordance with point 3.4.
3.2. Information on the goods and services of REMUS contained in information material from REMUS or third parties is also non-binding.
3.3. Cost estimates are provided without guarantee and come at a charge.
3.4. All orders placed by the Client as a result of an estimate provided by REMUS as well as all change orders by the Client only become legally binding after REMUS has confirmed the order in writing or after unconditional and complete delivery. The Client remains bound by the order until it is accepted or finally rejected, but for no longer than 14 days from the date of the order. Subsequent changes or cancellations of confirmed orders require the express written consent of REMUS.
- Prices
4.1. All prices are subject to change until confirmation of the order in accordance with point
3.4 and are quoted in EURO excluding value added tax (net prices) EXW in accordance with Incoterms 2020 exclusive of packaging.4.2. The statutory value added tax will be invoiced additionally at the currently valid rate.
4.3. All transport and packaging costs, freight and insurance charges, customs duties, fees
and charges shall be paid by the Client.4.4. REMUS is entitled to adjust the price if the costs change as a result of price changes on the part of the upstream suppliers, changes in the law, official decrees, collective agreement wage increases, exchange rate fluctuations, changes in the world market prices for raw
materials, or costs of its own materials between confirmation of the order in accordance with point 3.4 and performance of the service.4.5. If the confirmed order is to be executed by a certain deadline upon the Client‘s
subsequent request, but REMUS was not (yet) able to take this circumstance into account
when making the offer and REMUS has to employ staff on weekends, public holidays
and/or in the evenings to execute the order in good time, the Client must pay the
additional costs thus incurred for necessary overtime and REMUS is entitled to adjust the
price accordingly.4.6. REMUS is entitled to reasonable remuneration for services ordered by the Client that are
not covered by the original order. - Terms of payment
5.1. REMUS shall be entitled to issue an invoice for all prices and costs pursuant to point 4
from the moment the goods are made available pursuant to point 7.1.5.2. Payment is due within 14 days from the date of invoice. If acceptance of the goods by
the Client is late, the price is due immediately and without deductions.5.3. Deducting a cash discount is excluded if the Client is in arrears with the payment of other
invoices unless REMUS has expressly granted such a cash discount in writing.5.4. Invoices shall be deemed approved by the Client if Client does not object to them in writing
within a period of 8 days from the invoice date.5.5. Any notices of defects have no influence on the payment deadlines.
5.6. Incoming payments shall first be credited against interest and incidental costs and then against the earliest debt. If a dedication is made to the contrary, REMUS is entitled to object within the meaning of section 1416 Austrian Civil Code (ABGB).
5.7. In the event of even partial default of payment, the statutory default interest in accordance with section 456 Commercial Code (UGB) will be charged. In the event of default
of payment, the Client undertakes to reimburse REMUS for the reminder and collection charges to which REMUS is entitled, to the extent that they are necessary for
appropriate prosecution. In any case, this includes a lump sum of EUR 40.00 as compensation for collection costs pursuant to section 458 Commercial Code (UGB). This does not affect the exercise of further rights and claims.5.8. In the event of default of payment, REMUS is entitled to make all claims for services
already rendered under the current business relationship with the Client immediately due and payable and to retain any outstanding deliveries until the invoice amounts have been received in accordance with section 1052 Austrian Civil Code (ABGB). This also applies to one-off deliveries if REMUS only becomes aware of the Client‘s uncertain financial situation after conclusion of the contract.5.9. If the Client falls into arrears with payment, the risk of accidental loss or deterioration of the ordered goods and services is transferred to the customer upon occurrence of the default.
5.10. Payments to satisfy the debt can only be made to one of the bank accounts indicated on the invoices or otherwise notified in writing. Only cash payments and unconditional credit to bank accounts held by REMUS will be deemed effective payment. If REMUS accepts a
bill of exchange, this is only for the purpose of payment and excludes a cash discount deduction. Discount charges, tax on bills of exchange and default interest must be paid immediately. REMUS assumes no liability for timely presentation, protest, notification and return of the bill of exchange in case of dishonour.5.11. Any offsetting against alleged counterclaims or warranty claims or other claims not
recognised by REMUS and the retention of payments are excluded. - Delivery
6.1. Unless the parties have expressly agreed otherwise, the place of delivery shall be the
supply plant (EXW in accordance with Incoterms 2020).6.2. Delivery date is the day established in the confirmed order either by date or by expiration of a delivery period. Generally speaking, the delivery period begins on the day of order confirmation by REMUS, provided the order is clear and understandable.
6.3. In the event of delays for which REMUS is not responsible, in particular due to force majeure events or difficulties on the part of subcontractors, a new delivery date must be set or the delivery period is extended by the duration of the event plus a reasonable start-up time to be notified to the Client by REMUS, without the Client having the right to withdraw from the contract due to such a delay.
6.4. The delivery date shall also be deferred if the Client falls behind with regard to the
obligations incumbent on it, such as the handover of documents and/or the fulfilment
of the Client‘s payment obligation.6.5. Furthermore, the date of delivery will also be deferred if directed parts are not delivered
to REMUS, are delivered late or are defective. If REMUS incurs additional costs due to the non-delivery, late delivery or defective delivery of directed parts, these must be
reimbursed to REMUS by the Client.6.6. In the event that the original order is amended by mutual agreement, REMUS is entitled to reassess the delivery date.
6.7. REMUS is entitled to partial delivery and partial performance.
6.8. The Client is obliged to accept goods delivered late.
6.9. In the event of default of acceptance, the adverse consequences of section 1419 Austrian Civil Code (ABGB) shall affect the Client. The ordered goods will be stored at the expense of the Client and REMUS shall be entitled to invoice the goods as delivered, without prejudice to the Client‘s right and obligation to collect the ordered goods. This does not affect claims for damages. Any additional costs arising from a delay for which the Client is responsible shall always be borne by the Client.
- Transfer of risk and shipment
7.1. The transfer of risk takes place when the goods are made available by REMUS at the agreed place of delivery within the meaning of Incoterms 2020. If the Contracting Parties have
not agreed on the place of delivery, delivery EXW is considered agreed and the risk is
transferred to the Client once the goods have been made available at the pick-up ramp in the supply plant.7.2. If REMUS assumes responsibility for shipment, REMUS must effect shipment at its own
discretion; REMUS does not assume any liability for determining and selecting the
most cost-effective shipment. If REMUS assumes responsibility for shipping, REMUS must arrange for insurance cover; REMUS will charge the costs incurred for this to the Client.7.3. In the case of EXW delivery, it is the Client‘s responsibility to arrange for insurance cover
at Client‘s own expense. - Retention of Title
8.1. All delivered goods remain the property of REMUS until full payment of the price and the ancillary costs caused by the default in payment, even if they have been processed by the Client or by professionals the Client commissioned. The pledging or transfer by way of security or resale of the goods subject to retention of title is prohibited for the Client and invalid without REMUS‘s express written consent.
8.2. In the event of unlawful resale, the purchase price claim against the third party that
replaces the reserved property is deemed to have been assigned to REMUS and the
purchase price paid to the Client is deemed to be an asset entrusted by the Client or the Client must inform the debtor of the assignment without delay.8.3. The Client must insure the goods subject to retention of title against theft and fire at its own expense and for an appropriate amount and is liable to REMUS for loss of or damage to same.
8.4. If the goods are taken back by REMUS, this does not constitute a withdrawal from the
contract, but is only done as a precaution.8.5. The Client must inform REMUS immediately of any seizure, opening of insolvency proceedings or other legally relevant events that could affect REMUS‘s rights and shall indemnify and hold REMUS harmless. If a bailiff wishes to seize the delivered goods, the bailiff must be informed of REMUS‘s property rights, stating the company‘s name and address. Furthermore, the Client is obliged to keep the delivered goods in good order for the duration of the retention of title.
8.6. In the event of the institution of insolvency proceedings or of payment arrears despite reminders and a grace period, REMUS is entitled to collect the goods subject to retention of title and the Client waives any objections to this, in particular any claims for interference with possession.
- Warranty and liability
9.1. REMUS guarantees to the Client that the properties assured in writing and the execution of the order will be in accordance with the state of the art at the time of confirmation of the order, but REMUS does not guarantee that a good will be suitable for a purpose other than that assured in writing. There is a breach of this warranty commitment only if the defect was already present at the time of acceptance of the goods or service. The onus is on the Client to prove the existence of a defect at the time of acceptance of the goods or service. The presumption rule of section 924 Austrian Civil Code (ABGB) does not apply.
9.2. The warranty period shall be 24 months from acceptance at the place of delivery in accordance with point 6, subject to earlier expiration in accordance with point 9.11. Where goods are subject to heavy use, this warranty period shall be reduced by half, i.e. to 12 months.
9.3. The Client is obliged to inspect the goods immediately after accepting them. Obvious defects must be reported by the Client immediately upon accepting the goods. Non-obvious defects are to be reported in writing within 3 days of discovery, otherwise the delivery shall be deemed to have been accepted without reservation, and warranty and compensation claims shall be waived. In any case, as soon as the Client or a third party processes or uses the goods, the goods shall be deemed to have been approved.
9.4. A defect is only deemed to have been duly notified if it is so clearly marked in terms of its nature and scope that REMUS can clearly identify the reason for the complaint. To process any complaints within the warranty period, the Client must provide the following data: article number, description, number of items, reason for complaint, date of installation, date of manufacture and date of complaint.
9.5. In all cases, the return of goods subject to complaint requires REMUS‘s prior written consent. The Client is obliged to arrange for the temporary storage of the goods subject to complaint and to return the goods to REMUS at Client‘s own expense upon first request for an examination of defects. Removal and installation costs, travelling time and travel expenses shall be paid by the Client.
9.6. The warranty expressly does not apply to defects that are due to improper handling, excessive use or normal wear and tear (warranty only applies to rusting through, not to rusting). In the event of improper assembly or modification of the goods or their components, all warranty and damage claims in connection with the affected parts shall generally be void.
9.7. Minor deviations from drawings, models and samples which do not lead to any modification of the goods themselves do not constitute defects and shall be deemed approved in advance.
9.8. A defect shall be remedied by free replacement or repair of the goods subject to complaint. In the event of defects occurring, the Client is immediately obliged to permit improvement of the goods subject to complaint and must set a reasonable grace period for this in writing. Only if REMUS fails to carry out this improvement within the reasonable grace period can the Client demand a reasonable price reduction. A reasonable grace period begins only when the Client has entirely fulfilled its payment obligations.
9.9. Replaced goods or parts become the property of REMUS in the case of replacement deliveries or credit notes and must be surrendered to REMUS upon request.
9.10. As a result of the improvement, the warranty period is only extended to replaced parts.
9.11. Warranty expires if the goods are modified by third parties or through installation of parts of foreign origin, if installation and treatment rules are not followed or if the goods are not used in accordance with their intended purpose.
9.12. If the elimination of defects results in the absence of a warranty claim, the services provided by REMUS are subject to remuneration.
9.13. In the event that claims are made against REMUS by third parties in connection with the manufacture and/or use of custom-made products, the Client must indemnify and hold REMUS harmless. REMUS provides no guarantee and assumes no liability for whether the custom-made product meets the Client‘s expectations.
9.14. Provided that this is not in breach of mandatory law and provided that nothing to the contrary is stipulated in these terms and conditions, REMUS is only liable for compensation for damage caused by REMUS or its vicarious agents through gross negligence or intent. This limited liability does not apply to compensation for personal injury. REMUS is not liable for indirect damage, loss of profit, loss of interest, failure to make savings, damage due to business interruptions (production downtime), reputational damage, consequential damage and damage resulting from claims by third parties. The onus is on the Client to provide evidence that the damage is attributable to the fault of REMUS or its vicarious agents.
9.15. The total liability of REMUS per calendar year for any claims (regardless of the facts and legal grounds) is limited to EUR 5,000,000.00.
9.16. To the extent that liability on the part of REMUS arises from the inadequacy or defectiveness of a good and / or any damage resulting therefrom, the liability of REMUS is limited to the relevant turnover, within the limits of the maximum amount pursuant to point 9.15.
9.17. If an order begins or ends during a calendar year, the liability amounts pursuant to points 9.15 and 9.16 are to be allocated on a straight-line basis.
9.18. If REMUS does not expressly acknowledge the defect in writing, all claims for damages must be asserted in court within one year of expiration of the contractually stipulated warranty period, in default whereof the claims will expire on the merits.
- Termination of contract
10.1. Withdrawal from a confirmed order by the Client is only permissible for good cause and entitles REMUS to charge a cancellation fee of at least 25% of the price, as well as to compensation for any additional damage.
10.2. If the performance of REMUS is divisible and a good cause relates to only a part of REMUS‘s performance, the Client can only withdraw from this affected part of the performance.
10.3. Material changes in the person of the Client that occur or become known after conclusion of the contract, in particular with regard to the company‘s structure and/or financial position, entitle REMUS to withdraw from the contract with immediate effect, or alternatively, to switch to delivery against payment in advance. If the goods have already been delivered, REMUS is entitled to demand their return.
10.4. The legal transaction may not be contested on the grounds of the absence or ceased existence of the basis for the transaction, error or laesio enormis.
- Special provisions for development services
11.1. The provisions contained in points 1 to 5 apply without restriction to legal transactions for development services.
11.2. The provisions contained in point 6 apply analogously to legal transactions for development services.
11.3. If a prototype has been produced, the provisions contained in points 7 and 8 shall apply accordingly.
11.4. REMUS guarantees to the Client that the properties assured in writing and the proper execution of the development service will be in accordance with the state of the art at the time of confirmation of the order. In any case, an obligation on the part of REMUS to warn the Client is excluded, also as defined under section 1168a Austrian Civil Code (ABGB). Any warranty, as of the unconditional acceptance of the development service, is excluded. Otherwise, the provisions contained in points 9.14 to 9.18 apply accordingly.
- Special provisions for tools
12.1. The provisions contained in points 1 to 5 apply without restriction to legal transactions for the manufacture of tools.
12.2. The provisions contained in point 6 apply analogously to legal transactions for the manufacture of tools.
12.3. The time for the transfer of risk in the case of tools is the time of acceptance of the tools by the Client or, in the event that the Client does not fulfil its obligation to accept the tools, the time at which REMUS has duly offered the Client acceptance of the tools. In the event that the Client does not leave (or no longer leaves) the tools with REMUS, the provisions contained in points 7.2 and 7.3 apply accordingly.
12.4. The provisions contained in point 8 apply analogously to legal transactions for the manufacture of tools, but point 8.3 only applies if the tools are not left with REMUS after acceptance by the Client. In any case, the Client only acquires ownership of the tools once the price has been paid in full.
12.5. REMUS guarantees to the Client that the properties assured in writing and the proper manufacture of the tools will be in accordance with the state of the art at the time of confirmation of the order. In any case, an obligation on the part of REMUS to warn the Client is excluded, also as defined under section 1168a Austrian Civil Code (ABGB). Any warranty, as of the unconditional acceptance of the tools, is excluded. Otherwise, the provisions contained in points 9.14 to 9.18 apply accordingly.
13. Intellectual property rights
13.1. REMUS will check, with the care customary in the industry, whether the development services or goods infringe the rights of third parties in the EU and will inform the Client of the result of this check. In any case, any examination of an encroachment on the rights of third parties outside the EU is excluded.
13.2. If, at the request of the Client, the services of REMUS are to be provided (in part) on the basis of drawings, models or samples provided by the Client, the Client must ensure and guarantee that no third-party rights are infringed by the use of these drawings, models or samples provided by REMUS. The Client undertakes to indemnify and hold REMUS harmless against all claims asserted against REMUS on account of any possible infringement of third-party rights. The drawings, models or samples handed over by the Client will not be checked by REMUS for their correctness, technical suitability, feasibility, lawfulness and completeness.
13.3. Drawings, samples, models, plans, sketches and other technical documents belonging to REMUS remain the intellectual property of REMUS even after conclusion of the contract and are protected by the relevant statutory provisions, in particular with regard to use, processing, reproduction, imitation, competition, etc. Drawings, samples, models, plans, sketches and other technical documents belonging to REMUS must not be made accessible to third parties, in default whereof the Client will be held liable. On request, drawings, samples, models, plans, sketches and other technical documents belonging to REMUS must be returned to REMUS immediately and no later than within a period of time set by REMUS.
13.4. The trademarks and/or product and company symbols of REMUS are protected by trademark and copyright law; any unauthorised use and any kind of imitation and/or reproduction is in breach of the protective norms of competition, trademark and copyright law. REMUS will prosecute any infringement of this provision by the Client under civil law and, if necessary, also under criminal law.
14. Privacy policy
14.1. REMUS and the Client are obliged to comply with the provisions of the Data Protection
Act (DSG), the Basic Data Protection Regulation (GDPR) as well as any other statutory
confidentiality obligations.14.2. REMUS processes the personal data required for the purpose of fulfilling the contract. You will find detailed information on data protection law (privacy statement) in accordance with section 13 ff GDPR on the REMUS homepage at https://REMUS.eu/privacy-statement
14.3. The Client is obliged to take all necessary data protection measures, in particular measures that are within the meaning of the GDPR, so that REMUS is permitted to process the
personal data for the intended purpose of the contractual relationship.15. Confidentiality
15.1. The Client is obliged to maintain silence about the business relationship with REMUS and to keep confidential all information provided by REMUS in connection with the execution of the order, even after the contract has been fulfilled.
15.2. The Client undertakes to resell the goods only in compliance with all UN embargos and all statutory export and traffic restrictions and to impose this obligation on the purchasers of the goods.
16. Anti-corruption, compliance
16.1. The contracting parties commit and confirm to comply with the relevant legal regulations, to not accept, directly or indirectly, any advantages from third parties for themselves or for third parties, to refuse to offer or grant any advantages to third parties, directly or indirectly, and not to demand or accept any payments in kind.
17. General provisions
17.1. The language of this Agreement shall be German.
17.2. In the course of the feasibility study, no legal or official requirements of the countries of destination are to be identified for the goods offered / delivered by REMUS. If these are determined in individual cases, this fact will be referred to expressly in the order confirmation.
17.3. The Client may only transfer rights arising from the present contract to third parties with REMUS‘s express written consent.
17.4. For all disputes arising directly or indirectly from this contractual relationship, the District Court of Voitsberg or the Regional Civil Court of Graz is expressly agreed upon, depending on the subject matter jurisdiction. For all contracts and disputes, Austrian law shall be exclusively applicable, the UN Convention on Contracts for the International Sale of Goods and the application of other referral norms of international private law (e.g. IPRG, ROM regulations) shall be excluded.
17.5. Any amendments to this contract must be made in writing to be legally effective; this also applies to any departure from this form requirement. Verbal agreements are invalid. Should individual provisions of these terms of sale and delivery be or become legally invalid, this shall not affect the validity of the remaining provisions and the contract or the terms of sale shall remain legally valid in all other respects. Any ineffective provisions shall be replaced by such provisions that legally regulate the contractual intent of the parties or shall be reduced to the extent permitted by law (reduction to preserve validity).
17.6. The headings chosen for the individual chapters are for the sole purpose of clarity and should therefore not be used for the interpretation of this Agreement.
Last updated: April 2020