General Information and Entering into a Contract
1. These General Terms and Conditions of Business and Delivery (T&C) apply to all quotations, purchase and delivery contracts entered into by STM with regard to machinery, spare parts and consumables as well as with regard to the provision of operating personnel, training courses and support services in their respective valid version for the entire business relationship, unless expressly agreed otherwise in writing. Conflicting terms and conditions of the customer will not be accepted.
2. Prior to entering into the contract, the authorised dealer/customer (contractual partner) will receive a “written purchase order” containing STM’s quotation. The quotation contained in the “written purchase order” must be accepted by the contractual partner within a period of four weeks (date of written purchase order). The contract is entered into when this “written purchase order” is returned signed within the four-week period, otherwise the quotation under the “written purchase order” ceases to be valid.
3. No later than on ordering contract goods from us, the contractual partner shall give its consent to these T&C and it is considered as agreed that these T&C will also apply to all transactions entered into with STM in the future.
The data required as part of the business relationship will be stored with the consent of the contractual partner and processed in compliance with the provisions of data protection regulations. STM is entitled to amend the T&C in whole or in part as required. The new T&C will become effective upon proven delivery to the contractual partner.
Quotations, Order Processing
The quotations refer to the price lists, catalogues and brochures valid at the time the quotation is made. Differing price quotations will only apply if they have been confirmed in writing.
StM reserves the right to make technical changes that represent an improvement of the contract products or are technically necessary to the specifications of its contract products in catalogues, brochures and other illustrations.
Delivery Period and Right of Withdrawal
1. The contract products will be delivered within the delivery period indicated in the “written purchase order”, the period commencing upon receipt of the “written purchase order” confirmed by the contractual partner and receipt of payment of the first instalment. The delivery period will be suspended as long as the contractual partner is in default with the fulfilment of the obligation incumbent upon it – including from other orders.
2. If StM fails to deliver the goods, the contractual partner has the right to declare withdrawal from the contract in writing after setting a four-week grace period. If STM does not deliver within the grace period, the contractual partner will receive its down payment back or will be entitled to make use of the bank guarantee provided by us. StM shall be released from its delivery obligation if its suppliers have discontinued production in whole or in part or if force majeure (in particular natural disasters, war, terrorism, strikes, etc.) has occurred if these circumstances only occurred after the contract was entered into and StM is not responsible for the non-delivery. StM shall inform the contractual partner immediately of these circumstances. Any claim for damages due to non-performance or delayed performance, in particular the assertion of loss of profit due to delayed or omitted delivery is hereby contractually excluded.
3. Force majeure and changes, additional fittings or similar circumstances subsequently requested by the contractual partner will extend the delivery period accordingly.
Price and Payment Terms
1. The price included in the “written purchase order” is a fixed price “ex works” (i.e. net price plus applicable taxes) excluding packaging and insurance for transport or damage.
2. If the “written purchase order” does not provide otherwise, 50% of the fixed price of the machinery shall be paid when the contract is entered into (whereby the delivery period is set in motion), 40% upon notification of readiness for dispatch, no later than one week before dispatch of the machinery and 10% 30 days after formal acceptance by the end customer or no later than 60 days after handover of the machinery to the contractual partner or to the authorised representative or 60 days after notification of readiness for dispatch by StM. With regard to these payments, the contractual partner will receive instalment requests and, upon delivery, the final invoice. In the event of default with an instalment, default interest of 8% above the base lending rate under Section 352 UGB per month is deemed to be agreed.
3. Offsetting any claims against claims of StM is not permitted. The contractual partner is not entitled to a right of retention for any claims against STM unless these claims have been established by a court or acknowledged by us.
StM also sells spare parts in its online shop: www.waterjet-shop.com. Unless otherwise agreed in individual cases, the following terms of payment apply to orders from the online shop:
- Deliveries to new customers – until approval by StM – will only be made against prepayment.
- For authorised dealers and direct customers after purchasing an StM machine, invoices are due for payment within 7 days.
The online shop is completely translated into English and is to be used for all spare parts orders by the contractual partner.
To secure the down payment of 50% of the purchase price, we shall issue the contractual partner with a bank guarantee in the amount of €…………. no later than when the contract is entered into, which will protect the contractual partner against the loss of its partial payment in the event of the insolvency of StM or the opening of insolvency proceedings (composition or bankruptcy) against the assets of StM.
Retention of title
The delivery of all contractual products of StM is always under retention of title with the following conditions:
The goods shall remain the property of StM until full payment of all claims by StM arising from the business relationship, but in all cases until full payment of the claims arising from the purchase contract concerned. For the duration of the retention of title, the contractual partner is entitled to possess and use the contractual objects as long as it fulfils its obligations under the retention of title and is not in default of payment. Contractual products subject to retention of title may be resold by the contractual partner exclusively as part of its normal business operations and the right granted by StM to resell the objects of purchase. The contractual partner shall assign in advance to StM as security all claims arising from the resale of the contractual objects.
This assignment of claims must be recorded in the books of the contractual partner. The contractual partner is entitled and required to collect the claims assigned to StM as long as StM does not expressly revoke this authorisation and the contractual partner meets its payment obligations punctually. In the event that the contract goods in the possession of the contractual partner – which are still subject to retention of title – are seized by a court, StM must be informed immediately and the contractual partner must do everything possible to ensure that the contract goods are handed over to StM. The contractual partner undertakes to inform StM immediately of any access by third parties to the goods in its ownership, even if this is only impending. The contractual partner is required to inform third parties who have or wish to have access to our goods in writing that they are the property of StM. Any costs for the pursuit of ownership claims or interventions shall be borne by the contractual partner. The contractual partner is expressly forbidden from pledging contractual products delivered under retention of title or assigning them as security.
The contractual partner is required to keep the contract goods in good condition and secure for the duration of the retention of title. The contractual partner hereby assigns all claims that take the place of the contract products delivered under retention of title, in particular insurance claims or claims arising from tort in the event of loss or destruction. In the event of default in payment or breach of material obligations arising from the agreement on the retention of title, StM shall be entitled to demand the return of the contract products subject to retention of title and to revoke the authorisation to collect the assigned claims or to collect the assigned claims in its own name.
Transfer of Risk
The price risk is transferred to the contractual partner:
- with the delivery of the object of purchase to the contractual partner or its authorised representative (forwarding agent, carrier or the like),
- if shipment is requested by the contractual partner, with the handover of the goods by StM to the transport person,
- in the event of default of acceptance on the part of the contractual partner, with StM’s notification of readiness for dispatch or completion.
The risk of transport and load securing as well as the risk of accident shall in all cases be borne by the contractual partner, even if freight-free delivery by own or third-party means of transport has been agreed. The transport risk shall only be insured on the basis of a written agreement and only at the expense of the contractual partner.
If the contractual partner does not accept the contract goods after StM’s notification of completion and notification of readiness for dispatch and if there is a delay in acceptance, StM shall be entitled to charge a weekly storage cost contribution of €800.00 net per week or part thereof from the week following the notification of completion or readiness for dispatch.
1. The warranty obligation of STM are governed by the statutory provisions.
2. STM gives a warranty of two years for its contract products from the formal acceptance by the end customer, which is to be confirmed by signing the acceptance protocol. However, the warranty will commence no later than 60 days after delivery of the contract products to the end customer.
If the STM-CARE warranty is take out under the warranty provisions, Appendix 3 point 1.4, STM gives a warranty of three years.
For models with controls, there is a different warranty agreement as follows:
- For the “EcoCut” and “MasterCut” models: 2 years from acceptance by the end customer or 2000 operating hours.
- For the “PremiumCut” model: 2 years from acceptance by the end customer or 4000 operating hours.
Once the operating time of 2000 hours or 4000 hours is reached, StM’s warranty ends, regardless of the time that has elapsed since the actual acceptance.
3. Any liability for consequential damage is – as far as legally allowed – excluded.
In particular, the contractual partner is required to ensure that the operating instructions handed over by StM are meticulously observed and that the operating staff employed by the contractual partner are optimally trained, are informed of the safety guidelines and comply rigidly with all other objectively resulting standards of care. In the event of damage, the contracting party shall immediately inform StM in writing of the nature, extent and history of the damage in as much detail as possible and shall support StM and its employees and agents (including insurance agents) in an appropriate manner in any investigations into the cause of the damage. Should the contractual party fail to comply with these secondary contractual obligations and this result in disadvantages for StM under insurance law, the contracting party shall be liable to StM for all such disadvantages (loss of insurance cover, if any) and shall pay damages to StM.
If any warranty or guarantee claims arise during the warranty period, the contractual partner shall notify StM of the defects immediately and the warranty or guarantee processing will be carried out in accordance with the warranty provisions, Appendix 3.
Withdrawal from the Contract – Impossibility
StM shall have the right to rescind the contract if the contractual partner is in default of payment despite a reasonable grace period of two weeks being set or if facts have come to StM’s knowledge that indicate a poor financial situation and give rise to fears that the contractual partner will not be able to pay the purchase price, as well as in the event of the opening of insolvency proceedings against the contractual partner’s assets or the closure of the company. In all these cases, StM has the right to refuse to deliver the goods or to demand full advance payment or to demand the return of the contract products delivered under retention of title, while maintaining its claims for damages. It shall be agreed that the first instalment of 50% of the purchase price made by the contractual partner prior to rescission of the contract may be retained as lump-sum damages (in particular to cover our start-up costs, material supplies, work performed, etc.). With regard to this lump sum damages (contractual penalties agreement), the exclusion of the right of moderation by the court is agreed.
Applicable Law, Place of Jurisdiction and Place of Performance
1. The application of Austrian law to all our agreements, in particular the present contract and the individual purchase contracts with the exception of its reference norms is deemed to be agreed. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
2. For all disputes arising from this contractual relationship, the ordinary Austrian courts as well as the exclusive jurisdiction of the court relevant for these matters for STM, namely the District Court of St. Johann im Pongau or the Regional Court of Salzburg, are agreed.
3. For all deliveries, services and payments, the registered office of STM is the place of performance, even if the handover is to take place at a different location in individual cases.
General Provisions of the Contract
1. Amendments and supplements to these T&C require the written form in order to be legally effective. This also applies to any waiver of the written form requirement itself. The German version of these General Terms and Conditions is authoritative.
2. Annexes 2 “Parts lists” and 3 “Warranty provisions” form an integral part of this Agreement.
3. Should provisions of these T&C be or become void or ineffective, this does not affect the validity of the remaining provisions. The void or ineffective provision must be reinterpreted or supplemented in such a way that the intended economic purpose is achieved as in the best possible way. This also applies to possible gaps in the contract.
4. No waiver of rights can be derived from an act or omission of a contractual partner unless such a waiver is expressly declared in writing.
5. These T&C also apply to all future contractual relationships, deliveries and orders with STM without special reference.