Terms and Conditions (AGB)

Terms and conditions of sale and delivery

1. Commitment

1.1. All our offers and contracts concluded with the customer are subject to these General Terms and Conditions of Sale (GTC), which are deemed fully approved by the customer upon placement of an order and are therefore binding for both the customer and us. The GTC also apply to future business transactions between us and our customer.

1.2. Any general terms and conditions of our customers do not apply to the transactions concluded with us, even if we do not expressly contradict them

1.3. In particular, the acceptance of the delivered goods or a partial delivery, as well as payment or partial payment, signify the acceptance of the VLB by the customer.

2. Offer and conclusion of contract, cost estimate

2.1. Our offers are non-binding unless expressly designated as binding. The customer’s order is only considered accepted upon our order confirmation, at which point a contract is formed.

2.2. Cost Estimate: We prepare cost estimates to the best of our professional knowledge; however, we do not guarantee their accuracy. Should cost increases exceeding 15% arise after the order has been placed, the customer will be notified immediately. For unavoidable cost overruns of less than 15%, separate notification is not required, and these costs can be invoiced without further ado. Unless otherwise agreed, order changes or additional orders can be invoiced at reasonable rates.

3. Performance and Transfer of Risk

3.1. The delivery has been completed and – even in the case of delivery agreed to be carriage paid – the risk of price fluctuations and the risk of accidental loss of the goods have passed to the customer.

3.1.1. in the case of delivery by us, upon dispatch of the goods from our shipping warehouse or the warehouse of the manufacturer of the goods to be delivered or

3.1.2. For goods that are collected by the customer themselves, upon dispatch of the notification of readiness for collection by us.

4. Prizes

4.1. Unless expressly stated otherwise, all prices are ex works, or “EXW/FCA” under Incoterms 2010, excluding packaging, shipping costs, and sales tax (net).

4.2. We are obligated to provide warehouse or transportation service insurance for the benefit of the customer only if there is a written agreement and the customer agrees to bear the costs.

5. Payment

5.1. Invoices are payable in full upon receipt, unless otherwise confirmed in writing. Failure to meet the payment deadline will result in the customer being in default without further notice, in which case a late payment interest rate of 10% per annum above the base rate—but at least 10% per annum—plus reminder and collection fees will be charged. Should it be proven that higher damages resulting from default have been incurred, we reserve the right to claim these damages alternatively.

5.2. If we accept bills of exchange or similar documents, such acceptance is subject to their payment; only then shall payment be deemed to have been made. If the date of payment falls after the due date of the invoice, we reserve the right to claim late payment interest in accordance with the provisions above.

5.3. If the customer fails to pay when due, or if we receive information indicating that the customer’s financial circumstances have deteriorated, we may, at our option, demand payment of all outstanding invoices—whether due or not— and/or cancel all individual outstanding deliveries and make further deliveries only upon advance payment or contingent upon the provision of adequate security.

5.4. Partial invoices are always permitted for partial deliveries.

6. Delivery Times

6.1. We will adhere to delivery times and dates to the extent possible: unless expressly agreed upon as binding, they are non-binding and are always to be understood as the estimated time of availability and delivery to the customer.

6.2. The customer may withdraw from the contract due to a delay in delivery only after setting a reasonable grace period—at least as long as the originally scheduled delivery period. The withdrawal must be asserted by registered letter. The right of withdrawal applies only to the portion of the delivery or service that is subject to the delay.

7. Shipping Method and Route

7.1. Unless otherwise agreed in writing, we will determine the shipping method and route.

8. Default in Acceptance / (Partial) Delivery

8.1. If the customer fails to request a partial delivery that we have notified is ready for shipment in accordance with the agreement, we may, at our discretion, either make the partial delivery at any time, arrange for it at a later date, or withdraw from the relevant partial delivery order. No such action shall affect other partial deliveries. At the same time, we are entitled either to insist on performance of the contract or, after setting a reasonable grace period, to withdraw from the contract and dispose of the goods otherwise. In the event of such disposal, a contractual penalty of 20% of the invoice amount, excluding VAT, shall be deemed agreed upon.

8.2. If, for any reason, we are unable to deliver the total quantity of goods, we are entitled to allocate the quantities of such goods available to us among individual or all customers, or to make partial deliveries on the basis we deem reasonable or practical, without being liable for any errors resulting therefrom.

9. Nonperformance

9.1. We are not liable for nonperformance or delay, whether caused directly or indirectly, e.g., by fire, explosion, accident, flood, labor disputes, or shortages of materials, equipment, or supplies; war; government actions; lack of suitable materials, equipment, fuel, or transportation; force majeure; or any other events or causes beyond our control.

9.2. With regard to the delivery of goods affected by such circumstances, we may either cancel the order or fulfill it at a reasonable later date.

10. Quality Standard

10.1. We assume no liability beyond that expressly set forth in writing, except to ensure that the goods sold pursuant to these terms and conditions comply with the standards of the respective manufacturer. The customer assumes all risks and liability for the results arising from the use of the delivered goods, whether the goods were used alone or in combination with other products.

10.2. If the goods have not been processed by us, our liability is limited to the goods in their unprocessed state.

11. Warranty

11.1. A warranty claim is contingent upon the customer’s compliance with the obligation to inspect the goods immediately and to submit a prompt, specific notice of defect via certified mail to the following address:

11.2. Our warranty is limited to the scope of our supplier’s warranty obligation; we will forward any customer complaint regarding a defect to our supplier.

11.3. Notwithstanding the foregoing, the warranty period shall be one year and shall begin, in the case of delivery only, at the time of transfer of risk, or, in the case of delivery with installation, on the date the installation is completed.

11.4. We do not provide a warranty for used merchandise.

11.5. The contracting party must provide evidence of the existence of defects. The presumption under § 924 of the ABGB is excluded.

11.6. Furthermore, any warranty claim against us shall be void if the customer fails to follow the instructions for use, operation, maintenance, storage, etc., remedies any defects that have arisen on their own or has them remedied, or modifies or alters the goods.

11.7. Rectifying a defect does not extend the original warranty period.

11.8. If the customer remedies defects on their own or has them remedied by a third party, they shall bear the costs of remedying the defects themselves, unless we have given our prior written consent to the customer or a third party remedying the defects.

11.9. Section 933b of the General Terms and Conditions Act (AGBG) does not apply.

12. Consequential Damages and Economic Losses

12.1. We are not liable for consequential damages or economic losses, including, but not limited to, lost profits, unrealized savings, loss of interest, non-pecuniary damages, damages resulting from production downtime, damages resulting from loss of use, and damages arising from third-party claims.

13. Damages

13.1. In all applicable cases, we are liable for damages only in the event of willful misconduct or gross negligence. In cases of slight negligence, we are liable exclusively for personal injury. The statute of limitations for liability expires 6 months after our customer becomes aware of the damage and the party responsible for it.

13.2. We are not liable for indirect damages, lost profits, lost interest, lost savings, consequential damages, financial losses, damages resulting from third-party claims, or the loss of data and programs and their restoration.

13.3. In cases of gross negligence, damages per claim are limited to 5% of the contract amount, up to a maximum of EUR 500,000.00. This exclusion does not apply to liability for personal injury.

13.4. The reversal of the burden of proof pursuant to § 1298 ABGB is excluded.

13.5. If, for whatever reason, a penalty clause has been agreed upon, it is subject to the court’s power to moderate the amount. Claims for damages in excess of the penalty clause are excluded.

14. Reduction by more than half (laesio enormis)

14.1. The customer waives the right to raise the defense that the amount is less than half.

15. Patents

15.1. We guarantee that the goods delivered do not infringe any patent rights in the country of origin. No further warranty is provided.

16. Copyrights

16.1. We reserve all rights to the drafts, proposals, projects, and related drawings, dimensional diagrams, and descriptions that we use. These documents—even if they do not originate from us—may not be used by customers in any manner that goes beyond the scope of the contract. In particular, they may not be reproduced or made available to third parties. They must be returned immediately upon our request.

17. Retention of Title

17.1. The goods remain our property until full payment has been made.

17.2. If third parties should seek to assert or establish rights to the property subject to our retention of title (such as through enforcement proceedings or the like), the customer must immediately notify us of all details by certified mail to the

SOBITSCH Industrie Produkte & Anlagen
Theodor-Körner-Straße 120 a
A-8010 Graz

to understand.

17.3. The customer must immediately reimburse us for all costs, including those incurred out of court, that we incur in connection with the protection of our property rights.

17.4. If the delivered goods or product are processed, the claim against the purchaser is assigned to us until all of our claims have been satisfied. In this regard, we may request that the customer disclose the outstanding assignment to the customer’s buyer.

18. Jurisdiction and Governing Law

18.1. All contracts between Sobitsch and its contractual partners are governed by Austrian law, to the exclusion of all conflict-of-laws and referral provisions, in particular the IPRG and the UN Convention on Contracts for the International Sale of Goods.

18.2. The exclusive place of jurisdiction shall be the registered office of Sobitsch in Graz.

19. Amicable Settlement

19.1. Before seeking judicial assistance, each party must, as a general rule, attempt to reach an amicable settlement. The contracting parties agree to hold a meeting for this purpose within a reasonable period of time. This meeting may also take place by telephone.

20. Additional Provisions

20.1. Severability Clause: Should any provision of these Terms and Conditions be or become legally invalid or unenforceable, in whole or in part, this shall not affect the legal validity of all other provisions. The contracting parties shall replace the invalid or unenforceable provision with a valid or enforceable provision that most closely approximates the content and purpose of the invalid or unenforceable provision.

20.2. Requirement Regarding Form: Any amendments or additions to a contract must be in writing. This also applies to any amendment to the requirement for written form.

20.3. Setoff: Setoff against our claims using counterclaims of any kind is prohibited.