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General Sale and Delivery Terms of the TOUSEK Ges.m.b.H.

1. Validity/Conclusion

1.1. Henceforth the "Tousek Gesellschaft with beschränkter Haftung" shall be designated "seller", the other party to a contract shall be designated "buyer".
1.2. Only this version of the General Sale and Delivery Terms is valid, resp. as soon as a new version appears, this new one becomes valid. The actually valid version can be
requested any time, whereas the latest date at the end of the General Sale and Delivery Terms is decisive for the actuality of the version.
1.3. These General Sale and Delivery Terms are valid for contracts between enterprises.
For contracts between seller and consumer, as far as they are no enterprisers, the legal regulations are valid in case of divergences.
1.4. The terms of sale and delivery shall apply to all types of contracts, not only to contracts of sale, and, even if not expressly agreed upon, shall also apply to future business contacts. Herewith the seller will not accept the buyer´s terms of purchase. Neither will they be binding to the seller, even if the seller does not explicitly express his disagreement.

2. Offer

2.1. Offers and written sales materials will not be binding to the seller.
2.2. Offers and written sales materials, as well as Price lists, brochures, graphs, drawings and information about dimensions and weights will only be binding to the seller if separately and explicitly recognized by the seller.

3. Conclusion of a contract

3.1. A contract will be regarded concluded when the seller, after having received an order, has sent a written confirmation of the order or has dispatched a delivery.
3.2. Later changes of or additions to the contract require a written confirmation in order to be valid.

4. Prices

4.1. All prices are ex works or ex warehouse seller, not including freight, packing, loading and turnover tax/V.A.T. Any further fees, taxes and charges will be paid by the buyer.
4.2. Repairs will be carried out if deemed necessary and appropriate by the seller, and they will be charged to the buyer according to the actually required time and expenditures. This also applies to services and extra services which only in the course of the execution of a repair turn out to be necessary and appropriate. In those cases, however, the seller is not obliged to inform the buyer.
4.3. The buyer has to re-pay the seller all costs developing in the course of the setting-up of repair offers or examinations, even if no subsequent order is then placed by the buyer.

5. Delivery

5.1. The delivery time starts with the latest of the following dates:
a) Date of the confirmation of an order.
b) Date upon which all technical, commercial or other pre-conditions which are the responsibility of the buyer have been fulfilled.
c) Date upon which the seller receives a part payment or security due prior to the delivery of the goods.
5.2. Any authorizations or permissions required from official authorities or other third parties have to be obtained by the buyer. If such authorizations are not issued on time, the delivery will be delayed accordingly.
5.3. The seller is entitled to carry out and invoice partial or preliminary deliveries.
5.4. Keeping the agreed delivery time is conditional of unforeseeable acts or circumstances which cannot be influenced by the parties, like e.g. all cases of force majeure; these also include armed conflicts, official interventions or bans imposed by authorities, delay of transport and customs clearance, damage in transit, shortages of energy resources and raw materials, as well as a larger portion or essential part of the ordered item(s) becoming reject, or labour disputes.
An extension of the delivery time is also possible if a supplier of the seller is subjected to above mentioned circumstances.
5.5. If the dispatch of goods ready for delivery is not possible due to reasons for which the seller is not responsible, or if the buyer does not wish the dispatch to be carried out, the seller is entitled to charge the costs of storage of the goods to the buyer, with the delivery being regarded as carried out. This will not alter the agreed terms of payment.
5.6. If no way of transport has been agreed upon, the seller is entitled to choose one at his own discretion without being obliged to check for the cheapest method of transport.
5.7. If the seller should overrun the delivery time for more than eight weeks, the buyer is entitled to set a period of grace of one month.
5.8. The buyer is in no case entitled to claim damages or decrease in value for reason of delay of delivery.


6. Fulfilment and transfer of risks

6.1. Utilization and risks are transferred to the buyer at the time of departure of the goods from the factory or warehouse at the latest, regardless of the terms of payment (like e.g. franco, c.i.f. etc.) agreed for the delivery. This provision also applies if the delivery is carried out in the course of an installation, or if the transport is carried out or organised and directed by the seller.


7. Payment

7.1. If no special terms of payment have been agreed, the seller´s claims are due upon the buyer´s reception of a delivery. If a delivery according to 5.5. is not possible, the seller´s claims are due upon the buyer´s reception of the invoice.
7.2. In case of a hire purchase the respective part payments are due upon the buyer´s reception of the corresponding invoices. This also applies to invoice amounts which increase the original amount due to follow-up deliveries or other agreements, regardless of the terms of payment agreed for the main delivery.
7.3. Payments to the seller have to be made in cash without any deductions in the agreed currency. Cheques or bills of exchange will only be accepted for effecting payments. Any expenses arising in this context (like e.g. direct debit or discount fees) will be charged to the buyer.
7.4. The buyer is not entitled to withhold or offset payments because of guarantee claims or other counter-claims.
7.5. A payment is regarded carried out on the day the seller is able to dispose about it.
7.6. Regardless of other instructions issued by the buyer, all payments will first be charged to
interest and expenses before being charged to capital. Nevertheless, the seller is also entitled to apply the corresponding legal regulations instead.
7.7. If the buyer is in default of an agreed payment or other service, the seller is entitled
a) to defer his own obligations until the buyer has effected his outstanding payments or other services.
b) to effect an adequate postponement of the delivery time.
c) to demand all outstanding payments (with the agreed delivery dates becoming ineffective), and
d) to charge interest on outstanding payments to the extent of 1% per month plus turnover tax from date of maturity, provided that the seller does not prove additional expenses, or,
e) in case of the buyer´s non-compliance within an adequate period of grace, to withdraw from the contract.
7.8. Granted discounts or bonuses will be deferred until all outstanding payments have been fully settled.
7.9. The seller retains property of all delivered items until the invoice amounts, plus interest and expenses, have been fully paid. Until then the buyer is entitled to resell, process, manufacture or join the acquired goods only with the seller´s written approval, except in those cases in which the goods were intentioned for being resold, processed, manufactured or joined. In order to secure the seller´s claims on the outstanding sales Price payments, the buyer undertakes to assign his claims on the resold items to the seller, and to include a corresponding remark in his business accounts or invoices. Until the outstanding invoice amounts have been fully paid, the buyer undertakes to keep and administer the revenues obtained from reselling the goods in trust to the amount of the seller´s pro rata sales Price. In case of seizure of or other demands on the goods, the buyer undertakes to point out the seller´s ownership and to inform him immediately.

8. Warranty

8.1. Upon compliance with the agreed terms of payment, and in accordance with the following provisions, the seller undertakes to rectify any defects which impair the proper functioning of the goods if they are caused by an error in the design or by a material- or manufacturing defect.
8.2. Warranty period is 36 months, whereas the buyer has to verify the deficiency of the goods
This provision also applies to goods or services which are firmly linked to a building or estate. The warranty period starts at the moment of the transfer of risks according to item 6.1.
8.3. A claim under the warranty terms can only be accepted if the buyer has notified the seller in writing about the occurred defects without delay. If the claims are justified under the warranty provisions according to 8.1., the seller informed in this way undertakes, at his own discretion, to replace the defective goods or parts thereof, to mend them on the premises, or to have them sent back to him for repair.
8.4. All expenses arising in connection with the repair (e.g. for removing and reinstalling, transport and journey) are chargeable to the buyer. For warranty services being carried out on the buyer´s premises the required assistant personnel, lifting devices, scaffolding and hardware parts etc. have to be provided by the buyer free of charge. Any replaced parts become property of the seller.
8.5. If the seller manufactures a product according to the buyer´s designs, drawings, models or other specifications, the seller´s liability will be limited to the previously agreed performances.
8.6. The warranty excludes those defects which result from installation not arranged for by the seller, from installation at unsufficiently equipped facilities, from disregarding the installation requirements and operating conditions, from subjecting the parts to loads in excess of the seller´s ratings, or from careless, negligent or improper treatment or handling, or from usage of unsuitable operating materials. This provision also applies to defects originating from the use of materials provided by the buyer. The seller will not be liable for damage caused by acts of third parties, by atmospheric discharges, by excess voltage, or by chemical influences. The warranty does not include the replacement of parts which are subject to normal wear.
8.7. The warranty will expire immediately if the buyer himself or a third party (not explicitly authorized) carries out alterations or repair works on the delivered products without the seller´s prior written permission. The seller will not accept invoices over any such works. Works and deliveries carried out under the warranty provisions will not extend the original warranty period.
8.8. Limitation period for claims of recourse regarding warranty is 6 months.

9. Withdrawal from the contract

9.1. Preconditions for the buyer´s withdrawal from a contract are a delay of delivery through the seller´s fault, as well as the unsuccessful expiry of an adequately set period of grace.
9.2. With the exception of the provisions listed under 7.7.e) the seller is entitled to withdraw from a contract
a) if the delivery or the beginning or continuation of services is made impossible for reasons lying within the buyer´s responsibility, and continues to be delayed in spite of the setting of an adequate period of grace.
b) if doubts regarding the buyer´s solvency have arisen, and the buyer - on the seller´s request - neither effects an advance payment nor presents an appropriate security prior to the delivery of the goods, or
c) if the extension of the delivery time, due to the circumstances listed under 5.4., totals more than half of the originally agreed delivery time, amounting however to a period of at least two months.
9.3. The withdrawal from the contract can also be declared with regard to an outstanding part of the delivery or service in accordance with the above listed reasons.
9.4. If insolvency proceedings are instituted about the assets of one of the parties to the contract, or if a petition for the initiation of insolvency proceedings has been turned down for lack of sufficient assets, the other party is entitled to withdraw from the contract without setting up a period of grace.
9.5. In case of a withdrawal, and regardless of the seller´s rightful claim to the payment of damages, already performed services or parts thereof will be invoiced and have to be paid according to the terms of the contract. This provision also applies to the case that the delivery or service has not yet been taken by the buyer, as well as to preparatory actions performed by the seller. Instead of this, the seller is however also entitled to demand the return of already delivered items.
9.6. Any other consequences from the withdrawal from a contract are excluded.

10. Liability

10.1. In cases in which the product liability law does not apply the seller can only be held liable for damage, in accordance with the corresponding legal provisions, if it was caused by provably deliberate action or gross negligence on his part. Liability for mild negligence, as well as compensation for follow-up and property damage, not achieved savings, losses of interest, and damage resulting from claims of third parties against the buyer, are excluded.
10.2. Within the limits of the product liability law the seller can be held responsible for injury to persons as well as for property damage suffered by consumers. Neither the seller nor his suppliers and sub-suppliers will be liable for property damage suffered by an entrepreneur.
10.3. In cases of non-compliance with any existing requirements for installation, setting into operation and use (like e.g. included in the connection-, installation- and operating instructions), or non- compliance with any official requirements, any claims for damages are excluded. The seller will in no case be liable for damage caused by the assembly of the devices and facilities. In addition, the buyer is obliged to make his best efforts in checking possible sources of errors and safety hazards.
10.4. The limitations of liability according to items 10.2. and 10.3. will also apply in full content to the buyer´s customers, including the obligation to pass on the cited limitations of liability to further customers.

11. Place of jurisdiction, place of fulfillment, applying law

Any legal disputes arising from the contract - including those about its existence or non-existence - can only be brought for judgment before the factually competent court of law at the location of the seller´s head offices - in Vienna this is the district court Innere Stadt Wien - except if the dispute has arisen from a consumer business matter on the buyer´s side. The contract is subject to Austrian law. The application of the United Nations´ UNCITRAL-agreement covering contracts about international sales of goods is hereby excluded by mutual agreement.

Vienna, 22. February 2007

tousek Ges.m.b.H. - Zetschegasse 1, A-1230 Wien
Tel: +43 (1) 6673601-0 I Fax: +43 (1) 6678923   E-Mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

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