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NKE AUSTRIA GmbH (NKE) - Scope of validity:
The following general terms of sale apply to all business relationships between NKE and the customer. In each case the version valid at the time of the conclusion of the contract is applicable.
The GTS apply to all offers, sales and deliveries, as long as in individual cases nothing else is agreed upon and confirmed in writing by NKE. The GTS of the contracting partner can only be used, if NKE declares in writing that it agrees to this. The contracting partner acknowledges the binding force of the GTS of NKE Austria GmbH by undersigning the contract, ordering or delivery/acceptance of the goods.
Oral statements that contain additional obligations for NKE are binding only if they are confirmed in writing.
- Conclusion of the contract:
The offers are unbinding and without prejudice. In particular NKE reserves for itself the right of sale elsewhere. The business deal is realized only with the acceptance or execution of the order by NKE. All agreements require written confirmation by the customers or sales management to become legally binding.
The customer declares his contractual offer to become binding with the order.
NKE is entitled to decline acceptance of the order – perhaps after checking the creditworthiness of the customer.
- Price:
The prices given are without prejudice. The prices are understood to include standard packaging, nevertheless without assembly and without other auxiliary costs.
The costs of the packaging are either contained in the price or are shown separately (after own costs) and are to be paid additionally. The packaging is not returnable.
The prices and discounts that are valid at the time of delivery are applicable. Discounts are only applicable if the payment takes place in accordance with the contract and/or agreed total amounts are accepted. In the case of default the rebates granted and discounts accorded are not applicable.
As long as no determined price is agreed upon, the list prices that are valid at the time of the conclusion of the contract are applicable.
- Terms of payment:
Invoices are due 30 days from the date of the invoice without any deduction inasmuch as nothing else has been agreed on. For the case of default of payment the default interests for enterpreneurs have to be paid (§ 1333 ABGB). NKE is entitled to relinquish its claims fully or in part. Bills of exchange and checks are accepted only as cash payment. There is no obligation to protest. They are applicable as payment only after realisation. All associated costs and expenses are charged to the customer. The customer is not entitled to set off the claims of NKE with claims.
- Reservation of title:
All delivered goods remain the property of NKE in full until all receivables have been fully paid. The customer is entitled to reprocessing or further disposal of the goods under expresss imposition of the reservation of title. The goods may not be put up as pledge or transferred to serve as the collateral property of a third party.
NKE must be notified without delay of any seizure of the reserved goods by a third party (pledging, retention, etc.), otherwise compensation for damages will be claimed.
In the case of processing or further disposal of the goods the customer herewith relinquishes all claims as well as auxilliary rights to NKE, as long as the goods have not been paid in full. The contractual partner is obliged upon request of NKE to show his customers the cession and to give information to NKE for making the relinquished claims valid and to hand out the requisite evidentiary supporting documents.
- Delivery:
The delivery periods are approximate data and are to be kept to wherever possible. Days are understood to be working days. The delivery periods begin with the acceptance of offer/order by confirmation of contract, however, not before final fixing of all the terms of delivery. Deliveries that are ordered on recall must be called in at the most within one year from the conclusion of the contract failing which the customer is responsible for the legal consequences of default of acceptance.
Obstacles to delivery that cannot be attributed to NKE entitle NKE either to demand a corresponding extension of the term of delivery or to declare the cancellation of the contract. As the kind of obstacles to delivery that cannot be attributed to NKE are those which are not foreseeable by NKE due to strike, lockout, omission of material deliveries, production stoppage of the supplier, blockages of transportation routes, interventions by the authorities or other cases of act of God.
The right to cancellation also belongs to NKE, if after the conclusion of the contract, circumstances become known that seem to make full adherence to the obligations endangered. Claims for damages by the customer due to delayed or non executed delivery are excluded in all cases. In the case of exceeding the date of delivery by more than four months the contractual partner is entitled to cancel the contract after granting a one month extension.
- Shipment:
The transport takes place from the place of fulfilment to the charge and risk of the orderer, in the case of roller bearings "CPT = carriage paid to" free to the place of destination. Additional costs for shipment as express goods or for small shipments are charged to the customer.
Selection of the transport route and of the means of transport remains with NKE.
Complaint about defective articles has to be lodged immediately after receipt by the customer or by a third party for the customer. Otherwise all claims resulting from defectiveness of the article expire. If the complaint is acknowledged as well-founded by NKE, NKE is entitled, according to its choice, to deliver a replacement or to issue a credit against the return of the goods.
- Quantity of delivery:
The quantities and notices contained in the offers and contract provisions are applicable.
- Warranty / Guarantee:
Bearings, that become useless within one year of being put into use, however at the latest 15 months after delivery, due to material or manufacturing defect, can be demanded to be replaced by NKE.
Further claims for warranties, guarantees or for other replacements as a consequence of manufacturing and material defects for direct or indirect damages are excluded.
NKE assumes no guarantee for suggestions made for installation by NKE according to its best knowledge and conscience.
Any liability for defective mounting is excluded. In addition information and further particulars are unbinding suggestions for which no warranty is assumed.
Any liability, especially acceptance of responsibility and guarantee for customary wear and tear or other damages as a consequence of excessive use, incorrect selection of the bearings, overloading, becoming soiled, rust, dismantling or other use against original intent is excluded.
Delivery of replacement or credit is granted only after establishment, beyond a shadow of doubt, of the obligation to accept responsibility. The customer has to return the unsatisfactory article without cost to NKE.
In the case of remedy of the defect by delivery of replacement / improvement no extension of the term of warranty shall occur.
- Product liability:
Outside of the application of the product liability law, liability of NKE is limited to malicious intent or gross negligence.
Liability for minor negligence, the replacement of corollary damages and damages to property, unrealised savings, losses of interest and damages from the claims of a third party against the customer are excluded.
These limitations of liability do not apply in the event of bodily and health injuries attributable to NKE or in the case of the loss of the life of the customer.
For the use of the product sold by NKE each customer himself is responsible. Descriptions and explanations are unbinding.
- Place of fulfilment and jurisdiction:
For all disputes from the business relationship the exclusive jurisdiction of the court in Steyr applies. The place of fulfilment is the place of business of NKE.
Austrian law is applicable. Relegation to another administration of justice is excluded.
- Exceptions and exemptions:
Should individual provisions of this GBT become invalid or partially invalid, then the parties commit themselves to formulate such a regulation that economically approximates the invalid regulation the closest. In the case of legal invalidity of one or more of the provisions of this GBT, the legally binding force of the remaining provisions remains unaffected.
NKE AUSTRIA GmbH
As of 1 December 2005
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