The following terms are applicable to all our sales. Any different terms required by the Purchaser are hereby excluded even if we have not expressly contradicted.
Any oral commitments or statements are invalid unless confirmed in writing.
The invalidity or incompleteness of any clause of these general contract terms shall not affect the validity of the remaining clauses. Invalid or incomplete clauses shall be replaced by valid and complete clauses which would best meet the parties economic interests as reflected in this agreement.
OFFER AND CONTENTS OF OBLIGATIONS
Our offers are not binding upon us until accepted by the Purchaser.
If data contained in the Purchaser’s acceptance (i.e. order confirmation) differ from data contained in our offer, the data contained in our offer shall always prevail.
All technical specifications contained in our offers and order confirmations are approximations, only.
Safety devices required under foreign national laws are not included in our delivery obligations unless expressly confirmed by us to the contrary.
Our obligations are governed by Incoterms in their latest version.
The supply may be suspended at any time if MHM is informed of facts and/or events that could compromise the economic‐proprietary situation of the Client, which could have consequences on MHM as per articles 71/72 ABGB.
The contract is considered concluded and effective, and the order becomes definitive when MHM receives a copy of the order confirmation duly countersigned by the Client. Effects and consequences stated under ABGB principles and under the Principles of European Contract Law.
The effectiveness of the contract is in any case subject to the collection of the sum due with the order confirmation, the receipt of the Bank Guarantee (when stipulated), the receipt of the technical data sheet duly filled in by the Client and to the subsequent agreement finalization related to all the technical features.
The contract amount and conditions cannot be transferred without MHM’s approval.
All technical drawings and sketches remitted to the Client or by MHM may not be used for any other purpose than the one for which they are remitted. They belong to MHM and may not be shown to anyone without his explicit and written consent. When no longer required, they shall be returned to MHM.
III. PRICES AND PAYMENT TERMS
We quote net prices. Any applicable value‐added tax is charged separately. Except were agreed otherwise, all prices are ex‐works an do not include packing material, freight delivery to the place of installation, unloading or installation.
The agreed prices shall remain binding until the purchase price has become due and payable, or until the expiration of six months from the date of the acceptance of our offer, whichever is earlier. Thereafter, we may adjust the price if and as long as the purchase price has not been paid, provided we are not default with our delivery obligation.
By no performance of agreed payment terms the machine will be stopped by an internal code. MHM assures that the code will be released after receipt of payment.
The Purchaser shall have no right to withhold payments or to set off counter claims unless such counter claims are undisputed or determined by a final and binding court ruling.
If the Purchaser has not paid at the due date, or if we become aware of facts indicating an existing or prospective inability to pay (draft or check protests, attachments and the like), all debts resulting from our deliveries shall become immediately due and payable. In this case we are entitled to rescind any current contracts immediately. Any merchandise with respect to which we have retained our title and ownership shall be immediately returned to us at Purchaser’s costs.
Payment must be made as stipulated by contract/order confirmation. The following methods of payment are accepted: documentary credit, Bank lease, guaranteed draft. Cash payments are not accepted.
Documentary credit must be agreed upon withMHMi as irrevocable and accepted by Client’s Bank. Acceptance costs from MHM’s Bank shall be paid by the Client. The client must extend the validity of the documentary credit upon MHM’s request, in case of delayed delivery due to force majeure (such as shipping problems, any change in content and scope of supply etc.). In such cases the Client will bear any l/c amendment charges.
If the Client chooses the Bank lease option, the property of the machine is transferred to the Bank for the whole period of the contract while the Client will be licensed to use the machine for the entire contract period. Upon final payment of the machine, this will become the Client’s property. The Bank lease is subordinated to the leasing company’s approval. MHM reserves the right to demand a deposit. Any deposit will be returned to the Client once the last payment to MHM has been made.
Except differently agreed, the minimum caution money is 30% of the Contract value to be paid after the order confirmation has been signed (10% if the Bank lease option is selected). The caution money will be retained by MHM if the remaining payments (either documentary credits or drafts, or goods ready for shipment or bank transfer) are not completed or made available within 90 days from the due date (ABGB principles). It is safe the possibility of a bilateral agreement for a further caution money. Should the payments not be made by the due date, the Client will owe MHM the overdue interests as here further established and according to the Rules set out by Europeam Community concerning delayed payments. The client must make the payment of 30% of the contract value immediately after signing the order confirmation (except different conditions agreed). This amount, treated always as caution (caution money according to ABGB principles) will be withheld by MHM as warranty for contractual obligations and compliance of the Client. MHM is hereby committed to reimburse the Client once all contractual obligations have been fulfilled.
If the payment agreed is by draft installments issued by the Client, such drafts must be available at MHM’s disposal when signing the contract. Costs, stamps as per Austrian Fiscal provisions and interests (at the rate specified in the contract) shall be borne by the Client. The same applies for the costs related to insure the debt. The drafts will be guaranteed, endorsed by a first class Bank. Such warranty or endorsements must be given to MHM together with the drafts. The Client is not entitled to cut off payments for any reason whatsoever.
In case of delay to open letter of credit over 30 days, it will be demanded a 10% of deposit (ABGB principles), and other 10% over further 30 days of delay.
The interest rate applied for deferred payments granted t Client is of 1% (one per cent) of the contract amount on monthly basis. For international sales stated in foreign currencies, it will be referred to LIBOR of the moment plus 1% (one per cent)
The caution stated at point 9) will be withheld by MHM if the remaining payments (documentary credit or drafts) will not be effected, or made available, within 30 days of the established date. In the case the remaining payments will not be effected at the foreseen moment, the Client grants MHM overdue interests, as fixed ad point 14). After further 30 days, for a total of 60 days of delay, MHM reserves the right to withhold the caution and to cancel the order, except bilateral agreement for further caution.
The Client that does not respect payment terms, as established in contract, will have to pay to MHM overdue interests based on the current discount rate of the Austrian Bank. For all the period in which the payment will remain outstanding, the Client will not be able to oppose himself if MHM will issue drafts at sight as full payment of the contract value, nor will be able to oppose himself to all possible actions MHM can take to warrant its credit.
If payments at specified stages have been agreed and the Client does not comply, MHM shall have the right to suspend the execution of the works.
Bank charges for any payment, including opening and confirmation of documentary credit, payments of drafts will be paid by the Client, unless differently stated in the contract.
All kind of payments may be postponed only with a written request, countersigned for acceptance by MHM. In such cases, besides the amounts due, the Client will have to pay for the interests (to the extent of current discount rate of the Austrian Bank), the differential Bank charges (own charges and MHM’s charges), as well as storage, custody, and insurance costs of the goods for the extension period.
The negotiated delivery date is calculated from the day the contract enters into force, this means when the first payment terms has been fulfilled, and it refers to the time of completion at our works. Unless a firm delivery deadline has been specifically agreed, our delivery time quotations are not binding upon us if we fail to meet a firm delivery deadline by more than three weeks, the Purchaser shall be required to grant an adequate extension. Claims for damages due to a delivery delay beyond the extension shall be excluded unless the delay was caused intentionally or by gross negligence. We are entitled to make partial deliveries.
Delivery date will be postponed whenever the Client does not respect contractual terms, when there is not a punctual approval of designs, executive schemes, where required.
Our obligation to keep a contractually agreed delivery time is conditional upon the other party’s timely delivery of all services and performances required of it, such as the submission of required approvals, the compliance with agreed payment conditions and the fulfillment of other contractual obligations.
Events of an act of God, even if occurring in the sphere of our suppliers, including without limitation unforeseen manufacturing obstacles, disturbance of manufacturing operations of any kind, strikes, lock outs, currency transfer and other market barriers, supply and raw materials shortage, shall give us the right to postpone or rescind contractual delivery obligations irrespective of whether such obligation was fixed to a firm date or not. In case of an act of God, the other contractual party shall have no claim for damages.
According to ABGB principles, it is agreed that delivery takes place at MHM premises and occurs when the material is handed over to the Client or the Carrier, even if the price includes transportation and assembling.
If due to circumstances beyond MHM’s control, including no respect of payment conditions, the material cannot be shipped, delivery is considered completed with all legal effects, when the Client is given notice that the goods are ready for shipment. In such case, MHM is entitled to charge the Client for storage, custody, and insurance on monthly basis, as follows: 0,50% (zero fifty) of the contract value, with 10 (ten) days grace period.
Once delivery is completed, all risks, related to the materials are transferred to the Client. The supply travels at Client’s risk, except a different delivery term has been agreed in the order confirmation.
PENALTY FOR DELAYED DELIVERY
The penalty for delayed delivery is the only way for compensating damage caused by delayed delivery. Beyond the penalty agreed upon, the Client may not claim any other compensation, nor sharing of any cost related to delayed delivery. The penalty MHM will have to pay to the Client in case of delayed delivery must be explicitly specified in the contract. Otherwise no penalty will be due by MHM. The penalty claim must be submitted by registered letter and confirmed by a registered letter from MHM
In case of force majeure or delays from MHM, the Client will accept up to 1 (one) month delay for the shipment of the machine or part of it and will extend the validity of the documentary credit accordingly. The penalty (maximum penalty is equal to 1 per cent of net contract value monthly) cannot be demanded by the Client in the following cases: when the material not yet delivered has been replaced by other material, when the Client is directly responsible for the delay, when the delay is due to causes beyond control.
The penalty starts from the date of the Client’s request, provided that is subsequent to the date stated in the order confirmation, sent by registered letter.
The duration of the erection will be the one communicated by MHM. If during the erection the assembler should interrupt the work due to lack of assistance, or by cause of works of Client’s competence bad executed or not completed, the fees for the assembler’s inactivity will be charged to the Client, together with the necessary fees for return to the headquarter, if such inactivity should last more than three days. In case of interruption or prolongation over the established terms in the order confirmation, we shall invoice to the Client every time of waiting, and every sudden work, included the fees of stay and the travel fees of our technicians. The Client engages himself to take in charge the material, to bear transport fees to the destination place (if not differently agreed in the order confirmation), to stock in a place properly covered protected by inclemency so to ensure the perfect conservation till the moment the erection starts. It’s a Client’s duty the surveillance, conservation, insurance of the materials against fires and thefts.
The erection will be executed by Client’s technicians coordinated by MHM’s technicians whenever not differently agreed in the contract. The client will have to provide labor’s help and the necessary technical means (according to law provisions) to effect the erection, as requested by MHM’s technicians, according to what established in the order confirmation for peculiar conditions. The Client engages himself to provide freely to MHM the specialized labor and not, in the measure, with the qualification and the skills necessary for the erection of the complete object of the delivery. Whenever a sufficient labor will not be provided and/or adequate, we shall demand to our labor to intervene, whom throughout will be charged according to local tariffs.
If during the erection, the assembler has any kind of accident, the Client shall provide for first aid and shall inform immediately MHM by telegram/fax and subsequently send the doctor’s report and the note of expenses (that shall immediately be repaid by the Client) in order to enable MHM to report the accident to the insurers. The yard responsibility for insurance purposes, deterrence of accidents etc., is fully borne by the Client. MHM is responsible for social insurances and wages of its own specialized technical team, whom interventions are stated in the order confirmation.
The erection should be requested by sending the form provided as part of the confirmation of order, after customs clearance and delivery of the goods have been completed. If the information included in the form is wrong or incomplete, MHM’ staff will return back and all subsequent costs related to erection and completion will be charged to the Client, such as transportation, boarding, lodging and other travel expenses.
From the delivery it is excluded all that is not clearly stated in the peculiar conditions of order confirmation.
VII. FINAL TEST
If the test is not foreseen in the order confirmation, or even when foreseen, if it is not required in written in due time, the machine is considered as accepted by the Client, premised our warranty as below mentioned. Whenever the test is effected, all the charges for the intervention of our technicians for the test’s trials, in every place effected, are for Client’s account. The test will have to be executed within and not over 45 days from the receipt of the machine by the Client, if not so there will be the decadence of the right to oppose claims by part of the commissioner. The test verbal concerning the starter of the machine, completed with positive result and signed by part of the Client, or by person that represent him, together with MHM’s assembler that has led the test, it will represent the proof of final acceptance of the supply.
In case of test, the erection will be considered accepted by the Client after 3 days or 24 hours after the start of the commissioning test. In case of missing acceptance of the effected test by the Client, not receiving MHM registered mail at this purpose within 30 days after the end of the erection of the machine, as above mentioned, this will be considered as totally accepted after that term, and MHM will not be responsible for further damages or losses. In such case the guarantee does not enter in force. Without the signature of the test report the Client is not allowed to use the machine and the guarantee does not enter in force.
MHM guarantees the good mechanical operation of the machine for a period of 12 months from its erection, or 15 months from the date of the shipping document (Bill of Lading). If faulty workmanship during the erection is reported during the warranty period, it will be rectified free of charge, provided that MHM is informed in writing immediately after it has been detected. Import tax and duties are at Client’s charge. MHM shall respond for defects caused by the Client’s staff or third parties acting under the supervision of our personnel only when such defects are based on serious negligence or incorrect assistance given by MHM’s personnel. For repairs or modifications completed during the warranty period, MHM will apply the same warranty terms to the rectified component only. The civil responsibility for any possible damages arising from installation, or operating of the machine is assumed by the Client even towards third parties, easing MHM from every request at this regard. In no case it will be possible to prorogate the terms of decadence or prescription according to ABGB principles.
This is not a turn‐key project. The guarantee is not applicable in case of normal usury, in case of breakages coming from unskillfulness or negligence of the Client, of extra charges over the contractual limits, not authorized interventions, manumissions, accidental cases or major force, improper maintenance, use of improper materials, influence of chemical or electrolytic action, not observance of maintenance instructions, erection not effected by MHM, defects that do not find an origin in a material defect, of design or bad execution, or for other reasons that are not of MHM’s responsibility. The Client will not be able to ask reimbursements or compensations for fees, disasters, damages direct or indirect, even for inactivity of the machine. The substituted parts remain of our property. For the parts that we shall have bought by sub suppliers, towards the Client will be applied the guarantees by them given to MHM. All the travels and the daily allowances of our personnel, for throughout under guarantee are effected at Client’s charges, risk and danger. MHM is not responsible for possible damages to the tissue. The guarantee is not valid when the Client or third parties effect amendments or reparations without written agreement of MHM, or when the Client does not take appropriate measures to limit the damages. The machine guarantee is no more operative whenever the Client does not respect the interventions and maintenance foreseen in the use and maintenance guide.
The machine is built according to the enclosed scheme and according to EN, UNI‐CEN, ISPESL rules. In the supply are not included depuration or against pollution apparatuses. Apparatuses and appliances eventually necessary for Client’s works will have to be installed at Client’s charges, and attention.
PROPERTY RIGHTS RESERVED
MHMremains the owner of the item sold until the price has been fully paid. It is explicitly agreed that the machine not yet paid, or part of it, if incorporated in or attached to the building, will remain property of MHM, who will have at any time the rights to claim such property even towards anyone who may have had previously or acquired later, any real right or privilege over the building owned by Client or occupied by him or belonging to a third party and used by the Client under any title whatsoever.
In pursuance to ABGB principles, until the price has been fully paid up, the Client shall not transfer to anyone else the object of the supply and shall not set it up in any other place than the one where it was erected at the time of delivery.
In pursuance to ABGB principles, it is understood that in case of rescission of the contract for non‐ fulfillment of the Client, the installments paid are kept by MHM as indemnity without compromising his right to claim compensation for further damage.
MHM may cause the reserved property agreement to be registered and transcribed as provided by the law: in such case costs shall be borne by the Client.
PLACE OF JURISDICTION
The place of fulfillment and place of venue for both parties and for all rights and obligations resulting from the business relationship is Kufstein/Austria exclusively. This applies also to actions concerning check and draft collections irrespective of the place of payment stated on the check or draft. The purchaser may not assign to third party any claim which he may have against us.
Drafts eventually issued have the sole purpose of availing oneself of the credit and do not constitute a departure from KufsteinCourt’s jurisdiction ruling over the drawing and performance of the contract.
AFTER SALES SUPPORT
Cost of interventions not covered by warranty includes travelling, hotel, lodging expenses and payment of a sum calculated on the basis of the relation hours/cost of work executed by the technician (details will be provided).
Travelling and working hours will be paid in advance, based on our quotation.
With the order confirmation, the Client accepts these conditions and the price of spare parts.
MHM is hereby committed to supply assistance and spare parts for 10 years starting from the date of the delivery of the machine.
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