The World of precious Metals

TERMS OF DELIVERY

of Ögussa Österreichische Gold- und Silber Scheideanstalt Ges.m.b.H


1. Scope of application
1.1. The following general Terms of Delivery shall apply, unless otherwise expressly agreed in writing by the parties to the agreement, for all contracts concluded by ÖGUSSA Österr. Gold- und Silber- Scheideanstalt (hereinafter ÖGUSSA). Any deviating terms and conditions of the customer shall apply only with the express written consent of ÖGUSSA.

1.2. The contract partner agrees that even if his terms of business are used, the present terms shall apply in case of conflict or doubt, even if the terms of the contract partner are not disputed.

1.3. Acts by ÖGUSSA in fulfilled of contract shall accordingly not be considered consent any terms of business deviating from the present terms. If nevertheless some unclear points remain in the interpretation of the agreement, these are to be remedied in that every content is considered agreed that is normally agreed in similar cases.

 

2. Conclusion of contract
2.1 All offers by ÖGUSSA are always non-binding; this applies in particular also to prices of precious metals. The contract shall come into force only on the basis of a written confirmation of order by ÖGUSSA. The documents belonging to the contract, in particular pictures, drawings, plans, descriptions, cost estimates and other documents remain the property of ÖGUSSA, including the content of current copyrights. These may not be made accessible to any third party without the written consent of ÖGUSSAS. Statements regarding characteristics, weight, dimensions, and similar specifications, are considered part of the contract only insofar as they are used in business dealings in the catalogues, circular letters, brochures, advertisements, pictures and price lists of ÖGUSSA.

2.2. Undertakings, ancillary agreements and amendments to the contract are legally valid only when in writing. Any deviation from the requirement for the written form must also be in writing.

2.3. The customer is not entitled to assign to any third party any rights from this agreement without the prior consent of ÖGUSSA.

 

3. Prices and terms of payment
3.1. Unless otherwise agreed in writing, all prices of ÖGUSSA are quoted ex works (registered office of ÖGUSSA), plus the statutory rate of value added tax. In case of set offs of claims, value added tax at the statutory rate shall in the case of inter-company business be added to these prices, along with any charges due. The prices do not contain, for example, the costs requested by the customer of shipping, conveyance, loading, unloading and other charges etc., which ÖGUSSA shall charge to the customer separately.

3.2. Unless otherwise agreed, invoices are payable immediately and without deduction. Any different agreements on terms of payment must be in writing.

3.3. In the case of payment by bill of exchange, the discount and other charges shall be borne by the customer. Payment with bills and checks are considered payments on account until they have been redeemed

3.4. The customer shall provide payments in advance instalment when requested by ÖGUSSA according to the progress in execution of the order.

3.5. There can be no set-off with counterclaims of the customer that are disputed by ÖGUSSA or not established in law. The same shall apply for assertion of a right of retention by the customer.

 

4. Delay in payment
4.1. If the customer is in delay of payment or some other performance, ÖGUSSA shall be entitled to

postpone fulfilment of its own obligations until the outstanding payment or other performance has been provided in full,
demand suitable extension of the term of delivery,
pending assertion of some larger actual default damages, demand from the date of arrears default interest at the statutory rate in the context of inter-company business at 8% above the basic interest rate (section 352 UGB), in the case of business with consumers in the sense of KSchG at 4% p.a. (section 1000 (1) ABGB), and
to withdraw from the contract if a suitable subsequent period for performance has not been fulfilled.
4.2. The contract partner undertakes in the event of delay, even in the case of delay in payment for which he is not responsible, to compensate ÖGUSSA for reminder and collection expenses it incurred as a resulting of the delay, insofar as they are necessary for legal pursuit of the specific matter and are suitable in relation to the claim amount. The contract partner in particular undertakes in this regard in the event of a debt collection agency being employed to compensate ÖGUSSA for all costs arising as a result provided these do not exceed the maximum rates of remuneration due to such collection agencies according to the BMWA directive. Every other damage incurred, in particular also damage arising from higher interest on all ÖGUSSAS credit accounts arising as a result of the delay in payment , irrespective of responsibility for the delay in payment.

4.3. Section 6 (1) line 15 KSchG shall apply in relation to consumers in the sense of KSchG.

 

5. Delivery/execution of performance
5.1. The delivery period to be agreed separately commences when the contract is concluded, but not before the complete supply of all permits, documents, releases, etc., to be provided by the customer and not before receipt of any advance payment agreed. Compliance with the delivery period by ÖGUSSA requires in each case fulfilment of all contractual principal and ancillary obligations by the customer.

The agreed delivery period cannot be exceeded by 2 successive calendar weeks without ÖGUSSA coming into default of performance – the week of delivery is always the last calendar day.

5.2. The delivery period is considered fulfilled when, before the said period expires, the object to the delivered has been provided by ÖGUSSA ready for dispatch or readiness for delivery has been notified to the customer in writing within the delivery period. Any late request for modification or addition by the customer shall extend the delivery period accordingly. The same shall apply in the event of some unforced hindrances arising, provided such hindrances can be proven to have affect completion or dispatch of the object to be delivered, such as, for example, delays due to force majeure, labour disputes, strikes, lockouts, delays in delivery of essential raw materials or parts. The same shall also apply if the said circumstances affect subcontractors of ÖGUSSA. If delivery is rendered impossible due to such circumstances, ÖGUSSA shall be entitled to withdraw from the agreement, without the customer inferring claims of any kind from such withdrawal. This shall also apply for cases where the said circumstances arise during an already existing delay.

5.3. If dispatch of goods ready for delivery is not possible for some reason outside the responsibility of ÖGUSSA or is not desired by the customer, ÖGUSSA shall be entitled to undertake storage of the goods with suitable costs for the customer, through which the delivery shall also be considered fulfilled. This shall not affect the agreed terms of payment.

5.4. The pictures and information regarding dimensions and weights contained in lists and offers of ÖGUSSA, or in offer drawings or other statements of any kind, are non-binding. Goods are delivered in normal commercial condition. In the case of purchases based on models or samples, the characteristics of the sample or model are not considered guaranteed.

5.5. The quantities, weights or numbers of units established by the delivering plant or warehouse at dispatch shall apply exclusively for all calculations.

5.6. Cost estimates are subject to charge. The cost estimate is issued according to best professional knowledge, no guarantee can, however, be undertaken for accuracy of such estimates. If cost increases arise after the order has been placed to a degree of over 15 %, the contract partner shall be notified by ÖGUSSA thereof immediately.

If these additional costs are unavoidable up to 15%, no special notice shall be required and ÖGUSSA shall be entitled to charge these costs without any additional notification.

 

6. Transport, insurance, risk
6.1. Unless otherwise agreed, goods are considered sold ex works (readiness for collection). ÖGUSSA delivers ex works without insurance and with customs duty unpaid. Part deliveries are admissible unless otherwise agreed.

ÖGUSSA shall carry out shipping and packing according to its best judgement, ÖGUSSA shall, however, not be liable for the delivery means most economical for the customer. If a particular delivery and packing means is requested by the customer, this must be agreed in writing.

Acceptance of the delivered goods by the carrier or freight forwarder without complaint is considered sufficient evidence that packing is without fault.

If a customer has not issued any special instructions to ÖGUSSA, ÖGUSSA shall be entitled to take out transport and, in the case of business with precious metals, specie insurance by order and for the account of the customer.

6.2. The risk of accidental destruction and accidental deterioration of the contractual object or parts thereof shall be transferred to the customer at the latest when the goods are dispatched, even if only part deliveries are made.

6.3. Transport insurance shall be taken out for the consignment when requested by the customer and at his cost.

6.4. Otherwise deliveries are regulated by INCOTERMS in the version valid at the time the contract is concluded.

 

7. Acceptance
7.1. When requested by ÖGUSSA, the customer shall be obliged to cooperate at a scheduled acceptance of goods and to prepare and sign an acceptance record for all decisions and findings at this event. This record must contain any complaints, otherwise the performance of ÖGUSSA shall be considered approved and accepted without fault.

7.2. The customer is not entitled to refuse acceptance of deliveries by ÖGUSSA due to minor faults that do not or only slightly impair usability or usable value of the delivered object.

 

8. Retention of title and cession
8.1. Until all financial obligations of the customer have been performed in full, ÖGUSSA reserves right of retention to the contract object, even if the objects to be delivered and manufactured have been resold, modified, worked, processed or combined with other objects.

8.2. If the customer has worked or processed the delivered goods, the retention of title shall also extend to new objects thereby created. If the delivered goods are processed, combined or mixed with other goods, ÖGUSSA shall acquire joint ownership of the new objects thereby created, namely at the fraction in proportion to the value of the goods supplied by ÖGUSSA in relation to the other objects used at the time they are processed, combined or mixed.

8.3. Delivered goods shall remain the property of ÖGUSSA until they have been paid in full. Resale is admissible only if it is announced to ÖGUSSA in time in advance, with indication of the name or the person or company and the precise (business) address of the customer and ÖGUSSA has given its consent to the sale in writing. In such a case, the claim for purchase price is considered ceded to ÖGUSSA in advance and ÖGUSSA shall be entitled at any time to notify the purchaser of this assignment of claim.

8.4. The customer expressly declares its consent that all ÖGUSSA’s claims against the customer can be assigned to another party, irrespective of the reason or purpose. Any prohibition of assignment shall have legal effect only when they have been expressly agreed between the contract parties in each individual case.

 

9. Warranty
9.1. ÖGUSSA provides warranty, subject to the following provisions, that the contract object corresponds to the order at the time of delivery and collection and is suitable for normal use. It is expressly established in this regard that statements regarding characteristics, weight, mass, volume, colour, prices and other specifications shall be part of the contract only insofar as they are used in business dealings in the catalogues, circular letters, brochures, advertisements, pictures and price lists of ÖGUSSA.

9.2. The onus shall be on the contract partner to prove that the fault already existed at the time of handover. For consumers in the sense of KSchG, the reversal of onus of proof pursuant to section 933 ABGB shall apply within the first 6 months.

9.3. Delivered goods are to be examined immediately on receipt. Any faults thereby established are also to be reported to ÖGUSSA immediately, but within 14 days of receipt at the latest, with indication of the type and scope of the fault.

If notification of fault is not made or made late, the delivered goods are considered accepted. There can in such cases be no more claim for warranty or damage compensation, including fault consequential damage or the right of avoidance for mistake (Irrtumsanfechtung) due to faults.

In inter-company business, the warranty period is in the case of moveable goods 6 months, or 2 years in the case of immobile goods from the date of delivery/performance.

9.4. There can also be no warranty claims in the case of faults that are caused by incorrect use or burdening of the delivered goods, if operation regulations issued by ÖGUSSA or according to law are not observed and, when the delivered object was created on the basis of customer instructions and the fault is due to these instructions, as a result of natural wear and tear, transport damage, incorrect storage, chemical, electro-chemical or electrical effects or inadequate maintenance.

9.5. When the customer is a business, he shall notify ÖGUSSA immediately and in writing of the fault occurring. Any notifications of fault or complaints are to be made with the most detailed possible description of the fault; the customer shall forward the object that is the subject of the complaint to ÖGUSSA, insofar as the latter is feasible. In his case, ÖGUSSA shall, if the fault is to be remedied by ÖGUSSA according to the current provisions, have the choice of:

repairing the faulty object on site immediately,
having the faulty object or parts thereof returned to its plant for repair/improvement,
replacing the faulty object or parts thereof;
when remedy of the fault is impossible or possible only at unreasonable cost, ÖGUSSA shall also be entailed to grant suitable price reduction.
Assertion of warranty claims does not release the customer from his payment obligations.

9.6. If the faulty object or parts thereof are returned to ÖGUSSA for repair/improvement or replacement, the customer shall bear the costs and the risk of transport.

9.7. If the goods delivered by ÖGUSSA have been further treated or processed by the customer, this shall take place at the customer’s risk. The customer is responsible for examining the materials delivered by ÖGUSSA for their suitability for the intended purpose. Any damage arising as a consequence of such examination are excluded from ÖGUSSAS’s replace and repair obligations.

9.8. ÖGUSSA is entitled to carry out or have carried out every examination it considers necessary. If this examination shows that ÖGUSSA is not responsible for any fault, the customer shall bear the costs of the examination with a suitable payment.

9.9. If the customer has undertaken any changes to the contract object delivered to it without receiving any prior written consent from ÖGUSSA in this regard, the warranty obligation of ÖGUSSA shall expire.

9.10. ÖGUSSA’s liability due to the special right of withdrawal in accordance with section 933b ABGB shall end at the latest in two years after performance has been provided by ÖGUSSA and shall exist only to the extent that warranty costs of the customer are compensated only up to the amount of the sales price of the faulty object actually agreed.

 

10. Security
ÖGUSSA reserves the right to demand advance payment or a bond for fulfilment of the agreed performance. These are to be announced to the customer in each case in good time and in writing. If the customer fails to fulfil ÖGUSSA’s request for securities, ÖGUSSA shall be entitled to withdraw from the agreement within a suitable period.

 

11. Liability
11.1. There can be no claims for damages arising as a result of slight negligence, in the case of business with companies also in the event of gross negligence. This does not apply to injury to persons or damage to property accepted for processing, unless the latter had been agreed in writing in the specific case.

11.2. The customers must furnish proof for any claim of blatant, gross negligence or malice aforethought.

11.3. ÖGUSSA does not in principle accept liability for the suitability of the delivered goods for the purposes intended by the purchaser nor for damage arising from any processing of the delivered product.

11.4. ÖGUSSA is not liable for indirect damage, consequential damage, loss of profit, financial loss, damage resulting from interruptions to operations, and for all third party claims against the customer.

 

12. Premature dissolution of contract and mistake
12.1. If some delivery/performance is not possible for some reason for which the customer is responsible, or if the customer fails to fulfil some statutory or contractual obligation towards ÖGUSSA, ÖGUSSA shall be entitled to withdraw from the contract. In such a case, the customer must compensate ÖGUSSA for all resulting disadvantages and lost profit.

12.2. The customer expressly waives the right to dispute or adjust the contract due to mistake.

 

13. Marking of goods
There can be no change to goods manufactured by ÖGUSSA or any special stamping serving as mark of origin of the customer or a third party, or that could create an impression that the good in question is a special product.

 

14. Data protection
14.1. ÖGUSSA is entitled to store, transmit, process and delete personnel-related data of the customer as part of business dealings.

14.2. The parties to the contract undertake to maintaining strict confidentiality in relation to third parties regarding all knowledge and information they obtain from the business.

 

15. Regulations on money laundering
The provisions of sections 365m ff Gewerbeordnung (Industrial Code) 1994 shall apply accordingly. This statute provides for identification of the contract partner in all cash transactions with a value of € 15,000.— and more. This is irrespective of whether a permanent business relation is established or a transaction is performed merely occasionally in a single act or in more than one act.

According to these provisions, ÖGUSSA is entitled to establish the identity of the customer by demanding presentation of a valid personal ID card before entering into a business relationship or before undertaking a transaction. This covers both verification of the representation authorisation of a person acting on behalf of the customer.

 

16. Reworking
16.1. Place of performance for delivery of reworking material is the operating plant of ÖGUSSA, unless otherwise agreed. The customer shall bear the costs and the risk of delivery. The customer is responsible for proper transport and packing and compliance with any instructions issued by ÖGUSSA as well as with all applicable statutory provisions or official orders. Delivery of radioactive, mercury-content or explosive material is not permitted. The delivery of other dangerous, e.g. toxic, corrosive, easily inflammable materials and the acceptance of materials with hazardous content, e.g. chlorine, bromine, arsenic, fluorine, selenium, etc. is permitted only with the prior written consent of ÖGUSSA. The customer is obliged to comply with all relevant standards and norms according to Austrian and European law. The customer shall be liable for damage caused by incorrect or incomplete marking.

16.2.ÖGUSSA reserves the right to increase the working or processing costs indicated in the offer and/or confirmation of offer and to extend the return delivery and acquisition periods in case that the special characteristics of the material that were not known to ÖGUSSA at the time the order was accepted require additional cost or effort. ÖGUSSA shall inform the customer without delay as soon as it becomes aware of the increase of the additional working and processing costs and extension of the return delivery/acquisition periods.

16.3. ÖGUSSA shall be liable for any culpably incorrect treatment or storage only according to the provisions of section 9. For material losses not due to malice aforethought or gross negligence, ÖGUSSA shall be liable only if these are covered by ÖGUSSA’s insurance, but at most up to the relevant value of the delivered material at the time of delivery. The customer shall bear all other risks; he is in particular liable for all damage that is due to dangerous composition or characteristics (16.1.) of the reworking materials.

16.4. A bill of charges shall be prepared on the basis of the weights and content ascertained by ÖGUSSA before reworking is commenced. This shall be binding when the customer has not objected in writing within two weeks from the time the bill is received.

16.5. The metals and precious metals obtained through reworking are credited to the weight accounts of the customer according to section 18; if purchase of the materials supplied has been agreed with ÖGUSSA in writing, ÖGUSSA shall become the owner once the first instalment has been paid, unless otherwise agreed in writing.

 

17. Precious metals transfer business
Credits undertaken as a result of an mistake, a writing error or for some other reasons, without any corresponding order having been issued, can be reversed by ÖGUSSA by means of a simple booking (cancelled).

 

18. Weight accounts for metals and precious metals
18.1. ÖGUSSA keeps separate weight accounts for each customer and for each metal or precious metal. Inventory of the different account holders are not stored separately.

18.2. Every account holder is joint owner of the total inventory available in proportion to the weight quantity of metal or precious metal indicated on his weight account. With the purchase or sale of metals or precious metals, the change of ownership is comes into effect with the booking on the relevant account. It is pointed out here that material once it has been processed or reworked can no longer be restored to its previous condition.

18.3. Weight accounts may have a negative balance only on the basis of a special written agreement with the customer; notwithstanding some deviating written agreement, ÖGUSSA is entitled at all times to demand settlement of negative account balances.

18.4.The weight account can be cancelled by all parties to the agreement with immediate effect in the case of an important reason. An important reason in this sense obtains when facts arise due to which the cancelling party can no longer be reasonably expected to continue the weight accounts, after all circumstances of the individual case are taken into account and all interest of the parties to the agreement are balanced, for example due to the breach of essential contractual obligations or due to impending insolvency in a party.

18.5. Because material can no longer be restored to its previous condition once it has been processed or reworked, as stated under section 18.2, the customer shall receive when cancelling his weight account a remuneration for the material provided equivalent to the current conversion rate at the time of cancellation. The ownership of the weight account shall be transferred to ÖGUSSA at the time of cancellation and after due payment.

 

19. Place of performance, legal venue, applicable law
19.1. Exclusive legal venue for all disputes arising directly or indirectly from the agreement is – apart from jurisdiction over consumer contracts – the court with material jurisdiction for the official domicile of ÖGUSSA. Notwithstanding this agreement, ÖGUSSA can also take legal action at the general legal venue of the customer.

19.2. This agreement is subject to the law of Austria, and the provisions of UN Sales Convention shall not apply, and to the provisions of the regulation on conflict of laws referring to foreign law.

19.3. Place of performance for deliveries and performance is the place of delivery indicated by ÖGUSSA, and payments the official domicile of ÖGUSSA.

 

TERMS OF PURCHASE

of Ögussa Österreichische Gold- und Silber Scheideanstalt Ges.m.b.H

 

1. Scope of application
The present Terms of Purchase apply to all agreements concluded with ÖGUSSA Österreichische Gold- und Silber Scheideanstalt GmbH (hereinafter ÖGUSSA) as purchaser / customer. The seller / contractor hereby expressly declares its consent to ÖGUSSA purchasing merchandise and services exclusively subject to the terms and conditions defined in these terms and conditions. Any agents of ÖGUSSA are entitled to enter into obligations for ÖGUSSA only within the framework of these Terms of Purchase.

The conclusion of a contract and all ancillary agreements – in particular those that deviate from these Terms of Purchase – have legal effect only when in writing. Any general terms and conditions of the seller / contractor deviating from these Terms of Purchase shall be valid only if has ÖGUSSA has given its express consent in writing. Acts by ÖGUSSA in fulfilment of contractual obligations are not considered consent to any contractual terms deviating from these terms and conditions. If nevertheless some unclear points remain in the interpretation of the agreement, these are to be remedied in that every content is considered agreed that is normally agreed in similar cases.

 

2. Conclusion of agreements
2.1. All orders, conclusion of contract and delivery calls, and any amendments or supplements thereto, must be in writing.

2.2. Each order is to be confirmed by the seller / contractor to ÖGUSSA in writing. The contract comes into legal effect only with written confirmation of the order by the seller / contractor.

2.3. ÖGUSSA can rescind an order in the context of a business deal within 14 days, even if the seller / contractor has already accepted the order. This does not apply to consumers in the sense of KSchG.

2.4. If the order confirmation deviates from the order, ÖGUSSA shall be bound only when it has expressly confirmed the deviations in writing.

2.5. The scope of delivery comprises in case of doubt all parts that are necessary for proper operation in line with the guaranteed specifications, even if all the individual parts required in this regard are not expressly mentioned.

2.6. All statements made in the order, the drawings and materials lists of ÖGUSSA, and all specifications made in offers, brochures, product descriptions and catalogues of the seller / contractor, in particular adherence to schedules and delivery dates, are considered guaranteed.

2.7. Unless agreed otherwise, offers or cost estimates submitted to ÖGUSSA are binding and free of charge.

 

3. Shipping
3.1. The seller / contractor delivers to the place of delivery and performance indicated in the order. When dispatched by carrier, all applicable tariff, transport and packing regulations for the relevant means of transportation are to be observed, in particular with regard to any regulations for customs clearance or transportation of hazardous goods. The means of transportation most favourable for ÖGUSSA in terms of price are to be chosen unless ÖGUSSA has expressly stipulated certain transportation regulations.

3.2. Besides the delivery address, transport papers must always include the order data (order number, order date, place of delivery and performance, if necessary the name of the recipient and material number). The delivered objects are to be marked according to the relevant EC/EU regulations and ordinances applying to hazardous good in the current valid version. The seller / contractor is obliged to provide ÖGUSSA in good time before delivery with all necessary product information, for example safety data sheets, processing advice, labelling regulations, work safety measures, etc. in the relevant current version. The seller / contractor must provide to ÖGUSSA all information, including drawings and other documents, that ÖGUSSA requires for installation, operation, maintenance or repair of the delivered items. These are to be made available in good time and without charging of any additional costs.

3.3. The unit weight is to be marked visible and permanently on cargo units (of 1 tonne and more).

3.4. Only packing materials are to be used that comply with the goals and requirements of the national and, if applicable, European packing directives in their relevant valid version.

3.5. If any waste in the sense of the relevant waste statutes, apart from packing materials, arises from the deliveries of the seller / contractor, the seller / contractor shall dispose of or remove these wastes – unless otherwise agreed in writing – at his own cost according to the relevant current provisions of waste law. Ownership, risk and responsibility in the sense with waste law shall be transferred to the seller / contractor at the time of delivery.

3.6. Every delivery must include packing slips or delivery notes indicating the content and the complete ordering data including order number, order date and material number, when these are mentioned in the order. Different articles are to be packed separately and marked accordingly.

3.7. Deliveries from cross-border traffic of goods are to be delivered to ÖGUSSA duty unpaid in the European Union transit procedure. These deliveries are to be announced to ÖGUSSA well in advance to allow correct customs procedures. ÖGUSSA shall in particular be advised at the same time of all relevant transport data and all documents required for customs clearance provided in good time. If direct delivery to the ÖGUSSA customer has been agreed, the same shall apply accordingly.

3.8. The seller / contractor is in every case liable for compliance with all applicable statutory provisions.

3.9. The seller / customer is entitled to make part delivery only with the express written consent of ÖGUSSA.

 

4. Delivery dates
4.1. The agreed delivery dates and places are to be strictly observed by the seller / contractor. If the delivery date is exceeded, ÖGUSSA shall be entitled to withdraw from the agreement, after setting an appropriate period for subsequent fulfilment. In this event, the seller / contractor shall be liability towards ÖGUSSA and third parties for all damage arising due to the delay.

4.2. In case of delay in delivery, the seller / contractor can claim that ÖGUSSA failed to deliver the necessary documents, information, etc only if he has not received such materials and information within a suitable period despite having submitted a written reminder.

4.3. ÖGUSSA shall be entitled to withdraw from the agreement in its entirety, after setting a suitable period for remedy, even in the event of partial failure of delivery. In the event of a delivery failure, ÖGUSSA shall be entitled to retain the entire purchase price until such time as the seller / contractor has provided complete performance in accordance with the agreement. ÖGUSSAS has a right of withdrawal in relation to customers in the context of section 6 (2), line 1 KSchG (German Consumer Protection Law).

4.4. Purchase of goods by ÖGUSSA establishes an obligation to deliver to place of business. The seller / contractor therefore bears the costs and the risk of transport. The risk of loss or damage shall be transferred to ÖGUSSA only when the goods have been delivered.

 

5. Proof of performance/acceptance
Any contractually agreed proof of performance and acceptance of deliveries are to be recorded in writing.

 

6. Execution
The seller / contractor is obliged to maintain a quality management system, for example pursuant to DIN EN ISO 9000ff and/or DIN ISO 14001. ÖGUSSA is entitled to inspect by agreement the system used by the seller / contractor by way of a quality audit.

 

7. Weights/quantities
If deviations in weight are reported, the weight established by ÖGUSSA in the inspection of delivery shall apply, unless the seller / contractor can prove that his calculated weight was correctly established at the time of transfer of risk according to a generally recognised method. The same applies to differences in quantities.

 

8. Price and payment
8.1. Unless otherwise agreed in writing, the prices quoted to ÖGUSSA shall include all costs for delivery, transport, insurance, taxes, duties and charges, as well as customs clearance and installation when this is agreed, before value added tax. Prices that have been agreed on taken as basis for a contract are considered fixed prices.

8.2. Invoices must be issued in duplicate, with the second invoice being clearly marked as a copy. The invoice must indicate the order number and material number – the reference of invoice amounts to order positions must be unmistakeable. Every invoice must be issued in Euro and value added tax indicated separately. The invoice is to be sent separately to the billing address indicated in the order.

8.3. Unless otherwise agreed in writing, payments are due, with reservation of a suitable period for examination of invoice, within 14 days less 2 % discount or within 30 days net. The term for discount payments commences as soon as the delivery or performance has been provided on time and in full and a correctly formulated invoice has been received.

A deduction of discount is also admissible if ÖGUSSA sets off counterclaims or withholds payments to a suitable amount in the case of faults in delivered goods; the term for payment shall in such a case commence anew after the fault has been remedied in full.

If payment is to be made in instalment according to agreement, ÖGUSSA shall not lose its discount facility for part payments remitted in time even if other part payments are not made within the period set for discount and payment term.

 

9. Warranty and liability:
9.1. The statutory third-party liability of the seller / contractor for warranties and in accordance with product liability law shall apply in full.

9.2. No exclusion of liability of any kind shall be accepted, nor limitations of liability on the part of the seller / contractor, in particular based on guaranty of title or compensation for damages, unless these have been expressly negotiated in the individual case and agreed in writing.
This therefore also applies to any changes to the statutory onus of proof to the detriment of ÖGUSSAS, reductions in terms and deadlines, etc. No exclusion of the right of recourse or recovery pursuant to section 933b ABGB is admissible.

In the event of faults in the delivered goods being established, ÖGUSSA shall be free to choose between replacement, repair or price reduction. This shall not prejudice a possible claim on the part of ÖGUSSAS for change to the order.

If ÖGUSSA insists on repair or replacement, ÖGUSSA shall be entitled to withhold the entire payment until the due performance/delivery has been executed in full.

The obligation to examine faulty deliveries of goods according to section 377 UGB (notice of faults) does not apply.

9.3. For parts subject to preventive or corrective maintenance within the statutory liability periods, the statute of limitations shall commence anew from the point in time when the seller / contractor has fulfilled the claims for replacement or improvement in full.

9.4. The seller / contractor is liability towards ÖGUSSA and third parties for every damage arising due to the faulty or incomplete execution of delivery or performance.

9.5. The seller / contractor guarantees that all delivered goods are free from all third party claims property rights and indemnifies and holds harmless ÖGUSSA in the event of any infringement.

 

10. Contract penalty
10.1. The contract penalty for failure to meet agreed delivery dates for reasons for which the seller / contractor is responsible is a sum equivalent to 0.1 % of the net order value for each working day, but maximum 5 % of the total order value.

If a delivery date is delayed for reasons for which the seller / contractor is not responsible, the date for commencement of the contract penalty shall also be postponed in line with the newly agreed schedule. In the event, that the delivery is delayed at the fault of the seller / contractor for more than 10 weeks, ÖGUSSA shall be entitled – provided ÖGUSSA insists on continued fulfilment of the order – to demand interest on part payments already made at the statutory amount in the case of business between two companies (section 352 UGB) at 8% above the basic interest rate, and in the case of business with consumers in the sense of KSchG, at 4% p.a. (section 1000 (1) ABGB).

10.2. The above shall not prejudice any liability on the part of the seller / contractor for damaged exceeding the contract penalty (section 1336 (2) ABGB).

 

11. Insurance
The seller / contractor must maintain third-party liability insurance with normal terms and conditions for the sector for the duration of the contractual relationship including the guarantee and warranty periods, and shall furnish evidence thereof to ÖGUSSA on request. The minimum insurance amount for any single damage event must measure at least 2 million Euro. Lower cover amounts can be agreed in writing with ÖGUSSA only in some individual case.

 

12. Transfer of orders to third parties, assignment of claims
12.1. The transfer of execution of orders to third parties (sub-contractor) without the written consent of ÖGUSSA is not permitted and will entitle ÖGUSSA to withdraw from the agreement in part or in full and demand damages.

If ÖGUSSA has agreed to the seller / customer employing a sub-contractor, then this sub-contractor shall indicate the seller / customer as his client in all correspondence and delivery documents, indicating the order data.

12.2. Claims of the seller / contractor towards ÖGUSSA may be assigned only with the written consent of ÖGUSSA.

 

13. Access of persons and vehicles to the plant / construction site:
13.1. When persons or vehicles access the ÖGUSSA plant or any construction sites, the instructions of the relevant personnel must be followed. Access of persons or vehicles to the plant/ construction site is to be announced in advance in good time. StVO regulations (German highway code) must be observed. If performance is provided on plant/ construction site, the relevant plant/construction site ordinance shall apply.

13.2. ÖGUSSAS is in no way liable for injury to persons or damage to property of the seller / contractor, insofar as such exclusion of liability is legally admissible.

 

14. Regulations on money laundering
The provisions of sections 365m ff Gewerbeordnung (Industrial Code) 1994 shall apply accordingly. This statute provides for identification of the contract partner in all cash transactions with a value of € 15,000.— and more. This is irrespective of whether a permanent business relation is established or a transaction is performed merely occasionally in a single act or in more than one act.

According to these provisions, ÖGUSSA is entitled to establish the identity of the seller / contractor by demanding presentation of a valid personal ID card, passport or driving license before entering into a business relationship or before undertaking a transaction. This covers also verification of the representation authorisation of a person acting on behalf of the seller / contractor.

 

15. Supply of materials, planning materials, documentation
15.1. Material provisions remain the property of ÖGUSSA and are to be stored, identified and managed separately and without charge. They are to be used exclusively in the fulfilment of orders for ÖGUSSA. In the event of decrease in value or loss, the seller / contractor shall provide suitable replacement.

15.2. All drawings, designs, etc. (planning materials) prepared by the seller / contractor according to special instruction of ÖGUSSAS shall become the unrestricted property ÖGUSSAS without any additional payment. Any declarations by the seller / contractor to the contrary are not binding. Planning materials are to be presented at the delivery date together with the any additional documents that have been agree or are necessary for start-up, corrective and preventive maintenance, including documentation, source text, assembly and operation instructions (documentation papers). Notwithstanding any more far-reaching rights, ÖGUSSA is entitled to withhold satisfaction of claims of the of the seller / contractor to an appropriate extent until the planning and documentation materials have been presented in full.

 

16. Advertising materials
16.1. Reference to ÖGUSSA in information and/or advertising materials shall require express prior written consent.

16.2. The seller / contractor is obliged to maintain confidentiality regarding all information, knowledge and documents, irrespective of their nature, that is obtained from ÖGUSSA or originating in the sphere of an affiliated enterprise (UMICORE company), for example technical and other data, measuring values, engineering, operational experience, sketches, plans, business secrete, know-how, drawings and other documentation (information). The seller / contractor shall not make such materials and information accessible to any third party and shall use it exclusively for the purpose of processing the relevant order. These materials and information remain the intellectual property of ÖGUSSA and are protected by copyright.

The above shall not apply if the information was already known to the seller / contractor or become known without any unlawful act on the part of the seller / contractor or a third party. On completion of the business relationship with the seller / contractor, the seller / contractor undertakes to return all physical information, such as documents, models, samples, software etc., immediately to ÖGUSSA, without retaining any copies or records thereof, and confirm the complete return of all such materials to ÖGUSSA in writing.

 

17. Severability clause
The invalidity of ineffectiveness in law of any provision in the present agreement or the present Terms of Purchase shall not prejudice the validity of the remaining agreement or the remaining terms.

 

18. Legal venue, applicable law, place of performance
18.1. Exclusive legal venue for all disputes arising directly or indirectly from the agreement is – apart from jurisdiction over consumer contracts – the court with material jurisdiction for the official domicile of ÖGUSSA. Notwithstanding this agreement, ÖGUSSA can also take legal action at the general legal venue of the seller / contractor.

18.2. This agreement is subject to the law of Austria, and the provisions of UN Sales Convention shall not apply, and to the provisions of the regulation on conflict of laws referring to foreign law.

18.3. Place of performance for deliveries and performance is the place of delivery indicated by ÖGUSSA, and payments the official domicile of ÖGUSSA.