Gen­eral Terms and Con­di­tions of Busi­ness (GTCB)
(Terms and Con­di­tions of Sale and De­liv­ery)

Geba Cables and Wires Slovakia s.r.o., Vel’ké  Leváre 1113, 908 73 Vel’kéLeváre, Slovak Republic

  1. Scope and va­lid­ity

1.1. These Gen­eral Terms and Con­di­tions of Busi­ness (GTCB) alone gov­ern all or­ders and con­tracts con­cluded.

1.2. No or­ders or agree­ments shall be bind­ing un­less the un­re­stricted va­lid­ity of our GTCB is con­firmed by the or­derer in writ­ing, by tele­fax or by e-mail with a se­cure elec­tronic sig­na­ture.

1.3. All terms and con­di­tions of busi­ness of the or­derer are hereby ex­pressly ex­cluded with re­spect to the trans­ac­tion in ques­tion and the en­tire busi­ness re­la­tion­ship. Any terms and con­di­tions of busi­ness of the or­derer which con­flict with our GTCB shall not ap­ply even if we have not ex­pressly ob­jected thereto, and even if the va­lid­ity of the or­der­er’s terms and con­di­tions is stip­u­lated therein as an ex­press con­di­tion for the con­clu­sion of the con­tract in ques­tion.

1.4. Any com­mer­cial prac­tices or cus­toms at vari­ance with these GTCB shall not be valid.

1.5. These GTCB shall ap­ply to the en­tire busi­ness re­la­tion­ship, i.e., to all our pre­sent and fu­ture de­liv­er­ies and ser­vices, even if the par­ties do not sep­a­rately agree on the GTCB once again. We hereby de­clare that we con­tract ex­clu­sively on the ba­sis of these GTCB.

1.6. Any col­lat­eral agree­ments, reser­va­tions, mod­i­fi­ca­tions, or ad­di­tions to the or­der and any vari­a­tion from these GTCB by way of ex­cep­tional, mu­tual agree­ment must be made in writ­ing as must any arrange­ment de­vi­at­ing from the re­quire­ment for the writ­ten form.

1.7. Should any pro­vi­sions of these GTCB or other con­trac­tual arrange­ments be or be­come in­valid, the va­lid­ity of the re­main­ing pro­vi­sions and the con­cluded le­gal trans­ac­tion shall not be af­fected thereby. Any in­valid pro­vi­sion is to be re­placed by a valid pro­vi­sion or so con­strued that it most closely ap­prox­i­mates the spirit and pur­pose of the in­valid pro­vi­sion.

1.8. The or­derer hereby de­clares with re­gard to the trans­ac­tions and con­tracts to be con­cluded with us that the or­derer is not a con­sumer, par­tic­u­larly not in the mean­ing of the Aus­trian Con­sumer Pro­tec­tion Act. Should this not be the case in any busi­ness trans­ac­tion, the or­derer shall be obliged to no­tify us thereof as early as pos­si­ble, and in all cases be­fore the con­tract is con­cluded; oth­er­wise, the con­tract con­cluded shall not be in le­gal force or ef­fect.

1.9. With­out our prior writ­ten ap­proval, the or­derer shall not be en­ti­tled to validly as­sign or pledge con­trac­tual rights of any type what­so­ever to third par­ties or to agree on any other dis­pos­als thereof.

  1. Is­suance and ac­cep­tance of or­ders (con­clu­sion of con­tracts)

2.1. Or­ders must be made in writ­ing, but may also be is­sued by tele­fax or by an e-mail with a se­cure elec­tronic sig­na­ture. Our or­der con­fir­ma­tion must also be re­ceived by the or­derer in com­pli­ance with the above for­mal­i­ties. If this for­mal re­quire­ment is not ob­served in any spe­cific case, this shall not have any ef­fect on past or fu­ture trans­ac­tions.

2.2. If the or­derer does not re­ceive our writ­ten or­der con­fir­ma­tion within three weeks of dis­patch, the or­derer shall be en­ti­tled to re­scind the or­der is­sued to us. If we have not re­ceived any rescis­sion de­c­la­ra­tion in com­pli­ance with the for­mal­i­ties set forth in para­graph 1 above, we shall be en­ti­tled to con­tinue to ac­cept the or­der as valid.

2.3. Ref­er­ence is hereby made to § 1 and to the pro­vi­sions therein con­cern­ing the va­lid­ity of our GTCB as part of the con­tract. Should the or­derer not ac­cept the con­tents of these GTCB or parts thereof, then he must no­tify us thereof within eight days of re­ceipt of our or­der con­fir­ma­tion in the form pre­scribed in § 2.1. If no such no­tice is pro­vided by the or­derer within this pe­riod, our GTCB shall be deemed to be validly ac­cepted as part of the con­tract and the con­tract hap­pens to be based on our GTCB.

  1. Mod­i­fi­ca­tion of or­ders and sub­con­tract­ing

3.1. Af­ter the con­tract has been con­cluded, the or­derer shall be en­ti­tled to change his or­der (e.g. re­strict the sub­ject or scope of de­liv­ery) only with our writ­ten con­sent. Should changes be made to the or­der with­out our con­sent, we shall be en­ti­tled to in­sist on the ad­her­ence to the con­tract as con­cluded or to de­mand full com­pen­sa­tion, in­clud­ing any lost profit.

3.2. We shall be per­mit­ted to sub­con­tract the or­ders is­sued to us to pro­fes­sion­ally qual­i­fied third par­ties. For all mis­per­for­mances by sub­con­trac­tors, we shall be li­able to the or­derer as for our own per­for­mances.

  1. Main­te­nance of se­crecy

4.1. Each party hereby agrees to treat con­fi­den­tially the con­clu­sion of the con­tract and the per­for­mance thereof and not to re­fer in ad­ver­tis­ing ma­te­r­ial to the mu­tual busi­ness re­la­tions with­out ob­tain­ing a prior writ­ten ap­proval of the other party.

4.2. No doc­u­ments (e.g., mod­els, sam­ples, draw­ings, de­tails of the prod­uct spec­i­fi­ca­tions or of the process) may be made avail­able to third par­ties, and all must be so kept as to ex­clude any ac­cess by third par­ties.

4.3. The par­ties hereby mu­tu­ally agree to treat as trade se­crets all non-pub­lic com­mer­cial and tech­ni­cal mat­ters of which they be­come aware through the busi­ness re­la­tion­ship. This oblig­a­tion must also be im­posed on sub­con­trac­tors.

4.4. Each party hereby mu­tu­ally agrees to treat con­fi­den­tially the per­sonal data of the other party in ac­cor­dance with the pro­vi­sions of the Aus­trian Data Pro­tec­tion Act.

  1. De­liv­ery

5.1. Un­less oth­er­wise agreed in any spe­cific case, the de­liv­ered vol­ume may de­vi­ate from the or­dered vol­ume by plus or mi­nus 10%. The or­derer must ac­cept com­mer­cially cus­tom­ary ex­cess or short lengths. Partde­liv­er­ies may be made.

5.2. Call-off or­ders must be sched­uled and taken over within six months, un­less oth­er­wise agreed in writ­ing. Af­ter ex­pi­ra­tion of the call-off pe­riod, or if the or­derer does not make use of a call-off within six months af­ter a con­tract is con­cluded, we shall be en­ti­tled af­ter es­tab­lish­ing a grace pe­riod of two weeks, at our dis­cre­tion, to de­mand im­me­di­ate ac­cep­tance and pay­ment of the mer­chan­dise or to re­scind the con­tract and to de­mand full com­pen­sa­tion, in­clud­ing any lost profit due to non-per­for­mance.

5.3. Any de­lay in de­liv­ery of more than two weeks ver­i­fi­ably caused by our gross neg­li­gence or in­ten­tional ac­tion shall en­ti­tle the or­derer to claim a max­i­mum con­trac­tual penalty of 0.5% for each com­pleted week of de­lay up to a max­i­mum of 5% of the value of that por­tion of the rel­e­vant over­all de­liv­ery which can­not be used as a re­sult of the un­timely de­liv­ery of a sig­nif­i­cant por­tion, pro­vided the or­derer has in­curred dam­age in this amount. Fur­ther claims based on de­fault shall be ex­cluded.

5.4. We shall not be obliged to ex­e­cute per­for­mance un­til the or­derer has met all the oblig­a­tions nec­es­sary for such ex­e­cu­tion, par­tic­u­larly all tech­ni­cal and con­trac­tual de­tails, pre­lim­i­nary work, and prepara­tory mea­sures.

5.5. If the or­derer fails to meet a duty in­cum­bent upon him to co­op­er­ate or fails to do so in due time (e.g., to pre­sent draw­ings, hand over data, or or­der ma­te­r­ial), then the orig­i­nally agreed de­liv­ery date shall be re­placed by that date which we spec­ify to the or­derer af­ter he has ful­filled its duty to co­op­er­ate within an ap­pro­pri­ate and rea­son­able time frame or, if this does not oc­cur, by a rea­son­ably ex­tended dead­line.

5.6. If we are pre­vented from de­liv­ery by dis­rup­tions in our own course of busi­ness or that of our sup­pli­ers which could not be averted by the ex­er­cise of rea­son­able dili­gence, or by events be­yond our con­trol, e.g., risk of war, out­break of hos­til­i­ties, acts of ter­ror, clo­sure of mar­itime and other trans­port routes, work stop­pages, or sim­i­lar events, the de­liv­ery pe­riod shall be rea­son­ably ex­tended. If de­liv­ery is not pos­si­ble within a pe­riod which can be rea­son­ably ex­pected of us, then our de­liv­ery duty shall lapse. Any com­pen­sa­tion or other claims of any type what­so­ever shall be ex­cluded in such cases.

5.7. If the or­derer fails to ac­cept the mer­chan­dise as agreed (“de­fault in ac­cep­tance”), we shall be en­ti­tled af­ter an in­ef­fec­tual grace pe­riod of 14 days to store the mer­chan­dise on our premises, for which we shall charge at least 0.5% of the gross in­voice amount for each ini­ti­ated month of stor­age. We shall have the op­tion, how­ever, to store the mer­chan­dise with a ware­house keeper at the or­der­er’s cost and risk. Risk shall pass to the or­derer at the out­set of the de­fault in ac­cep­tance. The due dates of our in­voices shall not be post­poned as a re­sult of any de­fault in ac­cep­tance; such in­voices must, rather, be paid promptly. In ad­di­tion to our right to in­sist on per­for­mance of the con­tract, we shall be en­ti­tled to re­scind the con­tract, af­ter es­tab­lish­ing a fur­ther grace pe­riod of two weeks, and to sell the mer­chan­dise to an­other buyer. For each event of de­fault in ac­cep­tance, we shall be en­ti­tled to full com­pen­sa­tion, in­clud­ing com­pen­sa­tion for any lost profit, and par­tic­u­larly for the dif­fer­ence aris­ing from an al­ter­nate sale.

5.8. The or­derer must take or in­sti­gate in due time all mea­sures nec­es­sary to im­port the mer­chan­dise un­der­ly­ing the de­liv­ery con­tract into the coun­try of the or­derer, e.g., the or­derer must pro­cure im­port li­censes and cur­rency per­mits. If the or­derer be­comes aware of facts im­ped­ing the im­port of the mer­chan­dise, the or­derer must in­form us thereof with­out de­lay. If the pro­cure­ment of the nec­es­sary im­port doc­u­ments is called into ques­tion, we shall be en­ti­tled to re­scind the con­tract af­ter es­tab­lish­ing a fur­ther grace pe­riod of two weeks and to de­mand full com­pen­sa­tion.

5.9. With re­gard to de­liv­er­ies in mem­ber states of the Eu­ro­pean Union, the or­derer shall be obliged to spec­ify a value added tax iden­ti­fi­ca­tion num­ber when or­der­ing. If the or­derer fails to spec­ify such num­ber or does so in­cor­rectly, we shall be en­ti­tled to de­mand com­pen­sa­tion for the dam­age in­curred by us as a re­sult. This shall also ap­ply if the or­derer fails to pro­vide us for de­liv­ery ex works with the nec­es­sary con­fir­ma­tion on the trans­port and fi­nal des­ti­na­tion of the mer­chan­dise. The de­fense of con­trib­u­tory neg­li­gence shall be ex­cluded; in par­tic­u­lar, we shall not be obliged to check the ac­cu­racy of the value added tax iden­ti­fi­ca­tion num­ber spec­i­fied to us or to have such checked.

  1. Rescis­sion of con­tract (ad­vance pay­ment, col­lat­eral)

6.1. In ad­di­tion to the other causes con­tained in these GTCB for this pur­pose, we shall be en­ti­tled to re­quest an ad­vance pay­ment or col­lat­eral or to re­scind the con­tract in the event of the fol­low­ing cir­cum­stances:

6.1.1. If we be­come aware af­ter con­clud­ing a con­tract of cir­cum­stances which jus­tify doubts about the cred­it­wor­thi­ness of the or­derer, we shall be en­ti­tled to re­scind the con­tract, de­mand ad­vance pay­ments, or make our de­liv­ery con­tin­gent on the pro­vi­sion of col­lat­eral. This shall also ap­ply if due claims are not paid de­spite a writ­ten pay­ment re­minder. In the event of rescis­sion, the or­derer shall have no claims due to non-per­for­mance. We shall, how­ever, be en­ti­tled in the event of any rescis­sion of con­tract for the afore­men­tioned rea­sons to off­set any ad­vance per­for­mances pre­vi­ously ren­dered by us and to de­mand full com­pen­sa­tion, in­clud­ing any lost profit.

6.1.2. In the event of de­fault in ac­cep­tance or other good cause, e.g., the ini­ti­a­tion of in­sol­vency pro­ceed­ings con­cern­ing the as­sets of the or­derer (com­po­si­tion, bank­ruptcy, or dis­missal of bank­ruptcy due to a lack of as­sets), as well as in the event of de­fault in pay­ment by the cus­tomer, we shall be en­ti­tled to re­scind the con­tract to the ex­tent that it has not yet been fully per­formed by both par­ties. In the event of rescis­sion, we shall have the op­tion of de­mand­ing flat-rate com­pen­sa­tion of 30% of the gross in­voice amount or com­pen­sa­tion of the ac­tu­ally in­curred dam­age, in­clud­ing any lost profit. In the event that the cus­tomer is in de­fault of pay­ment, we shall, in ad­di­tion to the rights set forth in § 6.1.1., be re­leased from all fur­ther per­for­mance and de­liv­ery oblig­a­tions and shall be en­ti­tled to re­tain any re­main­ing out­stand­ing de­liv­er­ies and ser­vices.

6.2. Pro­vided that no trans­ac­tion for de­liv­ery at a fixed point in time has been agreed, the or­derer shall be en­ti­tled to re­scind the con­tract in the event that we are in de­fault in de­liv­ery by more than 14 days af­ter es­tab­lish­ing a rea­son­able grace pe­riod of at least 20 work­ing days, if we fail to meet our de­liv­ery oblig­a­tion at the end of the such grace pe­riod. In the events of § 5.6., the or­derer shall be en­ti­tled to re­scind the con­tract af­ter es­tab­lish­ing a grace pe­riod of five weeks.

6.3. If the or­derer re­scinds the con­tract or re­quests the rescis­sion thereof with­out be­ing en­ti­tled to do so, we shall be free to in­sist on per­for­mance of the con­tract or to ap­prove the rescis­sion thereof. In the lat­ter event, the cus­tomer shall be obliged, at our choice, to pay flat-rate com­pen­sa­tion in the amount of 30% of the gross in­voice amount or the ac­tu­ally in­curred dam­age, in­clud­ing any lost profit. The right of courts to re­duce dam­ages is hereby ex­cluded.

  1. Prices and pay­ment

7.1. Our prices shall be based on the costs on the clos­ing date of the con­tract.

7.2. Un­less ex­pressly stated oth­er­wise, the prices quoted by us shall not in­clude value added tax.

7.3. Should wage costs change due to pro­vi­sions in col­lec­tive agree­ments in the in­dus­try or to em­ploy­ment con­tracts con­cluded within the com­pany or should other costs nec­es­sary for cal­cu­lat­ing rel­e­vant cost items or for ren­der­ing the ser­vice (e.g., costs of ma­te­ri­als, en­ergy, trans­port, third-party la­bor or fi­nanc­ing) change, we shall be en­ti­tled to off­set these cost in­creases based on our orig­i­nal price cal­cu­la­tion with cor­re­spond­ing, rea­son­able mark-ups. We shall only be en­ti­tled to such mark-ups, how­ever, if the agreed de­liv­ery is first made four months af­ter the con­clu­sion of the con­tract with­out any neg­li­gent de­lay on our part.

7.4. Un­less oth­er­wise agreed, pack­ing and freight costs shall be borne by the or­derer. Pack­ag­ing such as reels, cylin­ders and drums shall be charged in full. The price charged shall be re­funded in full when empty pack­ag­ing ma­te­r­ial is re­turned in flaw­less, clean and reusable con­di­tion, with­out any residue, free of charge to the de­liv­ery works. If the par­ties have agreed on re­turn­ables, then these must be re­turned within six months of the in­voice date at the lat­est. Af­ter this pe­riod and the es­tab­lish­ment of an­other grace pe­riod of two weeks, we shall be en­ti­tled to in­voice the value of the emp­ties. Dis­pos­able pack­ag­ing shall not be taken back.

7.5. Tool costs shall be charged sep­a­rately; the or­derer shall not ac­quire any rights to the tools.

7.6. Any cash dis­count com­mit­ments shall be sub­ject to the set­tle­ment of all due claims. We shall only ac­cept bills of ex­change on ac­count of per­for­mance af­ter agree­ing with the or­derer to do so. The or­derer shall bear all charges.

7.7. The or­derer shall bear all bank charges.

7.8. The or­derer may only set off our claims with rec­og­nised or valid counter-claims.

7.9. Our sales prices shall not in­clude any ship­ping, as­sem­bly or set-up costs. At the or­der­er’s re­quest, how­ever, we shall ren­der, or­ga­nise or del­e­gate these ser­vices to sub­con­trac­tors in re­turn for sep­a­rate pay­ment. The costs ac­tu­ally ex­pended for trans­port or ship­ping plus a rea­son­able mark-up for ad­min­is­tra­tive costs — though at least the nor­mal freight and trans­port fees of the se­lected means of trans­port or those freight and trans­port fees ap­plic­a­ble on the de­liv­ery date and the costs of any sub­con­trac­tors — shall be in­voiced. As­sem­bly work shall be charged on an hourly ba­sis, whereby the hourly rate per per­son com­mon in the in­dus­try plus any travel costs and daily al­lowances shall be deemed to be agreed.

  1. Freight con­di­tions, pas­sage of risk, place of per­for­mance

8.1. Un­less oth­er­wise stip­u­lated in writ­ing, de­liv­er­ies shall be made ex works in the mean­ing of In­coterms 2000. Ir­re­spec­tive of the agreed pric­ing, the risk shall in prin­ci­ple pass to the or­derer when the mer­chan­dise leaves the works or has been re­ported to the or­derer as ready for ship­ping.

8.2. This shall also ap­ply when the trans­port is car­ried out, in­sti­gated or or­ga­nised by us. Any trans­port in­sur­ance re­quested by the or­derer shall be charged sep­a­rately. We as­sume no war­ranty for any par­tic­u­lar trans­port times.

8.3. In un­fore­seen events (e.g., risk of war, out­break of hos­til­i­ties, acts of ter­ror, clo­sure of mar­itime and other trans­port routes, work stop­pages, and sim­i­lar events), we hereby re­serve the right to charge freight and in­sur­ance costs higher than the agreed costs.

  1. Re­ten­tion of ti­tle

9.1. All mer­chan­dise de­liv­ered by us shall be sub­ject to re­ten­tion of ti­tle and shall re­main our prop­erty un­til full pay­ment of all our claims re­sult­ing from the busi­ness re­la­tion.

9.2. As­ser­tion of the re­ten­tion of ti­tle shall only con­sti­tute a rescis­sion of the con­tract if ex­pressly de­clared by us.

9.3. When tak­ing back mer­chan­dise, we shall be en­ti­tled to charge the or­derer for any trans­port and han­dling costs.

9.4. In the event that third par­ties in­ter­vene with re­spect to the re­served mer­chan­dise, par­tic­u­larly in the form of com­mer­cial liens, the or­derer hereby agrees to re­fer to our ti­tle and to no­tify us thereof with­out de­lay.

9.5. The or­derer shall bear the full risk for the re­served mer­chan­dise, par­tic­u­larly the risk of loss or de­te­ri­o­ra­tion. The or­derer shall keep all re­served mer­chan­dise and all prod­ucts de­vel­oped and as­sets con­structed us­ing the re­served mer­chan­dise in cus­tody for us on its own re­spon­si­bil­ity.

9.6. The or­derer hereby agrees to store the mer­chan­dise sep­a­rately. The re­ten­tion of ti­tle shall ex­tend to the rec­og­nised bal­ance in­so­far as we book claims against the or­derer to a cur­rent ac­count (cur­rent ac­count reser­va­tion.)

9.7. The or­derer may only process the re­served mer­chan­dise if we do not thereby ac­crue any oblig­a­tions.

9.8. Ir­re­spec­tive of the pro­rated value of our mer­chan­dise, we shall be en­ti­tled un­der the cir­cum­stances set forth in § 9.7. to pro­vide the or­derer with the prod­uct pro­duced in such man­ner in re­turn for pay­ment of the to­tal out­stand­ing bal­ance or to ac­cept such prod­uct as our prop­erty with­out com­pen­sa­tion for the value.

9.9. Ti­tle to any co-own­er­ship ac­cru­ing to the or­derer from the com­mix­ture or com­bi­na­tion of the re­served mer­chan­dise with other things, par­tic­u­larly those of third par­ties, is hereby trans­ferred and made over to us in ad­vance upon the re­ceipt of the re­served mer­chan­dise.

9.10. The or­derer may only sell the re­served mer­chan­dise and the items re­sult­ing from the pro­cess­ing thereof sub­ject to a re­ten­tion of ti­tle and may not im­pair our re­served rights by dis­pos­ing of the mer­chan­dise in any way (e.g., pledges or as­sign­ment by way of se­cu­rity.)

9.11. Any ac­tual or le­gal in­ter­ven­tion by third par­ties with re­spect to the re­served mer­chan­dise or any dam­age to the re­served mer­chan­dise or the loss thereof must im­me­di­ately be no­ti­fied to us in writ­ing.

9.12. The or­derer hereby as­signs to us in ad­vance, on ac­count of pay­ment, all its claims against third par­ties aris­ing through the sale or pro­cess­ing of our mer­chan­dise, un­til the de­fin­i­tive pay­ment of all out­stand­ing claims. The or­derer must no­tify us upon re­quest of the names of its buy­ers and in­form them of the as­sign­ment.

9.13. The as­sign­ment must be en­tered on the or­der­er’s books, par­tic­u­larly in the list of out­stand­ing items, and made ev­i­dent to the buyer on de­liv­ery slips, in­voices, etc.

9.14. If the or­derer is in de­fault with its pay­ments to us, the sales pro­ceeds re­ceived by the or­derer must be sep­a­rated and the or­derer must keep these pro­ceeds in trust ex­clu­sively for us or in our name.

9.15. Any claims against in­sur­ers are hereby as­signed to us in ad­vance up to the lim­its stip­u­lated by § 15 Aus­trian In­sur­ance Agree­ment Act.

9.16. Claims against us may not be as­signed with­out our ex­press ap­proval.

9.17. If the value of the col­lat­eral ex­tended to us ex­ceeds our claim by more than 20%, we shall re­lease col­lat­eral of our choice at the or­der­er’s re­quest.

  1. De­fault in pay­ment

10.1. In the event of de­fault in pay­ment, we shall be en­ti­tled to deny au­tho­risa­tion to re­sell, re­process or oth­er­wise use the re­served mer­chan­dise with im­me­di­ate ef­fect and to de­mand the sur­ren­der or re­turn thereof at the or­der­er’s ex­pense.

10.2. If the or­derer fails to pay as agreed, the or­derer shall be in de­fault with­out need of a writ­ten pay­ment re­minder.

10.3. Pay­ments shall be deemed to be ren­dered on the day on which we can dis­pose over the amount.

10.4. Cash dis­counts, bonuses, and other pay­ment re­bates shall re­quire sep­a­rate agree­ment. In the event of de­fault in pay­ment, even de­fault in par­tial pay­ments from the cur­rent over­all busi­ness re­la­tion­ship, these types of agreed cash dis­counts and other re­bates shall lose ef­fect with re­spect to all still un­set­tled or un­paid trans­ac­tions.

10.5. If the or­derer is in de­fault in pay­ment, all our ex­ist­ing claims against the or­derer shall be due for pay­ment, ir­re­spec­tive of any pre­vi­ously ac­cepted bills of ex­change or any pre­vi­ously granted pay­ment pe­ri­ods. The or­derer may no longer sell mer­chan­dise owned or co-owned by us and shall be obliged to pro­vide col­lat­eral. The au­tho­risa­tion to col­lect claims as­signed to us shall no longer be valid. This shall also ap­ply in the event of le­git­i­mate doubts about the or­der­er’s cred­it­wor­thi­ness. Ref­er­ence is hereby made to the pre­ced­ing pro­vi­sions, par­tic­u­larly in § 6 (Rescis­sion of con­tract).

10.6. Ir­re­spec­tive of the com­mer­cial lien to which we are en­ti­tled by law, the or­derer hereby grants us a lien on the ma­te­r­ial pro­vided to us to ex­e­cute the or­der and the claims aris­ing in lieu thereof in or­der to se­cure all pre­sent and fu­ture claims from the busi­ness re­la­tion with the or­derer. If the or­derer is in de­fault in pay­ment or de­fault with a credit, we shall be en­ti­tled to re­al­ise the pledged ma­te­r­ial at the cur­rent prices on the Lon­don Metal Ex­change or, if the ma­te­r­ial is not listed there, at the Ger­man mar­ket price in a pri­vate sale.

10.7. In the event of de­fault in pay­ment, we shall be en­ti­tled to de­mand de­fault in­ter­est at a rate of 8% above the re­spec­tively ap­plic­a­ble three-month Eu­ri­bor rate or, at min­i­mum, 12% per year.

10.8. In the event of de­fault, the or­derer hereby agrees to com­pen­sate us for the col­lec­tion costs in­curred by us, pro­vided that such costs serve for pur­poses of ex­pe­di­ent le­gal pros­e­cu­tion, whereby we shall not be obliged to in­volve a col­lec­tion agency be­fore in­sti­gat­ing le­gal ac­tion.

  1. Com­pen­sa­tion

11.1. All com­pen­sa­tion claims against us shall be ex­cluded in cases of mi­nor neg­li­gence and even inthe case of any gross neg­li­gence on the bor­der­line be­tween mi­nor and gross neg­li­gence.
11.2. Re­course claims in the mean­ing of § 12 Aus­trian Prod­uct Li­a­bil­ity Act shall be ex­cluded un­less the or­derer or per­son en­ti­tled to the re­course proves that we were re­spon­si­ble for the de­fect or at least that it was caused by our gross neg­li­gence.

  1. War­ranty

12.1. The or­derer must in­spect the de­liv­ered mer­chan­dise im­me­di­ately af­ter ar­rival and no­tify us of any de­tected de­fects with­out de­lay. The no­tice of ob­vi­ous de­fects must be made im­me­di­ately af­ter de­liv­ery. The no­tice of any other de­fects must be made within two weeks of de­liv­ery at the lat­est, pro­vided that no ear­lier com­plaint was pos­si­ble de­spite care­ful in­spec­tion (e.g., due to com­pli­cated in­spec­tion pro­ce­dures). The mer­chan­dise must in all cases be in­spected and de­fects no­ti­fied prior to any pro­cess­ing, com­mix­ing, or com­bin­ing with other things; no­tice must be trans­mit­ted to us with a pre­cise de­scrip­tion of the de­tected de­fects by reg­is­tered let­ter and tele­fax or by elec­tronic means (e-mail.) In ad­di­tion to such no­tice, we must si­mul­ta­ne­ously be sent a sam­ple of the mer­chan­dise which is the sub­ject of the com­plaint. Should the above pro­ce­dures not be ob­served, all war­ranty and com­pen­sa­tion claims of the or­derer shall be for­feited.

12.2. In the case of de­liv­er­ies ren­dered in ac­cor­dance with sam­ples or mod­els, all war­ranty claims due to hid­den de­fects shall be ex­cluded, pro­vided that the de­liv­ered mer­chan­dise cor­re­sponds to the sam­ple or model. No war­ranty shall be ap­plic­a­ble if a de­fect is caused by ma­te­r­ial pro­vided by the or­derer it­self.

12.3. Any trans­port dam­age must be noted on the bill of lad­ing and de­liv­ery slip, and must be con­firmed by the sig­na­ture of the ship­ping agent/​trans­port com­pany and/​or the dri­ver de­liv­er­ing the mer­chan­dise. Should such con­fir­ma­tion be re­fused, the or­derer must pre­pare an ex­act record of the de­tected dam­age, spec­i­fy­ing the time, name of the dri­ver, etc. The or­derer shall trans­mit pho­to­copies of these doc­u­ments to us.

12.4. In a war­ranty case, we shall be en­ti­tled, at our dis­cre­tion, to ren­der the mer­chan­dise com­pli­ant with the con­tract or to pro­vide a de­fect-free re­place­ment, free of cost and freight charges, to the agreed place of de­liv­ery in re­turn for the de­fec­tive mer­chan­dise, which shall be­come or re­main our prop­erty. Af­ter three un­suc­cess­ful at­tempts to sub­se­quently im­prove the mer­chan­dise or ren­der a re­place­ment de­liv­ery within a rea­son­able pe­riod, the or­derer may re­scind the con­tract or re­duce the pur­chase price. Any fur­ther claims, par­tic­u­larly to com­pen­sa­tion of dam­age due to con­se­quen­tial de­fects and other com­pen­sa­tion, shall be ex­cluded, ex­cept in the case of in­ten­tional ac­tion or gross neg­li­gence on our part or com­pul­sory li­a­bil­ity un­der the Aus­trian Prod­uct Li­a­bil­ity Act.

12.5. If a re­view of the de­fect no­tices re­veals that no war­ranty case ex­ists, we shall be en­ti­tled to de­mand com­pen­sa­tion for all ex­penses of any type in­curred by us.

12.6. The or­derer must prove that a de­fect ex­isted upon de­liv­ery of the mer­chan­dise. Any le­gal pre­sump­tion made in this re­gard, par­tic­u­larly that in § 924 Aus­trian Act on Gen­eral Terms and Con­di­tions of Busi­ness, is hereby ex­cluded.

12.7. Pur­suant to § 933b Aus­trian Act on Gen­eral Terms and Con­di­tions of Busi­ness, the or­derer may only take re­course for war­ranty du­ties ful­filled by the or­derer it­self within the agreed war­ranty pe­riod and within the scope of the con­tract.

12.8. If the or­derer uses or sells the de­fec­tive prod­uct de­spite hav­ing known or been in a po­si­tion to know about the de­fect, the or­derer shall si­mul­ta­ne­ously de­clare to us its waiver of any claims re­lated to such de­fect. In­so­far as we must ren­der com­pen­sa­tion claims to the or­derer based on com­pul­sory pro­vi­sions of law or con­tract, the or­derer must prove all le­gal pre­req­ui­sites for the com­pen­sa­tion claim, par­tic­u­larly our own fault. Com­pen­sa­tion claims of the or­derer aimed at rem­e­dy­ing the de­fect through im­prove­ment or ex­change may only be as­serted if we are in de­fault with the per­for­mance of the war­ranty claims.

12.9. If the or­derer al­leges the ex­is­tence of a de­fect, any re­sult­ing claims, par­tic­u­larly claims due to war­ranty or com­pen­sa­tion, may only be as­serted if the or­derer proves that the de­fect ex­isted at the time the mer­chan­dise was de­liv­ered; this shall also ap­ply within the first six months of de­liv­ery of the mer­chan­dise.

  1. As­ser­tion of war­ranty and com­pen­sa­tion claims

13.1. The war­ranty pe­riod shall be six months from the de­liv­ery date or, in the event of de­fault in ac­cep­tance, from the date of the oc­cur­rence of the de­fault.

13.2. The war­ranty pe­riod shall nei­ther be ex­tended nor in­ter­rupted through the rem­edy of de­fects or at­tempts to rem­edy de­fects; such an ex­ten­sion or in­ter­rup­tion shall re­quire the as­ser­tion of the war­ranty claim be­fore the courts or our writ­ten ac­knowl­edge­ment. At­tempts to rem­edy de­fects shall not rep­re­sent an ac­knowl­edge­ment and shall not lead to any ex­ten­sion of the pe­riod. This shall also ap­ply to ex gra­tia reme­dies of de­fects, i.e., reme­dies made with­out any recog­ni­tion of a le­gal duty to do so. With re­spect to par­tial de­liv­er­ies, the war­ranty pe­riod shall com­mence when the part is de­liv­ered and/​or handed over.

13.3. Un­less oth­er­wise stip­u­lated by manda­tory pro­vi­sions of law, all forms of com­pen­sa­tion claims shall lapse 12 months af­ter the de­liv­ery date, ir­re­spec­tive of when the or­derer ob­tains knowl­edge thereof.

13.4. Our li­a­bil­ity for con­se­quen­tial and pe­cu­niary dam­age, lost profit, and dam­age of any other type is hereby gen­er­ally ex­cluded, un­less such li­a­bil­ity ex­ists un­der pro­vi­sions of manda­tory law. In the event of such al­leged states of af­fairs, the or­derer and not our­selves shall bear the bur­den of ex­on­er­at­ing him­self or prov­ing any fault es­tab­lish­ing manda­tory li­a­bil­ity.

  1. Data pro­tec­tion and copy­right

14.1. The cus­tomer hereby ap­proves the elec­tronic stor­age and pro­cess­ing, by us, of the per­sonal data con­tained in the con­tract in the per­for­mance of the con­tract.

14.2. Plans, sketches, or other tech­ni­cal doc­u­ments shall re­main in­tel­lec­tual prop­erty, as shall sam­ples, cat­a­logues, brochures, il­lus­tra­tions, etc. The or­derer shall not re­ceive any rights what­so­ever to use or ex­ploit such works.

14.3. The prop­erty right agreed in § 14.2. above shall ap­ply not only in fa­vour of our­selves but also by anal­ogy in fa­vour of the or­derer.

14.4. In the event that third-party prop­erty rights are in­fringed by de­liv­er­ies made in ac­cor­dance with doc­u­ments, draw­ings or other spec­i­fi­ca­tions of the or­derer, the or­derer shall in­dem­nify us and hold us harm­less against all claims.

  1. Place of per­for­mance, ju­ris­dic­tion

15.1. Our com­pa­ny’s reg­is­tered of­fice, cur­rently at Geba Cables Gmbh, Nordbahnstrasse 36 / Top 6.1, Vienna 1020, Austria, shall be the place of per­for­mance for all oblig­a­tions.

15.2. The ex­clu­sive place of ju­ris­dic­tion for all dis­putes from con­tracts con­cluded with the or­derer or re­gard­ing the orig­i­na­tion and va­lid­ity of the covenants con­cluded, in­clud­ing these Gen­eral Terms and Con­di­tions of Busi­ness, shall be our com­pa­ny’s reg­is­tered of­fice, cur­rently in Vi­enna, Aus­tria.

15.3. We shall be en­ti­tled but not obliged to as­sert all claims against the or­derer and other dis­putes from con­tracts con­cluded with the or­derer be­fore an ar­bi­tral tri­bunal com­pe­tent in Vi­enna, namely the In­ter­na­tional Ar­bi­tral Cen­ter of the Aus­trian Fed­eral Eco­nomic Cham­ber in Vi­enna in ac­cor­dance with the rules of ar­bi­tra­tion and con­cil­i­a­tion ap­plic­a­ble to such pro­ceed­ings, oust­ing the ju­ris­dic­tion of courts of law. The or­derer hereby sub­mits to the afore­men­tioned ar­bi­tral tri­bunal, the de­ci­sion of which shall be fi­nal and bind­ing upon both par­ties, ex­cept for the ap­peal op­tions stip­u­lated by manda­tory law.

  1. Choice of law

16.1. Aus­trian law shall be ex­clu­sively ap­plic­a­ble to all con­tracts and le­gal re­la­tions be­tween us and the or­derer. The ap­plic­a­bil­ity of in­ter­na­tional con­ven­tions, such as the United Na­tions Con­ven­tion on Con­tracts for the In­ter­na­tional Sale of Goods of 11 April 1980 (CISG or UNCI­TRAL), as amended, or sim­i­lar con­ven­tions ap­plic­a­ble in lieu thereof, is hereby ex­pressly ex­cluded.

16.2. English shall be the lan­guage of con­tract and ne­go­ti­a­tion. In­so­far as the par­ties avail them­selves dur­ing meet­ings, in cor­re­spon­dence or on other oc­ca­sions of the lan­guage of the or­derer or an­other lan­guage, the English word­ing shall pre­vail, and English shall be the ex­clu­sive lan­guage of de­lib­er­a­tion in any pro­ceed­ings, par­tic­u­larly in any ar­bi­tral pro­ceed­ings.

16.3. In­so­far as we are pre­pared in any spe­cific case to cor­re­spond or ne­go­ti­ate in the or­der­er’s lan­guage, this shall not lead to any waiver of the covenants stip­u­lated in the pre­ced­ing para­graphs.

Geba Cables and Wires Slovakia s.r.o.
Vi­enna, Aus­tria, November 2020