General Terms and Conditions
1st area of application
1.1. All sales and deliveries of PTE – Pulp Test Equipment GmbH (“PTE Austria”) shall be governed exclusively by these General Terms and Conditions of Sale (“Terms”), even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.2. Deviations from these terms and conditions shall only be valid and binding if they are expressly recognized by PTE Austria in writing. General terms and conditions of purchase of the Buyer or similar unilateral terms and conditions of the Buyer shall not become part of the contract, even if reference is made to them or they are contained in an order accepted by PTE Austria.
2. conclusion of contracts
2.1. The offers of PTE Austria are estimates without legal obligation. No rights can be derived from information and illustrations in catalogs, websites, brochures, advertising material and the like. Verbal statements shall only be binding if they are confirmed in writing by PTE Austria.
2.2. All offers made by PTE Austria are valid for 30 days, unless otherwise stated in writing.
2.3. The currency used in all offers is the EURO, unless another currency is expressly indicated in writing in the offers.
2.4. If Buyer wishes to place an order for PTE Austria’s products, such orders must be made in writing with reference to one of our coded offers and must be signed by persons who have sufficient authority in their companies to place the orders and who accept the terms of the offer on which the order is based. Such an order shall be deemed to be an offer by Buyer to enter into a contract with PTE Austria, but shall not be binding on PTE Austria until it has been accepted in accordance with Section 2.5.
2.5. If PTE Austria accepts the Buyer’s order at its own discretion, it shall issue an order confirmation to the Buyer. The contract shall come into effect upon issuance of the order confirmation or conclusively (by PTE Austria’s performance). Oral or written declarations shall only be binding if they are expressly confirmed in the order confirmation.
2.6. The Buyer’s order shall be binding on the Buyer until PTE Austria executes the delivery or expressly rejects the order.
2.7. Any amendment or addition to the contract shall require the written consent of PTE Austria. All orders, order confirmations, amendments thereto and other written confirmations shall also be valid if transmitted electronically.
2.8. Promises, assurances and guarantees by PTE Austria or agreements deviating from these GTC in connection with the conclusion of the contract shall only become binding upon written confirmation by PTE Austria.
2.9. Information about our products and services in catalogs, price lists, brochures, advertisements at trade fair stands, circulars, advertising mailings or other media (information material) that are not attributable to us must be communicated to us by the buyer, insofar as he bases his order decision on them. In such a case, we may comment on their accuracy. If the Buyer fails to comply with this obligation, this information shall not be binding unless it is expressly declared to be an integral part of the contract.
2.10. Cost estimates are provided without guarantee and free of charge.
3. prices
3.1. Prices refer to the products and/or services only, including standard packaging, and are calculated EXW PTE – Pulp Test Equipment GmbH (Incoterms 2020), excluding freight, insurance, VAT or any other applicable sales taxes, duties, import or other charges levied in connection with delivery, unloading and subsequent handling, maintenance and services before or after the sale.
3.2. If applicable in accordance with the agreed delivery period (Incoterms 2020), these costs, expenses and fees shall be invoiced separately to the Buyer. Packaging material will only be taken back after express agreement and in any case at the risk and expense of the Buyer.
3.3. In the absence of a fee agreement, there is a claim to appropriate remuneration for services commissioned by the buyer that are not included in the original order.
3.4. The prices of the products sold by PTE Austria are those stated in the offers and negotiated with the buyer.
3.5. The prices refer to the time of the first offer. In the event that the costs have increased by the time of delivery or the order does not correspond to the offer, PTE Austria reserves the right to adjust the prices accordingly.
3.6. The customer shall be responsible for the proper and environmentally sound disposal of used materials. If PTE Austria is entrusted with this task separately, then in the absence of a remuneration agreement, this shall also be remunerated appropriately to the extent agreed.
3.7. Costs for travel expenses, daily allowances and accommodation allowances are charged separately. Travel time is considered working time.
4. payment
4.1. Unless otherwise agreed, the customer shall make payment as specified in the offer and in the order confirmation. Payments shall be made in euros by bank transfer free of charge to one of PTE Austria’s bank accounts.
4.2. Our invoices are payable to our registered address in accordance with the terms and conditions stated therein.
4.3 The right to deduct a discount requires an express written agreement.
4.4. Payment references given by the buyer on the remittance slip are not binding for us.
4.5. Buyer shall not be entitled to withhold payments or other obligations or to offset them against claims of PTE Austria.
4.6. Any proposed change to the terms of payment shall be agreed in advance by the parties and accepted in writing by PTE Austria.
4.7. Title to the products shall pass to Buyer on the date of delivery, provided that all claims of Buyer against PTE Austria have been settled in full by that date; otherwise, PTE Austria shall retain title until all claims have been paid in full. In the event of the resale of goods to which PTE Austria retains title, Buyer shall assign to PTE Austria its claim arising from the resale to secure PTE Austria’s rights, even if the goods are processed, transformed or combined with other goods.
4.8. If Buyer fails to make a payment to PTE Austria by the due date, PTE Austria may, without prejudice to its other rights
a) charge interest on the overdue amount at the rate of 1.25% per month, such interest accruing daily from the due date until the date of actual payment of the overdue amount; and/or
b) suspend performance of its obligations without liability to the Buyer for such delay until full payment has been made; and/or
c) to demand compensation from the buyer for all costs and expenses incurred as a result of the delay in payment before taking legal action.
4.9. In the event of culpable default of payment, PTE Austria shall be entitled to charge the percentage rate above the base interest rate pursuant to Section 456 of the Austrian Commercial Code (UGB), which applies to the calculation of statutory default interest in business transactions. In addition, the customer shall be obliged to reimburse reminder and collection charges.
5. verification of creditworthiness
5.1. The buyer expressly agrees that his data may be passed on to the officially privileged creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Credit-reform (ÖVC), Insolvenzschutz-verband für Arbeitnehmer oder Arbeitnehmer-innen (ISA) and Kreditschutzverband von 1870 (KSV) exclusively for the purpose of creditor protection.
6. delivery
6.1. Unless otherwise agreed, the products shall be delivered EXW PTE – Pulp Test Equipment GmbH (Incoterms 2020) and the risk of loss of the products shall pass to the Buyer at this place of delivery.
6.2. Delivery or performance dates in relation to the supply of Products are approximate only. Unless expressly stated otherwise by PTE Austria, time for delivery of Products is not of the essence and PTE Austria shall not be liable for any loss, damage, penalty or expense arising from failure to meet any delivery date.
6.3. The actual delivery time depends on the fulfillment of the preconditions and begins with the latest of the following dates:
a) the date of the order confirmation by PTE Austria;
b) Date of fulfillment of all technical, commercial and other requirements by the customer for which he is responsible;
c) the date on which PTE Austria receives a down payment or security to be paid prior to delivery of the goods in question.
6.4. The Buyer shall be obliged to obtain any official or other licenses or permits required for the erection of plant and equipment. If the granting of such licenses or approvals is delayed for any reason, the delivery period shall be extended accordingly.
6.5. PTE Austria is entitled to make partial or advance deliveries and to invoice the buyer for these. If delivery on call has been agreed, the goods shall be deemed to have been called off no later than one year after the order has been placed.
6.6. PTE Austria shall neither be in breach of contract nor liable for non-performance or delayed performance of any of its obligations, and the delivery period shall be extended accordingly in the event of unforeseeable circumstances or circumstances for which the parties are not responsible and which prevent compliance with the agreed delivery period, in particular fire, flood, earthquake, storm or other natural disasters, war, threat of war or preparation for war, armed conflict, imposition of sanctions, embargo, severance of diplomatic relations or similar acts; terrorist attack, civil war, riot or civil commotion; nuclear, chemical or biological contamination or sonic boom; labor disputes; voluntary or mandatory compliance with laws; accidental damage; loss at sea; adverse weather conditions; shortage of raw materials; failure of main suppliers; interruption or failure of utility services, including but not limited to electricity, gas or water, delays in transportation or customs clearance, transport damage; regardless of whether they affect PTE Austria or one of its subcontractors.
7. guarantee
7.1. PTE Austria warrants for a period of twelve months from delivery that the delivered Instrument (as defined below) a) conforms to the specifications stated by PTE Austria; and b) is free from latent or apparent defects in materials or workmanship which affect the use of the products as specified by PTE Austria, provided that all required maintenance has been performed in accordance with the Instrument’s manual, if any, by PTE Austria or an agent authorized in writing by PTE Austria, and subject to the provisions of 9.2. an instrument (“Instrument”) is an Instrument and all its accessories purchased from PTE Austria. Custom-made products are expressly excluded, unless otherwise agreed in writing. The warranty shall expire immediately if the prescribed maintenance work is not carried out in accordance with the provisions of this clause.
7.2. If a product proves to be defective during the warranty period, PTE Austria shall remedy this defect at its own discretion and expense by repairing or replacing the defective product at the customer’s premises or at PTE Austria’s premises, or by granting a reasonable price reduction. The warranty period for the repaired or replaced product shall run for the remainder of the original warranty period. All other costs and/or expenses, including but not limited to shipping, travel and lodging expenses, shall be borne by Buyer. For warranty work at the Buyer’s premises, the Buyer shall provide all necessary labor, lifting equipment, scaffolding and other resources free of charge. Replaced parts shall become the property of PTE Austria.
7.3. Unless otherwise agreed in writing, PTE Austria’s warranty shall apply only to the customer and may not be transferred or assigned to third parties.
7.4. This warranty is in lieu of all statutory warranties. All other warranties or conditions (whether express or implied) as to quality, condition, description, conformity to samples or fitness for a particular purpose (whether statutory or otherwise) not expressly set out in these terms and conditions are excluded to the fullest extent permitted by law.
7.5. PTE Austria shall not be liable for any defect in the products and/or services unless the defect is notified to PTE Austria within 10 days of the date of delivery or the defect would not be recognizable in a reasonable inspection within the warranty period of 12 months from the date of delivery.
7.6. The buyer must always prove that the defect was present at the time of handover.
7.7. If a product is manufactured by PTE Austria on the basis of design information, design drawings, models or other specifications provided by the customer, PTE Austria’s warranty obligation shall be limited to compliance with the customer’s specifications and shall in no case extend to material provided by the customer.
7.8. The rectification of a defect asserted by the buyer does not constitute an acknowledgement of a defect.
7.9. PTE Austria does not assume any warranty for the sale of used goods.
7.10. If the defects asserted by the client are unjustified, the client shall be obliged to reimburse the expenses for establishing the absence of defects or for remedying the defects.
7.11. Any use or processing of the defective delivery item that entails the risk of further damage or makes it difficult or impossible to eliminate the cause must be stopped immediately by the client, unless this is unreasonable.
7.12. PTE Austria shall be entitled to carry out or have carried out any inspection deemed necessary by PTE Austria, even if this renders the goods or the workpiece unusable. If this inspection reveals that PTE Austria is not responsible for a defect, Buyer shall bear the costs of this inspection in return for reasonable compensation.
7.13. PTE Austria may avert a request for withdrawal by rectifying the defect or reducing the price by a reasonable amount, provided that the defect is not significant and cannot be rectified.
7.14. The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on actual circumstances that deviate from the information available at the time of performance because the Buyer does not fulfill its obligations to cooperate in accordance with Section 9.
7.15. Likewise, it shall not constitute a defect if the Buyer’s technical equipment, such as supply lines, cabling, networks, etc., are not in a technically perfect and operational condition or are not compatible with the delivered items.
8. resignation
8.1. Unless expressly agreed otherwise, the buyer may only withdraw from a contract for the purchase of products if the delivery of the products has been delayed due to gross negligence on the part of PTE Austria and the reasonable grace period set by the buyer has expired. The withdrawal must be in writing and signed by the management. All deliveries, services and preparatory work performed shall be invoiced to the Buyer accordingly.
8.2. Without prejudice to its other rights, PTE Austria may rescind a contract for the purchase of products or services in whole or in part without liability to the customer if
a) the delivery of the products or the provision of the services is impossible or delayed for reasons for which the customer is responsible, despite the setting of a reasonable grace period;
b) there are doubts as to the solvency of the customer and the customer neither makes advance payment nor provides suitable security prior to delivery at the request of PTE Austria,
c) the customer is or becomes insolvent, or
d) the delivery is delayed by more than six months for the reasons stated in point 6.
8.3. Other consequences of withdrawal are excluded.
9. obligation of the buyer to cooperate
9.1. Our obligation to perform shall commence at the earliest as soon as all technical details have been clarified, the buyer has created the technical and legal prerequisites (which we will be happy to provide on request), the agreed advance payments or securities have been received by us and the buyer has fulfilled his contractual advance performance and cooperation obligations, in particular also those mentioned in the following points.
9.2. In the case of assembly work to be carried out by us, the buyer is obliged to ensure that the work can be started immediately after the arrival of our assembly team.
9.3. The buyer must obtain any necessary third-party approvals and official registrations and permits at his own expense. Details on this can be obtained from us.
9.4. The quantities of energy and water required for the provision of services, including trial operation, shall be provided by the Buyer at its own expense.
9.5. The Buyer shall provide us with lockable rooms free of charge and inaccessible to third parties for use by our employees and for the storage of tools and materials for the period of performance.
9.6 The Buyer shall be liable for ensuring that the necessary structural, technical and legal prerequisites for the work to be performed or the object of purchase are in place, which were described in the contract or in the information provided to the Buyer prior to conclusion of the contract or which the Buyer should have known on the basis of relevant specialist knowledge or experience.
9.7. The Buyer shall also be liable for ensuring that the technical equipment, such as supply lines, cabling, networks and the like are in a technically flawless and operational condition and are compatible with the objects of purchase or work to be performed by us.
9.8. We are entitled, but not obliged, to inspect these systems for a separate fee.
9.9. In particular, the buyer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data without being asked before the start of the installation work.
9.10. Details of the information required in connection with the order can be obtained from us.
9.11. The Buyer shall bear sole responsibility for the design and functionality of the parts provided. There is no obligation to check any documents, information or instructions provided by the buyer – beyond the preparation of a technical design dossier and the certification of compliance with the Machinery Directive and other applicable directives – with regard to the delivery item and liability is excluded in this respect. The obligation to issue the certificate can be transferred contractually to the customer who sells the delivery item.
9.12. The buyer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.
10. execution of the work
10.1. PTE Austria is only obliged to take into account subsequent requests for changes and extensions by the buyer if they are necessary for technical reasons to achieve the purpose of the contract.
10.2. Minor changes to our performance that are objectively justified and reasonable for the buyer shall be deemed approved in advance.
10.3. If the order is amended or supplemented for any reason after it has been placed, the delivery/performance period shall be extended by a reasonable period.
10.4. If the start of performance or the performance is delayed or interrupted due to circumstances for which the Buyer is responsible, in particular due to a breach of the duty to cooperate pursuant to Section 9, the performance periods shall be extended accordingly and the completion dates shall be postponed accordingly.
10.5 We shall be entitled to charge the storage costs actually incurred for each month or part thereof of the delay in performance for the storage of materials and equipment, etc. in our company required as a result, whereby the Buyer’s payment and acceptance obligations shall remain unaffected by this.
10.6. If the buyer requests fulfillment within a shorter period after conclusion of the contract, this shall constitute an amendment to the contract. This may necessitate overtime and/or additional costs due to the acceleration of material procurement and the remuneration shall increase in accordance with the necessary expenditure.
10.7. Objectively justified (e.g. size of the system, construction progress, etc.) partial deliveries and partial services are permissible and can be invoiced separately.
11. maintenance, servicing and repair
11.1. These Terms and Conditions shall apply mutatis mutandis to all orders for the performance of service, maintenance and repair services (“Services”), unless otherwise specified herein.
11.2. The customer shall, at PTE Austria’s discretion, either make the products available at its own expense and risk for the provision of the services or return them to PTE Austria.
11.3. PTE Austria shall, upon request and at the expense of the Buyer, prepare a cost estimate for the estimated costs of the services in accordance with point 2.1.
11.4. PTE Austria is entitled to transfer all rights and obligations in relation to the services to third parties.
11.5. All on-site services are provided exclusively during PTE Austria’s business hours.
11.6. If it is not possible to carry out the services when the technician arrives, the resulting costs shall be charged at PTE Austria’s applicable rates, unless the customer has informed PTE Austria of the impossibility of carrying out the work at least one week before the appointment. Waiting times of 30 minutes or more caused by the customer, e.g. due to extended registration times due to safety instructions or absence of the contact person, shall also be invoiced separately to the customer.
11.7. The Buyer is obliged to provide free and safe access to the instruments so that the Engineer can perform the required services without hindrance. During the Services, the Buyer shall provide the specialist and/or contract personnel required to carry out the maintenance work.
11.8. If PTE Austria discovers during the performance of service orders that the products are not in proper condition, PTE Austria shall be entitled, without the prior consent of the purchaser, to perform all services that PTE Austria deems necessary to restore and/or maintain the proper condition of the products in question. All services rendered shall be invoiced to Buyer at cost price in accordance with the applicable rates, unless such services are covered by PTE Austria’s warranty obligations under clause 7.
11.9. The place of performance is the place where the service is provided. The risk in relation to the services is transferred to the buyer when the services are provided.
11.10. If PTE Austria is unable to provide the services on the agreed date for demonstrable reasons such as mobilization, war, riot, strike, lockout, pandemics or other reasons for which it is not responsible or which are beyond its control according to the general legal principles of “force majeure”, a reasonable new date for the work shall be agreed between the two parties.
12. transfer of risk
12.1. The risk shall pass to the buyer as soon as we have the object of purchase, the material or the work ready for collection at our factory or warehouse, deliver it ourselves or hand it over to a forwarding agent.
12.2. The buyer must insure this risk appropriately. We undertake to take out transport insurance at the Buyer’s written request and at the Buyer’s expense. The buyer agrees to a customary shipping method.
13. default of acceptance
13.1. If the Buyer is in default of acceptance for more than 4 weeks (refusal of acceptance, delay in preparatory work or similar, no call-off within a reasonable time in the case of delivery on call) and if the Buyer has not remedied the circumstances for which he is responsible and which delay or prevent the performance of the work despite a reasonable grace period, we shall be entitled, if the contract continues, to use the equipment and materials intended for the performance of the work elsewhere, provided that we procure them again within a reasonable period of time under the circumstances if the performance of the work is continued.
13.2. In the event of default of acceptance by the Buyer, we shall also be entitled to store the goods on our premises, for which we shall be entitled to a storage fee in accordance with Section 11.5 if we insist on fulfillment of the contract.
14. limitation of liability
14.1. Outside of product liability, PTE Austria shall only be liable if the damage in question is demonstrably attributable to intent or gross negligence, within the scope of the statutory provisions. PTE Austria shall not be liable for damages caused by simple negligence.
14.2. PTE Austria shall not be liable and disclaims any warranty obligation for any damage or loss resulting from the subsequent use or misuse of the Products and/or Services by Buyer (or any third party), including but not limited to
a) normal wear and tear;
b) abnormal working or operating conditions that exceed the conditions stated in the product specification, including atmospheric discharges, overvoltage and chemical influences;
c) negligence or willful misconduct of the buyer (or an end user) or its agents or employees or failure to follow PTE Austria’s instructions for use of the products;
d) assembly, installation, modification, alteration, service or repair work that was not carried out by PTE Austria or an agent authorized in writing by PTE Austria; and
e) compliance or non-compliance with authorization requirements.
14.3. PTE Austria’s liability for all claims, whether arising from contract, tort, law, damages or otherwise, arising out of or in connection with this contract, shall be limited in its total amount to the value of the respective order. All claims exceeding this limitation of liability are expressly excluded.
14.4. In no event shall PTE Austria be liable to Buyer for (I) indirect, special, consequential, incidental or punitive damages; or (II) loss of data or other equipment or property; or (III) economic loss or damage; or (IV) liability for loss or damage of any kind suffered by third parties, including in any event incidental and punitive damages; or (V) loss of actual or anticipated profits, interest, revenue, anticipated savings or business or damage to goodwill in connection with or arising out of any Order.
14.5. Subject to the foregoing subparagraphs of this Section 9 and the limitations of liability set forth herein, all claims that may arise out of or in connection with an Order shall, to the extent legally possible, be handled in accordance with the parties’ respective liability insurance policies.
15. statute of limitations
15.1. The buyer’s right of recourse against PTE Austria for all claims arising from the buyer’s warranty obligation towards a customer in connection with a resale of the products shall be excluded. Insofar as the exclusion of legal recourse is prohibited by mandatory law, legal recourse shall be limited by the warranty period provided for in item 7.1.
15.2. All other claims must be asserted by the buyer before the competent courts within two years of delivery, unless the law provides for a shorter limitation period.
16. industrial property rights of third parties
16.1. For services which we manufacture according to the Buyer’s documents (design specifications, drawings, models or other specifications etc.), the Buyer alone shall guarantee that the manufacture of these services does not infringe the industrial property rights of third parties.
16.2. If third party industrial property rights are nevertheless asserted, we shall be entitled to discontinue the manufacture of the delivery item at the buyer’s risk until the rights of third parties have been clarified, unless the claims are obviously unjustified.
16.3. The buyer shall indemnify us in this respect.
16.4. We are entitled to demand reasonable advance payments from the buyer for any legal costs.
16.5. We may also demand reimbursement from the buyer for necessary and appropriate costs incurred by us.
16.6. We are entitled to demand reasonable advance payments for any legal costs.
17 Intellectual property rights
17.1. No rights are granted or transferred to Buyer in respect of any existing or future intellectual property rights of PTE Austria (including copyrights, database rights, topography rights, design rights, trademarks, patents, domain names and all other intellectual property rights of a similar nature, whether registered or not, existing anywhere in the world in or associated with PTE Austria’s products).
17.2. The buyer shall indemnify and hold PTE Austria harmless against all claims, damages or losses arising from or in connection with the infringement of industrial property rights to design data, design drawings, models or other specifications provided by the buyer.
18 Export control regulations
18.1. The Buyer acknowledges and agrees that any delivery by PTE Austria is subject to all applicable export control regulations and that the Buyer is obliged to comply with them.
18.2. Buyer shall not resell, (re)-export or otherwise transfer PTE Austria products in violation of applicable export control regulations and shall be liable to PTE Austria for all claims arising from the violation of this provision and shall indemnify and hold PTE Austria harmless.
19. compliance
19.1. The Buyer undertakes to comply with all applicable laws, statutes, regulations, codes and other legal requirements, including but not limited to health, safety and environment, anti-corruption and anti-bribery.
20 Applicable law and jurisdiction
20.1. The contract is subject to Austrian law to the exclusion of the conflict of laws provisions. The application of the UN Convention on Contracts for the International Sale of Goods is waived.
20.2. The courts in Wels, Austria, shall have exclusive jurisdiction for all disputes arising from or in connection with this contract.
21. other
21.1. Should any provision of these Terms and Conditions be or become invalid, illegal or unenforceable, the remaining provisions of these Terms and Conditions shall remain unaffected. The ineffective, invalid or unenforceable provision shall be deemed to be replaced by an effective and enforceable provision that comes closest to the economic purpose of the invalid, illegal or unenforceable provision.
21.2. The customer shall be obliged to treat all information, including offers, tender documents and the like, which it receives in the course of its business relationship with PTE Austria as strictly confidential and to return such information immediately at the request of PTE Austria or in the event that the customer does not place an order with PTE Austria.
21.3. The customer may not assign its rights and obligations arising from or in connection with an order to third parties without the prior written consent of PTE Austria.