I. GENERAL REMARKS AND CONCLUSION OF THE CONTRACT
The present General Terms and Conditions and Terms of Delivery (GTC) shall apply to all quotes, purchase and supply agreements concluded by STM with regard to both machines, spare parts and consumable materials as well as the provision of operating personnel, training and support services in their respectively valid version for the entire business relationship, unless expressly agreed otherwise in writing. Conflicting GTC of the Customer will not be accepted.
Before the conclusion of the contract, the Authorised Dealer/Customer (Contractual Partner) shall receive a written “order letter” containing the quote from STM. The quote contained in the “order letter” shall be accepted by the Contractual Partner within a period of four weeks (date of the order letter). The contract shall materialise by returning a signed copy of this “order letter” within the four-week period, whereas in case of the contrary, the quote according to the “order letter” shall become invalid.
The Contractual Partner will declare its agreement with these GTC at the latest on ordering the contractual products from us and it will be deemed agreed that these GTC also apply to all business concluded with STM in the future.
The data required within the scope of the business relationship shall be stored with the Contractual Partner’s agreement and processed in observation of data protection regulations.
STM is entitled to modify the GTC in full or in part if needed. The new GTC shall become valid upon verifiable delivery to the Contractual Partner. The GTC can also be retrieved at www.stm.at.
II. QUOTES, CONTRACT PROCESSING
The quotes refer to the prices lists, catalogues and prospectuses respectively valid on the date of the quote. Deviating price indications shall apply only if this has been agreed in writing.
STM reserves making technical changes representing an improvement of the contractual products or that are technically required to the specifications of its contractual products contained in catalogues, prospectuses and other illustrations.
III. DELIVERY PERIOD AND RIGHT TO WITHDRAWAL
The contractual products shall be delivered within the delivery period specified in the “order letter”, whereas the deadlines shall start on receipt of the “order letter” confirmed by the Contractual Partner and on the receipt of the first instalment. The delivery period shall be suspended for as long as the Contractual Partner is in delay with the fulfilment of their obligation, which can also be an obligation arising from other orders.
If STM is in delay with the delivery, the Contractual Partner shall have the right to declare withdrawal from the contract in writing, setting a deadline of four weeks’ grace. If STM does not deliver within the grace period, the Contractual Partner shall be repaid their instalment or they shall be entitled to draw down the bank guarantee provided by us. STM shall be released from its delivery obligation if its suppliers have fully or partly discontinued production or if force majeure has occurred (in particular, natural disasters, war, terrorism, strike, etc.), provided that these circumstances have occurred only after the conclusion of the contract and that STM is not responsible for the absent delivery. STM shall inform the Contractual Partner immediately of these circumstances. Any claim for damage compensation due to non-fulfilment or belated fulfilment, in particular claims to lost profit for reason of the belated or omitted delivery is hereby excluded by way of contract.
Force majeure and changes requested in retrospect by the Contractual Partner, additional equipment or similar circumstances shall extend the delivery period accordingly.
IV. PRICE AND PAYMENT CONDITIONS
The price contained in the “order letter” is a fixed price “ex works” (i.e. the net price plus the respectively incurred taxes) without packaging and insurance for transport or damage.
Unless the “order letter” provides otherwise, 50% of the fixed price for the machine on conclusion of the contract (whereby the delivery period will be started), 40% on notification of readiness for shipment, at the latest 1 week before the shipment of the machine and 10% 30 days following formal acceptance by the end customer or at the latest 60 days from the handover of the machine to the contractual partner or the authorised representative or 60 days following the notification of readiness for shipment shall be paid by STM. The Contractual Partner shall receive partial payment requests for these payments and the final invoice on delivery. In the case that a partial payment is in arrears, default interest of 8% above the base interest rate according to Sec. 352 UGB [Austrian Companies Act].
Set-off of any receivables against the claims of STM is prohibited. The Contractual Partner is not entitled to a right to withholding for any receivables from STM, unless these receivables have been found valid by a court or have been acknowledged by us.
V. ONLINE SHOP
STM also offers spare parts in the online shop: www.waterjet-shop.com.
Unless agreed otherwise in the individual case, the following terms of payment shall apply to orders from the online shop:
- Deliveries to new customers – up until approval by STM – will only be made against advance payments.
- Invoices shall become due for payment within 7 days for the Authorised Dealer and end customers upon the purchase of an STM machine.
The online shop has been translated fully into English and it shall be used for all spare parts orders by the Contractual Partner.
As security for the down payment of 50% of the purchase price, we shall issue a bank guarantee the Contractual Partner at the latest on the conclusion of the contract in the amount of EUR ....., which shall serve as its security against the loss of a partial payment for the case of STM’s inability to pay or the opening of an insolvency procedure (settlement or bankruptcy).
VII. RETENTION OF TITLE
The delivery of all contractual products of STM shall always be made subject to the retention of title on the following conditions:
- The products shall remain the property of STM until complete payment of all receivables of STM arising from the business relationship, whereas in any case until the complete payment of the claims resulting from the affected purchase agreement. Within the term of the retention of title, the Contractual Partner shall not be entitled to ownership and making use of the contractual products, for as long as it does not fulfil its obligations under the retention of title and is in default of payment. The Contractual Partner shall be permitted to resell the contractual products that are subject to the retention of title exclusively in the course of its ordinary business operations and within the limits of the right that has been granted by STM to resell the purchased objects. The Contractual Partner shall assign all receivables arising from the resale of the contractual products as security to STM in advance. This assignment of receivables shall be documented in the Contractual Partner’s books. The Contractual Partner shall be entitled and obligated to collect receivables assigned to STM, for as long as STM does not expressly revoke the authorisation and the Contractual Partner fulfils its payment obligations punctually.
- If the contractual products – that are still subject to the retention of title – in the Contractual Partner’s possession is attached by court order, STM shall be informed immediately and the Contractual Partner shall take all actions so that the contractual products are surrendered to STM. The Contractual Partner undertakes to inform STM immediately if third parties gain control over the products in its possession and to do so also if such is impending. The Contractual Partner is obligated to inform third parties, who take control of our products or intend to do so, in writing that the products are the property of STM. Any costs for the enforcement of property rights or intervention shall be borne by the Contractual Partner. The Contractual Partner is expressly prohibited from pledging or assigning contractual products by way of security that are subject to the retention of title.
- The Contractual Partner is obligated during the term of the retention of title to maintain the contractual products in proper condition and to safeguard them. The Contractual Partner hereby assigns all claims replacing the contractual products that are subject to the retention of title, in particular insurance claims or claims from prohibited act in the case of loss or destruction. In case of a default on payment or the breach of essential obligations under the agreement of the retention of title, STM shall be entitled to demand the surrender of the contractual products that are subject to the retention of title and revoke the authorisation for collection of the assigned receivables or collect the assigned receivables in its own name.
VIII. TRANSFER OF RISK
The risk of changing prices shall transfer to the Contractual Partner:
- on the handover of the purchased object to the Contractual Partner or its authorised agent (freight forwarder, carrier, etc.);
- on the handover of the goods by STM to the transporter for shipment as requested by the Contractual Partner;
- on notification of readiness for shipment or completion from STM in case the Contractual Partner is delayed with acceptance.
The risk of transport, cargo safety and coincidence shall be borne in any case by the Contractual Partner, even if delivery free of freight charges using own or third party means of transports has been agreed. The transport risk is insured only based on a written agreement and exclusively at the Contractual Partner’s cost.
If the Contractual Partner does not accept the contractual products upon notification of completion and notice of readiness for shipment from STM, and if there is a delay in acceptance, STM shall be entitled to charge a weekly warehousing cost contribution of EUR 800.00 net per started week from the date of the notification of completion or notice of readiness for shipment.
IX. WARRANTY / GUARANTEE
STM’s warranty obligation shall be oriented on the following statutory provisions.
For its contractual products, STM shall grant a warranty for two years from the date of the formal acceptance by the end customer, which shall be confirmed by signature on the acceptance protocol. The warranty, however, shall begin at the latest 60 days as of delivery of the contractual products to the end customer.
In case the STM CARE warranty is claimed according to the warranty provisions, Annex 3 no. 1.4, STM shall grant a warranty for three years.
For models with control units, this warranty is agreed in deviation from the above as follows:
- For the “EcoCut” and “MasterCut” models: 2 years or 2000 operating hours following acceptance by the end customer.
- For the “PremiumCut” model: 2 years or 4000 operating hours following acceptance by the end customer.
When the operating period of 2000 hours or 4000 hours has been reached, STM’s guarantee shall end, regardless of the time that has passed since the actual acceptance.
Any liability for damages consequential to defects shall be excluded to the legally permissible extent.
The Contractual Partner is obligated in particular to ensure that the operating instructions handed over to it by STM are strictly adhered to and that the operating personnel employed by the Contractual Partner have received all required training, are informed about the safety guidelines and strictly adhere to all other resulting objective standards of due care. If a damage occurs, the Contractual Partner shall immediately inform STM in writing and in all detail about its nature, scope and causality, and the Contractual Partner shall support STM and its representatives (also insurance agents) in a suitable way in any investigations as to the cause of damage. Should the Contractual Partner not fulfil these contractual collateral duties and if disadvantages result from this for STM in terms of insurance regulations, the Contractual Partner shall be accountable to STM for all of these disadvantages (if need be, for the loss of the insurance cover) and pay damage compensation.
If guarantee or warranty claims arise during the warranty period, the Contractual Partner shall report the defects to STM without delay and the guarantee or warranty claim shall be settled according to the Terms of Warranty, Annex 3.
X. WITHDRAWAL FROM THE CONTRACT - IMPOSSIBILITY
STM has the right to withdraw from the contract if the Contractual Partner defaults on payment, in spite of an appropriate period of two weeks’ grace having been set, or if facts have come to STM’s attention, which suggest a negative financial situation and lead to fear that the Contractual Partner will not be able to pay the purchase price, and in case that insolvency proceedings are opened over the assets of the Contract Partner or if its business is closed. In all of these cases, STM shall have the right to refuse the delivery of the products or demand advance payment in full or demand the surrender of the contractual products having been delivered subject to the retention of title, whilst maintaining its damage compensation claims. It is agreed that the first partial payment of 50% of the purchase price paid by the Contractual Partner before the withdrawal from the contract can be retained as flat damage compensation (in particular to cover up-front costs, purchased material, work performed, etc.). Regarding this flat damage compensation claim (contract penalties agreement), it is agreed to exclude the court’s right to reduce and abate.
XI. APPLICABLE LAW, PLACE OF JURISDICTION AND PLACE OF FULFILMENT
All of our agreements, in particular the present contract and the individual purchase agreements shall be governed by Austrian law to the exclusion of its reference standards. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
For all disputes arising from this contractual relationship, the Austrian ordinary courts as well as the exclusive jurisdiction of substantively competent court coming into consideration for STM, namely the County Court of St. Johann im Pongau or the Regional Court of Salzburg is agreed.
For all deliveries, performances and payments, the place of STM’s registered office shall be deemed the place of fulfilment, even if the handover was to be made at a different place in the individual case.
XII. GENERAL TERMS OF CONTRACT
Changes and amendments to these GTC require the written form for validity. This shall also apply to any waiver of the requirement of the written form. The German version of these General Terms and Conditions and Terms of Delivery shall take precedence.
Annexes 2 “Parts Lists” and 3 “Terms of Warranty” shall form integral parts of this agreement.
Should any provisions of these GTC be or become void or invalid, the validity of the remaining provisions shall not be affected thereby. In that case, the invalid provision shall be reinterpreted or supplemented in such a way so as to achieve the economic purpose intended by it. This shall also apply to any omissions in the contract.
An act or omission by one of the contractual partners shall not be an indication of a waiver of any rights, unless this is explicitly stated in writing.
These GTC shall also apply, even without special reference, to all future contractual relationships, deliveries and work orders with STM.
XIII. NON-DISCLOSURE AGREEMENT
The Authorised Dealer undertakes to treat business secrets as strictly confidential, which also relate to the price calculation for the contractual products, the suppliers or other contractual relationships and, in particular, any technical information in connection with the development and production of the water-jet cutting systems, etc. that becomes known to it due to its activity within the scope of this Agreement. This obligation shall continue to apply even after termination of the present Agreement.
In case of a violation of this confidentiality obligation, the Authorised Dealer shall be liable to pay a contract penalty in the amount of EUR 10,000.00 for each individual case of a breach of business secrets; and EUR 35,000.00 if the breach of the confidentiality obligation pertains to technical “Know-How” that is significant for STM with regard to the development and production of water-jet cutting systems. The contract penalties are not subject to the court's right to reduce and abate and they will be due for immediate payment. STM reserves claims of losses beyond this amount and other claims.