English

Terms of Use

General Terms of Business

CIMTRODE
The Electrode Company GmbH


General Provisions

The purpose of this contract is to define the general terms of business between Cimtrode GmbH and its customers. Customers as defined by Cimtrode GmbH are companies or persons working for a company. A consumer is any natural person performing a business transaction for purposes that are not specifically related to their commercial or self-employed activities. The following conditions shall apply, without exception, to all business transactions with Cimtrode GmbH unless agreed otherwise with the customer. Orders shall only be deemed accepted if they are confirmed in writing by Cimtrode GmbH. Verbal agreements shall only come into effect once they have been confirmed in writing by Cimtrode GmbH. Other conditions stipulated by the customer shall only become valid if agreed to in writing by Cimtrode GmbH. If special agreements deviating from these terms were made with customers, these shall not affect the validity of the remaining terms of business. If Cimtrode GmbH acts as customer (purchaser) the acceptance and execution of the order assumes that the Cimtrode GmbH terms of business have been accepted.

 

§ 1 Special Provisions

(1.1) The so-called “loan holders” which can be supplied for special goods (the electrodes) by Cimtrode GmbH are loaned free of charge for a period of 30 days following delivery. If the loan holders are not returned to Cimtrode GmbH after this period, Cimtrode GmbH reserves the right to offer them to the customer for purchase or to charge a fee of €0.60 per day per holder. Longer periods of loan may be negotiated in the form of options, special agreements or framework contracts.

(1.2) The customer undertakes to treat the loan holders with due care. In particular it must be ensured that these are packed carefully for safe transport back to Cimtrode GmbH. Cimtrode GmbH recommends screwing the holders back in the standard transport boxes that were provided by Cimtrode GmbH to ship the goods to the customer.

(1.3) Cimtrode GmbH ships certain goods (the electrodes) in special transport boxes. These boxes remain the property of Cimtrode GmbH and must be treated with the same due care as the loan holders (see §1.1) and returned to Cimtrode GmbH within a reasonable period of time.

(1.4) The cost of returning the holders, transport boxes or other items on loan to the customer by Cimtrode GmbH shall be borne by the customer.
(1.5) The cost of replacing faulty or damaged returned, loaned items such as holders or transport boxes shall be borne by the customer.

(1.6) The customer undertakes to provide information at any time, on request, about what and how many loaned items are still in its possession.

 

§ 2 Offers

(2.1) Illustrations and data in the business documents, catalogues, brochures, flyers and similar only contain approximations. They shall only become binding when explicitly confirmed in writing. Cimtrode GmbH reserves the right to change models, designs or their features.

(2.2) All offer documents including drawings, sketches and similar shall immediately be returned to Cimtrode GmbH failing the placement of an order. The customer shall not have the right to make copies thereof of any kind whatsoever. In the event of violation of this condition, the customer shall be obliged to pay a contractual penalty of 10 % of the order value.

(2.3) Additional orders placed at a later date by the customer and which are not in the scope of the original offer (basic offer) are considered new orders by Cimtrode GmbH. Cimtrode GmbH shall only be obliged to execute these orders if accepted and confirmed by the customer.  The same applies to changes made to the original offer. Cimtrode GmbH reserves the right in this case to create an entirely new offer including the original order.

(2.4) Extra (higher) costs to Cimtrode GmbH in connection with technical details coming to light after order acceptance and/ or during order execution will be charged to the customer if these were incurred due to the customer knowingly or unknowingly withholding information.

(2.5) Offers for the item “electrode” are made based on complete and detailed information supplied by the customer with respect to the requirements and fringe conditions of the requested project. The customer therefore undertakes to supply Cimtrode GmbH with all technical, organizational and logistical fringe conditions, in writing and bindingly during the initial enquiry phase. This shall particularly apply to the following technical information required per electrode and project:

2.5.1 Desired spark gap
2.5.2 Desired eroding surface result according to VDI standard
2.5.3 Desired graphite or graphite type to be used (co-called “grain size“)
2.5.4 Desired tolerances and surface precision
2.5.5 Desired additional features (e.g. drilled holes, levelled surfaces, etc.)
2.5.6 Desired delivery and transport specifications

(2.6) All information the offer and the order was based on must be identifiable on the design drawings supplied by the customer insofar as this type of information is contained in the drawing.

 

§ 3 Prices

(3.1) Cimtrode GmbH’s prices are ex works and do not include shipping, packing and transport insurance.

(3.2) All prices stated in Cimtrode GmbH’s business documents are net prices.

(3.3) The prices according to Cimtrode GmbH’s price lists are valid as per delivery date.

(3.4) In the case of projects requiring a longer period of execution, Cimtrode GmbH reserves the right to adjust the prices for services to the respective current hourly rates.

(3.5) All prices are in euros.

(3.6) Should wages be increased due to collective bargaining agreements in the industry or due to in-company agreements or should other factors affect the calculation of prices such as material, energy, transport, subcontractors, financing, etc. the supplier shall have the right to increase or lower the prices as the case may be if the order is to be executed 4 months after the contract was concluded. The adjustment shall be maximum that of the actual change on the market.

§ 4 Payment

(4.1) Invoices are due within 30 days from the invoice date without deduction. A 2% discount can be agreed for payments made within 14 days from the invoice date or on notice of dispatch, or for bank collection procedure. For late payments, and reserving further claims, default interest of at least 4 % over the respective current Austrian National Bank base rate shall be charged. Late payments or substantiated doubts concerning the customer’s credit worthiness shall entitle Cimtrode GmbH to cancel the contract or to demand advance payment. The following payment terms apply for orders over 25,000 € net:

4.1.1 1/3 of the order value on receipt of order acceptance without deduction

4.1.2 Remainder shall be paid 14 days following date of delivery or notice of dispatch with a 2 % discount within 30 days net.

(4.2) Bills of exchange shall only be accepted by special, prior agreement and on account of payment. Bill of exchange taxes, bank discounts and other related expenses shall be charged to the customer separately if no other provision was made for billing such expenses.

(4.3) In the event that the goods cannot be dispatched for reasons the customer is responsible for, the payment deadline shall not be extended. In this case the payment deadline begins with the notice of dispatch by Cimtrode GmbH.

(4.4) Customer payments shall first be used to pay amounts still outstanding prior to the current order, and then for the payment of the current order. Payments received by the supplier shall first go towards settling compounded interest, interest and ancillary costs, pretrial costs such as legal counsel fees and debt collecting agencies followed by the oldest receivables (this shall particularly apply with respect to reservation of title.)

(4.5) In the event that the customer fails to pay an invoice or only one of several invoices on time, the total of all receivables shall become due immediately irrespective of the payment conditions agreed for part payments or bills of exchange.

(4.6) The customer shall have no right to retain payments due to warranty claims or to offset its counterclaims against counterclaims not explicitly acknowledged by Cimtrode GmbH. Irrespective thereof, the customer’s right of retention – if applicable – shall be limited to the amount required to rectify the defects.

(4.7) In the event that the customer is unable to pay (due to deterioration of its economic situation, lack of funds, protest of bills or cheques, seizure, judicial composition proceedings, bankrupcy etc.) the entire invoice amount including the current order and all other receivables shall become due immediately. In this case Cimtrode GmbH is not obligated to give the debtor notice of default and shall have the right at any time to demand the return of the delivered goods at the customer’s expense and to commercialize these as it sees fit without releasing the customer from its contractual obligations. The customer shall have no right to claim damages for non-performance under these circumstances.

(4.8) Cimtrode GmbH is entitled to cancel the contract prior to executing the order if it has grounds to doubt the customer’s solvency. The same shall apply if it receives negative information concerning the customer’s creditworthiness from a reliable source. Cimtrode GmbH reserves the right to ask new customers to pay cash on delivery.

(4.9) In the event of payment default, the customer shall still bear all costs related to debt collection and especially all costs Cimtrode GmbH incurs for dunning and all accruing costs, fees, cash expenditures, supplier default costs, as well as and in particular to pay the legal counsel fees in connection with payment default according to the tariff for extrajudicial dunning in addition to the autonomous tariff of the Upper Austrian Legal Chamber in Linz. Irrespective of a differing provision, and even if it has received notice of bankruptcy proceedings, Cimtrode GmbH shall have the right to use incoming payments at its discretion to first cover the costs related to debt collection and for interest and the primary debts last.

 

§ 5 Reservation of Ownership

(5.1) Cimtrode GmbH reserves ownership to the delivered goods until the purchase price has been paid in full (wages) including all ancillary costs and/or the bill of exchange or cheques have been cashed. Mere acceptance of cheques or bills of exchange does not affect the agreed reservation of ownership. Reservation of ownership shall also apply to receivables from other deliveries and shall therefore remain in effect until the customer has paid Cimtrode GmbH all outstanding debts irrespective of whether some deliveries have already been paid for in full. All goods stored in the customer’s warehouses are subject to Cimtrode’s reservation of ownership, regardless when they were delivered or if already partly paid for.

(5.2) In the event that the customer is in breach of duty, particularly with respect to payment, Cimtrode GmbH reserves the right to demand the return of all goods not stored on or outside the customer’s premises to the amount of the receivables and at the customer’s expense; and, if necessary, to demand the assignment of the customer’s claim for surrender arising against third parties.

(5.3) If the goods subject to reservation of title were processed using the customer’s goods or the goods of third parties, Cimtrode GmbH shall acquire co-ownership of the new products. The same applies if the goods subject to reservation of title were combined or mixed with the goods of third parties. The co-ownership shall be in proportion of the value of the goods subject to reservation of title to the value of the other goods. The new goods produced as a result of processing, combining or mixing shall be considered goods subject to reservation of title as long as they are owned or co-owned by Cimtrode GmbH.

(5.4) The customer undertakes to treat the goods subject to reservation of title with due care and diligence and to insure them sufficiently against all usual risks such as fire, theft and damage by water. Proof of insurance shall be provided at Cimtrode GmbH’s request. Likewise, if requested to do so, the customer shall store the goods subject to reservation of title in a separate place and label them “property of Cimtrode GmbH”.

(5.5) Customer’s claims against third parties as a result of loss or damage to the goods subject to reservation of title, in particular insurance and damage compensation claims, shall herewith be assigned to Cimtrode GmbH. The customer undertakes to obtain the necessary permissions for the assignment from the aforementioned third parties.

(5.6) The customer is entitled to sell the goods within the framework of proper course of business. However, the permission to sell the goods within the framework of proper course of business shall be withdrawn if the customer defaults payment or is declared bankrupt or has entered into bankruptcy proceedings or is in a process of restructuring interrupting normal course of business. If this is the case, the customer undertakes to return the goods supplied by Cimtrode GmbH (goods subject to reservation of title) promptly at first request. Withdrawal of permission to sell the goods or the demand to return the goods subject to reservation of title does not mean that Cimtrode GmbH cancels the contract. The customer shall, in this case, assign all claims it accrues towards third parties due to the resale of the goods to Cimtrode GmbH. Cimtrode GmbH will not collect the claims assigned as long as the customer fulfills its payment obligations. However, the customer shall name, at Cimtrode GmbH’s request, the garnishees and inform them of the garnishee order. In addition it shall make a notice of the assignment in its books. The customer is entitled to collect the claims from third parties as long it fulfils its payment obligations and Cimtrode GmbH has not instructed differently. The goods subject to reservation of title and the assigned claims may not be pledged or assigned as collateral. Reservation of title shall remain in effect even if individual payments are added to a current invoice and the balance has been acknowledged unless the balance has been settled. The customer shall immediately advise stoppage of payments and submit a list of the goods subject to reservation still in its possession including a list of the receivables from third party purchasers for the resale of the goods subject to reservation.

(5.7) The customer shall only be entitled to disposal of the goods subject to reservation for reselling by deferring the purchase price under the condition that it informs, at the moment of resale, the third party purchaser of the assignment for security and to record the assignment in its business ledgers.

 

§ 6 Deliveries

(6.1) Scheduled delivery periods are non-binding. If a delivery period (delivery deadline) is binding, Cimtrode GmbH shall only be in default if the customer has set a grace period of up to 8 weeks in writing. The customer shall only have the right to cancel the contract for reasons of delayed deliveries if Cimtrode GmbH cannot make a promise of delivery within the grace period. No claims for damages may be derived from delivery delays. Cimtrode GmbH reserves the right, in the event of force majeur of any kind, shortage of raw materials, unexpected impairments including those arising from the nature of the manufacturing process, delivery delays by sub suppliers, manufacturing restrictions, regulatory actions, or other unforeseeable events during production or delivery including strikes or lockouts at its end or the sub suppliers‘ ends, to exceed delivery periods or to cancel the contract in part or in full. The customer shall not be entitled to subsequent deliveries or to claim for damages.

(6.2) Cimtrode GmbH reserves the right to make part deliveries. The customer shall not be entitled to claim for subsequent delivery or damages if malice or gross negligence were not the cause.

(6.3) In the event that the customer defaults in taking delivery, we reserve the right to cancel the contract or to claim for damages following expiry of a grace period of maximum 30 days.

(6.4) In the event that the customer does not provide the conditions agreed for delivery, any prior agreements concerning contract penalties shall become void. If, during the execution of a project or order, delays arise that Cimtrode GmbH is not responsible for, the customer shall promptly inform Cimtrode GmbH of this circumstance. Confirmed delivery dates shall in this case become invalid.

(6.5) If, for procedural or other reasons that Cimtrode GmbH is not responsible for, the order cannot be completed within a foreseeable period of time, Cimtrode GmbH shall be entitled to demand full compensation from the customer for work already performed as part of the scope of the contract. Furthermore, Cimtrode GmbH shall have the right to announce that it will cancel the contract if the problems cannot be solved within a reasonable period of time.

 

§ 7 Dispatch and packaging

(7.1) Unless otherwise agreed, goods are shipped at the customer’s expense. Cimtrode GmbH may ask the customer to pay for shipping immediately or to advance the money.

(7.2) The customer’s shipping regulations shall only become binding if Cimtrode GmbH has agreed to these in writing.

(7.3) Cimtrode GmbH shall only be obligated to take out transport insurance on the customer’s written request and at the customer’s expense.

(7.4) Unless otherwise agreed, the customer shall pay for packing. Cimtrode GmbH shall decide what type of packing and transport is suitable for the goods. Special types of packing, for example transport boxes, are provided on loan as defined in § 1.

(7.5) Part deliveries – even unplanned – are permissible.

(7.6) Additional part deliveries requested by the customer that are not included in the original order will be carried out by Cimtrode GmbH at its discretion and invoiced separately, or rejected.

 

§ 8 Passing of risk and acceptance

(8.1) Risk is passed to the customer as soon as the goods leave Cimtrode GmbH or one of its warehouses. This shall also apply if the goods are shipped by Cimtrode GmbH at its expense or using Cimtrode GmbH’s own vehicles.

(8.2) If deliveries are ready for dispatch and the delivery is delayed for reasons outside Cimtrode GmbH’s sphere of influence, risk passes to the customer at the latest when Cimtrode GmbH has given notice of disptach.

(8.3) If works are to be accepted, acceptance is not subject to any particular form. The works are deemed accepted at the latest when they go into operation.

(8.4) If dispatch or delivery are delayed at the customer’s request, Cimtrode GmbH reserves the right to charge the customer a storage fee of ½ % of the order value beginning one month following notice of dispatch and at the beginning of every month. Further claims by Cimtrode GmbH shall remain unaffected. In both cases, risk passes to the customer from the day of notice of dispatch and for the duration of the delay. However, Cimtrode GmbH shall undertake to effect insurance the customer requested to be taken out on the customer’s request and at its expense.

(8.5) Risk passes to the customer on dispatch or installation, when the order has left Cimtrode GmbH ready to use, even if carriage paid was agreed. Packing is carried out with the greatest care. The goods are dispatched at Cimtrode GmbH’s discretion. The delivery shall be insured against transport and fire damage by Cimtrode GmbH at the customer’s expense if the customer explicitly requests such insurance. No liabilitiy for transport damage shall be assumed unless Cimtrode GmbH was responsible for the damage due to malice or gross negligence. In the case of transport damage, the Austrian General Forwarders Conditions shall also apply.

(8.6) Installation, assembly and test runs carried out by Cimtrode GmbH are subject to a special, separate agreement. In this case Paragraph 8 Point 3 of this agreement shall apply with respect to the passing of risk.

 

§ 9 Installation and Startup

(9.1) Cimtrode GmbH shall, on the customer’s request, perform installation and start-up of the goods and equipment supplied by Cimtrode GmbH if it is reimbursed for travel and accommodation and the cost of the work. Travel and waiting periods count as work time. The customer shall be responsible for obtaining official approval for the installation and operation of the equipment. The customer’s specialists shall be present to supervise the work at all times.

 

§ 10 Warranty

(10.1) The subject of this contract is a fit for use product as described in Cimtrode GmbH’s brochures and other business documents as well as according to the technical specifications defined in the respective order. Goods supplied by Cimtrode GmbH shall also be considered fit for use and in fulfilment of the terms of contract if, after the order was dispatched, additional technical or other circumstances become known that classify the goods unfit for use from the customer’s point of view, if such circumstances were not communicated to Cimtrode GmbH at the time of awarding the order.

(10.2) The customer undertakes to inspect the delivery immediately upon its arrival and to promptly report visible defects in writing. Cimtrode GmbH shall only be liable for defects that were reported in time and in the correct manner. The customer particularly undertakes to compare the measuring and testing documents supplied by Cimtrode GmbH with its own default values to ensure proper use of the goods supplied by Cimtrode GmbH.

(10.3) No responsibility shall be assumed for damages due to uninspected goods being put into use even if the goods are unfit for use under the terms defined in Paragraph 10 Point 1.

(10.4) Unless expressly otherwise agreed, Cimtrode GmbH is not the general contractor for an entire project and therefore shall not be liable for the success of the entire project (works) or responsible for its coordination. Cimtrode GmbH shall only be liable for the functionality of the equipment it supplied under the terms of Paragraph 10 Point 1.

(10.5) The place of performance as regards warranty claims is Cimtrode GmbH’s business or production premises. The customer shall be responsible for paying expenses and travel costs arising in connection with the performance of warranty.

(10.6) Cimtrode GmbH shall warrant visible and hidden defects or the lack of warranted features within 6 months after date of delivery or acceptance or passing of risk by replacing or repairing the defective goods free of charge. Other claims above and beyond this, for whatever legal reasons, in particular those of right of rescission or price reduction, are excluded.

(10.7) In the event of defects affecting manufacturing equipment or material not produced by Cimtrode GmbH liability shall be limited to the conditions of warranty agreed with the responsible manufacturers or suppliers. The customer shall not be entitled to any other claims.

(10.8) Cimtrode GmbH is only liable for rectifying defects or replacing defective goods under the condition that the customer abides by its own contractual duties.

(10.9) The customer’s warranty claims expire automatically if the customer, without first consulting Cimtrode GmbH or receiving written approval from Cimtrode GmbH, tampers with the goods. The same applies if the customer changes the goods in any way or does not handle or operate them correctly. Cimtrode GmbH accepts no responsibility for used goods.

 

§ 11 Industrial Property Rights

(11.1) Cimtrode warrants that its goods and services and their use do not violate any patents (patents pending) or any other industrial property rights owned by third parties. The customer shall be liable if a third party claims for violation of industrial property rights and furthermore shall:

11.1.1    immediately inform Cimtrode GmbH of such claims in writing;
11.1.2    authorize Cimtrode GmbH to defend against the claims and to take legal action;
11.1.3    provide the necessary powers of attorney and provide every possible support to the best of its ability;
11.1.4    authorize Cimtrode GmbH to make changes to the goods or services at any time and as it deems necessary or appropriate.
(11.2)    The customer guarantees that plans, drawings, models and other documents it has created and uses do not violate any patents (patents pending) or any other industrial property rights owned by third parties. The customer shall indemnify Cimtrode GmbH against such claims.

 

§ 12 Returns

(12.1) In principle, goods duly and properly delivered by Cimtrode GmbH cannot be returned. If a credit note for returned goods was agreed, the returned goods must be accompanied by a document containing the following information: item number, item description, invoice number, invoice date and delivery date (as stated in the original delivery note.)

(12.2) Returns shall be made at the customer’s expense. Returns do not entitle the customer to a refund. Cimtrode GmbH shall issue a credit note in due course. Cimtrode GmbH charges a handling fee for returns it accepts to the amount of 3 % of the order value for inspecting the returned goods. Returned goods shall only be accepted if they are undamaged and defect-free. If the goods require an overhaul, the cost shall be borne by the customer.

 

§ 13 Product Liability and Damages

(13.1) Cimtrode GmbH shall not accept claims of any kind for damages that are not in the scope of Product Liability Law (damages and consequential damages due to non-compliance, delay, defects, contractual and tort liability) and right of recourse of any kind whatsoever if Cimtrode GmbH was not responsible for the circumstances causing the damage either through malicious intent or gross negligence. This limitation of liability does not apply in the case of harm to life, body or health if these were caused due to negligent behavior or malicious intent.

(13.2) In the event of damage caused to works that other companies apart from Cimtrode GmbH participated in, Cimtrode GmbH shall only be liable for damages if it can be proven that Cimtrode GmbH was responsible. The same shall apply if Cimtrode GmbH was the sole supplier and in particular if the customer did not make all necessary and required provisions to avoid damage.

(13.3) In particular, Cimtrode GmbH shall not be liable for so-called “eroding or milling” errors and damages resulting therefrom.

(13.4) In the event that defects are discovered after acceptance of the works, the customer shall provide conclusive proof that these defects already existed at the time of acceptance. The burden of proof applies analogously to all other damage claims.

 

§ 14 Copyright and Secrecy

(14.1 )Cimtrode GmbH reserves the right to share developments it has made on behalf of the customer with other persons even if the customer has paid for the said developments.


(14.2) Knowledge from developments made for the customer will only be transferred to the customer in the form of a license, if not other provisions were made.

(14.3) Cimtrode GmbH reserves all rights to developments, in particular copyright.

(14.4) All offers made by Cimtrode GmbH including all documents pertaining thereto (drawings, sketches, and similar) shall remain the property of Cimtrode GmbH and the customer shall keep these strictly confidential as our company secret. They may not be passed on to third parties. In the event of violation, the customer undertakes to pay a contractual penalty of 10 % of the order value. For its part, Cimtrode GmbH is prepared to sign a separate confidentiality agreement on the customer’s request.

 

§ 15 Validity of industry regulations, Ö-Norms and the sequence of validity in the event of confliction

(15.1) The following shall apply to this contract (in the following order, in the event of confliction):

15.1.1   The written agreement on which this contract is based including all performance descriptions and schedule of prices and services.
15.1.2    These terms and conditions.
15.1.3    The applicable regulations of the professional association Cimtrode GmbH belongs to.
15.1.4    The Ö-Norms (Austrian Standard) with prestandard terms of contract for individual specialist areas.
15.1.5    The applicable Ö-Norms with prestandard general terms of contract, especially the Ö-Norms A 2060, B 2210.

 

§ 16 Applicable Law, Place of Performance and Responsible Court

(16.1) Austrian substantive law shall apply. The provisions of the UN convention on Contracts for the International Sale of Goods shall not be applicable. Language of the contract shall be German.

(16.2) Place of performance is Cimtrode GmbH’s registered company headquarters.

(16.3) Court of arbitration shall be the responsible court at Cimtrode GmbH’s registered company headquarters. .

 

§ 17 Assignments

(17.1) Any prohibitions to assign expressed by the customer to Cimtrode GmbH and all other conditions of the contract concerning assignment of claims shall be null and void.


§ 18 Closing provisions

(18.1) Written communications to the customer by normal post to the last known address of the customer shall be assumed to have been received. This shall also apply if the envelope was treated as unclaimed. Receipt is assumed if Cimtrode GmbH has a copy of the sent document confirming that it was dispatched. .

(18.2) The customer’s rights in accordance with the contract it entered into with Cimtrode GmbH may not be transferred.

(18.3) Changes or amendments to the contract with the customer must be made in writing and signed by both parties to the contract. This shall also apply to alterations to this formal requirement.

(18.4) Should individual provisions of these terms and conditions be or become invalid, they shall be replaced by provisions that serve the purpose of this contract. The validity of the remaining provisions shall not be affected.

 

Cimtrode GmbH, Mattighofen dated 12.06.2014

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