General Terms and Conditions
1.) Validity of the general terms and conditions and deviations
a) The following General Terms and Conditions apply to all present and future contracts between the client in his capacity as an entrepreneur and the engineering office.
b) Deviations from these terms and conditions, and in particular also conditions of the client, are only valid if they are expressly recognized and confirmed in writing by fibionic.
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2.) Offers, subsidiary agreements
a) The quotations from fibionic are, unless otherwise stated, subject to change without notice with regard to all data given, including prices.
b) If an order confirmation from fibionic contains changes to the order, these are considered to be approved by the Client, unless the Client immediately objects in writing.
c) Agreements must always be made in writing.
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3.) Placing of order
a) The type and scope of the agreed service are derived from the offer, contract (if available also specifications etc.), order confirmation, and these General Terms and Conditions.
b) Orders shall only become binding with regard to the type and scope of delivery through fibionic's order confirmation. Changes and additions must be made in writing.
c) fibionic undertakes to properly execute the order placed with it in accordance with the generally recognized rules of technology and the principles of economic efficiency.
d) fibionic may also use other appropriately authorized or qualified persons as subcontractors for the fulfillment of the contract.
e) The Client's conditions of purchase are only binding on fibionic if they are expressly recognized by fibionic.
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4.) Delivery and acceptance obligations
a) Delivery periods begin after receipt of all documents necessary for the execution of the order, if applicable, timely provision of materials and agreed down payments.
b) If an agreed delivery period is not met due to the Supplier's own fault, the Purchaser shall be entitled, to the exclusion of any further claims, to claim reasonable compensation or to withdraw from the contract after expiry of a reasonable period of grace, provided that the Purchaser has pointed out the refusal of performance when setting the period of grace.
c) Reasonable partial deliveries as well as deviations from the orders of up to +/- 10% are permissible.
d) fibionic is obligated to accept follow-up orders with reasonable delivery deadlines as long as fibionic has the right of possession of the Client's molds, tools and devices or the obligation to store its own molds, tools and devices bound by the order. This obligation does not include any commitment to previous price agreements. The same applies to current orders if cost factors (e.g. raw material prices, exchange rates, etc.) change to a considerable extent.
e) Events of force majeure at fibionic or its sub-suppliers will extend the delivery time appropriately. This also applies in the case of official intervention, energy and raw material supply difficulties, strikes, lockouts and unforeseeable delivery difficulties, insofar as fibionic is not responsible for them. fibionic will inform the Client of this without delay. fibionic must keep the Client's impairments to a minimum, if necessary by handing over molds, tools and equipment for the duration of the hindrance.
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5.) Transfer of risk, packaging and shipment
a) Even in the case of carriage paid delivery, the risk shall pass to the customer when the goods leave the factory.
b) In the event of delays in dispatch for which the Customer is responsible, the risk shall already pass upon notification of readiness for dispatch.
c) Unless otherwise agreed, the mode of shipment shall be EXW in accordance with Incoterms 2020.
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6.) Provision of materials
a) If materials are provided by the Customer, they shall be delivered in due time and in accordance with the agreed specification at the Customer's expense and risk with a reasonable quantity surcharge, however at least 5%.
b) If these conditions are not met, the delivery period shall be extended accordingly. Except in cases of force majeure, the Customer shall also bear the additional costs incurred for any interruptions in production caused thereby.
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7.) Molds, Tools, Devices
In view of the different legal situations in the individual European countries, the contracting parties reserve the right in principle to reach an agreement on the ownership or the right of possession of the molds, tools and devices.
a) If fibionic is the owner of the molds, tools and devices, they will only be used for orders from the Client as long as the Client fulfills his payment and acceptance obligations. The obligation of fibionic to store the molds, tools and devices expires two years after the last delivery of parts and after prior notification of the client.
b) If the Client is the owner of the molds, tools and devices, fibionic has the right to retain the molds, tools and devices until the Client has fulfilled all conditions of the agreement. The transfer of the molds, tools and devices to the Client is replaced by fibionic's obligation to retain them. Irrespective of the Client's legal claim to surrender and of the service life of the molds, tools and devices, fibionic is entitled to exclusive ownership of the molds, tools and devices until the acceptance of a minimum number of units to be agreed upon and/or until the expiration of a certain period of time. fibionic must mark the molds, tools and devices as third-party property and insure them at the Client's request and expense. In the case of surrender of the molds, tools and devices and the associated transfer of know-how, fibionic is entitled to appropriate compensation.
c) In the event that molds, tools and devices are the property of the Client and are made available to fibionic on loan, fibionic's liability with regard to storage and care is limited to the care taken in its own affairs. Costs for maintenance and insurance shall be borne by the Client. The obligations of fibionic expire if, after completion of the order and a corresponding request, the Client does not collect the molds, tools and equipment. In this case, fibionic is entitled to return the molds, tools and devices to the Client at the Client's expense. As long as the Client has not fulfilled its contractual obligations in full, fibionic is in any case entitled to a right of retention to the molds, tools and devices.
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8.) Retention of title
a) Deliveries shall be made subject to retention of title, including extended retention of title, if such right exists under the laws of the country concerned. If necessary, corresponding agreements must be made.
b) The same shall apply to deliveries outside the scope of these Terms and Conditions of Sale, provided that retention of title or extended retention of title is legally possible in the country where the goods are located at the time of enforcement. Otherwise, the Client is obligated to provide fibionic with all rights that the legislation in the country of the supplier provides for securing the claims.
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9.) Warranty and compensation
a) Warranty claims can only be made after notification of defects, which must be made exclusively in writing within 14 days of handover of the service or partial service.
b) Claims for redhibitory action and price reduction are excluded. Claims for improvement or supplementation of what is missing must be fulfilled by fibionic within a reasonable period, which should generally be one third of the period agreed for the performance of the service. A claim for damage caused by delay cannot be asserted within this period.
Further claims are excluded. Defective parts that have been replaced must be returned at fibionic's request and at fibionic's expense.
c) Liability under national product liability laws remains unaffected.
d) fibionic must provide its services with the care to be expected of it as a specialist (§1299 ABGB).
e) Liability for consequential damage and loss of profit is excluded, even in cases of gross negligence, unless otherwise regulated in individual cases.
f) Unauthorized reworking or improper handling shall result in the loss of all claims for defects. Only in order to avert disproportionately large damages is the Client entitled, after prior notification to fibionic, to rework and to demand reimbursement of reasonable costs for this.
g) The Client is solely responsible for the design and functionality of the parts, even if he was advised during the development - unless fibionic gives a corresponding written assurance.
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10.) Withdrawal from the contract
a) Withdrawal from the contract is only permitted for good cause.
b) In the case of default by fibionic with a service, withdrawal by the Client is only possible after an appropriate period of grace has been set; the period of grace must be set by registered letter.
c) In the event of delay on the part of the Client with regard to a partial service or an agreed-upon cooperation activity, which makes the execution of the order by fibionic impossible or significantly impedes it, fibionic is entitled to withdraw from the contract.
d) If fibionic is entitled to withdraw from the contract, fibionic retains the right to the entire agreed fee (in the case of service orders), as well as in the case of unjustified withdrawal by the Client. Furthermore, §1168 ABGB (Austrian Civil Code) applies; in the case of justified withdrawal by the client, the services rendered by fibionic are to be remunerated by the client.
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11.) Fee, scope of services
a) Unless otherwise agreed, prices are ex works excluding packaging and plus value-added tax / goods turnover tax at the respective statutory rate.
b) Compensation with any counterclaims, for whatever reason, is inadmissible.
c) The price for the molds also includes the sampling costs, but not the costs for testing and processing devices and for changes initiated by the customer.
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12.) Terms of payment
a) All payments are to be made in EURO exclusively to fibionic.
b) Unless otherwise agreed, the purchase price is to be paid
i. for molds with 50 % to be paid upon order confirmation and 50 % 30 days after presentation of outturn samples in accordance with the contract, in each case without discount. In the event of change orders from the Client before completion of the mould and confirmation by fibionic, all costs incurred up to that point are to be reimbursed.
ii. for finished parts or other services within 30 days of the invoice date. Any discount granted is subject to the settlement of all previous invoices due.
c) In the event of late payment, interest on arrears shall be due without reminder at the rate charged by the bank to fibionic for overdrafts.
d) If justified doubts arise as to the client's ability to pay, all claims of fibionic will become due immediately. In addition, fibionic is entitled to withdraw from the contract after a reasonable period of grace or to demand compensation for non-performance.
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13.) Secrecy
a) fibionic is obligated to maintain secrecy regarding all information provided by the client.
b) fibionic is also obligated to maintain secrecy in its development activities if and as long as the client has a justified interest in this secrecy. After execution of the order, fibionic is entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.
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14.) Industrial property rights
a) The Client is liable to fibionic for the freedom of the commissioned deliveries and services from the property rights of third parties, releases fibionic from all corresponding claims and is liable for any damages incurred.
b) Design documents, models, etc. of fibionic GmbH remain its property and may only be used or passed on with its permission. If a delivery contract is not concluded due to the fault of the Client, fibionic is entitled to appropriate compensation for the preliminary work it has performed.
c) Any publication of the documents or parts thereof, which were created within the framework of development services, is only permitted with the express consent of fibionic. All documents may therefore only be used for the purposes expressly specified when the order is placed or by a subsequent agreement.
d) fibionic is entitled, and the Client is obligated, to state the name (company, business name) fibionic in publications and announcements about the project.
e) In the event of contravention of these provisions for the protection of the documents, fibionic is entitled to a penalty in the amount of twice the appropriate fee for the unauthorized use, whereby the right to assert a claim for damages in excess of this is reserved. This penalty is not subject to the judicial right of moderation. The burden of proof that the Client did not use fibionic's documents lies with the Client.
15.) Place of performance, choice of law, place of jurisdiction
a) The place of fulfillment is the registered office of fibionic GmbH.
b) For all disputes arising from this contract, it is agreed that the court with subject matter jurisdiction at the registered office of fibionic shall have jurisdiction.
c) Austrian law shall apply.