Seco Tools General Terms and Conditions
Our sales and deliveries are governed exclusively and in the following order of precedence by (1) these Terms and Conditions of Sale and Delivery (2) the Orgalim s2022 General Conditions for the Supply of Mechanical, Electrical and Electronic Products (available via orgalim.eu or at request from your nearest Seco office), and (3) the "International Rules for the Interpretation of Customary Commercial Contract Terms" (Incoterms 2020) of the International Chamber of Commerce, unless otherwise agreed to in a separate, valid written agreement between us and the Customer.
The Customer accepts these Terms and Conditions of Sale and Delivery. Any deviating terms and conditions of purchase of the Customer will only become part of the contract if we expressly confirm their inclusion in writing.
If the order is to be qualified as an offer in accordance with Section 861 of the Austrian Civil Code (AGB), we are entitled to accept it within two weeks of receipt of the order. For this period, the Customer is bound by his offer. Our offers are subject to change if the offer itself does not stipulate otherwise.
Amendments to the contract and/or supplements and ancillary agreements must be made in writing. Ancillary agreements may not made verbally.
These Terms and Conditions of Sale and Delivery will also apply to all future orders without the need for express reference to them again. The Customer is not entitled to transfer its contractual rights to third parties without our consent.
If the manufacture, delivery or transport of the goods is delayed due to events caused by force majeure, industrial disputes, official interventions, lack of raw materials or machine breakage through no fault of our own, or other operational or transport disruptions through no fault of our own, we will be entitled to postpone the delivery for the duration of the impediment caused thereby and/or to make partial deliveries that are reasonable to the Customer. If it becomes impossible for us to fulfil the contractual services due to such events and/or circumstances for which we are not responsible, we will be entitled to withdraw from the contract. The same will apply if we are not supplied and/or are supplied with delay by our suppliers through no fault of our own. In the event of a postponement of delivery lasting longer than 6 months, the Customer shall be entitled to withdraw from the contract by setting a reasonable grace period with regard to the parts of the order affected by the postponement.
If, after conclusion of the contract, we become aware of any circumstances that objectively appear to jeopardise the fulfilment of our request, such as applications for default summons, issuance of conditional payment orders, protests against cheques or bills of exchange etc., we will be entitled to make delivery dependent on prior payment or sufficient security for the invoice amounts. If such circumstances become known after delivery of the goods, the purchase price will be due for payment immediately. In the event of bills of exchange being accepted, we may demand immediate cash payment against return from the Customer.
All payments will be made free of charge in the currency in which the sales are concluded. The prices based on our price lists valid at the time or on the offer we have made will apply. Surcharges and discounts are calculated from the basic price in each case. Prices are ex works. The prices charged are those valid on the day of delivery.
The minimum order value is EUR 150 net/order in one delivery. If the order value falls below this, we must charge a handling fee of EUR 7.50.
The prices are quoted in each case exclusive of the respective statutory value added tax. Unless expressly agreed otherwise, our invoices will be payable in cash within 14 days of the invoice date without deduction of discounts, postage etc. Bills of exchange and cheques will only be accepted for payment by special agreement. If a letter of credit or other payment guarantee has been promised, it must be granted bindingly within one month after conclusion of the contract. In the event of default in payment, interest on arrears will be charged at a rate of 9% above the base interest rate applicable at the time. Public charges, taxes and similar fees that could not be taken into account when setting the price will be borne by the Customer.
If, on the day of delivery (after conclusion of the contract), cost increases arise in the price calculation due to increases in the labour costs and/or (raw) material costs incurred by us, we will be entitled to invoice the Customer for appropriately changed prices upon delivery.
Offsetting with disputed or not legally established counterclaims against due invoice amounts is excluded, as is a right of retention in this respect.
In the case of agreement of water shipment, normal shipping conditions will apply as a prerequisite; the right to choose a different delivery route, if necessary, will be reserved if the originally envisaged shipment would not be possible for reasons for which we are not responsible or would only be possible with unjustifiable additional costs.
The Customer shall bear the actual shipping costs incurred. If higher freight or customs tariffs and/or new or higher import or export or other duties come into force after conclusion of the contract, the Customer shall be obliged to bear them, irrespective of whether they are franked or unfranked CIF or FOB consignments.
The delivery time will be agreed separately for each individual order or specification. Delivery dates are not fixed dates (not a fixed transaction within the meaning of § 919 AGB), unless this is expressly agreed in writing.
If we are in default, the Customer will be entitled to set us a reasonable deadline for subsequent performance and, if delivery is not made within the set deadline, to withdraw from the contract. We are only liable for intent and blatant gross negligence. Liability due to slight or simply gross negligence is excluded. This does not apply to personal injury and damage due to the breach of contractual main performance obligations. In the event of a slight or simply grossly negligent breach of contractual main performance obligations, our liability is limited to the value of the (partial) order affected by the delay or non-performance. We are not liable for lost profits (§ 349 UGB). Unless agreed otherwise, the contract period for call-off orders is three months.
The weight determined by us will be definitive. We reserve the right to make customary or minor deviations in the delivery quantity up to a maximum of 10%.
Packaging will be charged at the purchase value.
We will not be responsible for any damage that occurs during transport, including rusting or corroding, unless this is due to defective packaging for which we are responsible.
The Customer is obliged to check the quantity and condition of the delivered goods immediately after receipt accordance with the contract. Any deviations and complaints must be communicated to us in writing immediately after receipt (notice of defects). Upon use and processing, the goods will be deemed acknowledged and accepted. If the Customer fails to inspect the goods and give notice of defects, the Customer shall forfeit its warranty and compensation claims for defects in the goods.
If the goods are defective and a complaint is made in good time, we will initially be entitled, at our discretion, to provide subsequent performance by delivering replacement goods free of defects or by remedying the defect. If the supplementary performance fails and/or is not carried out within a reasonable period of time stipulated by the Customer and/or is ultimately refused by us and/or is only possible for us with unjustifiable expenditure, the Customer will be entitled, at its discretion, to withdraw from the contract or to demand that the purchase price is reduced. We are only liable for intent and blatant gross negligence. Liability due to slight or simply gross negligence is excluded. This does not apply to personal injury and damage due to the breach of contractual main performance obligations. In the event of a slight or simply grossly negligent breach of contractual main performance obligations, our liability is limited to the value of the (partial) order affected by the delay or non-performance. We are not liable for lost profits (§ 349 UGB).If the goods are delivered abroad or directly to third parties, acceptance will be ex works.
Returns or exchanges are only possible within 30 days of delivery and after prior consultation with us. For returns approved by us, a 20% storage fee will be chargedReturns or exchanges will only be accepted for standard products held in stock that are new and in their original packaging. Special products are excluded from exchange. Cancellation of orders for standard products are only possible after prior consultation with us and only for standard stock items, free of charge.
I. Cancellation of orders for Custom Products are only possible after prior consultation with us and subject to a cancellation charge corresponding to the current status of the order at the time of cancellation:20 percent (20%) of the order price if the order is cancelled before the start of the design and preparation phase;
II. 50 percent (50%) of the order price if the order is cancelled after the start of the design and preparation phase but before production begins; or
III. 100 percent (100%) of the order price if the order is cancelled after production begins.
If we do not receive any special shipping instructions from the Customer, the goods will be shipped according to our best judgement, but without any guarantee for the most cost-effective method.
The risk will pass to the Customer when the goods are handed over to the forwarding agent, carrier or any other person entrusted with their transport.
If the Customer is in default of acceptance, the risk of accidental loss or accidental deterioration will pass to the Customer from the time when the default of acceptance begins.
All goods delivered will remain our property (reserved goods) until we have received full purchase price including shipping costs. The Customer may only sell the goods subject to retention of title in the ordinary course of business under its normal terms and conditions and as long as it is not in default with the purchase price payment. The Customer will only be entitled and authorised to resell the reserved goods subject to the proviso that the claims from the resale will pass to us in accordance with paragraphs 3 to 5. The Customer will not be entitled to have the reserved goods at its disposal in any other way.
The Customer's claim arising from the resale of the reserved goods is hereby assigned to us, irrespective of whether the reserved goods are sold without or after processing, mixing or combining and whether they are sold to one or more purchasers.
If the Customer sells the reserved goods together with other goods that do not belong to us, the assignment of the claim from the resale will only apply to the amount of the invoice value of the reserved goods sold in each case.
If the Customer uses the reserved goods to fulfil a contract for work and services or a contract for work and materials, the claim arising from the contract for work and services or the contract for work and materials will be assigned to us in advance to the same extent as defined in paragraphs 3 to 4.
The Customer is entitled to collect claims from the resale until we revoke this right, which we are entitled to do at any time; we will only make use of the right of revocation in the cases mentioned in the cases above mentioned. The Customer is not authorised to assign the claim under any circumstances to third parties. At our request, the Customer shall be obliged to inform its purchasers of the assignment to us and to provide or hand over to us the information and documents required for collection.
The Customer must notify us immediately of any seizure or other interventions by third parties.
11.1 For the purpose of these General Terms and Conditions, “Global Trade Laws and Regulations” means customs, import, export, re-export, trade control and economic or financial sanctions laws, regulations and orders, always including such laws, regulations and orders of the UN, US, EU and UK, but also, as applicable, such laws, regulations and orders of any country in which the Products are manufactured, received, used, exported from, imported to, or as otherwise applicable.
11.2 For the purpose of this Agreement “Prohibited Countries” means Afghanistan, Belarus, Iran, North Korea, Russia, Syria, Crimea and non-government-controlled areas of the Donetsk, Kherson, Luhansk and Zaporizhzhia oblasts of Ukraine. Seco Tools reserves the right to amend the list of Prohibited Countries by written notice to the Customer.
11.3 For the purpose of this Agreement “Listed Person” means any person or entity, specially designated, blocked or otherwise individually listed or targeted under Global Trade Laws and Regulations.
11.4 The Customer represents and warrants that:
(a) none of the Customer, its affiliates, or any of their respective officers or directors, is a Listed Person, or is owned to 50% or more, directly or indirectly, individually or in the aggregate, or is otherwise controlled by one or more, Listed Person(s);
(b) the Customer has not engaged in, is not engaging in, and will not engage in any business involving a Listed Person, or any entity owned to 50% or more, directly or indirectly, individually or in the aggregate, or otherwise controlled by one or more, Listed Person(s); and
(c) the Customer has not engaged in, is not engaging in, and will not engage in any transaction that circumvents, evades, or avoids, or has the purpose or effect of circumventing, evading, or avoiding, or attempts to violate, any Global Trade Laws and Regulations.
11.5 The Customer hereby agrees to observe and comply fully with all Global Trade Laws and Regulations. The Customer agrees that no Products provided by Seco Tools shall be, directly or indirectly, sold, exported, re-exported, transferred, retransferred or otherwise released or disposed to any person or entity, legal or natural, in breach of Global Trade Laws and Regulations. The Customer shall not take any actions in furtherance of this Agreement that would cause Seco Tools to violate any Global Trade Laws and Regulations to which Seco Tools is subject.
11.6 Without limitation to the generality of the foregoing, the Customer shall not, directly or indirectly, sell, export, re-export, transfer, retransfer or otherwise release or dispose any Products:
(a) without securing all licenses and/or authorizations necessary under the Global Trade Laws and Regulations from the relevant governmental authority;
(b) to, or for the benefit of, a Listed Person;
(c) to, via, or otherwise for use in, Prohibited Countries;
(d) for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons, or for any nuclear explosive or unsafeguarded nuclear fuel cycle activity; or
(e) for military end-use or to a military end-user, including military intelligence end-uses and end-users, without obtaining Seco Tools’ prior approval.
11.7 The Customer shall impose the obligations above in this Section in all subsequent transactions involving the Products.
11.8 The Customer agrees to, as promptly as possible and in any event within five (5) business days, notify Seco Tools in writing of actual or suspected breaches of any of the obligations above in this Section and shall to the best of its abilities, cooperate with Seco Tools to facilitate compliance with Global Trade Laws and Regulations and will upon request, provide Seco Tools with copies of all documentation relating to any business dealings involving the Products, including but not limited to, end-user certifications. Further, the Customer shall provide all information relating to requests for any Products, that the Customer suspects could violate or circumvent Global Trade Laws and Regulations, or where the provision of Products would breach the Customer’s commitments under the obligations above in this Section, including requests from or on behalf of a Listed Person or attempts to acquire any Products in violation of Global Trade Laws and Regulations.
11.9 If the Customer, in whole or in part, breaches any of the obligations above in this Section or (to the furthest extent permissible under applicable law) in Seco Tools’ reasonable opinion any such breach is likely to occur, the Parties agree that: (i) Seco Tools shall be under no obligation to fulfil outstanding payments, deliveries, orders or alike; (ii) Seco Tools shall not be liable toward the Customer or any third party for any subsequent non-performance by Seco Tools under this Agreement; and (iii) that the Customer shall indemnify and hold Seco Tools harmless from any claims or losses relating to such non-performance. Any failure by the Customer to comply, in whole or
in part, with this Section, is to be considered a breach of this Agreement which will entitle Seco Tools to terminate the Agreement with immediate effect. Further, Seco Tools is entitled to terminate the Agreement with immediate effect upon written notice if either Party’s ability to fulfil an obligation under this Agreement is materially affected by the imposition of restrictions in Global Trade Laws and Regulations.
Austrian law applies to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction is Oberwaltersdorf, provided that the Customer is a merchant. Otherwise, the places of jurisdiction established by law apply. However, we are entitled to sue the Customer at the court of its business or residence.
The aforementioned Terms and Conditions of Sale and Delivery supersede all previous terms and conditions.
Seco Tools Ges.m.b.H. / AGB202406
