General Terms and Conditions

1. Preamble

1.1. These general terms and conditions of business and delivery shall apply unless the contracting parties expressly agree otherwise in writing. Deviations from these terms and conditions shall only be valid if they are confirmed in writing by Meissl Open-Air Solutions GmbH.

1.2. The following provisions relating to delivery of goods shall apply to services as well.

1.3. For assembly work, the relevant assembly terms and conditions of the Fachverbandes der Maschinen- und Stahlbauindustrie Österreichs [Austrian Mechanical Engineering and Steel Construction Trade Association] shall apply.

2. Offer

2.1. The offers of the seller shall be non-binding.

2.2. The contract shall come into existence when the seller sends a written order confirmation upon receiving an order.

2.3. None of the offer and project documents may be reproduced or made available to third parties without obtaining the consent of the seller. The seller may demand the return of the same at any time, and if a different order is issued, the said documents should be returned to the seller immediately.

2.4. If import and export licenses or foreign currency permits/approvals or similar approvals are required for the proper execution of the agreement (such as for example building permits, etc.), the party responsible for obtaining the same should take all reasonable effort to obtain the said licenses or approvals within the proper time. Liability claims arising due to the fact that the buyer has not obtained the referred to approvals in time are hereby expressly excluded.

2.5. The details contained in catalogues, prospectuses and similar documents shall only be binding if express reference is made to them in the order confirmation.

2.6. Subsequent changes and additions to the order must be confirmed in writing in order to be valid.

2.7. The intellectual property in drawings, sketches and other technical documents as well as samples, catalogues, prospectuses, diagrams etc. shall always remain with the seller. The same may not be used, reproduced, published or presented to third parties except after obtaining the express permission of the owner.

3. Packing

3.1. Unless agreed upon otherwise,

a) the prices quoted do not include packing; 

b) the purchaser shall bear the cost of packing, which shall be done in the conventional manner so as to prevent damage to the goods in transit under normal shipping conditions to the agreed destination, and such packing shall only be taken back if so agreed.

4. Transfer of risk

4.1. The time at which the risk in the goods is transferred shall be determined as follows:

a) In the case of “ex-works” deliveries, the risk shall pass from the seller to the buyer when the goods are made available to the buyer. The seller must communicate the point in time when the goods are available to the buyer for delivery. This notification must be done in time so that the buyer can take all the necessary steps in this regard.

b) In the case of sale on “delivery on a carriage, truck or barge” basis (agreed place of dispatch) on a “delivery destination” basis or in the case of sale on “carriage paid” or a “carriage paid up to...” basis, the risk shall be transferred from the seller to the buyer when the shipping medium loaded with the goods are taken over by the first carrier.

c) In the case of sale on the basis of "FOB" or "CIF” or "C & F”, the risk shall pass from the seller to the buyer when the goods have actually crossed the railing on the deck of the ship in the agreed port of dispatch.

4.2. Unless otherwise agreed to, goods shall be deemed to have been sold on an "ex-works" basis.

4.3. The seller shall only be bound to take out insurance if and to the extent that this has been agreed upon in writing.

4.4. For the rest, the INCOTERMS in the version applicable at the time of the signing of the contract shall apply.

4.5. The place of performance for services that do not constitute a delivery or part thereof, shall be the place where the service is performed. The risk in relation to a service or an agreed upon partial performance shall pass to the buyer after completion of performance.

4.6. If there is delay in dispatch from the factory from where delivery is to take place for reasons ascribable to the purchaser, the risk shall pass to the buyer on the day on which the goods are ready for dispatch. If deliveries on a call-order basis have been agreed to, the goods shall be deemed to have been called no later than 1 year after the date of the order. All delivery deadlines to be fulfilled by the seller shall commence on the precisely scheduled times.

4.7. Separately agreed to inspection tests or trial runs shall not affect the provisions relating to the place of performance and transfer of risk.

5. Delivery period

5.1. Unless otherwise agreed upon, the delivery period shall commence no later than on the dates mentioned below: 

a) The order confirmation date;

b) The date on which the buyer discharges the technical, commercial and financial obligations incumbent on him;

c) The date on which the seller receives a payment that is required to be made before delivery and/or if a commercial letter of credit has been opened.

5.2. The seller is authorized to make partial deliveries and deliveries before schedule.

5.3. If the delivery gets delayed due to circumstances on the seller’s side thereby constituting a ground for exculpation as described below, the delivery period shall be suitably extended. Exculpatory grounds shall consist in the following circumstances occurring after the conclusion of the contract, which stand in the way of the performance of the same: labor disputes and all circumstances beyond the control of the parties such as fire, mobilization, attachment, embargo, prohibition on transfer of foreign currency, revolution, the absence of means of transport, general shortage of essential goods, limitations on the use of power.

5.4. If the seller is guilty of delay in delivery, the purchaser may either demand fulfillment of contract or he may terminate the contract after giving a specific period for performance. In the case of specially manufactured items, the extended period should be calculated in such a manner that the purchaser is not able to use the goods already processed in an alternative manner.

5.5. If the revised delivery period as per Article 5.4. above is not respected due to the fault of the seller, the purchaser may issue a written notice terminating that part of the contract relating to the goods that have as yet not been delivered and all the goods that can only be used in a reasonable manner if the undelivered goods are present. In such cases the purchaser shall have the right to the return of the money paid for the goods not delivered or the goods that cannot be used, and insofar as the delay in the delivery has been caused due to gross negligence of the seller, the purchaser shall be entitled to compensation for justified expenses that he may have had to incur due to the dissolution of the contract and for the performance of the same and for the goods that cannot be further used.

5.6. Claims of the purchaser other than those mentioned in point number 5 on the grounds of the fault of the seller are hereby excluded.

5.7. If the purchaser does not accept the goods manufactured in accordance with the contract at the location or time agreed to in the contract and the delay is not due to acts or omissions of the seller, the seller may either demand performance of the contract or he may terminate the contract after specifying a period to the purchaser for the acceptance of the goods. The seller shall also be entitled to receive compensation for all the justified expenses that he may have incurred in executing the contract that are not contained in the payments that have been received, subject to the exclusion of all other claims against the purchaser on the grounds of the said delay.

5.8. If the purchaser defaults on the performance of his part of the contract, in particular, if he fails to make available auxiliary personnel in sufficient numbers or personnel having adequate qualifications for the work, and this in turn delays contractual performance, the delivery period shall not commence until the seller notifies the purchaser that either the number of auxiliary personnel is inadequate or that they do not have the requisite qualifications. If such shortcomings are found, the related delivery period shall not commence and the purchaser shall be liable to bear all the additional costs that may be incurred due to the deficient performance of preparatory work, in particular such costs as may be incurred by the seller to have the preparatory work performed in the required manner or to perform such preparatory work himself. The seller shall invoice such costs separately to the purchaser.

6. Price

6.1. Unless otherwise agreed upon, prices shall be on ex-works basis without packing but including loading. If delivery has been agreed to, the price shall not include unloading and shipping.

6.2. The prices shall be based on the costs at the time of quoting the price. If by the time of delivery the costs change, these changes will be credited or debited to the purchaser as applicable.

6.3. If the contract is made with open-ended pricing, the sale price applicable on the date of delivery shall be charged.

6.4. In the case of an order that deviates from the total offer, the seller reserves the right to change the price appropriately.

6.5. In the case of repairs contracts, the services that are recognized by the seller as being necessary and appropriate shall be performed and shall be invoiced to the client in accordance with the costs incurred. This shall apply to contractual performances as well as extra work, the need for and appropriateness of which is only discovered in the course of the execution of the contract, in which case, the seller need not specially notify the purchaser about the same.

6.6. The purchaser shall be liable to pay the costs of preparing quotations for repairs or for making expert evaluations, even where the same does not culminate in a contract.

7. Payment

7.1. Payments must be made in accordance with the agreed upon payment terms and conditions. Unless different payment dates are agreed to, half the purchase price shall be payable on receipt of order confirmation and the remaining part shall be payable on notification of readiness for delivery.

7.2. The purchaser shall not be entitled to deduct any guarantee claims or other claims against the seller from the payments.

7.3. If the purchaser defaults on an agreed upon payment or other performance, the seller may either insist on performance of the contract or 

a) defer the performance of the remaining portion of his part of the contract or other performances until the outstanding payments are made;

b) extend the delivery period for an appropriate period of time;

c) demand immediate payment of the part of the purchase price that is still outstanding; 

d) as long as there is no exculpatory circumstance to exonerate the purchaser as per article 6, penal interest on arrears at a rate of 7.5% above the applicable bank rate of the National Bank of Austria shall be charged; otherwise, the seller may terminate the contract after giving the purchaser a reasonable period of time to rectify his default.

7.4. If by the expiry of the additional period of time mentioned in article 7.3 above, the purchaser has not made the due payment or rendered other performance, the seller may terminate the contract through notice in writing. The purchaser shall be bound to return to the seller the goods already delivered and to pay the seller compensation for the loss in value that the goods may have suffered as well as all reasonable expenses that he may have incurred in executing the contract. The seller shall have the right, in respect of goods that have as yet not been delivered, to deliver the finished or processed parts to the purchaser and demand the corresponding part of the sales price.

7.5. Ownership of the purchase object shall remain with the seller until the purchaser fulfils all his financial obligations. The purchaser must follow all the formalities for the exercise of retention of ownership by the seller. In the case of pledges or other exercising of rights, the purchaser is bound to honor the right of the seller to the property and to inform the seller immediately.

7.6. Except as provided in article 7, all other claims of the seller against the purchaser on the basis of the default of the buyer are excluded.

8. Guarantee

8.1. The seller is bound, in accordance with the following provisions, to remove all defects that may reduce usability of the goods arising due to a defect in the construction, the material or design.

8.2. This obligation shall only apply to such defect that may occur during a period of 3 years in the structural components, such as the umbrella, bar design, wind walls and base frame. The guarantee for the rest of the accessories is 2 years. The time from which the guarantee obligation applies shall commence from the time of the transfer of risk or in the case of delivery with installation, the time at which installation is completed, which shall be noted in writing in the handover report.

8.3. The purchaser may only invoke this article if he immediately notifies the seller about the deficiencies that have been found and in particular, where guarantee and warranty claims for the covering work are excluded insofar as the purchaser has done the covering work inexpertly. This occurs particularly when the safety strap of the umbrella is not tightened when the bar is not in use. Damages that arise because the safety strap has not been properly set when the umbrella bar is not in use are expressly excluded from this provision. This happens in particular because the safety strap of the umbrella or/and the protective cover are not used properly in windy conditions. Damage (e.g. flutter breaks, cracks, chafe marks,...) caused by the non-use of the safety belt or the protective cover is expressly excluded by this agreement. 

8.4. The purchaser may only invoke this article if he immediately notifies the seller about the deficiencies that have been found. The seller who has been notified in this manner should, under the provisions of this article, choose to:

a) rectify the deficient goods on the spot;

b) have the deficient goods or parts sent back for rectification; 

c) replace the deficient goods;

d) replace the deficient parts. The guarantee period shall not be extended due to such rectification work.

8.5. If the seller sends the defective parts back, the purchaser shall bear the cost and risk of transportation, unless otherwise agreed to. The rectified or replaced goods or parts by the seller shall be done at the cost and the risk of the seller, unless otherwise agreed upon.

8.6. The defective products and parts replaced in accordance with this article shall be available to the seller.

8.7. The seller shall only be liable to pay the costs incurred by the purchaser for the rectification of defects if he has agreed to the same in writing.

8.8. The guarantee obligation of the seller shall only apply in respect of defects that arise under normal working conditions as envisaged, and under normal use. In particular it shall not apply for defects that arise due to poor installation by the purchaser or person authorized by him, poor maintenance, improper repairs or repairs carried out without the permission of the seller in writing, or in the case of modifications to the goods made by a person other than the seller or person authorized by him, or normal wear and tear as well as the deficiencies in handling the umbrella bar already mentioned above.

8.9. For those parts of the goods that the seller has procured from sub-contractors, the seller shall be liable only to the extent of the guarantee claims that the seller himself has against the sub-contractors. If goods are manufactured by the seller on the basis of design details, drawings or models provided by the purchaser, the liability of the seller shall not extend to the correctness of the construction but to whether the execution has been done in accordance with the specifications of the purchaser. In such cases the purchaser must keep the seller indemnified in respect of any violation of industrial property rights. The seller does not accept any liability for the takeover of repairs contracts, alteration or reconstruction of old or third-party goods, or in relation to the supply of used goods.

8.10. The seller does not accept any further responsibility as mentioned in this article after the commencement of the guarantee period, not even for deficiencies caused before the transfer of risk.

8.11. When single-pane safety glass (ESG) is used, technically unavoidable nickelsulfide inclusions can lead to spontaneous glass breakage in rare cases. Since the glass industry does not assume any warranty for this damage, we need to point out that such glass breakages are not covered by our warranty. If you should not accept this, you would have to order a different glass quality.

9. Liability

9.1. It is expressly agreed that the seller does not have to pay the purchaser any damage compensation for injury to persons, damage to goods not being the object of the contract, for other damages or for loss of profits, unless the circumstances of the case show that the seller is guilty of gross negligence.

9.2. The purchase object only offers safety that may be expected on the basis of permit regulations, the operating instructions, the instructions of the seller concerning the handling of the purchase object – particularly in relation to inspection testing that may be prescribed – and other similar instructions.

9.3. The formation of condensed water is a physical phenomenon that can occur not only in single-shell constructions; it is caused and enhanced by high humidity, lack of ventilation or high temperature differences between interior and exterior air. This phenomenon, however, is not based on a lack of production or construction; therefore no liability can be assumed for the occurrence and possible consequential effects.

9.4. In cases where Article 9.1 does not apply, in which the seller is guilty of minor acts of negligence, the damage compensation for a contract sum of up to Euros € 200.000,-- shall be a maximum of Euros € 10.000,00 and in the case of contractual sum of over
Euros € 200.000,00 , 5% of the contractual sum, limited however to Euros € 500.000,--.

9.5. All damage compensation claims due to deficiencies in deliveries and/or contractual performances should come before a court of law if the deficiency has not been expressly acknowledged by the contractor, failing which the claim shall lapse.

9.6. The purchaser expressly authorizes the seller to enter the premises and buildings of the purchaser to take possession of the property of the seller that may be present on the same in case of suspension of payments by the purchaser and the seller declares that he is terminating the contract in question. The purchaser accepts this right of the seller to enter his premises and shall also keep the seller indemnified in this connection.

9.7. The seller shall only be liable for assembly errors if the seller has performed the assembly work himself. Where the purchaser has done the assembly work on his own, the liability of the seller shall be limited to making available the relevant operating and working instructions. The seller shall not in any way be liable for deficiencies in the assembly work carried out by the purchaser or in connection with the improper handling of the purchase property. It shall also be deemed to have been agreed that preparatory work that the purchaser is required to do, in particular the installation of the electrical power supply lines and connections for the umbrella system shall exclusively be done by duly licensed firms. The seller expressly excludes any liability for improperly executed preparatory work. The purchaser guarantees the seller that only licensed firms shall be employed for the installation of the respective electrical power supply lines and the connections of the umbrella system.

10. Jurisdiction, applicable law, place of fullfillment

10.1. All disputes that arise directly or indirectly under the contract shall be subject to the jurisdiction of the competent Austrian court having jurisdiction over the place where the registered office of the company is located. The seller may however choose to place the dispute before a court that has jurisdiction over the place where the registered office of the purchaser is located.

10.2. The parties may also agree to accept the jurisdiction of a Court of Arbitration.

10.3. The agreement shall be subject to Austrian law and the provisions of the UN purchasing law, to the extent that the latter does not conflict with Austrian law.

10.4. The place of performance for delivery and payment shall be the place where the registered office of the seller is located, even when the handover under the contract is done at a different place.

Pfarrwerfen, 05.10.2020