Unless otherwise agreed in writing, the following terms and conditions apply to all sales and transactions made by us.
All deliveries, services, and offers provided by Schinko GmbH (hereinafter also referred to as “SCHINKO”) are made exclusively on the basis of these terms and conditions, which the customer acknowledges as binding upon placing an order, unless expressly agreed otherwise in writing. Any terms and conditions of the customer that conflict with or deviate from these terms and conditions shall only be deemed accepted if SCHINKO has expressly agreed to their validity in writing; in particular, no actions taken by SCHINKO to fulfill the contract shall be deemed to constitute acceptance of deviating contractual terms and conditions. These General Terms and Conditions of Sale shall also apply to future business relationships between the contracting parties, unless separate written agreements are made.
All illustrations, drawings, plans, material, weight, dimension, and price specifications, etc. contained in offers, advertising materials, and other documents from SCHINKO are always non-binding unless they are expressly designated as binding in writing or declared to be part of the contract. In general, offers, orders, and verbal and telephone agreements only become binding upon express written confirmation by SCHINKO. The specification of an order accepted by SCHINKO may only be changed by the buyer with the express written consent of SCHINKO.
The contract shall be deemed concluded when SCHINKO has sent a written confirmation of order after receiving the order.
All prices given by SCHINKO are ex works (Ex-Works EXW Incoterms 2020) and, unless otherwise expressly stated, are exclusive of sales tax. The price includes simple, standard packaging of the goods; special packaging, loading, transport, and transport insurance, etc. are to be paid separately by the customer. SCHINKO is entitled to increase prices appropriately if, after the offer has been made or the order has been confirmed, there are changes in the prices of raw materials or auxiliary materials, wages, salaries, fees, taxes, other charges, or similar price-relevant factors. SCHINKO reserves the right to adjust prices accordingly in the event of an order that deviates from the overall offer. SCHINKO is not bound by previously agreed prices and costs for follow-up orders.
5.1. All payments must be made immediately upon receipt of the invoice, net, excluding any offsetting or retention, free of charges, and shall only be considered as paid upon receipt in SCHINKO’s business account. Discount deductions are not permitted and will not be accepted. The offsetting of claims by the customer against claims by SCHINKO is not permitted unless the customer’s claims have been recognized by SCHINKO or established by a court of law. The customer is not entitled to withhold payments due to warranty claims or other counterclaims not recognized by SCHINKO. Any deferrals shall be granted on condition that the agreed payment deadlines are met, otherwise the deadline shall be deemed to have been missed. In the event of default in payment, the customer shall be obliged to pay default interest at a rate of 12% pa and to reimburse the contractor for all reminder and collection costs, regardless of whether these are external or internal expenses. Unless expressly agreed, payments by bill of exchange shall not be accepted.
5.2. In addition, in the event of default of payment by the customer or the opening of insolvency proceedings against the customer, SCHINKO shall be entitled, at its own discretion and irrespective of any fault on the part of the customer, to withhold deliveries or services until the agreed consideration has been provided, to withdraw from the unfulfilled part of the contract, or, at its discretion, to demand cash payment or suitable partial or full payment security for further deliveries, without the need to set a prior period of grace. All other rights of SCHINKO remain unaffected by this.
5.3 For transactions in foreign currencies, conversion shall be based on the foreign exchange rate announced by the Austrian National Bank on the date of our confirmation of order, with the customer bearing the exchange rate risk. If the agreed method or route of payment cannot be adhered to, the customer shall be obliged to make payment at SCHINKO’s discretion.
5.4 The customer agrees that invoices may also be issued and sent to them by electronic means. The customer is obliged to notify SCHINKO immediately in writing of any change of address, as long as the contractual legal transaction has not been completed in full by both parties. If this is not done, declarations shall be deemed to have been received even if they are sent to the last known address.
The products remain the property of SCHINKO until full payment has been made, regardless of any deviating country-specific legal regulations. The products subject to retention of title may not be modified or processed in any way before full payment has been made. Resale or pledging is only permitted with the express consent of SCHINKO. The customer is obliged to assign any claims arising from this to SCHINKO. If a third party takes possession of the products which are subject to retention of title, the customer must notify SCHINKO immediately in writing and take all necessary precautions to defend against such action. The customer is entitled to collect claims from the resale until revoked by SCHINKO at any time. However, the customer is not entitled to dispose of such claims by assignment. Upon request, the customer is obliged to notify its buyer of the assignment to SCHINKO. The customer must notify SCHINKO immediately of any seizure or other claim on the products by third parties.
7.1. Unless expressly agreed otherwise, all deliveries shall be made under the EXW clause (Incoterms 2020) Matzelsdorf 60, 4212 Neumarkt, Austria. The customer shall indemnify SCHINKO for any incidents occurring in connection with assistance with loading and export declaration. Shipping and acceptance of goods shall be at the customer’s risk, even if freight-free delivery has been agreed in particular cases. SCHINKO’s delivery obligation shall be deemed fulfilled at the time the products leave the factory or warehouse. It shall also be deemed fulfilled if, after timely notification of readiness for shipment, the products cannot be shipped on time without fault on the part of SCHINKO. SCHINKO is not obliged to insure the delivery against any risks.
7.2. SCHINKO is entitled to make partial and advance deliveries and to invoice them.
7.3 Delivery and service deadlines begin on the date of transmission of an order confirmation by SCHINKO, but not before the customer has fulfilled their obligations, such as providing documents, approvals, releases, advance payments, or making parts available. Delivery and service deadlines are only approximate and may be exceeded by SCHINKO by up to 3 calendar weeks. Only after this period has expired may the customer withdraw from the contract after setting a reasonable grace period of at least 14 days. Withdrawal with regard to partial deliveries that have already been made is only permissible if these cannot be used appropriately by the customer; goods that have already been delivered and cannot be used must be returned to SCHINKO by the customer at their own expense. In the event of a delay in delivery, claims for damages or other claims due to this delay are excluded, unless SCHINKO is guilty of intent or gross negligence.
7.4 In the event of default of acceptance by the customer, SCHINKO shall be entitled to ship the goods without acceptance at the customer’s risk and expense or to store them in any manner. At this point in time, the goods shall be deemed to have been delivered in accordance with the contract in every respect. The customer shall then be obliged to make the payments due in the event of delivery or resulting from delivery without delay.
8.1. The customer must inspect the goods immediately upon receipt and report any recognizable defects in writing immediately after becoming aware of them, but in any case within 7 days of delivery of the goods, providing detailed information about the alleged defect, otherwise the claim will be excluded. In the case of hidden defects, the complaint must also be made immediately, but no later than 7 days after their discovery. Any warranty claims must always be proven by the customer; the legal presumptions of §§ 924 and 933a ABGB (Austrian Civil Code) are expressly waived. In the event of unjustified or untimely complaints, the customer is obliged to reimburse all costs incurred as a result. SCHINKO expressly reserves the right to fulfill any warranty claim at its own discretion by repair, replacement, or price reduction. The warranty period is 6 months and begins with the transfer of risk. The warranty period shall not be extended for the main delivery or for new parts by the rectification of defects or acknowledgment, even in the event of the installation of new parts in the main delivery. If the customer makes changes or modifications to the delivered product or works without the prior written consent of SCHINKO, any warranty obligation on the part of the contractor shall lapse.
8.2. SCHINKO’s liability for damages, with the exception of damage to persons, is limited to cases of intent and gross negligence. The onus of proof for the existence of such fault lies with the customer. To the extent permitted by law, any compensation for pure financial losses, indirect damages and losses or consequential damages of any kind, processing costs, loss of interest and loss of profit is also excluded. Warranty and damage claims for damages and consequential damages resulting from production based on plans, sketches, and samples provided by the customer are also excluded, insofar as the execution itself is carried out according to the customer’s specifications. SCHINKO’s liability is generally limited to typically foreseeable damages and, in terms of amount, to the net value of the (partial) delivery. Unless a shorter statutory limitation or preclusion period applies, all claims against SCHINKO must be asserted in court within six months of the date on which the customer becomes aware of the damage and the person responsible for it or of the event giving rise to the claim, otherwise the claim will be lost, but no later than two years after the event giving rise to the damage.
Claims for recourse as defined in § 12 of the Austrian Product Liability Act are excluded.
If a warranty claim arises in the customer’s relationship with its own customer, recourse against SCHINKO pursuant to Section 933b of the Austrian Civil Code (ABGB) is excluded.
9.1. The customer shall indemnify SCHINKO against any claims by third parties arising from the execution of its specifications regarding certain quality and other characteristics or from the use of drawings, models, samples, aids, and similar design specifications and aids provided to SCHINKO, in particular patent, trademark, design, and copyright infringements. The customer shall indemnify and hold SCHINKO free from any claims arising from the execution of its order. SCHINKO accepts no responsibility for the loss of or damage to drawings, samples, and the like provided and shall only take out insurance for this on behalf of and at the expense of the customer.
9.2. SCHINKO’s plans, sketches, and other technical documents, as well as samples, catalogs, brochures, illustrations, and the like shall remain the intellectual property of SCHINKO at all times and may not be reproduced or made accessible to third parties without consent and are protected by the relevant legal provisions regarding reproduction, imitation, competition, etc.; they must be treated as trade confidential by the customer in all cases.
The occurrence of unforeseeable circumstances or circumstances beyond the control of the parties, in particular all cases of force majeure, including strikes, operational disruptions, failure to supply energy and raw materials, entitle SCHINKO to extend the delivery dates and deadlines in accordance with the scope and duration of these circumstances and their consequences, without granting the customer a right to withdraw from the contract or a claim for damages. Force majeure shall be deemed to include lockouts and other circumstances (import and export bans imposed after conclusion of the contract) which make delivery significantly more difficult or impossible for SCHINKO, regardless of whether they occur at SCHINKO or one of its suppliers. However, in the event of such circumstances, SCHINKO shall also be entitled to cancel the order in whole or in part without the customer being entitled to claim compensation.
If the circumstances under which a contract was concluded have changed so significantly that it can be reasonably assumed that the contract would not have been concluded at all under the changed circumstances, or would have been concluded under different conditions, SCHINKO shall be entitled, depending on the nature of the case, to refuse to fulfill the contract or to demand an amendment to the contractual provisions that takes account of the changed circumstances, eg payment in a different currency, application of a payment adjustment clause, change in delivery terms, etc.
The customer agrees to treat SCHINKO’s deliveries and services as strictly confidential, to comply with the provisions of the General Data Protection Regulation (GDPR) and the Data Protection Act, and in particular to take appropriate technical and organizational measures regarding data security in accordance with Art. 32 GDPR in order to ensure a level of protection appropriate to the risk. In the event of a breach, SCHINKO shall be entitled to withdraw from the contract without prejudice to further claims. Information on data protection can be found in the privacy policy available at https://www.schinko-systems.com/.
Information obtained in the course of the cooperation that constitutes trade and business secrets or know-how must not be made accessible to third parties or used by the customer in any other form without express written consent.
12.1. The place of performance and payment shall be deemed to be the registered office of SCHINKO in Neumarkt im Mühlkreis, even if the handover takes place at another location as agreed.
12.2 The interpretation of provisions in these Terms and Conditions of Sale and all sales transactions concluded by SCHINKO are subject to Austrian law, expressly excluding the referral provisions of the International Private Law Act (IPRG) and other conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980. In the event of disputes, both parties shall submit to the courts in Linz with jurisdiction over the matter, depending on the amount in dispute. However, SCHINKO reserves the right to assert its claims at the customer’s place of jurisdiction.
12.3. There are no oral side agreements. All agreements, subsequent amendments, additions, side agreements, etc. must be made in writing to be valid. Any waiver of the written form requirement must also be made in writing.
12.4. Should one or more of the above provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same applies to unintended contractual loopholes.
In the case of conflict between the German and the English version of these Terms and Conditions of sale, the German version shall prevail.
