GENERAL TERMS AND CONDITIONS
OF PURCHASE OF GOODS
Please note that these terms and conditions hold pre-eminence over any other agreements or understandings or negotiations held elsewhere.
By accepting theses terms and conditions, the buyer agrees to be bound by these Terms. By not accepting these terms nor any part of them, the buyer would not have fully access to redrockeu.com nor be able to purchase goods.
Furthermore, once the buyer accepts a quote from the seller, it will be considered as an acceptance of these terms and conditions. Using or placing an order in redrockeu.com in any form or manner means these terms and conditions have been accepted.
PRIVACY AND COMMUNICATIONS
LINKS TO THIRD-PARTY WEBSITES
The buyer acknowledgesthat redrockeu.com may contain links to third-party web sites or services which are neither owned nor controlled by the Seller. redrockeu.com has no control over or responsibility for, the privacy policies, content, products, web sites or services of any third-party. The buyer further acknowledge and agree that redrockeu.com shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites.
The following terms and conditions of purchase will apply to each Order:
1. DEFINITIONS, ANNEXES AND RULES OF INTERPRETATION.
1.1. Definitions. Throughout this General Terms and Conditions the terms listed below shall have the following meaning:
1.2. Company– Red Rock BT Handels GmbH,a company duly incorporated in the state of Austria with limited liabilities and having its principal offices at 4th Forstberg st., 4600, Thalheim by Wels, Austria(“Red Rock”or “Seller”).
1.3. “Affiliate” means those corporations, companies and business entities which are, directly or indirectly, controlled by, controlling or under common control with a party hereto, and with respect to Purchaser, those corporations, companies and business entities in which Purchaser has ownership of more than fifty percent (50%) of the voting stock or the issued and paid up share capital. "Control" meaning ownership of more than fifty percent (50%) of the voting stock or the issued and paid up share capital or the power to appoint to or elect the majority of the directors.
1.4. “Applicable Law and Regulations” means laws and regulations (i) applicable to Seller in all places where Seller does business, (ii) applicable to the Products or Services provided pursuant to this Order, including without limitation, such laws and regulations applicable at the place of Delivery and all sites where Services are performed, or (iii) required by the law governing the Contract.
1.5. “Order” means the document or documents issued and delivered by Buyer to Seller specifying, among other things, the Services or Products being purchased (including any technical details, specifications or plans), the price, quantities, the time and place of delivery, the payment terms and other technical and commercial terms unique to such Services or Products. Unless otherwise specifically excluded in an Order, such Order for Services or Products shall be deemed to include without additional cost or expense all services, products, licenses, permits and approvals necessary for performance under the Order in accordance with the standards set forth in this Contract and all other mandatory standards contained in Applicable Laws and Regulations.
1.6. “Purchase Order" - shall specify all the commercial terms relating to the purchase of the Product, inter alia, quantities and agreed price.
1.7. “Confidential Information” - means all non-public information and/or data of Company in any form whatsoever, tangible or intangible, including without limitation, information in oral, visual or computer database form, concerning the Products or the business of Company, past, present, or future ideas, research and development, know-how, trade secrets, inventions, formulas, compositions, manufacturing and production processes and techniques, technical data, code and/or product designs, drawings, engineering, development specifications, any unannounced product(s) and service(s), customer and Seller lists, pricing and cost information, business and marketing plans, proposals, forecasts and projections, market analyses and financial data or any other business activities.
1.8. “Delivery” means the arrival of Product at the place set forth in the Incoterm.
1.9. “Documentation” – means any and all written materials relating to the Products including design and user manuals.
1.10. “INCOTERM” means all the relevant terms and conditions set forth in the Purchase of Order which shall be interpreted in accordance with the INCOTERMS of the International Chamber of Commerce published in 2010.
1.11.“Intellectual Property”- means all intangible legal rights, titles and interests evidenced by or embodied in (i) all inventions (whether patentable or un-patentable and whether or not reduced to practice), all improvements thereto, and all patents (whether in the form of utility patents or design patents), patent applications (whether pending or not), and patent disclosures, together with all reissuances, continuations, continuations-in- part, revisions, extensions, and re-examinations thereof; (ii) all trademarks, service marks, trade dress, designs, trade styles, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyright ability, all compilations, all copyrightable works, all copyrights (including the droit morale) and all applications, registrations, and renewals in connection therewith; (iv) all mask works and all applications, registrations, and renewals in connection therewith; (v) all trade secrets and Confidential Information, proprietary processes and formulas; (vi) hardware design, electronic schematics, and any other related specifications and Documentation (vii) all other proprietary rights, industrial rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium.
1.12.“Operation Date” means the date on which each of the Products is commissioned for operation.
1.13.“Performance Warranty” means the guarantee of Seller to Buyer that the performance of the Products will be in accordance with the performance parameters specified in the Purchase Order.
1.14.“Products” shall have the meaning specified in the Purchase Order.
1.15. “Sites” means Buyer's premises on which the Products will be installed.
1.16. “Services” means services performed by Seller's personnel during or following Commissioning of the Products, as set forth in the Purchase Order.
1.17. “Spare Parts” means items of spare parts for equipment and machinery to be supplied by Seller as specified in the Purchase Orderincluding optional spare parts available for sale in addition to the spare parts included in the Purchase Order.
1.17.1. “Technical Data” means all data, information and technical requirements as better specified for the Products in the Purchase Order.
1.17.2. “Warranty Period” shall have the meaning ascribed to it in Section 3.3 below.
1.18.Rules of Interpretation. In the event of discrepancy or contradiction between this General Terms and Conditions and the Purchase Order and/or the Incoterm, the latter shall prevail.
2.2. The risks of loss and damages associated with the Products and Spare Parts shall pass to Buyer in accordance with the INCOTERM set forth in the purchase order
2.3. Title to the Products and Spare Parts shall pass to Buyer upon full payment of the Price specified in the Purchase Order
3.1. TO THE EXTENT PERMITTED BY LAW, ALL CONDITIONS, WARRANTIES OR OBLIGATIONS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, ARE EXCLUDED AND THE PROVISIONS OF THIS GENERAL TERMS AND CONDITIONS TOGETHER WITH THE PURCHASE ORDER SHALL APPLY IN LIEU THEREOF.
3.2. Seller hereby guarantees that the Products will be unused and made of materials of suitable quality and that manufacturing will be of workmanship as customary in the industry and in accordance with Seller's quality standards.
3.3. Seller's warranties hereunder are limited and shall terminate at the earlier to elapse of: (i) 12 (twelve) month period from the Operation Date, or (ii) 18 (eighteen) months from the date of Delivery in accordance with Section 2 above of each Product (herein, “Warranty Period”) unless if mentioned otherwise.
3.4. Seller's warranty shall not apply in any of the following: (i) Fair wear and tear, (ii) damages caused by Force Majeure, (iii) mis-handling not by Seller, (iv) repair or replacement of any part not by Seller, (v) operation or maintenance not in accordance with Seller's manuals, (vi) extraordinary wear and tear or damages caused by Buyer or any third party, or (vii) incoming water in quality or capacity, which is out of the scope set forth in the technical specifications of Seller for the relevant Product/s.
3.5. This warranty is specifically made and limited to Buyer in respect of the Products. No warranty is made to any other person, firm or company, whether subsequent buyer or user, or to any bailee, licensee, assignee, employee, agent or otherwise.
3.6. During the Warranty Period, if defects or deficiencies arise, Buyer shall as soon as possible inform Seller by email, followed by registered letter, specifying the defect and/or deficiency. As a pre-condition for any inspection by Seller of any alleged defect, Buyer must continuously monitor the performance of the Products and deliver in writing all information regarding such monitoring requested by Seller, sufficient time before any defect or deficiency is found.
3.7. During the Warranty Period Buyer shall ship to Seller all Defective parts (if any) and Seller shall, at its discretion, repair or replace all Defective parts, at the delivery terms set forth in Section 2.1 above.
3.8. All warranties hereunder shall be extended to replaced parts of any of the Products for a period, which shall not exceed six (6) months from the elapse of the Warranty Period.
4.1. The total liability of Seller in connection with the Purchase Order shall, in no event, exceed the portion of the Price pertaining to the Product. Buyer shall indemnify and hold Seller harmless of all demands and claims against Seller by any third party (including without limitation employees of Buyer) in connection with any Product, for any amount exceeding the portion of the Purchase Order Price pertaining to such Product.
4.2. In no event, whether through breach of the terms specified in the Purchase Order, breach of warranty, delays in performance, negligence, gross negligence, strict liability, negligent misrepresentation, or other tort liability, shall Seller be liable for consequential, incidental, or delay damages of any nature, including, but not limited to, loss of product, loss of business, loss of profit, loss of customers, business injury or interruption, plant downtime, additional labour or overhead expenses, inefficiencies, construction delays, penalties and/or punitive damages arising from or directly or indirectly related to the use of or the inability to use the Product, environmental damage in connection with the use of the Product, and such.
Buyer shall have sole responsibility to provide, at its own risk and costs, the following:
5.1. Making available all operating personnel for commissioning of Seller.
5.2. All other supplies and services required for the infrastructure, installation and operation of the Products.
5.3. Obtaining all of the necessary national or local licenses or permits required for the performance of the transaction.
5.5. Buyer can only use the Products for legally accepted purposes, and the buyer agree to indemnify and hold the seller free of any issues resulting from the buyer use or misuse of the seller's products that results to damages to either the buyer or a third party.
6.1. Buyers will get invoices for their payments at the time of delivery. Invoices are sent to buyers either via email or hard copy format depending on buyer's preference.
7.1. Each Party shall use its best endeavours to keep confidential (and to procure that its employees, agents and subcontractors shall keep confidential) Confidential Information, which it or they may have acquired or may at any time after the date of this Contract acquire in relation to the business of the other Party and shall not use or disclose such information except with the consent of the other Party or when required by a competent authority authorized by law.
Each Party may disclose Confidential information which would otherwise be subject to Section 7.1 if, but only to the extent that, it can demonstrate that:
7.1.1. such disclosure is required in writing by a competent governmental body having jurisdiction over it,; or
7.1.2. the Confidential Information was lawfully in its possession prior to its disclosure by the other Party (as evidenced by written records) and had not been obtained from the other Party; or
7.1.3. the Confidential Information has come into the public domain other than through its fault or the fault of any person to whom the confidential information has been disclosed in accordance with Section
Provided that any such disclosure shall not be made without prior consultation with the Party from whom the confidential information was obtained.
7.2. Each Party may for the purposes contemplated by this Contract disclose confidential information to the following persons or any of them, provided that a written confidentially undertaking in a form equivalent to Section has been obtained from such person its professional advisers, auditors, bankers and insurers, acting as such, and its directors and officers.
7.3. The obligations in this Section shall continue in force without limit in point of time, being in the public domain otherwise than by the breach by a Party hereto of those obligations.
7.4. Subject to a protective order, nothing in sub-section 6.1 above shall prevent a Party from disclosing any information to the extent required by a competent authority in writing, or in the frame of legal or mediation proceedings between the Parties arising out of the Purchase Order.
Title to all software and Documentation furnished to Buyer hereunder (except for the physical media on which they are embodied), and all Intellectual Property Rights therein, shall remain vested in Seller and its licensors at all times. Buyer agrees that the software and the Documentation provided hereunder are entitled to protection under copyright and patent laws, and Buyer shall not remove any copyright, patent or other proprietary notice of Seller or its licensors from same. Buyer is hereby granted a non-exclusive and non-transferable license (or sublicense in the case of third party software provided by Seller to the Buyer) to use the software and the Documentation furnished to Buyer by Seller in order to operate and maintain the Products. Buyer shall not inspect, disassemble, decompile or reverse engineer the Products or software, nor tamper with, bypass or alter the security features of same. Buyer may copy the software for back-up and restore purposes only.
9.1. The provisions of the Purchase Order and the Incoterm are subject to "Force Majeure" and neither Party will be liable for non‑performance either in whole or in part of the Purchase Order on account of "Force Majeure" which term shall include any event or cause beyond the control of Seller or Buyer as the case may be, including but not limited to the following, which for the purpose of this General Terms and conditions shall be regarded as beyond the control of the Parties under question, such as acts of god, natural disasters, acts or omissions of any government or any agency thereof, fire, storm, flood, earthquake, acts of the public enemy, war, rebellion, insurrection, riot, sabotage, strikes, invasion; quarantine restriction; lockout and transportation embargoes; major power cuts or by other cases similar to those mentioned above beyond reasonable control of parties hereto.
9.2. In any such event where the Buyer or Seller are declaring "Force Majeure", said party shall immediately notify the other party in writing giving details of the event causing "Force Majeure". If such an event lasts for a period of up to 6 (six) months, the Purchase Order shall be extended for a period equal to the period during which such event lasts. If, on the other hand, such event lasts for a period exceeding 6 (six) months, the party who has received notification of the event shall be entitled to cancel the Purchase Order or to extend it for such a period as it may be decided after mutual discussions.
10.1.This General Terms and conditions including the interpretation hereof shall be governed and construed in accordance with the law of the State of Austria without reference to its rules of conflict of law and without applying the law pertaining to the Convention of the UN regarding the International Sale of Goods.
10.2.In case of any dispute or difference arising in connection with the Purchase Order both Seller and Buyer shall endeavour to settle such dispute or difference first of all in an amicable way. If within four (4) weeks of negotiation by the Parties, they are not able to reach any amicable solution, then the terms of Section 10.3 shall apply.
10.3.Any dispute between the Parties, which is not resolved in accordance with Section 10.2 above shall be referred by either Seller or Buyer, exclusively, to the competent courts in Austria.
11.1.If any provision of these Terms and Conditions shall be considered unlawful, void or for any reason unenforceable, then that provision shall be considered severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions in these Terms and Conditions.
The Seller will not be responsible for any damages or changes or alterations made by a 3rd party on a buyer's purchased products once the seller have fully delivered according the INCOTERMS set forth in the purchase order. These damages or changes or alterations may include modifications and any additions.
13.1.''Displayed Products'' - The buyer acknowledges and agrees that some of the products which displayed on redrockeu.com might be for view only and cannot be ordered from redrockeu.com.
13.2.The Purchase Order shall be binding upon and inure to the benefit of the respective successors of the parties hereto, but it shall not be transferred or assigned by Buyer without the prior written consent of Seller, which consent shall not be unreasonably withheld; Seller shall have the right to assign the Purchase Order without Buyer’s consent, including the right to assign the receivables due to it from Buyer and/or any third party, as the case may be, to any of its affiliates.
13.3.The official language of this General Terms and Conditions shall be the English. Therefore all notices correspondence and technical Documentation shall be written in English and follow metric Product. The operating and instruction manuals as well as the maintenance manuals will be in English.
13.4.All notices and correspondence in connection with and required to be given under this General Terms and Conditions, except as otherwise agreed upon by the Parties shall be addressed to the persons and addressees of the Parties mentioned in the Purchase Order.
13.5.This General Terms and Conditions with the Purchase Order constitutes the entire agreement between the Parties relating to the Product and supersedes any and all agreements and understandings, oral or written, previously reached between the Parties.
13.6.This General Terms and Conditions shall not be altered, amended or modified in any respect, unless written consent is given by the Parties hereto.
13.7.If any provision or part of a provision of this General Terms and Conditions shall be, or be found by any authority, tribunal or court of competent jurisdiction to be, invalid or unenforceable, such validity or enforceability shall not affect the other provisions or parts of such provisions of the General Terms and Conditions, all of which shall remain in full force and effect
13.8.Each Party hereto acknowledges and agrees that: (a) it reviewed and negotiated the terms and provisions of this General Terms and Conditions and has contributed to its revision; (b) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this General Terms and Conditions; and (c) the terms and provisions of this General Terms and Conditions shall be construed fairly as to both parties hereto and not in favor of or against either party, regardless of which party was generally responsible for the preparation of this General Terms and Conditions.