1. Scope of Application

1.1. These General Terms and Conditions of Sale (“Terms”) exclusively apply to all sales and deliveries of Xell – Pulp Test Equipment GmbH (“Xell Austria”), even if they are not expressly referenced in individual cases, particularly in future supplementary or follow-up orders.

1.2. Deviations from these Terms are only valid and binding if expressly recognized in writing by Xell Austria. The buyer’s general purchasing conditions or similar unilateral conditions will not become part of the contract, even if they are referenced or included in an order accepted by Xell Austria.

2. Conclusion of Contracts

2.1. Offers from Xell Austria are estimates without legal binding effect. No rights can be derived from information and illustrations in catalogs, websites, brochures, advertisements, and similar materials. Oral statements are only binding if confirmed in writing by Xell Austria.

2.2. All offers made by Xell Austria are valid for 30 days unless otherwise stated in writing.

2.3. The currency used in all offers is EURO unless another currency is explicitly stated in writing.

2.4. If the buyer wishes to place an order for Xell Austria’s products, such orders must be made in writing, referencing one of our encrypted offers, and signed by persons authorized within their company to place such orders and accept the terms of the offer. Such an order constitutes an offer by the buyer to conclude a contract with Xell Austria but is only binding on Xell Austria after acceptance in accordance with section 2.5.

2.5. If Xell Austria accepts the buyer’s order at its discretion, it will issue an order confirmation. The contract is concluded upon issuance of the order confirmation or implicitly through Xell Austria’s performance. Oral or written statements are only binding if expressly confirmed in the order confirmation.

2.6. The buyer’s order remains binding until Xell Austria either executes the delivery or explicitly rejects the order.

2.7. Any modifications or additions to the contract require written approval from Xell Austria. All orders, order confirmations, modifications, and other written confirmations remain valid even when transmitted electronically.

2.8. Promises, assurances, and guarantees made by Xell Austria or agreements deviating from these Terms in connection with the contract conclusion are only binding upon written confirmation by Xell Austria.

2.9. If the buyer bases their order decision on product and service information from catalogs, price lists, brochures, advertisements, trade fair displays, circulars, promotional materials, or other media that are not attributable to Xell Austria, the buyer must notify Xell Austria. In such cases, Xell Austria may clarify the accuracy of such information. If the buyer fails to fulfill this obligation, such information remains non-binding unless explicitly included in the contract.

2.10. Cost estimates are provided without guarantee and free of charge.

3. Prices

3.1. Prices apply only to the products and/or services, including standard packaging, and are calculated EXW Xell – Pulp Test Equipment GmbH, excluding freight, insurance, VAT, or any other applicable sales taxes, duties, import fees, or other charges related to delivery, unloading, subsequent processing, maintenance, and services before or after the sale.

3.2. If applicable under the agreed delivery terms (Incoterms 2020), these costs, expenses, and charges will be invoiced separately to the buyer. Packaging material will only be taken back upon explicit agreement and at the buyer’s risk and cost.

3.3. If the buyer orders services that are not included in the original order, Xell Austria is entitled to reasonable compensation in the absence of a specific fee agreement.

3.4. The prices for Xell Austria’s products are as stated in the offers and negotiated with the buyer.

3.5. Prices apply as of the first offer. If costs increase by the time of delivery or if the order does not match the offer, Xell Austria reserves the right to adjust prices accordingly.

3.6. The buyer is responsible for the proper and environmentally sound disposal of old materials. If Xell Austria is separately contracted for this, an additional fee must be paid in the agreed amount in the absence of a compensation agreement.

3.7. Costs for travel expenses, per diems, and accommodation will be invoiced separately. Travel time is considered working time.

4. Payment

4.1. Unless otherwise agreed, the buyer must make payments as specified in the offer and order confirmation. Payments must be made in Euro by fee-free transfer to one of Xell Austria’s bank accounts.

4.2. Invoices must be paid to Xell Austria’s registered address under the conditions stated therein.

4.3. Any entitlement to a cash discount requires an explicit written agreement.

4.4. Payment references indicated by the buyer on the transfer slip are not binding for Xell Austria.

4.5. The buyer is not entitled to withhold payments or other obligations or to offset them against claims against Xell Austria.

4.6. Any proposed changes to payment terms must be agreed upon by both parties and accepted in writing by Xell Austria.

4.7. Ownership of the products passes to the buyer on the day of delivery, provided that all outstanding payments to Xell Austria have been fully settled; otherwise, Xell Austria retains ownership until full payment is made. If the buyer resells goods for which Xell Austria retains ownership, the buyer assigns their receivables from the resale to Xell Austria as security, even if the goods have been processed, modified, or combined with other goods.

4.8. If the buyer fails to make payment by the due date, Xell Austria may, without prejudice to other rights:

a) Charge interest of 1.25% per month on the overdue amount, accruing daily from the due date until full payment; and/or
b) Suspend its obligations without liability for delays until full payment is made; and/or
c) Seek reimbursement for all costs and expenses incurred due to the delay before resorting to legal action.

4.9. In the event of culpable payment default, Xell Austria is entitled to charge the statutory default interest rate applicable in business transactions under § 456 UGB (Austrian Commercial Code). Additionally, the buyer is obligated to compensate for reminder and collection expenses.

5. Creditworthiness Check

5.1. The buyer explicitly agrees that their data may be shared exclusively for creditor protection purposes with authorized creditor protection associations, such as AKV (Alpine Creditor Association), ÖVC (Austrian Creditreform Association), ISA (Insolvency Protection Association for Employees), and KSV (Credit Protection Association of 1870).

6. Delivery

6.1. Unless otherwise agreed, products are delivered EXW Xell – Pulp Test Equipment GmbH, and the risk of loss of the products passes to the buyer at this delivery location.

6.2. Delivery or performance dates for product deliveries are approximate. Unless expressly stated otherwise by Xell Austria, delivery time is not of the essence, and Xell Austria is not liable for any loss, damage, penalties, or costs resulting from failure to meet a delivery deadline.

6.3. The actual delivery time depends on the fulfillment of preconditions and begins at the latest of the following dates:
a) The date of order confirmation by Xell Austria;
b) The date when the buyer fulfills all technical, commercial, and other requirements for which they are responsible;
c) The date when Xell Austria receives a prepayment or security deposit required before delivery of the respective goods.

6.4. The buyer is responsible for obtaining any regulatory or other approvals required for the installation of plants and equipment. If such approvals are delayed for any reason, the delivery period is extended accordingly.

6.5. Xell Austria is entitled to make partial or early deliveries and charge the buyer for them. If call-off delivery is agreed upon, the goods are deemed to be called off no later than one year after the order was placed.

6.6. Xell Austria is neither in breach of contract nor liable for failure or delay in fulfilling any of its obligations if unforeseen circumstances beyond the parties’ control prevent adherence to the agreed delivery schedule. These include, but are not limited to, fire, flooding, earthquakes, storms, or other natural disasters; war, threat of war, or war preparations; armed conflicts; the imposition of sanctions; embargoes; the severance of diplomatic relations or similar actions; terrorist attacks, civil war, riots, or disturbances; nuclear, chemical, or biological contamination or supersonic boom; labor disputes; voluntary or mandatory compliance with laws; accidental damage; loss at sea; adverse weather conditions; shortages of raw materials; failure of key suppliers; interruptions or failures in utilities, including but not limited to electricity, gas, or water supply; transportation delays; or customs clearance delays—whether affecting Xell Austria or any of its subcontractors.

7. Warranty

7.1. Xell Austria warrants for a period of twelve months from delivery that the delivered instrument (as defined below):
a) Meets the specifications stated by Xell Austria; and
b) Is free from hidden or apparent material or manufacturing defects that impair the intended use specified by Xell Austria, provided that all required maintenance has been performed in accordance with the instrument manual, if available, by Xell Austria or an authorized representative designated in writing by Xell Austria and subject to Clause 9.2.

An “instrument” refers to any instrument purchased from Xell Austria and all its accessories. Custom-made products are expressly excluded unless otherwise agreed in writing. The warranty expires immediately if the required maintenance is not performed in accordance with the provisions of this clause.

7.2. If a product proves to be defective within the warranty period, Xell Austria, at its discretion and at its own expense, shall remedy the defect by repair, replacement at the buyer’s site or at Xell Austria’s facility, or by granting an appropriate price reduction. The warranty period for the repaired or replaced product continues for the remainder of the original warranty period. All other costs and/or expenses, including but not limited to shipping, travel, and accommodation costs, shall be borne by the buyer. For warranty work carried out at the buyer’s facility, the buyer must provide all necessary auxiliary personnel, lifting devices, scaffolding, and other aids free of charge. Replaced parts become the property of Xell Austria.

7.3. Unless otherwise agreed in writing, the warranty provided by Xell Austria applies only to the buyer and may not be transferred or assigned to third parties.

7.4. This warranty replaces all statutory warranty provisions. Any other warranties or conditions (whether express or implied) regarding quality, condition, description, conformity with samples, or suitability for a particular purpose (whether statutory or otherwise) not expressly set forth in these terms are excluded to the fullest extent permitted by law.

7.5. Xell Austria is not liable for any defect in the products and/or services unless the defect is reported to Xell Austria within 10 days from the date of delivery, or the defect was not detectable through reasonable inspection within the 12-month warranty period from the date of delivery.

7.6. The buyer must always prove that the defect existed at the time of handover.

7.7. If a product is manufactured by Xell Austria based on the buyer’s design specifications, drawings, models, or other requirements, Xell Austria’s warranty obligation is limited to compliance with these specifications and does not extend to materials supplied by the buyer.

7.8. Rectification of a defect claimed by the buyer does not constitute an acknowledgment of the defect.

7.9. Xell Austria provides no warranty for used goods.

7.10. If the defects claimed by the buyer are unfounded, the buyer must reimburse the costs incurred in verifying the absence of defects or in remedying the alleged defect.

7.11. Any use or processing of the defective goods that poses a risk of further damage or hinders or prevents the removal of the cause of the defect must be stopped immediately by the buyer, unless unreasonable.

7.12. Xell Austria is entitled to conduct or commission any inspection deemed necessary, even if this renders the goods or workpieces unusable. If the inspection reveals that Xell Austria is not responsible for a defect, the buyer shall bear the costs of this inspection for an appropriate fee.

7.13. Xell Austria may avert a withdrawal request by remedying the defect or appropriately reducing the price, provided the defect is not significant and cannot be rectified.

7.14. If the delivered item does not fully meet the agreed use, this does not constitute a defect if it is due to actual circumstances that deviate from the information available at the time of performance, caused by the buyer’s failure to fulfill their obligations under Clause 9.

7.15. Similarly, it does not constitute a defect if the buyer’s technical facilities, such as supply lines, wiring, networks, etc., are not in technically flawless and operational condition or are incompatible with the delivered items. Austria provides no warranty for used goods.

8. Withdrawal

8.1. Unless expressly agreed otherwise, the buyer may only withdraw from a contract for the purchase of products if the delivery of the products has been delayed due to gross negligence on the part of Xell Austria and the reasonable grace period set by the buyer has expired. The withdrawal must be in writing and signed by management. All deliveries, services, and preparatory actions already performed will be invoiced to the buyer accordingly.

8.2. Xell Austria may withdraw from a contract for the supply of products or services in whole or in part without liability to the buyer, without prejudice to its other rights, if:

a) The delivery of the products or the provision of services becomes impossible or is delayed due to reasons attributable to the buyer, despite the setting of a reasonable grace period;

b) There are doubts about the buyer’s creditworthiness, and the buyer, upon request from Xell Austria, neither makes an advance payment nor provides suitable security before delivery;

c) The buyer is or becomes insolvent; or

d) The delivery is delayed by more than six months for reasons mentioned in Section 6.

8.3. Other consequences of withdrawal are excluded.

9. Buyer’s Duty to Cooperate

9.1. Our obligation to perform begins no earlier than when all technical details have been clarified, the buyer has met the technical and legal requirements (which we will gladly communicate upon request), the agreed advance payments or securities have been received by us, and the buyer has fulfilled their contractual obligations and duties of cooperation, including those listed in the following sections.

9.2. In the case of assembly work to be carried out by us, the buyer must ensure that work can commence immediately upon the arrival of our assembly team.

9.3. The buyer is responsible for obtaining any necessary third-party approvals, as well as official registrations and permits, at their own expense. Details can be requested from us.

9.4. The buyer must provide, at their own expense, the necessary amounts of energy and water required for the service, including trial operations.

9.5. The buyer must provide us with lockable, third-party-inaccessible spaces free of charge for use by our employees and for the storage of tools and materials during the performance of the service.

9.6. The buyer is responsible for ensuring that the necessary structural, technical, and legal conditions for the work to be performed or the purchased item exist, as described in the contract or in the information provided to the buyer before the contract was concluded, or as the buyer should have known based on relevant expertise or experience.

9.7. The buyer is also responsible for ensuring that technical installations, such as power lines, cabling, networks, and similar, are in proper and operational condition and are compatible with the purchased items or work provided by us.

9.8. We are entitled but not obligated to inspect these installations for a separate fee.

9.9. Before the start of assembly work, the buyer must provide necessary information regarding the location of concealed power, gas, and water lines or similar installations, escape routes, other structural obstacles, potential hazards, and required structural details without being requested to do so.

9.10. Details of the required information related to the order can be requested from us.

9.11. The buyer bears sole responsibility for the execution and functionality of provided parts. We are not obligated to inspect any documents, information, or instructions provided by the buyer beyond the preparation of a technical design dossier and certification of compliance with the Machinery Directive and other applicable regulations. Liability in this respect is excluded. The obligation to issue the certificate may be contractually transferred to the client marketing the delivered item.

9.12. The buyer is not entitled to assign claims and rights from the contractual relationship without our written consent.

10. Execution of Work

10.1. Xell Austria is only obliged to consider subsequent changes and expansion requests from the buyer if they are technically necessary to achieve the contract’s purpose.

10.2. Minor changes to our services that are objectively justified and reasonable for the buyer are considered pre-approved.

10.3. If there is a change or addition to the order after it has been placed for any reason, the delivery/performance period shall be extended accordingly.

10.4. If the commencement or execution of the service is delayed or interrupted due to circumstances attributable to the buyer, particularly due to a breach of cooperation obligations under Section 9, the performance periods shall be extended accordingly, and completion deadlines shall be adjusted accordingly.

10.5. For the storage of materials, equipment, etc., in our facility due to delays, we are entitled to charge the buyer actual storage costs for each month of delay, without affecting the buyer’s payment and acceptance obligations.

10.6. If the buyer requests fulfillment within a shorter period after the contract has been concluded, this constitutes a contract amendment. Overtime may be required and/or additional costs incurred due to accelerated material procurement, and the compensation shall be adjusted accordingly.

10.7. Objectively justified partial deliveries and partial services (e.g., due to the size of the facility, construction progress, etc.) are permissible and may be invoiced separately.

11. Maintenance, Servicing, and Repair

The terms in this section apply analogously to all service, maintenance, and repair contracts unless stated otherwise.

12. Transfer of Risk

12.1. The risk transfers to the buyer as soon as we make the purchase item, material, or work available for collection at our facility or warehouse, deliver it ourselves, or hand it over to a carrier.

12.2. The buyer must adequately insure this risk. Upon the buyer’s written request and at their expense, we will take out transport insurance. The buyer agrees to a commercially customary shipping method.

13. Default of Acceptance

13.1. If the buyer is in default of acceptance for more than four weeks and fails to remedy the delay despite a reasonable grace period, we are entitled to use the intended equipment and materials elsewhere, provided we can procure replacements within a reasonable period.

13.2. In the case of default of acceptance, we are also entitled to store the goods at our facility and charge a storage fee per Section 11.5.

14. Limitation of Liability

14.1. Outside of product liability, Xell Austria is only liable if the damage is demonstrably due to intent or gross negligence. Xell Austria is not liable for simple negligence.

14.2. Xell Austria is not liable for damages resulting from subsequent use or misuse of products/services, including but not limited to:

a) Normal wear and tear;

b) Abnormal working conditions beyond product specifications;

c) Negligence or intentional misconduct by the buyer;

d) Unauthorized assembly, modification, or service work;

e) Compliance or non-compliance with regulatory approvals.

14.3. The total liability of Xell Austria for claims arising from the contract is limited to the value of the respective order.