We conclude sales contracts exclusively on the basis of our General Terms and Conditions (GTC) below. By accepting our offer, the purchaser/orderer/customer –hereinafter referred to as the purchaser – agrees to the validity of our GTC. If our offer is accepted by the purchaser in deviation from our GTC, the concurring terms and conditions shall be deemed agreed, while the deviating terms and conditions shall not be deemed agreed unless they have been expressly accepted by us in writing previously. In the event that our GTC are explicitly rejected, we reserve the right to withdraw from the offer or the contract, without any claims of any kind against us arising from this. Our GTC shall apply throughout the duration of the business relationship, consequently also to future contracts, even if no express reference is made to them.
Invoicing shall be at the prices agreed for the day of delivery. If the delivery date changes for reasons beyond our responsibility, we reserve the right to adjust our price to those prices valid on the day of delivery. Payments shall be made in EURO without regard to possible exchange rate fluctuations and without deduction “free paying agent” of the supplier.
3. Price setting
All our prices are ex works of the supplier and are exclusive of VAT and packaging. Any transport and insurance charges shall be borne by the purchaser. Purchasers within the European Union must provide their VAT identification number upon conclusion of the contract.
Upon loading and shipping, the risk is fully transferred to the purchaser in all circumstances. All goods are shipped at the risk of the purchaser.
Shipment shall be in accordance with the transport conditions of the respective carriers. The supplier reserves the right to choose an appropriate shipping route and method.
5. Terms and conditions of payment and right to rescind
Prices are valid 14 days net, unless otherwise agreed in writing, and payment is to be made by advance payment or provision of an irrevocable and confirmed letter of credit (or by agreement with bank guarantee, bank surety) no later than 2 weeks before the delivery date. The “Uniform Customs and Practice for Documentary Credits (UCP)” of the International Chamber of Commerce Paris (ICC) shall apply. Default interest to the amount of 9.2 percentage points above the base interest rate (Section 456 Austrian Entrepreneurial Code “UGB”) is agreed. In the event of default of even one single payment, the entire outstanding balance shall become due for payment to us promptly and without deduction. Incoming payments shall always be used to settle the oldest debt item plus interest on arrears. Checks will only be accepted as payment by special agreement and subject to their encashment. Payment by bill of exchange shall be rejected as a matter of principle. Costs caused by payment or its delay (in particular for a judicial or extrajudicial collection of the payment) shall be borne by the purchaser.
The purchaser is not entitled to withhold or offset payments due to warranty claims, claims for damages or other counterclaims.
We expressly reserve the right to refrain from carrying out any remaining (partial) deliveries until our claims against the purchaser have been paid in full. Circumstances which hinder, impede or endanger the delivery or payment of our goods (inclusive of, but not limited to, the opening or dismissal for lack of assets of insolvency proceedings against the assets of a company affiliated with the purchaser) shall entitle us, without prejudice to our claims for damages against the purchaser, to refuse the delivery of orders in part or in whole (extraordinary (partial) right of withdrawal); or to demand immediate payment (loss of date) and to charge interest on arrears from the due date. (Partial) deliveries already made are to be paid.
6. Delivery date
We shall be entitled (i) to postpone delivery dates without purchaser’s prior consent if and to the extent as might be expedient due to our capacity utilization or stock levels, and (ii) to make and charge for partial or advance deliveries. Cases of force majeure or other unforeseeable circumstances or circumstances independent of the will of the parties shall entitle us either to withdraw from the contract in part or in full, or to extend the delivery period in accordance with the circumstances. Claims for damages or a right of withdrawal from the contract on the part of the purchaser are expressly excluded in these cases as well as in the event of delayed delivery.
7. Reservation of title
The delivery of the goods is subject to retention of title with the following prolongations and extensions. Where the provisions of the Austrian Consumer Protection Act (“KSchG”) apply, only its mandatory standards apply in addition to our GTC. The delivered goods shall remain our exclusive property until full payment of all claims, including those arising in the future (principal and subsidiary claims) from the business relationship. The retention of title shall remain in force even if a balance is revealed after the account has been closed. This shall also apply if the purchase price for a specific delivery of goods designated by the purchaser is paid and settled. Any retention or set-off against counterclaims shall not affect the retention of title, unless this set-off is made against an undisputed or legally established claim. The purchaser is only entitled to resell goods subject to retention of title in the ordinary course of business. The purchaser assigns to us in advance all claims against his customers arising from the delivery of goods subject to our retention of title from their origination and with all securities and other rights on account of payment. We hereby accept the assignment.
8. Design changes
We reserve the right to make changes in the construction, form, composition and design of our products, insofar as they serve technical progress.
9. Return of goods
Returns of goods will only be accepted following our consent, and we might keep them at the sender’s disposal at his expense. For all returns accepted by us, which are not made on the basis of a justified complaint, the current market value, however not more than the invoice value, will be charged after deduction of the costs for a possible new presentation and a handling fee of 10 percent.
10. Obligation to inspect the goods and to give notice of defects
The purchaser undertakes to immediately inspect the goods at his earliest convenience, at the latest at the time of receipt of the goods at the agreed place of delivery, irrespective of a possible onward shipment by the purchaser (obligation to inspect). In the event of a deviation from the goods owed in terms of quality or quantity, the purchaser shall immediately submit a written notification specifying this deviation in terms of type and scope (obligation to give notice of defects). If a certain melt flow index (MFI), a certain density, viscosity or impact strength has not been reached, the purchaser undertakes – on the basis of the general availability of corresponding measuring instruments – to check these parameters at the above-mentioned point in time and, if necessary, to notify us immediately. Any deviations shall therefore not constitute a hidden defect. In case of breach of these obligations, the purchaser loses all rights under warranty, damages and error.
11. Warranty and compensation
Warranty claims must be asserted against us in court within 10 months from the transfer of risk. The warranty period is limited to this time slot of 10 months. This does not apply only under the proviso that we agree in writing to an extension of the warranty period. In the case of defects recognized by us, the goods will be taken back and, at our discretion, improvements, additions or replacements will be made or, at most, the invoice value will be reimbursed. Further claims cannot be asserted; this applies to any damage caused by defects, this including loss of production, loss of profit or other consequential damage caused by defects. Our liability for slight negligence is generally excluded in the case of damage to property. Points 5 and 10 of these General Terms and Conditions (GTC) shall also apply to all warranty claims and claims for damages.
12. Choice of law and place of jurisdiction
Austrian law shall apply exclusively. Place of performance for delivery and payment shall be Völkermarkt, Austria. The place of jurisdiction for legal actions shall at our discretion be the court having subject-matter jurisdiction for Völkermarkt, Austria, and, failing that, the court having subject-matter jurisdiction in Vienna, Austria. Likewise, however, we shall also be entitled to invoke another court having jurisdiction over the purchaser.
Status as at: August 28, 2019