Corporate General Terms and Conditions
1. Scope of application
Our deliveries, services and offers shall be provided exclusively on the basis of these General Conditions of Sale. This shall also apply if the contractual partner uses general terms and conditions of his own and we did not expressly object these terms and conditions. In particular, acts in fulfilment of the contract on our part shall by no means be regarded as consent to any provision deviating from our conditions.
2. Offers
a) Our offers shall be not binding and subject to confirmation. Deviating periods of commitment in our offers shall take precedence over this general regulation. Orders shall become legally binding only upon confirmation of the order by us.
b) Costs estimates will be compiled to the best of our professional knowledge and expertise. However, we shall not assume any guarantee for their accuracy. If actual costs exceed the estimate by more than 15% after placement of the order, the customer shall be notified immediately. Below this threshold, unavoidable costs exceeding the cost estimate will be invoiced without notice to the customer. Order modifications or additional orders shall be invoiced at appropriate prices.
c) Prices contained in our offers shall always be calculated on the basis of minimum quantities. If less than the offered quantity is purchased, the resulting higher costs per unit will be charged subsequently to the customer’s account.
d) Overshipment and shortshipment of packaging components by sub-suppliers shall be at the expense of the customer.
e) Raw materials shall be purchased in the minimum quantities specified by the sub-supplier and in full-size trading units. Any resulting unused residual quantity will be passed to the customer’s account and either stored according to the customer’s instructions and at his expense, sent to the customer or destroyed.
f) The offer includes a loss surcharge and a full-service surcharge on packaging components and raw materials.
3. Prices
a) Unless otherwise agreed, our prices are quoted ex works including shipment packaging costs, but excluding value-added tax, forwarding charges, insurance, export, transit and import fees, taxes, dues, customs duties etc. Printing plates and tool costs shall be invoiced separately.
b) Unused materials will be destroyed after a maximum storage period of six months. The costs of physical destruction and the merchandise value including the full-service surcharge will be charged to the customer’s account. Before destruction, the customer will receive an updated inventory list.
c) Full-service surcharges shall include storage and pre-financing of raw materials and packaging components for three months. Storage and pre-financing beyond this three-month period shall be subject to a fee and will be charged to the customer’s account.
d) All indicated prices reflect the current calculation situation. Should there be a change in labour costs due to collective bargaining agreements or internal wage agreements or a rise in other costs required for the delivery of our goods and services such as the cost of materials, energy, transportation, subcontracting or financing charges, we shall be entitled to adjust our prices accordingly.
4. Delivery
a) The place of performance shall be our production plant. Shipment will be arranged per customer’s instructions, and the customer will bear the risk of shipping and loss and assume all shipping charges. The risk shall pass to the customer upon handover of the goods to the carrier. If shipping is delayed without any fault of ours, the risk shall pass to the customer upon notification that the goods are ready for shipment.
b) If the customer does not timely accept the goods, we shall be entitled to store the goods at the expense of the customer. If the customer still has not called the goods after six months, the goods will be destroyed at the customer’s expense.
c) We reserve the right to deliver in quantities exceeding or falling short of the contractually stipulated quantity by 15 % in deliveries of up to 10,000 units, by 10% in deliveries of up to 50,000 units, and by 5% in deliveries of any greater number of units. We shall be entitled at any time to render partial services and make partial deliveries.
d) The delivery period shall be based solely on the order confirmation following the order. However, the period will start only after the customer has presented all necessary documentation, permits, releases and remitted a possibly agreed downpayment. In case of an unfavourable essential change to the customer’s financial situation, we shall be entitled to raise the amount of the downpayment or make the delivery subject to advance payment of the total purchase price.
e) In case of unforeseeable hindrance, in particular force majeure, the delivery period will be extended accordingly, or we shall be entitled to withdraw from the contract. On his part, the customer shall be entitled to withdraw from the contract if he can prove that, as a result of the delay, acceptance of the delivery would face him with undue hardship. Any claim for damages by the customer on the grounds of delay or withdrawal shall be ruled out.
5. Terms of payment
a) Unless otherwise agreed in writing, payment of the purchase price and delivery of the goods and services shall be done concurrently. Payment periods specified in the invoices shall start on the date of the invoice. Price discounts will be recognised only in the framework and on the basis of a written agreement.
b) Payments shall only be accepted if transferred directly to our designated bank account. No employee or other agent (in particular no forwarding agent, carrier etc.) shall be authorized to cash such payments. Either contracting party shall pay its own bank fees.
c) Payment by bill of exchange or cheque must be previously approved by us.
d) In the event of late payment, even through no fault of the customer, we shall be entitled to charge default interest in the amount of 8 % above EURIBOR. The claim for compensation of any higher interest shall remain unaffected.
e) In case of late payment, the customer undertakes to reimburse us for any resulting dunning costs and collection expenses, in particular any costs charged by a consulted collection agency or, in the event of a self-managed dunning process, € 10.- for each reminder sent. In addition, any further damage resulting from such late payment, regardless of fault, must be compensated for by the customer.
f) Setoff of any kind of a customer’s counterclaim against our claims shall be ruled out. Claims against us may not be assigned to third parties without our explicit written approval.
6. Reservation of proprietary rights
a) Until complete payment of all our current and future receivables resulting from the sales contract and an ongoing business relationship (secured receivables), we reserve proprietary rights in the sold goods (extended reservation of proprietary rights).
b) Goods under reservation of proprietary rights must neither be pledged nor assigned as security to third parties prior to complete payment of the secured receivables. The customer shall notify us in writing without delay if third parties take hold of goods to which we have a title of ownership.
c) In case of breach of contract by the customer, in particular non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with statutory provisions and demand handover of the goods on the grounds of reservation of proprietary rights and withdrawal.
If the customer does not pay the due purchase price, we shall only be entitled to assert these rights if, prior to doing so, we have set the purchaser an appropriate time limit for
payment or if the setting of such a time limit is dispensable under the statutory provisions.
d) The customer shall be entitled to resell or further process goods under reservation of proprietary rights in the ordinary course of business. In this event, the following regulations shall be applicable in addition:
aa) The reservation of proprietary rights shall apply to the full value of products having resulted from our goods through processing, mixture or combination. We are to be regarded as the manufacturer of such products. If the right of ownership of third parties remains in place after processing, mixture or combination of our goods with their goods, we shall acquire co-ownership in proportion to the invoice values of the goods processed, mixed or combined.
Apart from that, the resulting product shall be subject to the same regulations as the goods delivered under reservation of proprietary rights.
bb) For securing purposes, the customer already hereby cedes to us the receivables against third parties resulting from resale of the goods or product fully or in the amount of our potential co-ownership share in accordance with the above paragraph [6. d) aa)] and undertakes to make a corresponding note in his books or on his invoices.
We expressly accept this cession.
The obligations of the customer referred to in paragraph 6. b) shall also be applicable in consideration of the ceded receivables.
cc) Alongside us, the customer shall also be entitled to collect the receivable. We undertake not to collect the receivable as long as the customer meets his payment obligations to us, does not come in default of payment, has not filed for insolvency and is not subject to any other lack of performance capability.
If this is the case, however, we shall be entitled to demand that the customer notifies us of the ceded receivables and their debtors, provides us with all information required for collection, hands over the respective documents to us and notifies the debtors (third parties) of the cession.
dd) If the realisable value of security collateral exceeds our receivables by more than 10 %, we shall release security collateral of our choice upon request by the customer.
7. Warranty
a) Goods delivered by us must be inspected immediately after delivery. We must be notified in writing immediately, but no later than seven days after delivery, of any detected defect along with a description of the defect’s nature and extent. Any defect not detectable in spite of the customer’s thorough inspection shall be reported to us in writing immediately after detection, but no later than seven days after its discovery. The full burden of proof for all claim requirements, especially for the defect itself, the time of its detection and timeliness of the notice of defects itself rests with the customer.
b) If a notification of defects is either not forwarded or not forwarded in due time, the goods shall be considered as approved. In these cases, the assertion of warranty claims or claims for damages as well as the right to contestation of mistake on the grounds of defect shall be ruled out. If a defect occurs despite our best effort and care, our liability shall be limited to replacement of the goods – to be returned by the customer – with non-defective goods within a reasonable delivery time.
c) The customer shall not be entitled to cure a defect himself or have it cured by a third party. Instead, we must be given the opportunity to cure the defect or exchange the goods within a reasonable timeframe. Before returning any goods, it is necessary to obtain our prior approval. Justified complaints shall not authorise the customer to withhold payment of the entire invoice amount, but rather only an appropriate or aliquot proportion of the invoice amount.
d) The warranty period shall be 12 months following receipt of the goods. The warranty claim shall come under the statute of limitations if not asserted by legal proceedings within this period. If the warranty is claimed, this shall neither interrupt the warranty period nor trigger the start of a new warranty period.
e) Claims of the customer because of expenses required for the purpose of subsequent fulfilment, especially transportation, infrastructure, material and labour costs shall be ruled out, provided the increase in expenses results from the fact that goods delivered by us are subsequently taken to a place other than the originally agreed place of delivery.
f) If the customer wrongly claims compensation because of reasons for which we are not liable, we shall be entitled to charge any resulting costs to the customer’s account.
g) Consulting services will be rendered to the best of our knowledge, but without any commitment, and we shall not incur any liability as a result of such consulting services. The customer shall be responsible to ensure that his specifications are in line with the intended use and meet all statutory requirements.
8. Liability
If deliveries are made according to drawings, specifications or other information provided by the customer and if this leads to the violation of third-party trade mark rights, the customer hereby exempts us from all resulting claims.
The customer hereby exempts us from all claims, with or without a punitive nature, of court rulings in the United States of America. In the event that we must defend ourselves against such claims, the customer shall indemnify us and hold us harmless for and against all resulting expenses including attorney’s fees.
9. Damages
Claims for damages shall be ruled out in cases of slight negligence, compensation for consequential damage and pecuniary losses, not realised savings, losses of interest and damage resulting from claims made against the customer by third parties. Gross negligence has to be proved by the customer. In any case, claims for damages shall come under the statute of limitations two years after provision of the delivery or service.
10. Product liability
Potential recourse receivables directed against us by contractual partners or third parties on the grounds of the “Product Liability” title under the Product Liability Act shall be ruled out unless the person entitled to recourse proves that the defect occurred in our sphere of responsibility and was based at least on gross negligence.
11. Written form
Verbal promises shall not be legally effective. To become effective, any agreement, subsequent modification, amendment or subsidiary agreement must be in written form. This also applies to any agreement through which the written form requirement is waived.
12. Jurisdiction
It is agreed that all disputes arising out of this agreement or relating to these general conditions of sale shall be settled under the jurisdiction of the court with competence for our company. Irrespectively of this agreement on the jurisdiction, we shall be entitled – at our own discretion – to assert our claims against the customer in any place and before any court capable of acquiring competence under the statutory provisions, especially before the court responsible for the customer’s registered office or domicile.
13. Data Protection
We shall store and process data indicated to us by our customers in the framework of orders exclusively in our internal database. The data are treated confidentially and not passed on to third parties in accordance with the Data Protection Act. The consent hereby given by the customer to storage and processing of the aforementioned data can be withdrawn in writing at any time.
14. Final provisions
Austrian law shall be applicable. Any applicability of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG) is ruled out. Should individual provisions of the agreement or these general conditions be or become ineffective, the validity of all other provisions shall remain unaffected. Any ineffective provision shall be considered as replaced with a provision that comes closest to the commercial purpose of the original provision.