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backaldrin international

General Terms and Conditions

backaldrin International The Kornspitz Company GmbH
Kornspitzstraße 1, 4481 Asten
As of: December 2008

1. Scope of application

1.1. The deliveries, goods and services, and offers of our company take place exclusively on the basis of these General Terms and Conditions; conflicting terms of the customer or those diverging from these General Terms and Conditions will not be accepted, unless we expressly agree to their validity. Contractual performance on our part shall not be considered as agreeing to terms of contract which diverge from our terms in this respect.

1.2. The terms and conditions on hand shall apply as a framework agreement for all further legal transactions between the contract parties. Deviating individual agreements must be in written form and apply only to the respective legal transaction, and expressly not to follow-up transactions. The customer herewith confirms knowledge of the content of these General Terms and Conditions.

1.3. The customer, by signing, in particular, our order forms, order confirmations, offers and other business documents, declares that he agrees to the contents of these General Terms and Conditions. The customer, by signing exactly these business documents, declares that he has read these General Terms and Condition and in any event has had the opportunity to take note of the contents of these General Terms and Conditions.

1.4. The General Terms and Conditions are available to the customer for reference at any time at our business premises and/or on our homepage and will be sent to the customer on request by electronic mail or postally.

2. Changes to the General Terms and Conditions

Changes to the General Terms and Conditions shall be deemed as approved and apply also to existing contracts, unless the customer, following announcement of the changed General Terms and Conditions, withdraws from the contract within three months and has pointed out to us this legal consequence in good time. The announcement of the changed General Terms and Conditions, with reference to the legal consequences, can be made in writing or electronically.

3. Conclusion of contract

3.1. An offer of contract (order) by a customer – in whichever form – requires a written order confirmation. Us shipping the goods ordered by the customer also effects the conclusion of contract.

3.2. Our offers and other declarations remain non-binding, and legally binding only when submitted in writing or – when submitted verbally – confirmed in writing. Time limits of offers given by the customer are non-binding. The acceptance of an offer also takes place based on the General Terms and Conditions on hand.

4. Price

4.1. Insofar as nothing else is expressly agreed, all prices quoted by us are excluding VAT and ex factory excluding packaging; packaging will be charged extra. Our offers are non-binding. Should accounts relevant to calculation or costs required for supplying goods and services, such as those for outside services, raw materials, etc. increase, we retain the right to increase the prices accordingly and will invoice the price valid on the day of delivery.

4.2. The Euro is the base currency. If the currency exchange rate deteriorates (Euro to foreign currency) by more than 4%, we retain the right, but are not obligated, to undertake a price adjustment.

5. Payment

5.1. Insofar as no special payment conditions have been agreed in writing, the purchase price is due upon delivery/collection.

5.2 With partial invoicing, the related part payments are due on receipt of the respective invoice. This also applies to the invoice sums arising from subsequent deliveries or other agreements above the original contractual sum, regardless of the payment conditions agreed for the main delivery.

5.3. Payments are to be made without deduction, in the agreed currency.

5.4. The customer is not authorised to retain or offset payments owing to warranty claims or other counterclaims.

5.5. Payment is seen as complete on the day we have free access to it.

5.6. We are also authorised to offset incoming payments against older, unpaid deliveries despite other instructions given by the customer. Cash discount deductions require all claims already due to have been settled.

5.7. Payments are due upon receipt of the invoice.

5.8. For default of payment, default interest is charged at a rate of 10% above the respective basic interest rate.

5.9. Without prejudice to our other rights, we can delay fulfilment of our own obligations or other services until payment is made, or take the right to an appropriate extension of the delivery date. In any event, we are authorised to invoice pre-litigation costs and, in particular, dunning charges and lawyers’ costs.

6. Delivery dates/Deadlines

6.1. The deadlines and delivery dates stated by us are non-binding and apply only subject to unrestricted transport opportunities. Compensation claims due to any delivery date delays and penalty payments (conventional penalties) due to delayed delivery are excluded.

6.2. The delivery obligation is to be understood as an obligation to collect on the part of the customer. If shipping of the contract products is agreed with the customer, the customer shall bear the corresponding costs.

6.3. Secondary obligations of any kind for the delivery exist only in accordance with express, prior written agreement.

6.4. Any official permits are to be obtained by the customer. If such permits are not obtained in time, the delivery deadline is extended accordingly.

6.5. We are authorised to effect and invoice partial or advance deliveries. If delivery is agreed to as “on call”, the goods shall be deemed as called for, at the latest, six months after the date of order.

6.6. We are authorised, even without the prior agreement of the customer, to call on, without limitation, third parties for fulfilling the services contained in the offer.

6.7. Insofar as unforeseeable circumstances or circumstances beyond the control of either party occur, such as all force majeure events, which hinder compliance with the agreed delivery deadline, the deadline is equally extended by the duration of these events; this includes, in particular, delays at customs, transport damages, official intervention and the loss of essential, difficult to replace subcontractors, or occurrences equal to the above mentioned examples, as well as a lack of raw materials.

7. Bearing of risk, transport, place of delivery, default in taking delivery

7.1. Unless otherwise agreed, all deliveries are "delivery ex factory".

7.2. The risk is transferred to the customer in any event – also when we have assumed delivery to the customer – as soon as the goods leave our warehouse. The same applies to goods provided that have not been retrieved or collected, or if the delivery is deferred on request of the customer.

7.3. In case of an agreement for shipping the goods, this takes place in regular packaging, customarily suitable for shipping. If a special type of transport is agreed, these services will be performed or arranged by us against special payment for the additional costs incurred. If the customer has not specified a special form of shipping, the choice of the same is ours. The customer expressly declares, as of now, agreement with shipping via haulier, carrier, rail or post.

7.4. If the location for delivery or service is abroad, the delivery/service is, in any case, at the customer's cost. The customer is further obligated to pay duty, taxes and any insurance as required accordingly. At the same time, the customer is to obtain, at the customer’s own cost, all legally required permits and confirmations, which are required for export of the goods from Austria, and import of the same to the foreign country, and to provide the appropriate declarations.

7.5. If at the conclusion of the contract no delivery/service location is agreed, we are authorised to make the delivery/service to the customer’s office or at another of the customer’s branches.

7.6. If the customer has not accepted the goods at the place of delivery (default in acceptance), we are authorised, but not obligated, to withdraw from the entire contract after setting an appropriate extension, no less than ten days, including all further contracts, and to utilise the goods elsewhere. We are furthermore authorised to insist on contractual performance. The customer is in this case obligated to, at the least, bear the costs of delivery at the usual rate.

8. Obligations of guarantee, inspection and notice of defects

8.1. We fulfil guarantee claims made by the customer in all cases at our discretion, either through improvement, supplementation of what is missing or replacement within reasonable time. Only when no improvement, no supplementation of what is missing or replacement within reasonable time has taken place for the benefit of the customer, is the customer entitled to a reduction in price or nullification (contract cancellation). Nullification is excluded for minor defects.

8.2. We assume no liability for the suitability of our goods for the customer’s intended purpose.

8.3. When material defects occur, guarantee claims must be legally asserted within six months of the transfer of goods. The time limit begins on the day of transfer, but for defects in title only on the day that the defect becomes known to the customer. We assume liability for defects existing at the time of transfer. Liability will be assumed until proven otherwise, provided the material defect emerges within 14 days of transfer. The assumption does not apply if it is inconsistent with the nature of the item or the defect.

8.4. For the purposes of §§ 377 ff Austrian Commercial Code, the customer must inspect the goods within a reasonable time after delivery, but no later than within four days from the time of transfer of risk. Defects detected in doing so must be communicated to us promptly, but no later than within two days after their discovery, stating the type and extent of the defect as well as the exact product designation or article number, date, performance of the delivery/service and the date and number of the invoice in writing.

8.5. Hidden defects are to be immediately reported, no later than within two days of their discovery, also stating the aforementioned details.

8.6. For timeliness of the written notification of defect, the date of arrival of the notification of defect at our company is decisive. If notification of defect is not made in time, or not ascertained according to these regulations, the goods are deemed as approved and all claims by the customer – for any legal reasons whatsoever – are excluded.

8.7. Moreover, all claims made by the customer are excluded if the goods are not stored, used and processed properly and professionally by the customer. Rejected goods shall be sent to us following prior agreement.

8.8. Insofar as possible, the customer – in case of other disentitlement – is obligated to allow us to determine the existence of any defects, through more thorough examination, including inspection and access to the documents and suchlike. Defects of individual but stand-alone parts of a delivery/service under no circumstances entitle withdrawal from the entire contract or revocation of the entire contract.

9. Compensation for damages

9.1. All claims for compensation are excluded in cases of slight negligence. This does not apply to damage to persons.

9.2. Furthermore, liability to pay damages on the part of the company backaldrin Österreich GmbH is limited to 100% of the purchase price. Compensation for damages in excess of this is excluded in all instances.

9.3. Any claims for damages can only be legally asserted within six months after the rightful claimant became aware or was able to gain awareness of the damage, but no later than within three years after the event establishing the claim. The terms and conditions of business or other agreed provisions contained in the terms and conditions on hand shall also apply if the claim for compensation is made in addition to or in place of a guarantee claim.

10. Reservation of proprietary rights and their assertion

10.1. All goods are delivered by us under reservation of proprietary rights, and remain our property until full payment, including any accompanying charges, and also until settlement of a possible current account balance.

10.2. In asserting the reservation of proprietary rights, withdrawal from the contract is possible when it is expressly declared. In case of redemption of goods, we are authorised to charge any transport and handling costs incurred.
In case of access to the retained goods by third parties – especially through seizure – the customer is obligated to point out the property is ours and to inform us immediately in writing.

10.3. The customer bears the full risk for the retained goods, especially for the danger of decay, loss or deterioration.

10.4. If the customer is authorised to dispose of the goods before payment, the customer must refrain from taking possession of the goods until full payment of the entitlement of performance (purchase price) due to him.

11. Assignment of claims

11.1. In case of delivery under reservation of proprietary rights, the customer hereby relinquishes his or her claims against third parties as payment, insofar as these claims arise from the sale or processing of our goods, until final payment of our claim.

11.2. The customer is obligated to insure our goods according to the principles of a prudent businessman, and immediately relinquishes any claims against an insurer to the limits of § 15 in Insurance Law.

11.3. Claims against us may not be assigned and/or pledged without our express written agreement. In case of violation against this provision, we are due flat-rate damages of 150% of the purchase price claim.

12. Withholding and offsetting

Offsetting against any claims the customer may have against us is excluded, unless the claim is not disputed by us or has been legally established. The customer also has no withholding right due to disputed counter claims.

13. Force majeure

13.1. Force majeure events authorise us to delay delivery for the duration of the hindrance and to stipulate an appropriate period of adjustment and, according to its effect, to withdraw in part or wholly from the contract. If delivery is delayed due to force majeure events by more than three months, the customer is entitled to withdraw from the part of the delivery affected hereby.

13.2. Force majeure events are any circumstances not within our reasonable control, including but without being limited to, in particular, all effects of forces of nature, such as earthquakes, lightning, frost, confiscation, sabotage, fire, strikes and a shortage of raw materials.

14. Data protection, change of address and copyright

14.1. The customer gives his or her consent that personal data included in the purchase contract can be stored EDP-supported and processed by us for purposes of performing this contract.

14.2. The customer is obligated to notify us of changes of business address as long as the contractual legal transaction has not been completely fulfilled by both sides. If notification is not given, declarations are then considered to have been received even if they are sent to the customer’s last known address.

14.3. In particular, any samples or illustrations and the like always remain our property. The customer receives no usufructuary rights or exploitation rights of whatever kind.

15. Use of data for marketing purposes

The customer gives his or her express consent that his data may be used for the marketing purposes of our products, especially for improvement, further development and internal market analyses.

16. Agreement to e-mail advertising, references list

The customer declares his agreement to receive, to an appropriate extent, advertising and information by email concerning our products and offers from us and other business partners. In doing so, customer data remains with us and is not passed on. This consent can be revoked at any time by the customer in writing, per fax or email.

17. Significance of the headlines

Headlines in these General Terms and Conditions serve only to provide a better overview and structure. They do not carry any normative significance. Nor do they serve as limitation and/or extension of the area of application or the interpretation of these business terms.

18. Partial nullity

Should individual regulations in these General Terms and Conditions be or become null and void, invalid or contestable, the remaining regulations remain untouched and are then to be interpreted and/or supplemented that the intended commercial purpose is achieved in a legally admissible way as exactly as possible. This also applies to any contract loopholes.

19. Choice of law, jurisdiction

19.1. Austrian law shall apply exclusively.

19.2. Application of United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The contract parties agree to Austrian, domestic jurisdiction.

19.3. For settling of all disputes arising from the General terms and Conditions on hand, as well as any contracts based on them, the competent court at our respective place of business shall be exclusively in charge.

20. Place of fulfilment

The place of fulfilment is the headquarters of our company.