General Delivery Conditions (GDC) 

backaldrin International The Kornspitz Company GmbH,

Kornspitzstrasse 1, 4481 Asten (“backaldrin”)

Version: [08052018]

1. Scope

1.1. Deliveries, services and offers by backaldrin (“Scope of Application”) are made exclusively on the basis of these Terms and Conditions. Agreements deviating from these General Terms and Conditions between the customer and backaldrin must be made in writing and apply only to the specific legal transaction, not to subsequent transactions. These General Terms and Conditions also apply in cases where agreements do not regulate certain matters. Actions taken by backaldrin to fulfil the contract do not constitute consent to contractual terms that deviate from our conditions.

1.2. By signing, especially on our order forms, order confirmations, offers and other business documents, the customer declares their acceptance of the contents of these General Terms and Conditions. backaldrin reserves the right to amend these General Terms and Conditions at any time. Amended versions will be published on our website www.backaldrin.com. If the customer does not object to the amended Terms and Conditions within three weeks of publication or transmission, their silence shall be deemed consent and the amended Terms and Conditions shall take effect.

1.3. The General Terms and Conditions are available for inspection at any time in our business premises and/or on our website www.backaldrin.com and will be sent to the customer electronically or by post upon request.

1. Conclusion of Contract

2.1. A contractual offer (order) from a customer – in whatever form – requires written acceptance by backaldrin for a contract to be concluded. If backaldrin fulfils orders by dispatching the goods to the customer, a contract is also concluded in accordance with these General Terms and Conditions.

2.2. Offers and other declarations by backaldrin are non-binding unless expressly designated as binding, and are only legally binding if made in writing or – if made orally – confirmed in writing. Deadlines set by the customer for offers are not considered to be included. Acceptance of offers is also based on these General Terms and Conditions.

2.3. Estimates or cost calculations are prepared by backaldrin to the best of its knowledge, but no guarantee is given for their accuracy.

1. Price

3.1. Agreed prices apply to the offered INCOTERM 2020 and do not include costs for assembly, disassembly, installation, return, proper recycling or disposal, unless otherwise agreed in writing.

3.2. If cost factors for backaldrin’s deliveries and services increase by more than 4% between acceptance of an order (conclusion of contract) and the time of delivery and/or service, backaldrin is entitled to adjust prices accordingly.

3.3. The place of fulfilment for the customer’s payment obligation is the account of backaldrin International The Kornspitz Company GmbH at Oberbank AG, branch 4020 Linz, Landstrasse 37.

3.4. The reference currency is the Euro. If the customer owes payment for deliveries and services in a currency other than Euro and the exchange rate (Euro to foreign currency) deteriorates by more than 4% between the conclusion of the contract (acceptance of the order) and the date of invoicing, we are entitled, but not obliged, to adjust the price.

3.5. Changes to orders or additional orders may be invoiced.

1. Payment

4.1. Unless special payment terms have been agreed in writing, the purchase price is due upon delivery/collection.

4.2. If deliveries/services are invoiced in parts, the partial payments due are payable upon receipt of the respective invoice. This also applies to amounts invoiced due to subsequent deliveries or other agreements exceeding the original contract sum, regardless of the payment terms agreed for the main delivery. If even a single partial payment is late or not paid in full, all remaining outstanding amounts become immediately due. In the event of default, backaldrin has the right to take custody of and retain goods delivered under retention of title, without withdrawing from the contract, until all outstanding claims (including ancillary costs) against the customer are settled.

4.3. Payments must be made without any deduction in the agreed currency.

4.4. The customer is not entitled to offset their claims against claims by backaldrin or to withhold payments due to warranty claims or pursuant to § 1052 ABGB. Any rights of retention by the customer under § 471 ABGB or §§ 369 ff UGB are hereby excluded.

4.5. A payment is deemed to have been made on the day backaldrin can freely dispose of it.

4.6. backaldrin is entitled to allocate incoming payments, even if instructed otherwise by the customer, to older claims (including interest or costs). Any agreed discount deduction requires that, apart from the claim to be settled, no other claims by backaldrin against the customer are outstanding and due.

4.7. Payments are to be made upon receipt of the invoice.

4.8. In the event of payment default by the customer, default interest of 8% above the applicable base rate is agreed.

4.9. Without prejudice to its other rights, backaldrin may postpone fulfilment of its obligations until payment or other performance by the customer is effected and may withhold deliveries to the customer until all obligations are fully met. In any case, backaldrin is entitled to charge pre-litigation costs, in particular dunning fees and legal fees.

1. Delivery Periods / Dates

5.1. Delivery periods and dates stated by backaldrin are non-binding and always refer to the expected time of provision and handover. Claims due to exceeding these dates (claims for damages, penalties, withdrawal) are therefore excluded.

5.2. If transport of the contractual products is agreed with the customer, the customer bears the costs and risk of transport.

5.3. Any ancillary obligations regarding delivery exist only after prior express written agreement.

5.4. Any official permits required for deliveries must be obtained by the customer. If such permits are not obtained in time, any agreed delivery period is extended accordingly.

5.5. backaldrin is entitled to make and invoice partial or advance deliveries. If delivery on call is agreed, the goods are deemed to have been called off no later than six months after ordering.

5.6. backaldrin is entitled, without prior consent of the customer, to engage third parties to provide its deliveries/services to an unlimited extent.

5.7. If unforeseeable or circumstances beyond the parties’ control, such as force majeure, hinder compliance with any agreed delivery period, this period is extended by the duration of such circumstances. Such circumstances include, in particular, customs delays, transport damage, official interventions, the failure of a key, difficult-to-replace supplier, or incidents with similar effects, as well as shortages of raw materials.

1. Risk, Transport, Place of Delivery, Default of Acceptance

6.1. Unless otherwise agreed, the offered INCOTERM 2020 applies to all deliveries; backaldrin’s deliveries and services are always divisible. Partial acceptance is permitted for partial deliveries.

6.2. The risk passes to the customer in all cases – even if we have undertaken to send the goods to the customer – as soon as the goods are handed over to the carrier or the customer at the loading point ex works. The same applies to goods made available but not called off or collected, or if delivery is postponed at the customer’s request.

6.3. If shipment of the goods is agreed, it is carried out in average packaging suitable for shipping at the customer’s expense. If a special type of transport is agreed, we provide or organise these services for separate payment of the resulting costs. If the customer has not requested a specific type of shipment, we choose the shipping method. The customer expressly agrees in advance to shipment by freight carrier, forwarding agent, railway or post.

6.4. If the place of delivery is abroad, transport is always at the customer’s expense. Furthermore, the customer is obliged at their own expense to clear customs, pay taxes and, if applicable, insure the delivery in accordance with the law. At the same time, the customer must obtain, at their own expense, all permits and confirmations required by law for the export of the goods from Austria and the import of the goods into the foreign country, as well as provide the necessary declarations.

6.5. If the customer does not take over the goods at the place of delivery (default of acceptance), backaldrin is entitled, but not obliged, after setting a reasonable grace period of at least ten days, to withdraw from the contract, terminate the entire contractual relationship with the customer and dispose of the ordered goods elsewhere. Claims for damages by backaldrin arising from default of acceptance remain unaffected. backaldrin is also entitled, instead of withdrawing from the contract, to insist on fulfilment of the contract. In this case, the customer is obliged to bear the costs of delivery in a reasonable amount. During default of acceptance, backaldrin stores the goods at the customer’s risk and expense.

1. Warranty, Inspection and Notification Obligations

7.1. backaldrin is entitled to determine the type of warranty (improvement, replacement, price reduction or rescission) itself.

7.2. backaldrin assumes no liability for the suitability of its goods for a purpose intended by the customer.

7.3. Warranty claims for material defects must be asserted in court within 6 months of handover of the goods. The period begins on the day of handover of the goods; for legal defects, it begins on the day the defect becomes known to the customer. backaldrin warrants defects present at the time of handover. The existence of defects must be proven by the customer. § 924 ABGB does not apply. If a claim for damages is excluded in the event of a defect in accordance with clause 9.3 of these General Terms and Conditions, warranty claims or claims on other legal grounds are also excluded.

7.4. The customer must inspect the goods within a reasonable period after delivery, but no later than four days after the transfer of risk, in accordance with §§ 377 ff UGB. Any defects found must be reported to backaldrin immediately, but no later than two working days after discovery, stating the nature and extent of the defect, the exact product name or product number, the date of delivery, and the date and number of the invoice, in writing.

7.5. Hidden defects must also be reported immediately, but no later than two working days after discovery, providing the above information in writing.

7.6. Timeliness of the written notification of defects is determined by the receipt of the notification by backaldrin. If a notification of defects is not made in time or does not comply with these provisions, the goods are deemed to have been accepted and all claims by the customer – on whatever legal grounds – are excluded.

7.7. All claims by the customer are also excluded if the customer has not stored, used or processed the goods properly and professionally. Goods subject to complaint must be sent to backaldrin after prior arrangement.

7.8. As far as possible, the customer is obliged – otherwise forfeiting claims – to allow backaldrin to determine the existence of any defects, to carry out more detailed inspections including viewing and inspecting documents, etc. Defects in individual, but independent parts of a delivery do not entitle the customer to withdraw from or rescind the entire contract.

1. Compensation for Damages

8.1. backaldrin is only liable for damages in cases of intent or gross negligence. In cases of slight negligence, backaldrin is liable exclusively for personal injury. backaldrin is not liable for indirect damages, loss of profit, loss of interest, missed savings, consequential and financial losses, or damages arising from third-party claims.

8.2. Furthermore, backaldrin’s liability for compensation is limited to 100% of the purchase price. Compensation for damages exceeding this amount is excluded in any case.

8.3. Any claim for damages can only be asserted in court within six months after the claimant(s) became aware of the damage, but no later than three years after the occurrence of the (primary) damage following the event giving rise to the claim, unless mandatory statutory limitation periods provide otherwise. The provisions on compensation for damages contained in these General Terms and Conditions or otherwise agreed also apply if the claim for damages is asserted in addition to or instead of a warranty claim. Claims for damages exceeding a penalty are excluded.

1. Retention of Title

9.1. The goods remain our property until full payment has been made.

9.2. If delivered goods are processed, backaldrin acquires co-ownership of the new item in proportion to the value of the new item to the value of the goods delivered by backaldrin. The same applies if the goods are processed or mixed with other items not belonging to us.

9.3. Resale of delivered but unpaid goods is only permitted if backaldrin is notified in advance, stating the name or company and the exact (business) address of the buyer, and we give written consent to the sale. In the event of our written consent, the purchase price claim is hereby assigned to us and we are entitled at any time to inform the third-party debtor of this assignment.

1. Assignment of Claims

10.1. Claims against backaldrin may not be assigned and/or pledged unless backaldrin expressly agrees in writing. In the event of a breach of this provision, backaldrin is entitled to a lump-sum claim for damages against the customer amounting to 150% of the purchase price claim.

10.2. The customer undertakes to insure our goods in accordance with the principles of a prudent businessman and hereby assigns any claims against an insurer within the limits of § 15 VersG to backaldrin.

1. Force Majeure

11.1. Events of force majeure entitle backaldrin (without the customer having any claims) to suspend delivery for the duration of the impediment and a reasonable start-up period and/or to withdraw from the contract in whole or in part according to their effects. If delivery is delayed by more than three months due to the effects of force majeure, both the customer and backaldrin are entitled (without the other party having any claims) to withdraw from the affected part of the delivery.

11.2. Events of force majeure include, but are not limited to, all effects, especially of natural disasters, whose prevention or avoidance is beyond our control, such as earthquakes, lightning strikes, frost, confiscation, sabotage, fire, strikes and shortages of raw materials.

1. Data Protection

12.1. The contracting party agrees that backaldrin may process personal data of the contracting party for the purpose of contract execution. The contracting party also permits further processing for general business development, marketing and statistical purposes. Further processing is only carried out within the legal framework. A detailed list can be found at www.backaldrin.com/Datenschutz for information according to Art 13 and 14 GDPR.

12.2. The contracting party undertakes to process personal data of backaldrin only within the legal provisions of the GDPR and the Austrian Data Protection Act.

12.3. If backaldrin suffers damage due to improper processing of personal data by the contracting party, its subcontractors or employees, the contracting party is liable for all resulting damages. This liability also covers slight negligence.

1. Change of Address and Copyright

13.1. The customer is obliged to notify backaldrin of changes to their business address as long as the contractual legal transaction has not been fully fulfilled by both parties. If notification is omitted, declarations are deemed to have been received even if sent to the last address provided by the customer.

13.2. In particular, any samples or illustrations and the like remain the property of backaldrin. The customer does not acquire any rights of use or exploitation of any kind.

1. Use of Data for Marketing Purposes

The customer gives their express consent that their data may be used for marketing purposes of our products, in particular for product improvement, further development and internal needs analyses.

1. Consent to Email Advertising, Reference List

The customer declares their consent to receive advertising and information by email about our products and offers as well as those of other business partners to a reasonable extent. The customer’s data remains with us and is not passed on. This consent can be revoked at any time in writing, by fax or email.

1. Significance of Headings

Headings in these General Terms and Conditions are for better clarity and structure only. They have no normative significance. Nor do they serve to limit and/or expand the scope of application or interpretation of these Terms and Conditions.

1. Partial Invalidity

Should individual provisions of the agreement concluded with the customer be void, ineffective or contestable, the remaining provisions remain unaffected and are to be interpreted and/or supplemented so that the intended economic purpose is achieved as precisely as possible in a legally permissible manner. This also applies in the event of any contractual gaps.

1. Choice of Law, Jurisdiction

18.1. Austrian law applies exclusively.

18.2. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The contracting parties agree to Austrian domestic jurisdiction.

18.3. The court with subject-matter jurisdiction at our company’s registered office is exclusively responsible for deciding all disputes arising from these General Terms and Conditions and contracts based on them.

1. Compliance with Legal Requirements

All documents created by backaldrin International The Kornspitz Company GmbH comply with the legal requirements and regulations of the European Union in force at the time of creation. The contracting party is obliged to independently check and verify all product specifications and information provided by backaldrin, such as ingredient lists or allergen information and (if applicable) their translations, for compliance with the locally applicable legal requirements, guidelines and regulations of the respective destination country.