General Terms for Contracts
GENERAL TERMS FOR CONTRACTS
for backaldrin International The Kornspitz Company GmbH,
Kornspitzstrasse 1, 4481 Asten (“backaldrin“)
1.1. Deliverables, services and solicitations by backaldrin (“Scope”) shall be governed exclusively by these business conditions. Any agreements between customers and backaldrin which deviate from these general business conditions must be in written form and shall apply solely to the particular legal matter, and not to any subsequent business. The scope of these general business conditions shall also apply in the absence of any other conventions. Any backaldrin actions in fulfillment of a contract shall not be deemed as our consent to contract terms which deviate from our terms.
1.2. By providing their signature below, in particular on our order forms, contract confirmations, proposals and other business papers, the customer declares their agreement with the content of these General Business Conditions. backaldrin reserves the right to revise these General Business Conditions at any time. Updated versions will be published on our homepage at www.backaldrin.com. If the customer does not object to the revised business conditions within three weeks after publication or notification of the customer, then customer’s silence shall be deemed as consent and the revised business conditions shall take effect.
1.3. The General Business Conditions shall be available for inspection by customers at any time in our business offices and/or on our homepage at www.backaldrin.com and will be provided to customers either by electronic means or by postal service upon request.
2. Contract Signing
2.1. A contract proposal (order) by a customer - in whatever form - requires a written acceptance by backaldrin in order for a contract to come into force. If backaldrin fills orders in which a product is shipped to the customer, then a contract also comes into effect pursuant to these General Business Conditions.
2.2. Proposals and other declarations by backaldrin are nonobligatory, provided they are not expressly designated as binding, and shall only have legal effect when they are issued in writing or - if issued orally - are confirmed in writing. Time limitations on proposals by the customer shall not be valid. Acceptance of proposals shall also be effected on the basis of the General Business Conditions herein.
2.3. A cost proposal or cost estimation will be prepared to the best ability of backaldrin, however, no guarantee for its accuracy is implied.
3.1. Agree prices shall be “ex factory” or “ex works” INCOTERMS 2010 and do not include costs for transportation, shipping insurance, packing, loading, customs, assembly, disassembly, set-up, return and orderly recovery and disposal, unless otherwise stated in writing.
3.2. If backaldrin experiences a cost increase for deliverables and services of more than 4% since acceptance of an order (contract signing) before the timepoint of the delivery and/or service, then backaldrin shall be entitled to adjust the prices accordingly.
3.3. The place of performance for monetary payments by customers shall be to the account of backaldrin International The Kornspitz Company GmbH at the Oberbank AG, Bankstelle 4020 Linz, Landstrasse 37, Austria.
3.4. Payments shall be in euros. If the customer’s account for deliverables and services is not denominated in euros, and if the currency rate of exchange (euro to foreign currency) has deteriorated by more than 4% since the contract signing (acceptance of the order) until the date of invoicing, then we shall be entitled, but not required, to adjust the pricing accordingly.
3.5. Revisions to contracts or supplemental contracts can also be invoiced.
4.1. Unless other payment modalities are established in writing, the purchase price is due upon shipment/customer pick-up.
4.2. If deliverables/services are invoiced in parts, the partial payments applicable to each part are due and payable upon invoicing of the particular part. This shall also apply to the amounts invoiced which are due to subsequent deliveries or other agreements above the original contract sum, regardless of the payment modalities agreed for the primary deliverable. A state of arrears shall occur even if only one partial payment is tardy or not remitted in full. Upon the onset of a state of arrears, the entire amount still outstanding shall be due for immediately payment. In a state of arrears, backaldrin shall be entitled to retain custody of the product delivered under retention of ownership, without withdrawing from the contract until all open receivables (plus ancillary costs) have been covered by the customer.
4.3. Payments shall be provided without any deductions in the agreed currency.
4.4. Customer shall not be entitled to offset customer’s receivables against receivables owing to backaldrin, or to withhold payments against warrantee claims or pursuant to § 1052 ABGB. Also, any inferred right to withholding by the customer pursuant to § 471 ABGB or §§ 369 ff UGB is hereby excluded.
4.5. A payment shall be deemed to have been made on the date when backaldrin has unencumbered access to the funds.
4.6. backaldrin is entitled to apply received payments to older receivables (including to interest or expenses), even in spite of any customer instructions to the contrary. Any agreed discount deduction presumes that other than the receivable to be offset, backaldrin has no other receivables open and due against the customer.
4.7. Payments are due upon receipt of invoice.
4.8. If the customer is in arrears on a payment, then arrears interest in the amount of 8% above the prevailing basic interest rate shall be charged.
4.9. backaldrin has the right, irrespective of their other legal rights, to defer satisfaction of their obligations until the payment or other customer service has been effected, and to withhold deliverables to the customer until full and complete satisfaction of cutomer’s obligations. In any case, backaldrin is entitled to invoice pre-legal expenses, in particular expenses for reminder notices and attorney costs.
5. Terms of Delivery / Schedules
5.1. The terms of delivery and delivery schedules stated by backaldrin are not binding and are always to be understood as probable timing for shipping and delivery. Therefore any claims due to exceeding of these schedules (claims for compensation of damages, penalties, withdrawal) are excluded.
5.2. If an agreement is made with the customer regarding transport of the contract products, then customer shall bear the expense and risk for such transport.
5.3. Any ancillary obligations regarding the shipment, no matter how artfully crafted, shall only take effect after prior and express written agreement.
5.4. Any official approvals required for the shipments shall be obtained by the customer. If such approvals are not obtained in a timely manner, then any agreed delivery schedule shall be extended accordingly.
5.5. backaldrin is entitled to implement and to invoice partial or preliminary shipments. If an on-call delivery is agreed, then the product shall be deemed as having been picked up by no later than six months after the order.
5.6. Even without prior consent of the customer, backaldrin is entitled to involve third parties as necessary to provide their deliverables or services.
5.7. In the event of unforeseeable or other circumstances not relating to either party, such as cases of force majeure, which prevent adherence to any particular agreed delivery schedule, such schedule shall be deferred by the amount of time in which such circumstance shall persist. Such circumstances shall be, in particular, delays in customs, transport damage, official intervention or loss of an essential, difficult-to-replace shipper, or events whose effects are equivalent to these stated examples, and also supply shortages for raw materials.
6. Risk of Loss, Transport, Delivery Site, Acceptance Delay
6.1. Assuming no other agreement to the contrary, all deliverables are provided “ex factory” or “ex works” INCOTERMS 2010; backaldrin’s deliverables and services can alwaysbe divided into parts. In the case of partial shipment, partial acceptances are also permissible.
6.2. In every case, even if we are directly responsible for conveyance of the product to the customer, the risk shall pass to the customer as soon as the product has been transferred at the loading dock ex works to the transportation company or to the customer. The same shall also apply for ordered products which are not called for or picked up, or if the shipment is deferred at customer request.
6.3. In the case of an agreement regarding the shipment of a product, such shipment shall be at customer’s expense and in an ordinary packing commonly suitable for the shipment. If a particular kind of conveyance is agreed, then we shall provide or arrange the provision of these services, with separate invoicing of the additionally incurred expense. If the customer has not requested a particular kind of shipping, we shall select the shipping mode at our own discretion. Customer agrees at this point to our shipping by freight carrier, truck express, rail or postal delivery.
6.4. If the delivery address is in a foreign country, the transport shall proceed in every case at customer’s expense. Customer shall also be obligated to handle customs formalities according to law, to pay any taxes due and to provide insurance coverage, all at customer’s expense. Additionally, customer shall obtain the permits and certificates in compliance with local law as necessary for exportation of the products outside of Austria and for importation of the products into the foreign country, and to provide any relevant statements and declarations, all at customer’s expense.
6.5. If the customer does not collect the product at the delivery destination (acceptance arrears), then backaldrin shall be entitled, but not required, after setting a reasonable grace period of at least ten days, to withdraw from the contract and to terminate the entire contractual relationship with the customer and to exploit the ordered products in another way. Any claims by backaldrin for compensation of damages arising from the acceptance arrears shall remain thereby unaffected. backaldrin is additionally entitled to insist on contract performance, instead of withdrawal from the contract. In such a case, the customer shall be obligted to bear reasonable costs for delivery. During the acceptance arrears, backaldrin shall warehouse the products at customer’s hazard and risk.
7. Warrantee, Duty to Inspection and Objection
7.1. backaldrin is entitled to specify the type of warrantee (correction, replacement, price reduction or conversion).
7.2. backaldrin shall assume no liability for the suitability of their products for a particular purpose intended by the customer.
7.3. Warrantee claims involving material defects must be legally enforced within 6 months after conveyance of the product. The schedule shall begin upon the date of conveyance of the product, but in the case of defects of title, on the date when the defect became known to the customer. backaldrin shall provide a warrantee for defects which are present at the conveyance. The presence of defects shall be evidenced by the customer. § 924 ABGB shall not apply. If a claim for compensation of damages involving a defect pursuant to section 9.3 of these General Business Conditions is excluded, then also claims for warrantee or claims based on other legal grounds are likewise excluded.
7.4. Within the meaning of §§ 377 ff UGB the customer shall inspect the product after devlivery and within a reasonable schedule, but no later than within four days after the transfer of hazard and risk. Any defects discovered during this inspection must be reported to backaldrin without delay, but by no later than within two business days after their discovery; the type and scope of the defect, and also information on the specific product designation or product number, the date, the delivery acceptance data and the date and number of our invoice must be reported in writing.
7.5. Concealed defects shall be reported without delay, but by no later than within two business days after their discovery, likewise by providing the information specified above.
7.6. The timeliness of the written defect complaint shall be determined based on the date the defect complaint is received by backaldrin. If a defect complaint is not received within the specified time period, or does not conform to the provisions of this section, then the product shall be deemed as accepted and all claims by the customer - based on any legal grounds whatsoever - shall be excluded.
7.7. Any and all claims by the customer are also excluded if the customer has not stored, used or processed the product in a materially and technically appropriate manner. Defective products shall be returned to backaldrin after prior consultation.
7.8. To the extent possible, the customer shall be obligated to allow backaldrin to undertake an inspection and review of the documentation etc. in order to ascertain the presence of any and all defects; absent such customer compliance, customer shall waive any other claims for damages. Defects in individual, but independent portions of a deliverable do not entitle the customer to withdraw from the contract as a whole, or to modify the overall contract.
8. Compensation for Damages
8.1. backaldrin is liable for compensation of damages only in the event of intentional or gross negligence. In cases of minor negligence, backaldrn shall be liable solely for personal injury. backaldrin shall not be liable in cases of indirect damag-es, loss of profit, loss of interest, failure to attain savings, consequential and financial damages, damages due to third-party claims.
8.2. In addition, backdrin’s liability for product replacement shall be limited to 100% of the purchase price. Compensation for damages going beyond this amount is excluded in any case.
8.3. Every claim for compensation of damages can only be legally enforced within six months after the entitled party has gained knowledge of the damages, but no later than within three years after onset of the (primary) damages occurring after the event underlying the claim, provided no other expiration schedule has been established by law. The provisions regarding compensation of damages contained in these General Business Conditions or otherwise established, shall apply even if the claim for compensation of damages is to be enforced in addition to or in lieu of a warrantee claim. The enforcement of any compensation of damages going beyond a contractual penalty is excluded.
9. Retention of Ownership
9.1. The product shall remain under our ownership until full payment is made.
9.2. If a deliverable product has been processed, then backaldrin shall acquire co-ownership to the new material item in proportion to the value of the backaldrin-supplied product contained in the new item. The same applies if the product is processed or mixed with other articles not belonging to us.
9.3. Any subsequent sale of delivered, but as yet unpaid product, is only permissible if backaldrin has been informed in a timely manner prior to such sale, by statement of the name and/or company and the specific (business) address of the buyer, and if we consent to the sale in writing. In the case that we provide such written consent, then at this point the receivable purchase price shall be conveyed to us, and we are entitled at any time to notify the third-party debtor of this conveyance.
10. Conveyance of Receivables
10.1. Receivables against backaldrin may not be conveyed and/or hypothecated without the express written consent of backaldrin. In the event of a violation of this provision, backaldrin shall be entitled to a lump sum claim for compensation of damages amounting to 150% of the receivable purchase price.
10.2. The customer shall be required to insure our product according to the principles of an ordinary businessman and conveys to backaldrin at this point any and all claims against an insurer, within the limits of § 15 VersG.
11. Force Majeure
11.1. Events of force majeure entitle backaldrin (without the customer deriving any claims therefrom) to defer the deliverable item for the duration of the event, and to set a reasonable, anticipated delivery date, and/or to withdraw from the contract in whole or in part, in accordance with the effects of the force majeure event. If the delay in delivery owing to force majeure lasts for more than three months, then the customer and backaldrin are entitled (without the other party deriving any claims therefrom) to withdraw from that affected portion of the delivery.
11.2. Force majeure events can be, but are not limited to, all effects, especially of nature, whose prevention or mitigation rests outside of our influence, such as earthquake, lighting strike, freeze, confiscation, sabotage, fire, strikes and raw material
12. Data Protection, Change of Address and Copyright
12.1. The customer gives consent that personnel-related data provided to backaldrin within the scope of this business relationship may be stored and processed by automated means.
12.2. Customer shall also be obligated to provide backaldrin with any change to customer’s business address, provided the legal business under this agreement has not already been mutually completed. If such notification is neglected, then any communication will be deemed as delivered if it has been sent to the customer’s last known address.
12.3. Any provided samples and figures and such, shall remain permanently in the ownership of backaldrin. The customer shall attain no right of usage or exploitation thereto, no manner how artfully crafted.
13. Data Application for Marketing Purposes
The customer grants an express consent that customer’s data may be used for marketing purposes for our products, in particular for improvement of the products, their enhancement and for internal analysis of needs.
14. Consent to email Advertising, Reference List
The customer consents to receive from us advertising and information by email, regarding our products and proposals, and about other business partners. Customer’s data shall be kept confidential and will not be provided to third parties. The customer can withdraw consent at any time in writing, by fax or email.
15. Meaning of the Headings
Headings in these General Business Conditions are provided solely for ease of overview and organization. They do not convey any normative significance. Likewise, they do not serve for delimiting and/or expansion of the scope or interpretation of these business conditions.
16. Partial Invalidation
In the event that individual provisions of the agreement concluded with the customer are or become invalidated, ineffective or disputed, the remaining provisions shall be thereby unaffected, and shall then be interpreted and/or amended in order that the intended financial purpose will be achieved as closely as possible in a legally admissible manner. This shall also apply in the event of any gaps or omissions in this agreement.
17. Choice of Law, Court of Jurisdiction
17.1. Austrian law shall apply exclusively.
17.2. Application of the UN Purchase Law is excluded. The parties to this agreement consent to domestic Austrian court jurisdiction.
17.3. The court of jurisdiction located at the headquarters of our company shall have exclusive jurisdiction over and right to decide all matters and disputes arising from these present General Business Conditions and on any contracts and agreements based thereon.