Owner & Publisher
Gebrüder Woerle Ges.m.b.H
Tel.: +43(0)6214 66 31 0
Fax.: +43(0)6214 66 31 33
Country and Commercial Court of Salzburg
FN 68403 v
UID: ATU 34924703
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© 2015 Gebrüder Woerle Ges.m.b.H., all rights reserved
GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERYOF WOERLE GESELLSCHAFT M.B.H.
a) These General Terms and Conditions of Business and Delivery (“GTC”) shall apply to all deliveries of goods and services by Gebrüder WOERLE Gesellschaft m.b.H. (“WOERLE”), even if terms and conditions of supply and/or payment to the contrary are indicated on orders or order confirmations. The application of the terms of contract of the customer shall be expressly excluded.
b) The customer shall accept these GTC at the latest with its first order of goods. These terms and conditions shall also apply to all further orders and deliveries without a separate agreement being required.
c) Amendments or supplementary agreements shall only be effective if confirmed in writing by members of our company entered into the register of companies as persons having power of representation and shall apply to the relevant transaction only. None of our other employees shall be authorized to agree upon any amendments or supplementary agreements to these GTC.
d) Should individual provisions of these GTC be ineffective, this shall not affect the validity of the remaining provisions and of the contracts entered into on their basis. The ineffective provision shall be replaced by an effective provision that best meets the intention and purpose of the ineffective provision.
2. Contractual Relationship
a) Unless expressly stated to be binding, all our offers shall be subject to confirmation. The orders placed by our customers shall constitute the offer as defined by law by which the customer shall be bound for a period of three weeks. The contract shall be concluded either upon our confirmation of the order or upon delivery and/or performance. There shall be no need for a separate information of the customer on the acceptance.
b) We are entitled to accept only parts of orders.
a) As our prices are net prices they are quoted exclusive of statutory value added tax. In the case of deliveries outside of Austria, the applicable import and/or export duties shall be added to the quoted price. If taxes, freight charges and or import/export duties are raised after the contract has been entered into we shall be entitled to charge an appropriate surcharge.
b) Our prices are current prices that shall be valid until revoked. All prices quoted in our price lists are without obligation, we reserve the right to change the information included in our price lists at any time, in particular as a consequence of changes in raw material costs. In the case of delayed acceptance, a higher list price valid at that time may be charged. All invoices shall be payable in euros or USD.
4. Delivery and Delivery Period
a) The place of performance for deliveries or services to be performed by us shall be the place of the supply factory or of the warehouse from where the delivery is to be made. The goods shall be shipped to the delivery address indicated by the customer in its order at the risk and expense of the customer.
b) The indication of delivery dates shall be non-binding. The failure to meet delivery dates shall only entitle the customer to exercise its right to withdraw from the contract if we fail to make delivery in spite of having been set in writing a grace period of at least two weeks.
c) In the event of any circumstances beyond the control of the parties, such as, for instance, cases of force majeure, unforeseeable operational disorders or labor conflicts, interventions by the authorities, transport or customs delays, transport damage, rejection of essential production parts or other impediments to purchasing or to the performance of the contract, the delivery period shall be extended by the duration of the impediment. In such cases, we shall be entitled to withdraw, in whole or in part, from the contract without compensation.
d) We shall be entitled to make partial deliveries to the extent they are possible. Every partial delivery shall be deemed to be a separate transaction which we may invoice separately.
e) The place of performance for the services to be provided by the customer, including payment, shall be the registered office of our company.
5. Storage and Date of Consumption
a) The storage conditions printed on our products shall be complied with without any interruptions.
b) The recommended date of consumption shall be observed without fail. No compensation shall be paid for damage incurred as a consequence of improper storage and/or handling.
a) All defects shall be notified upon delivery, if possible, or as soon as they become visible. After delivery, the customer shall without delay check the goods delivered and/or the services provided for completeness, correctness and freedom from other defects. Any defects shall be notified in writing without delay, however no later than five working days after receipt of the goods and/or services (in the case of goods in any case prior to the best before date) with a description of the defects, as otherwise all claims the customer is entitled to regarding defects discoverable by means of proper examination shall be forfeited. The acceptance of the goods by the customer without complaint shall be evidence of the proper packaging and/or delivery or performance.
b) If the goods or services are defective, the customer may select between rectification of the defect or exchange and shall be obliged to give us the opportunity to rectify the defect. The goods complained about shall be treated and stored properly and may only be returned to us with our express approval. Only if both rectification and exchange are infeasible the customer may – in accordance with the statutory provisions – claim an adequate price reduction or rescission from the contract. If we rectify a defect we shall do so free of charge and costs but we may ask the customer to return the goods to us at out risk and expense wherever feasible. All other warranty aspects shall be governed by the relevant statutory provisions.
c) Claims arising from defects in any type of delivery – irrespective of the legal ground they are based on (including without being limited to warranty, damages, in particular right of recourse) – shall become time-barred within the statutory warranty period of two years starting from delivery and/or performance.
We shall not assume any liability for damage on any legal ground whatsoever, including without being limited to default, impossibility of performance, positive violation of contractual duty, culpo in contrahendo, consequential harm caused by a defect, defects or unlawful acts caused by slight negligence on our part or on the part of persons for whose actions we are liable. The customer shall bear the burden of proof of the existence of gross negligence or intent. Any liability under the Austrian Product Liability Act (“Produkthaftungsgesetz”) and recourse claims arising from the application of the EAN bar code to our packages shall be expressly excluded.
8. Terms of Payment
a) Our invoices shall be payable immediately upon receipt and without any deductions except for credits granted or deductions expressly approved by us.
b) In the event of inability to pay on the part of the customer or an application for the institution of insolvency proceedings over the customer’s assets, all our claims shall become due and payable without delay. Any circumstances that give rise to doubts regarding the creditworthiness of the customer and any economic or political events that jeopardize the proper handling of the transaction shall entitle us to demand early payment regardless of the terms of payment agreed upon.
c) In the case of default in payment, we shall be entitled to charge interest on arrears at a rate of 4% above the valid bank rate.
d) In the case of default in payment or in the performance of other services on the part of the customer we shall be entitled – without prejudice to any other rights - to delay delivery until the agreed counter-performance has been made observing the outstanding delivery period or to withdraw from the contract after expiry of a reasonable grace period and claim damages for non-performance. In the latter case, the customer shall return the delivered goods to us at its own expense immediately upon our assertion of the claim for damages. We reserve the right to assert claims for damages on grounds of depreciation, wear, compensation for own transport charges and additional expenses in this connection. In addition, we shall be entitled to cease deliveries without delay.
e) In the event of a violation of its contractual obligations, the customer undertakes to refund all costs necessary for the adequate pursuit of our claims. These shall include without being limited to dunning costs, costs for keeping the obligation included in the dunning process, costs of collection agencies, court fees and attorney’s fees.
f) Regardless of the payment purpose indicated by the customer, payments received shall first be used to pay outstanding costs and interest and then to redeem the oldest debt.
g) The customer shall only be entitled to offset claims in the event of inability to pay on our part and only against claims related to the same transaction, uncontested or legally established claims and shall only be entitled to assert claims of retention with regard to such claims.
9. Retention of Title
The goods delivered and/or resale proceeds, if any, shall remain our sole and absolute property until full payment of the purchase price including all supplementary charges has been made. That means that up until that point in time these goods are only entrusted to the customer who may neither sell, nor pledge, nor give as a present or lend these goods to third parties. The customer shall not be entitled to make dispositions over these goods without our express prior approval and shall bear the full risk for the goods entrusted to it in all aspects including without being limited to the risks of perishing, loss or deterioration. Any access by third parties to the goods delivered with retention of title or to other claims assigned, if any, shall be reported to us without delay.
10. Data Protection
The customer agrees that the data provided in the course of ordering and order processing shall be collected, processed, stored and used for accounting purposes and for internal market research and marketing purposes. We shall use the data in order to comply with statutory provisions, for the processing of payment transactions and for advertising purposes. The vicarious agents of WOERLE shall be obliged to observe the provisions of the Austrian Data Protection Act (“Datenschutzgesetz”).
a) Unless a different address is provided in writing, all services and declarations of intent shall be made with legal effect to the address last indicated by the customer in its order. Upon conclusion of the contract, the customer shall be obliged to complete the form with correct and complete data. If the customer provides incorrect, incomplete or vague data, the customer shall be liable for all costs incurred by us as a consequence. The customer shall be obliged to inform us in writing of all changes of name, address and/or registered office as otherwise the customer shall be liable to damages. In the event of failure to notify a change of address, any written information sent to the address last communicated by the customer shall be deemed to have been served effectively.
b) Any transfer of rights under the contract entered into with us to third parties shall require our written approval
12. Applicable Law, Place of Jurisdiction
a) The legal relationship with the customer, including these GTC and the purchase contracts entered into on the basis of these GTC, shall be governed exclusively by Austrian substantive law to the exclusion of the UN Sales Conventions.
b) The place of jurisdiction for all disputes directly or indirectly resulting from the respective contract shall be the court having subject matter jurisdiction within the court district in which our company is domiciled. We shall also be authorized to sue the customer at its place of general jurisdiction.
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