I. Scope of application, general:

The deliveries, services and offers of our company shall exclusively be based on these terms and conditions; we shall not acknowledge any terms and conditions of the customer that are contrary to or deviate from our terms and conditions unless we had expressly agreed to their application. Any actions taken on our part to perform a contract shall not be regarded as consent to any terms deviating from our contract terms to that extent. These terms and conditions shall apply as framework agreement to all further legal transactions between the parties to the contract as well.

II. Contract conclusion and contents of the contract:

  1. Our offers shall always be subject to change, in particular in terms of quantity, price and delivery time.
  2. Any contract shall materialise only after a written confirmation has been given.
  3. The orderer shall expressly acknowledge that the contract content shall exclusively be governed by our letter of confirmation, unless the customer objects to it in writing within three days of receipt.
  4. Verbal side agreements and subsequent modifications to the contract shall apply only if they are confirmed by us in writing. The same shall apply to warranted characteristics of the goods.

III. Prices, weights:

  1. Our prices shall be plus the VAT applicable at the time of delivery.
  2. If any additional or increased public dues accrue between contract conclusion and delivery due to changed legal norms, in particular customs, levy, currency adjustment, we shall be entitled to increase the agreed purchase price accordingly.
  3. Our purchase price receivable shall be governed by the weight established during loading. Normal weight loss during transport shall be solely at the buyer’s expense.

IV. Quantity, quality, labelling:

  1. We shall always be entitled to deliver up to 10% more or less than agreed.
  2. Unless otherwise agreed in the given case, the quality of the goods shall be governed by commercial practice, such as bought “as inspected” or “as sampled”.
  3. The goods shall not be deemed to be packaged and tagged for the end consumer in the sense of the legal provisions.

V. Delivery:

  1. Unless expressly agreed as fixed, the delivery periods shall be non-binding. If they are exceeded by more than three months, the orderer may withdraw from the contract in accordance with the provisions of the GTC. Any other claims shall be excluded.
  2. A specified delivery period shall commence only with the entry into force of the contract and the agreement on the type of execution and subject to punctual compliance with the agreed payment terms. If the orderer is required at any point prior to delivery to execute any other version of the subject-matter of delivery, the agreed fixed delivery date shall lapse.
  3. We shall not have to accept any liability for all cases of force majeure, including for interruptions of operations, strikes, lockouts, total or partial closure of our works, for any reason whatsoever, for the occurrence of such events in our suppliers’ works, for war, civil commotion and regulatory measures.
  4. If an agreed delivery or unloading time is exceeded without there being any obstruction of delivery in accordance with clause 3 above, the buyer has to grant us a reasonable grace period of at least two weeks in writing.
  5. The delivery firm reserves the right to withdraw from the contract or to demand advance payment if, after confirmation of the order and before delivery, it becomes aware of any circumstances in the orderer’s economic situation due to which its receivables no longer appears sufficiently secured.
  6. We shall be entitled to reasonable partial delivery.
  7. Insofar as we are acting as warehouse keeper for our buyers, the Austrian Freight Forwarders’ Standard Terms and Conditions shall be deemed agreed.

VI. Passage of risk:

The risk of total or partial destruction as well as deterioration, if loss, damage, disappearance or seizure shall pass to the orderer as follows:

  1. for deliveries ex works: when notice of readiness for dispatch is given
  2. for dispatch of the subject-matter of delivery with departure from the delivery works, regardless of who carries out the dispatch
  3. upon delivery of the subject-matter of delivery to the orderer or a third party designated or authorised by the orderer

VII. Obligation to inspect and to give notice of defects:

  1. Upon delivery at the agreed place of destination or, in case of self-collection, upon take-over, the buyer shall be obliged to immediately
    1. inspect the goods in terms of quantity, weights and packaging and note any relating objections on the delivery or consignment note or on the receipt of delivery / removal note of the cold storage facility and
    2. carry out a quality check, at least on a random basis, open the packaging (boxes, sacks, cans, foils etc.) to a reasonable extent to that end and inspect the goods themselves in terms of external condition, smell and taste, with frozen goods to be defrosted at least on a random basis.
  2. When giving notice of any defects, the buyer has to observe the following forms and time limits:
      1. The notice has to be given without delay, but in any case by the end of the workday on which the goods were delivered to the agreed place destination or taken over. Notice of hidden defects is to be given in writing without delay, but no later than within three workdays after their discovery. If a notice of defects is not filed or is not filed in time, the goods shall be deemed to have been approved.
      2. The notice must be received by us in writing, by telegraph or by telex within the time limit set out above. Any notice of defects given by phone shall not be sufficient. Moreover, a notice of defect shall be irrelevant if it is given only towards a representative, broker, agent or vicarious agent of whom we make use during delivery.
      3. Nature and scope of the alleged defect must be clearly obvious from the notice.
      4. The buyer shall be obliged to hold the objected goods ready at the place of examination for inspection by us, our suppliers or any subject matter experts to be called in by us.
      5. Frozen goods of which notice of any defect has been given in due time must be stored at minus 18 ° Celsius pending inspection by us. In case of any return or forwarding at our instruction, the buyer has to guarantee maintenance of an uninterrupted cold chain (minus 18 ° C). However, opened SS packages or opened cans or any other opened containers may not be compensated.
  3. Objections in relation to quantity, weights and packaging of the goods shall be excluded to the extent that the note required under clause 1)a) is missing on the delivery or consignment note or the receipt of delivery. Furthermore, any objection shall be excluded as soon as the buyer has mixed, re-shipped or begun to handle or process the delivered goods.
  4. Any goods for which notice of any defect has not been given in due form and time shall be deemed to have been approved.
  5. With regard to the legal provisions, it shall be agreed that the professional examination of the goods shall be one of the buyer’s duties of care and the placing on the market of the product shall depend on the buyer’s quality control.

VIII. Warranty and damages:

  1. In cases of both objections made in due form and objectively justified objections, the buyer shall have the right to demand a purchase price reduction, but subject to our right to take back the objected goods instead.
  2. Damages claims of all kinds towards us shall be excluded, unless gross negligence or wilful intent is proven to us.
  3. We shall not be liable for consequential damage and mere pecuniary damage.
  4. The orderer shall waive any and all pre-contractual protective provisions on our part, in particular the duty to warn or to provide clarification, unless we stand charged with wilful intent or gross fault.

IX. Payment:

  1. Our purchase price receivables shall basically be due for payment “net cash” without any deduction immediately after receipt of the invoice, unless any other term of payment is agreed in writing.
  2. We shall accept bills of exchange or checks on the basis of a special agreement and only on account of payment. Expenses for discounts and bills of exchange shall be at the buyer’s expense and shall be due immediately. No liability shall be accepted for the timely presentation, protesting, notification and return of these means of payment.
  3. If the invoice amount is not settled within 10 calendar days from the date of the invoice or as of any other agreed due date at the latest, we shall be entitled to charge default interest in the proven amount, but at least in the amount of 3% above the discount rate of the Oesterreichische Nationalbank, without any special warning notice being required. In case of any default of payment by the customer, we shall be entitled to also demand compound interest as from the date of handover of the goods.
  4. If the buyer no longer has a proper business operation, in particular if the buyer becomes subject of any attachment, any protest of a check or bill of exchange or even any cessation of payment, or if the buyer applies for any judicial or extra-judicial composition proceedings or any bankruptcy proceedings affecting the buyer, we shall be entitled to declare all our receivables from the business relationship immediately due, even if we have accepted bills of exchange or checks. The same shall apply if the buyer defaults on the payments to us or if any other circumstances become known due to which the buyer’s creditworthiness appears doubtful. In such a case, we shall also be entitled to demand advance payments or provisions of securities or to withdraw from the contract.
  5. Any set-off of alleged counterreceivables of the buyer against the delivery works with purchase price instalments or any right of retention against the delivery works shall not be effected.
  6. Several orderers shall be jointly and severally liable.
  7. Payments with debt-discharging effect have to be made only to us or to representatives expressly authorised by us to collect.
  8. Payments shall be used to redeem the oldest payable due or shall be passed to account pursuant to any allocation by us, with the buyer expressly agreeing to this and declaring invalid any own allocations made that are inconsistent with this.

X. Retention of title:

  1. Title to the goods delivered by us shall remain with us until the buyer has settled our entire receivables from the business transaction.
  2. The buyer shall be entitled to alienate the goods delivered by us. This shall not apply, however, if the buyer no longer has a proper business operation (see above IX.4). In addition, we shall be entitled to revoke the buyer’s power of alienation if the buyer defaults on meeting the duties towards us and, in particular, the payments or if any other circumstances become known due to which the buyer’s creditworthiness appears doubtful.
  3. The buyer shall not acquire any title to the items manufactured in whole or in part by such processing.
  4. If our goods subject to retention of title is processed or inseparably mixed with any other goods still subject to third-party title, we shall acquire co-title to the new items or the mixed stock. The scope of such co-title shall follow from the proportion of the invoice value of the goods delivered by us and the invoice amount of the remaining goods.
  5. Any goods to which we acquire title or co-title in accordance with the clauses 3) and 4) above as well as the goods delivered by us subject to retention of title in accordance with clause 1) above shall be regarded as goods subject to retention of title in terms of the provisions hereinafter.
  6. The buyer shall already assign to us the receivables from any resale of the goods subject to retention of title. We hereby accept this assignment. The buyer undertakes to advise any and all creditors of this assignment, in particular all banking institutions in business relationship with the buyer. In case the goods subject to retention of title are a processed product or a mixed stock which includes, in addition to the goods delivered by us, only items to which the buyer holds title or, alternative, which have been delivered to the buyer by third parties only under ‘simple retention of title’, the buyer shall assign the entire receivable to us as alienation of the goods. In any other case, that is where advance assignments to us and to other suppliers coincide, we shall be entitled to such fraction of the receivable from any re-alienation that has been calculated based on the proportion of the invoice value of our goods and the invoice amount of the other processed or mixed goods.
  7. In the event of accesses by third parties to our goods subject to retention of title, the buyer shall be obliged to refer to our title and to advise us without delay. The costs of any intervention shall be borne by the buyer.
  8. In case of repudiatory conduct, in particular default in payment, the buyer shall be obliged to surrender to us on first request any goods subject to retention of title still in the buyer’s possession and to assign to us any surrender claims existing against third parties on account of the goods subject to retention of title. Neither the takeback nor the attachment of any goods subject to retention of title shall be deemed to be any withdrawal from the contract.

XI. Right of retention:

In any case other than a consumer transaction, the customer shall not be entitled to retain the purchase price in whole or in part without prejudice to any warranty claims.

XII. Choice of law, place of jurisdiction:

  1. Place of performance shall be our company’s registered office in Utzenaich.
  2. Austrian law shall apply. The applicability of UN Sales Law shall be explicitly excluded. The contract language shall be German. The parties to the contract agree Austrian domestic jurisdiction. In any case other than a consumer transaction, the court having subject-matter jurisdiction at our company’s registered office shall have exclusive local jurisdiction for all disputes arising from this contract.
  3. If individual provisions of these terms & conditions of business and sale are ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provisions shall be deemed to be replaced by – effective – provisions that shall be suited to realise the economic purpose of the eliminated provisions to the greatest extent possible.

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