General Terms and Conditions of Sale and Delivery of Soja Austria Vertriebs GmbH (FN 153813x)

as of: January 2017

  1. Definitions

 1.1 “Customer” is our contractual partner.

1.2 “Contract Item” or “Contract Goods” are the goods ordered by the Customer from us of any kind.

1.3 “Individual Contract” is the contract effectively concluded due to our offer and our order confirmation or fulfilment action.

 

  1. Scope of Application

 2.1 All our legal transactions, deliveries, other performances and offers are exclusively effected due to these General Terms and Conditions of Sale and Delivery. The Customer explicitly takes note, that we already now object against all deviating regulations in an order or in other business papers of the Customer. Deviating conditions of the Customer are not recognised by us and shall only become applicable in case of our written confirmation, even if they have not been expressly agreed again.in the individual case. These General Terms and Conditions of Sale and Delivery apply as framework agreement also for all further legal transactions with the Customer.

 2.2 In the event of contradictions in the contractual bases the following sequence is applicable:

  • the Individual Contract;
  • these General Terms and Conditions of Sale and Delivery;
  • other statutory provisions.

 

  1. Contract Conclusion

 3.1 Our offers and price lists are non-binding and subject to confirmation and only understood as a request to place an order. Orders of the Customer are binding offers to us for contract conclusion. Orders of the Customer are binding for the Customer after receipt by us; receipt by our employees suffices in this respect.

 3.2 Contract conclusions shall only take place by our written order confirmation or a fulfilment action set by us (for example delivery/shipment of the Contract Item). All other, also subsequently made agreements or additional agreements shall only become effective by our written confirmation. Our employees are not authorised to submit legally binding declarations in our name, unless we granted disclosed special powers of attorney vis-à-vis the Customer.     

 3.3 Product-specific information in our documents are only deemed as approximate values, unless they are explicitly assured as binding. Production-related changes and variations remain reserved in any case. Mere typing and calculation errors in offers, order confirmations or invoices may be corrected by us at any time.

 

  1. Prices

 4.1 All prices quoted by us are subject to confirmation and, unless otherwise agreed, in Euro (EUR) without value added tax. Quotations, unless otherwise agreed in writing, are supplied without guarantee for their correctness.

 4.2 Any changes of wage costs due to collective-contractual or statutory regulations or in-house regulations, as well as changes of other costs, required for the calculation of relevant cost accounting centres or service provision, like those for materials, energy, transportation, third party labour, financing, customs, taxes, exchange rates, serious changes in the exchange rate system of the currencies or in case of a monetary reform, etc. authorise us to appropriately increase the prices. Due to this reason the Customer neither has the right to withdraw nor the enforcement to cease the basis of the transaction. Due to lack of other written agreement all prices are without ancillary charges.

 4.3 We purchase our offered goods regularly from international markets or suppliers. The contracts with our suppliers are conducted in foreign currency (local currency). Due to currency fluctuations in the exchange rate between EURO and the individual local currency price changes may occur contrary to our prices quoted.

 We are authorised to charge to the Customer currency fluctuations at our expense from an increase of 5 % in the official average exchange rate between EURO and the individual local currency on the day of the order placement by the Customer and the day of our invoice date. Currency fluctuations in favour of the Customer are charged to the Customer over an amount of 5 %.

 

  1. Delivery, Transfer of Risk

 5.1 Agreed delivery deadlines only start to commence with the dispatch of the order confirmation by us. The individual deadline, however, shall not commence until all technical or other information, records, advance payments or other services of the Customer required for the compliance of our duties are acknowledged to have been received by us.

 5.2 The delivery deadline is appropriately extended, if upon request of the Customer changes concerning execution are necessary, which cause additional deliveries or additional performances. Additional extra costs arising therefrom are to be paid by the Customer. 

 5.3 Agreed delivery deadlines are to be best possibly met, however, shall not be binding. Delays in delivery shall neither entitle the Customer to withdraw from the contract nor to enforcement of warranty claims, disputes over errors claims and damage claims. We are entitled to carry out and invoice partial or advance deliveries. 

 5.4 The package – also from partial and/or advance deliveries – is made in the standard commercial manner.

 5.5 The Incoterms shall apply in the newest case version for all our deliveries. Unless otherwise agreed delivery time information only represent guidelines and are non-binding. If the delivery dates are exceeded, purchaser shall be entitled to set a reasonable period of grace and after its unsuccessful expiry entitles him to withdraw from the contract. Purchaser my only obtain compensation in cases of intent or gross negligence for which we are liable.

 5.6 Operational breakdowns and incidents of force majeure as well as other incidents outside our sphere of influence, particularly also delays in delivery and the like on the part of our pre-suppliers, authorise us by excluding any legal claims, particularly of warranty claims, disputes over errors claims and damage claims, to either appropriately extend the deadlines or withdraw from the contract concerning the not yet fulfilled part thereof. This shall also apply, if the incidents occur at a time, during which we are in default. For purposes of the contracted provision all incidents defined in § 3 lit. a to g of the ICC Force Majeure Clause 2003 are deemed to be a case of force majeure.

 5.7 In the event that a delivery on call has been agreed, these calls have to be made within 3 months after contract conclusion. If the Customer shall not comply with this obligation, we shall be entitled after an unsuccessful period of grace of 2 weeks to invoice and send the goods to the Customer at our own discretion or to warehouse them at his expense or to withdraw from the contract and to claim the damage due to non-compliance in its full amount, at least, however, with 15 % of the invoice value.  

 

  1. Payment Terms, Default, Exclusion of Set-Off, Overseas Deliveries

 6.1 It is in our sole discretion to transmit our invoices also electronically. The Customer explicitly agrees to this transmission method. Our invoices – also partial invoices – are due for payment 14 days after issue date net, clear of any expenses and deduction, in particular without discount deduction, unless otherwise agreed in writing. Without different written agreement or statutory obligation security deposits shall not be recognised and are deemed to be outstanding payment. Bills of exchange or cheques shall only be accepted after special agreement. We reserve the right to cover our additional costs if payments are not met after repeated requests to pay.   

 6.2 In case of default payment of the Customer we are exempted from all further performance and delivery obligations and authorised to retain still outstanding deliveries or performances or request advance payments or guarantees. Furthermore, the Customer is obliged to pay, irrespective of indebtedness, default interests in the amount of 1 % per month, whereby we are authorised to claim exceeding bank interests to the usual extent. Furthermore, the Customer has to pay reminder and collection expenses accrued to us. If a reminder was initiated by us, the Customer undertakes to pay for each effected dunning letter an amount of EUR 20.00.       

 6.3 If after contract conclusion a significant deterioration as to the assets of the Customer occurs or circumstances are known which are suited to reduce the creditworthiness of the Customer from our point of view, all claims immediately are due for payment. Any future deliveries in this case will take place only against payment in advance.

 6.4 The restraint or the set-off by the Customer due to counterclaims, of whatever kind, shall be excluded.

 6.5 In case of export transactions it is exclusively the duty of the Customer to provide at his own expense the obtaining and maintenance of the required export, customs and other permits and the like. We shall not assume any liability or warranty whatsoever for the admissibility of the export of the Contract Item. Furthermore, it is the duty of the Customer to return to us all export and customs documents and the like in the original, otherwise he is obliged to pay any value added tax. Furthermore, the opening of an irrevocable documentary letter of credit to be issued by a bank determined by us, to permit the presentation of the shipping documents or forwarding certificates, is a prerequisite for our delivery. 

6.6 In case of non-predictable disruptions of the delivery, for which we are not liable, we shall be entitled to submit interim invoices.

 

  1. Retention of Title

7.1 We reserve the right to ownership of all Contract Items or parts thereof supplied by us until full payment of the purchase price including interests and ancillary costs, irrespective of their legal grounds. An order consisting of several partial deliveries hence counts as a uniform order, whereby the retention of title to ownership of all the delivered goods remains in force up to the complete payment of all claims from this legal transaction. Withdrawal from the contract is not required in order to claim the retention of title, unless we – according to which we are unilaterally authorised – declare not to withdraw from the contract, and shall not cancel the duties of the Customer to particularly provide payment.  

7.2 The Customer shall be entitled to transfer his vested right in the scope of his business existing within the scope of our retention of title concerning the Contract Item, however, he is not entitled to pledge or use the Contract Item as security. This right of the Customer may be revoked by us at any time.

7.3 The Customer has to inform us immediately on any pledge or other impairment of the ownership by third parties. The Customer is obliged to bear the costs and measures to remedy the intervention, in particular the costs of intervention processes and the like.

7.4 All claims from the sale of goods to which we have title are here and now assigned by the Customer as security and satisfaction. We accept this assignment. The Customer undertakes to immediately inform us on name and address of his purchasers, the validity and the amount of the claim resulting from the selling-on as well as to verifiably inform his individual purchaser on the assignment of claim. Furthermore, the Customer undertakes to clearly show the assignment of this claim to us in his accounts in a suitable manner. We are always authorised to inform the purchaser of the Customer on the assignment. Any assignment fees are to be paid by the Customer. Insofar as our total claim by assignment is doubtlessly secured to more than 125 %, the surplus of the outstanding amounts shall be released by us upon request of the Customer.         

7.5 The retention of title also covers the products resulting from the processing. If the processed product apart from the reserved goods only includes such objects, which either belong to the Customer or were supplied under simple retention of title, the assignment counts for the total purchase price claim. In case the coincidence of pre-assignments have been granted to several suppliers, we are entitled to a proportion of the purchase price claim according to the ratio between the invoiced value of our reserved goods to the invoiced value of the remaining processed items. In case of processing with goods still belonging to third parties we acquire co-ownership in the new item according to the ratio between the invoiced value of our goods to the invoiced value of the goods belonging to the third party. The Customer undertakes to assign this legal consequence to his customers. We accept this assignment. If the retention of title lapses due to whatever circumstances, the ownership of the new items is transferred to us with the processing, we accept this assignment. In this case the Customer shall remain custodian of the new item which shall be free of charge.   

7.6 All amounts received through cash sales of goods, to which we have title, are here and now already assigned by the purchaser to us up to the amount of the payment of all our claims we have against the purchaser at the time of the delivery of the goods; we instruct the Customer already now to separately keep and hold these amounts for us.  

7.7.  If the Customer does not meet his obligations or he suspends payments, the total remaining debt immediately is due for payment, also if bills of exchange with a later maturity date are pending. In such case we are authorised to immediately request the handing-over of the Contract Item by excluding any right of retention. After taking back the Contract Item it is at our discretion to either sell the Contract Item or to credit the achieved profit less 20 % re-selling expenses to the Customer on to his still existing obligations or to take back the Contract Item at invoice value deducting any value reduction and to invoice the Customer for the time of his ownership a lease at fair lease price for the supplied products.

 

  1. Guarantee, Damages, Product Liability

8.1 Notice of defects immediately have to be claimed by the Customer in writing with precise description of defects, at the latest, however, within 8 days after delivery and still prior to processing, under exclusion of guarantee claims and/or claims to damages and/or disputes over error claims, however, shall not entitle to refusal to accept the goods and/or retention of invoice amounts or parts of the very same.

8.2 For defects, which were unable to be recognised upon inspection on the occasion of the delivery, the guarantee period is six months after delivery and is neither extended nor interrupted by improvement attempts, it is also applicable for partial deliveries. Such defects have to be claimed in writing within 4 days after discovery of the defect under exclusion of guarantee claims and/or claims to damages and/or disputes over error claims, however, shall not entitle to retention of invoice amounts or parts of the very same. The notification of such a defect after expiry of 8 weeks after delivery is excluded. 

8.3 Deviations of the ordered supplied Contract Item, like for example false measurements or false Contract Item (Aliud delivery) have to be claimed in writing within 4 days after delivery and still prior to a transfer and/or processing. This shall also apply in case, that the approval of the goods is not to be expected by the purchaser. Otherwise the Contract Item is deemed to have been approved and may not be taken back or exchanged by us.

8.4 Our advice, whether verbal or in written form, is non-binding and shall not release our customers from the independent examination of the Contract Item on its suitability for the intended purpose. In case of subsequent deliveries no guarantee can be made for complete agreement with the initial delivery.

8.5 The Customer always needs to evidence the defectiveness of the Contract Item at the time of the delivery, the legal presumption of § 924 of the Austrian Civil Code (ABGB) is explicitly excluded.

8.6 For the Contracted Items, which we on our part have purchased from sub-suppliers, we only assume liability in the scope of our guarantee claims against our supplier.

8.7 We only assume liability for the Contract Items supplied by us, that they provide the expected characteristics commonly used for these Contract Items. For any exceeding included characteristics, like in particular public statements – like for example advertising and in the statements attached to the Contract Items – we only assume liability, if these characteristics were assured by us in writing in the course of the order placement.     

8.8 When selling by sample/pattern, the characteristics of the samples/patterns are not assured, we describe the goods in a non-binding manner. The same shall apply for analyses, unless specific values are explicitly assured.

8.9 Unless otherwise stipulated in a special agreement, place of performance for services to be rendered by us from the title of the warranty is the seat of our company. If upon our request the customer does not provide us with the possibility to check his notice of defects, if particularly he does not immediately make available on demand the goods in question or samples of the goods, all warranty claims and/or damage claims shall be excluded.

8.10 We reserve the right as to whether we comply with the warranty claims by exchange, improvement, price reduction or conversion.

8.11 The assignment of warranty claims and damage claims or the like – except pure claims on money – is not permissible. The right of recourse is excluded pursuant to § 933 b Austrian Civil Code.

8.12 Within the framework of damages inflicted on the Customer’s business we are liable only up to the total value of the contract and in any case only due to our own gross negligence or gross negligence of our vicarious agents acting on our behalf, except personal damages, for which we are already liable for minor negligence. The compensation of consequential damages, pure financial losses, lost profits and damages resulting from third party claims is excluded. Claims for damages become time-barred within 6 months after delivery of the goods.

8.13 Instructions provided in user manuals, manuals or other product information in order to avoid damages, need to be strictly followed by the Customer. It is explicitly warned to use the goods going beyond the defined application area.

8.14 In the event that our Customer himself has been held liable in terms of the Product Liability Act, he waives all rights against us in the sense of § 12 Product Liability Act.

8.15 If the Customer puts the goods supplied by us into circulation outside the European Economic Area, he undertakes to exclude vis-à-vis his customers the obligation to indemnify pursuant to the Product Liability Act, insofar as this is possible pursuant to the right applicable or agreed among him and the customer. In such case or in case of omission of mandatory exclusion the Customer is obliged, to indemnify us against all claims of third parties from the title of product liability. The Customer undertakes to conclude in this respect also a product liability insurance and to present the policy to us upon request.

 

  1. Contractual Adjustment, Contract Withdrawal

9.1 In case of unforeseen incidents, if they significantly change the economic importance or the contents of the performance or have a significant impact on our operation, and in case of impossibility that subsequently becomes evident, that it is impossible for the contract to be carried out, then the contract will be amended accordingly. So far as this is not practicable from an economic point of view, we are entitled to fully or partially withdraw from the contract. If we intend to make use of this right to withdraw, we must immediately inform the Customer, after having recognised the consequences of the incident, also in case that first has been agreed upon an extension of delivery time with the Customer.  

9.2 In case of delayed acceptance or other important reasons, like for example Customer default, we are entitled, without prejudice to any claim, to withdraw from the contract subject to a period of grace of 14 days. By our unilateral declaration the withdrawal enters into res judicata.

 

  1. Data Protection

The Customer gives his consent, that the personal data (co-)included in the contract will electronically be stored and processed by us in compliance with this contract.

 

  1. Final Provisions

11.1 The Customer undertakes to unrequested and immediately inform us on changes of his business address in a verifiable manner unless the contractual legal transaction is mutually completely fulfilled. If the Customer fails to provide the information, declarations are considered valid if they have been sent to the last known address. The Customer is obliged to evidence the access to his amendment notice in the individual case. 

11.2 Contract language is German.

11.3 Place of performance for all contractual duties of the contractual parties is the place of our main legal seat in Vienna/Austria, this is independent from any agreement on place of delivery and the takeover of any transportation costs or place of payment.

11.4 Exclusive Austrian substantive law shall be applied on all legal transactions, which particularly are subject to these General Terms and Conditions of Sale and Delivery, except, however, its law rules, in particular those of the Private International Law, insofar as these refer to the application of foreign law. If Austrian law when dealing with foreign law provides the application of special international substantive laws also applicable in Austria – like for example the UN sales law -, they shall not be applied or they are explicitly excluded. The same shall also apply for issues on the conclusion or the interpretation of the general terms and conditions and the contract.

11.5 Place of jurisdiction for all legal disputes, that result from the present contractual relationship or are related thereto, is for our Customer exclusively the competent court in Vienna/Austria. We shall, however, have the right at our own discretion to file a suit against the Customer at any other court, which may be competent pursuant to national or international law.

11.6 If a provision of our General Terms and Conditions of Sale and Delivery is or becomes ineffective, the effectiveness and enforceability of all other provisions shall remain unaffected thereby. For such case the contractual parties agree to an effective and enforceable provision, which reflects the commercial purpose pursued by the parties to the extent, that no significant change of the version of the contract is caused thereby. The same applies to all contractual gaps.

11.7 The titles of the provisions contained in these General Terms and Conditions of Sale and Delivery shall serve only the purpose of clarity and may not be used for their interpretation.  

11.8 No business development executed between the Customer and us and no delay or failure concerning the exercise of a granted right, remedy or legal means concerning the execution in terms of the General Terms and Conditions of Sale and Delivery, is deemed to be a waiver of such rights. Each right and legal means granted to us in this document or each remedy granted to us in this document is cumulative and of equal rank, besides and in addition to other legally granted rights, remedies and legal means.