GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY of Brevillier Urban & Sachs GmbH & Co KG
Scope of application:
Any and all deliveries, services and offers by BU&S shall be exclusively subject to these present General Terms and Conditions of Sale and Delivery (hereinafter referred to as “General Terms and Conditions”). These General Terms and Conditions shall also apply to any and all future legal transactions between the contractual parties, even if no express reference is made to these General Terms and Conditions during such future transaction. The customer’s General Terms and Conditions shall not apply unless and to the extent BU&S expressly recognised them as binding in writing. Any changes or amendments to these General Terms and Conditions and any collateral agreements must be in writing in order to be effective. Any information contained in catalogues, brochures, on websites, etc. shall only be binding if express reference is made thereto in the order agreement.
Conclusion of contract:
The contractual relationship between the parties shall be established upon the written order confirmation issued by BU&S or upon actual shipment of the goods after receipt of the customer’s order. BU&S’s offers are always without engagement and shall only represent a proposal to the customer to place an order.
Unless expressly otherwise agreed upon in writing, the prices are stated in euros, ex works or warehouse of BU&S, plus VAT and plus costs for packaging and shipment. The prices shall be calculated based on the prices applicable at the date of delivery.
The customer shall be entitled to resell the goods delivered, however, only in the territory in which the customer has its registered seat (hereinafter referred to as the “Contractual Territory”). The export of such goods to other territories without BU&S’s prior written consent shall not be admissible and if the customer effects such exports, it shall do so at its own risk. The customer shall indemnify and hold harmless BU&S from and against any claims asserted by distribution partners based on disadvantages arising due to an unapproved export of goods, such as risks relating to product liability or damages.
Unless otherwise agreed upon, any and all deliveries shall be at the customer’s risk and expense. Deliveries shall be effected ex works or warehouse of BU&S to the place of destination stipulated in the order confirmation. Starting at an order value of EUR 150.00 plus VAT, deliveries within Austria shall be made to the place of destination without additional costs for shipment and packaging. BU&S reserves the right to deliver only complete packaging units as stipulated in the price list and/or in the catalogue or product datasheets and to refuse to deliver any lower quantities deviating therefrom. Type of shipment, shipment route, means of transport and packaging shall be determined by BU&S unless a specific written agreement, e.g. for express shipment, was made. Any packaging delivered within the Federal Territory of Austria shall be cleared via ARA.
Unless otherwise agreed upon, payments shall be due within 8 days upon the date of invoice. In case of any delay in payment, BU&S shall be entitled to charge statutory interest at the rate applicable to transactions between companies and (dunning) costs, starting on the date the payment became due until the date the relevant payment is actually received. Accepted bills and bills of exchange shall not be deemed to be payment in cash; we reserve the right to refuse acceptance thereof. Oral payment agreements and terms of payment noted on order or purchase forms that deviate from our terms shall be deemed to be non-binding. The customer shall not be entitled to set off our claims against any counterclaims. In case of any delay in payment, we shall stop delivery.
Retention of title:
All delivered goods shall remain the property of BU&S until full payment of all outstanding sums to be paid by the customer from the entire business relationship. Effective immediately, the customer assigns to BU&S by means of security all claims the customer has from the resale of any unpaid goods. In case of any delay in payment, BU&S shall be entitled to take back all goods subject to retention of title. If BU&S asserts the right to retention of title, this shall not be deemed to be a rescission of contract unless expressly declared. The customer shall be obliged to inform BU&S immediately of any attachments or of any third party claims with regard to the goods delivered by BU&S and to disclose BU&S’s rights of retention.
Notices of defect:
The customer shall be obliged to inspect the goods immediately upon delivery. The customer must notify BU&S immediately, within 5 days after delivery at the latest, of any detected defects and inform BU&S in writing of the type and scope of such defect. The customer must notify BU&S of any hidden defects immediately upon detection thereof. If the customer fails to notify BU&S of any defect or fails to effect such notification within the stipulated time period, the goods shall be deemed accepted. In such cases, the customer shall not be entitled to assert any warranty claims or claims for damages or to assert any avoidance on the ground of error due to defects. Justified complaints do not entitle the customer to refuse to pay the entire invoice amount but rather a reasonable pro-rata part thereof. In any case, our liability shall be limited to the invoice value of the goods complained about.
Goods may only be returned upon BU&S’s prior written consent. Items that are not listed in the currently valid price list anymore, can neither be exchanged nor returned against a credit note.
Place of performance:
Place of fulfilment for deliveries and payments shall be 7024 Hirm, Austria.
Without BU&S’s express prior written consent, the customer shall not be allowed to use for its own purpose, in particular for marketing purposes, BU&S’s industrial property rights, trademarks, marks, designations, names, logos, etc. The customer shall only be entitled to use such trademarks in direct connection with the marketing of goods delivered by BU&S.
Any and all representations, notices, etc. directed to BU&S must be in writing (for this purpose, fax shall be deemed sufficient to fulfil such requirement of written form) and must bear an original signature or – in case of electronic transmission – a secure electronic signature to be effective.
The customer agrees that BU&S will electronically store and process any personal data we receive in connection with the contractual relationship to the extent such storage and processing is necessary for the fulfilment of the contract.
Change of address:
The customer shall be obliged to inform BU&S of any change of the address of its place of business if the legal transaction which forms the subject matter of the contract has not yet been mutually fulfilled. If the customer fails to inform BU&S as described above, any notifications made to the customer shall be deemed received if they were sent to the customer’s last known address.
As a rule, these General Terms and Conditions shall apply to the sale to resellers. Should individual provisions of these General Terms and Conditions be or become ineffective or invalid, this shall not affect the effectiveness of the remaining provisions. Such ineffective provision shall be deemed replaced with an effective provision coming as close as possible to the economic intent of the ineffective provision. Events of force majeure or other unforeseeable impediments incurring in BU&S’s sphere of responsibility shall release BU&S from its obligations for the duration of such event.
Place of jurisdiction:
The place of jurisdiction for any and all disputes arising out of the business relationship shall be Vienna, Austria.
Choice of law:
Austrian substantive law shall be deemed agreed upon. The application of the UN Sales Convention shall be excluded. The contract language shall be German.
Brevillier Urban & Sachs GmbH & Co KG
Company register: FN 6343 d/ Commercial Court Vienna
VAT ID no.: ATU 12584103
These General Terms and Conditions shall apply starting 1 January 2009.