1. Scope of application These General Terms and Conditions of Trade and Delivery shall apply to sales and contracts for services concluded and related deliveries and subsequent deliveries between the company BG-Graspointner GmbH in 4882 Oberwang, hereinafter referred to as the “BG” and the respective business partner, hereinafter referred to as the “Partner”. The placement of an order by the Partner shall be deemed the Partner’s unconditional agreement to the provisions below. Any deviation from these Terms and Conditions of Trade and Delivery shall only be valid if confirmed in writing by the Company. The Partner’s own Terms and Conditions of Purchase shall not be valid even if they were not explicitly rejected by BG.
2. Offers and contract formation All prices quoted in lists and offers are non-binding. All data including dimensions, weight, figures, descriptions, sketches and drawings in catalogs, price lists and other printed matter are best possible estimations, however non-binding. The contract does not materialize until BG issues an order confirmation or the first act in connection with the performance of the order becomes apparent to the Partner. In the case of an order submitted electronically, BG will provide non-binding confirmation of receipt of the order. This confirmation of receipt does not represent binding acceptance of the order. The confirmation of receipt is only to be considered a statement of acceptance if this is explicitly stated by BG. BG is entitled to accept the contractual offer stipulated in the order within two weeks. In the case of an order submitted electronically, BG is entitled to accept the order within three working days of receipt. BG is entitled to reject the order without justification.
3. Prices and settlement The offer and transfer prices are net prices exclusive of statutory VAT. The invoice will be based on the actual dimensions and quantities of the actual delivery or performance. Unless otherwise agreed the prices in offers and brochures are calculated ex works, loaded on truck. If supply and delivery is agreed, a delivery charge will be charged separately. In the case of deviation from the overall offer BG reserves the right to change the price accordingly. Additional products and/or services resulting from customer’s subsequent requests or becoming necessary in performance of contract shall be paid additionally. Any change in a cost component will entitle BG to adjust the price accordingly.
4. Delivery BG will endeavor to adhere to the delivery dates it provided and/or promised. If this is impossible, the Partner shall have the right to rescind the contract after setting a reasonable grace period. The Partner shall be deemed to have waived any claim for damages for a delayed delivery. In the case of strikes or lockouts in the BG Company or in an operation working for BG, of energy shortage, traffic disruption, regulatory orders and delayed supply to BG, BG shall not be bound to deliver at the time agreed upon, provided that these circumstances were unforeseen or unpreventable by BG; the same applies to all cases of force majeure. In these cases the delivery period shall be extended by a period of time corresponding to the duration of such event, and neither damages nor contractual penalty may be claimed. If delivery or performance becomes impossible through these circumstances, BG shall be released from the obligation to deliver and/or perform. In the case of delay of acceptance by the Partner BG shall have the right to store the goods at the Partner’s risk and expense, invoice the goods and make them payable as per agreement or rescind the contract and sell the goods to someone else. Delivery free consignee’s premises is to be understood without unloading by consignor. Unloading shall be performed properly and promptly using equipment and personnel provided by the Partner. The risk in the goods will pass to the customer when the goods leave our plant, even if BG pay freight charges.
5. Pallets — Pallet return system Most of our products can only be delivered on pallets. The Partner agrees to EURO pallets being generally invoiced and charged at EUR 10.90, or EUR 22.50 for products with a length of 2000 mm or more, plus VAT. For returning the EURO pallets in flawless condition within four weeks, without freight costs for BG, the partner will receive a credit note. The partner will not be refunded for returned single use pallets (labelled as such).
6. Returns and reimbursement: Goods supplied by BG will only be taken back in a flawless condition, after obtaining our written consent, and without return freight charges for BG. Goods taken back will be added to the credit balance, deducting a 15 % handling fee. Custom-made production will not be taken back.
7. Order cancellation procedure: If the Partner rescinds either wholly or in part from the contract concluded, a 20% cancellation fee will be deemed to have been agreed. Any cancellation of work in progress is unacceptable.
8. Terms of payment: Invoices shall be due and payable without deduction immediately upon receipt. Part deliveries will be charged instantly by BG and shall be due and payable independently from the completion of the total delivery. As long as any invoices remain unpaid, all payments received will be credited to such invoices. Payments received will be credited firstly to any accrued interest, costs, expenses and then to the capital. If the Partner‘s financial situation is unfavorable in our view, or in case of default of payments BG shall be entitled to
a) postpone performance of its own obligation until the amount due has been paid;
b) charge default interest in line with bank practice as of the due date and all expenses incurred by payment reminders;
c) rescission of the contract if a reasonable grace period expires without any positive results. Complaints will not release the Partner either wholly or in part from his payment obligation. The partner commits to bear all costs and expenses associated with the collection of debts due, in particular collection charges or any other expenses required for appropriate prosecution. The partner only has a right of set off if their counterclaims have been declared legally valid or have been recognized by BG. The partner is not entitled to withhold payments.
9. Retention of title: Title to the goods delivered by BG shall remain vested in BG until the purchase price has been paid in full. The Partner will upon placement of the order with BG assign, in the case of resale of the goods subject to retention of title, the reservation of title towards his own customers to BG. BG reserves the right to make the assignment known to third-party debtors at any time. The partner is obliged to record the assignment of claims in their accounting records and to mark it on customer invoices. The Partner‘s agreement to this right will be established by every placement of an order with BG. From that time on any debt-discharging payment by the Partner‘s customer can only be made to BG. In the case of attachment of goods subject to retention of title by creditors the Partner shall promptly notify BG and bear any and all costs incurred by BG for releasing these goods from third-party rights. In the case of initiation of bankruptcy proceedings against the Partner’s assets or in the case of default in payment of more than 30 days after maturity, BG shall be entitled to pick up its goods subject to retention of title at the Partner’s premises and use them in accordance with the provisions of the return of goods. If BG takes back any goods under the retention of title described above, the Partner shall be liable for any deficiency in the proceeds from the resale of these goods and shall also reimburse BG for the return freight and further transport.
10. Warranty: BG warrant that the goods supplied will have the guaranteed properties and flawlessness according to the state of the art. Upon acceptance of the goods the Partner or the person entrusted by him shall count and check the goods in terms of quantity and quality. Any goods rejected on the basis of such checks must not be installed and BG shall be notified thereof in writing within three days at the latest. For the removal of defects of any goods delivered, provided that notice has been given justly and in time, BG may at its discretion provide improvement or deliver what is missing or deliver replacement parts within a reasonable period of time. In this case any further claims, including, but not limited to, cancellation and price reduction, are explicitly excluded. The warranty shall expire if the article of sale has been subjected to downstream operations or altered by the Partner or a third party. All warranty claims will expire 6 months upon delivery without exception. They will also expire if installation instructions, instructions sheets and technical information relating to the installation, handling and use are not observed or in the case of faulty installation or downstream operations by the Partner or any third parties. BG must be notified of hidden defects within a week of discovery. The Partner is solely responsible for providing evidence that the claim is justified, especially for the defect itself, for the moment that the defect was noticed and for submitting the notice of defects in time. Outside the scope of the Product Liability Act, the partner can only claim damages from BG for willfully negligent acts. Any liability for consequential damages and for the costs of fitting and removal shall be excluded. BG’s liability for minor negligence, compensation for consequential damages and financial loss, savings not made, loss of interest and damage resulting from third-party claims against the Partner shall be excluded entirely. The above limitations of liability do not however apply in the event of health or bodily injury or the loss of life of the Partner if this is attributable to BG.
12. Place of fulfillment, jurisdiction and applicable law: The registered seat of BG shall be the place of fulfillment. Any disputes hereunder shall be settled before the court of general jurisdiction competent for the seat of BG unless the Partner is a consumer as defined by the Consumer Protection Act. The contractual relationship shall be exclusively governed by Austrian law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply.
13. Severability: Should any provision of these General Terms and Conditions of Trade and Delivery be invalid wholly or in part, the other provisions herein shall not be affected thereby. The provision in question must be reduced in order to preserve its validity. The agreement shall be interpreted in such a way that the purpose pursued by the parties hereto is accomplished as much as possible.