General Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY of Fritz Mauthner HandelsgesmbH & Co KG

(Last update: October 2019)

1. General Provisions
   

• Unless otherwise expressly agreed, any delivery of goods shall be made exclusively on the basis of these “General Terms and Conditions of Sale and Delivery” of Fritz Mauthner HandelsgesmbH & Co KG (“FM”). Any conflicting contractual conditions of the purchaser shall not be binding to FM, not even if they are not explicitly objected to.
• Any nullity, invalidity and/or inapplicability of any provision of these “General Terms and Conditions of Sale and Delivery” shall not affect the validity of the remaining provisions. In case of nullity, invalidity and/or inapplicability, the respective provision shall be replaced by another valid and applicable provision which suitably and legally is comparable to the original provision.
• Any contradictory General Terms and Conditions of a contracting partner are not accepted by FM, unless their validity has expressly been agreed.

2. Contractual obligations
   

• Offers made by FM are non-binding and do not include any obligation to accept orders.
• Orders confirmed under the reservation of availability of delivery bind the customer in the same way as orders confirmed without reservation, unless the customer immediately objects to such reservation in writing. FM shall be entitled to withdraw from the contract in case of force majeure, in case of other impossibility FM is not responsible for, in case of failed harvests or other circumstances that prevent the fulfilment of the contract and could not be foreseen by FM.

3. Fulfilment of the contract, assumption of risk, default
   

• Place of performance for deliveries and payments is FM’s registered office irrespective of the place of handover; the customer agrees to shipment by train, post, road transport or any other reasonable mode of transport and shall pay the costs of delivery.
• Unless explicitly agreed with the customer, delivery dates shall be set on the basis of the normal course of business. Claims for damages based on delayed delivery are excluded if permitted by law.
• Shipment to the destination stated by the customer is atand the customer’s risk and expense. The risk of deterioration or accidental loss of the goods is transferred to the customer as soon as the goods are handed over to the carrier, freight forwarder or other person or institution engaged with the shipment, regardless of the pricing agreed for the delivery, such as “CPT”, etc. This also applies if FM carries out the transport itself. Any potential claims for damages remain unaffected.
• In the event of delay of delivery caused by the customer, the risk shall be transferred to the customer on the day the goods are ready for dispatch. If delivery on call is agreed, the goods shall be deemed called three months as from the purchase order at the latest.
• Complaints due to alleged non-delivery or incomplete delivery must be made in writing without immediately, but within five working days after receipt of the delivery note at the latest. If the customer has not received a delivery note, the stated period of time runs from the receipt of the invoice. Any violation of this obligation does not reduce the customer’s right to warranty, but may justify contributory negligence.

4. Payment

• All prices are in EURO excluding value added tax and transport. The value added tax must be in accordance with the tax rates applicable at the delivery date. Any change to the rates authorises FM to change the prices.
• Unless otherwise agreed in writing in individual cases, all deliveries are paid for net cash after receipt of the invoice, but 14 days after the invoice date at the latest. If the customer is in default, FM is entitled to charge default interest in the amount of respectively 8% above the currently applicable EURIBOR rate. Remittances shall only be deemed made after the money is received in the account.
• The defaulting customer is obliged to reimburse all procedural and intentionally or negligently caused extra-procedural costs of reasonable prosecution (e.g. reminder fees, collection fees, lawyer’s fees) if they are in reasonable proportion to the demanded amount.
• If costs increase between the conclusion of the contract and the time of delivery due to circumstances FM is not responsible for (eg increase of the producer and/or wholesale prices, due to labour cost increase by law, decree or collective bargaining agreement, or increase or new introduction of duties and/or due to stable value clauses), the relevant prices shall increase accordingly.
• For entrepreneurs, any reference to Section 934 ABGB [Austrian Civil Code] (laesio enormis) is deemed to be waived. Any set-off of counter-claims of the customer against the purchase price is excluded, unless the counterclaim has a legal connection with the customer’s  liability, was determined by  a court or acknowledged by FM.
• If a contractual partner ceases to make payments, should execution be levied upon its assets or the opening of insolvency proceedings be rejected for lack of cost-covering assets or should its financial circumstances deteriorate so that the payment of debts seem to be at risk, the other contractual partner is entitled to withdraw from the contract without setting a grace period.

5. Reservation of ownership
   

• The purchased goods remain FM’s property until full payment has been made. If the purchased goods are pledged or otherwise claimed by third parties, the customer is obliged to point out FM’s title and to inform FM without delay. The customer is not entitled to pledge the goods or to transfer them as security.
• Until full payment in terms of the aforementioned provisions, the customer is only entitled to dispose of the goods by way of sale in the ordinary course of business for a reasonable consideration.
• The customer is also obliged to insure the goods against fire for his own account and the account of third parties.
• The claim arising from any resale of the goods shall be transferred to FM upon its accrual up to the amount of the outstanding invoice amount. The same applies to any claims arising from the insurance contract.

6. Defects, liability
   

• Each delivery must be inspected after receipt without delay. Any identifiable defects must be notified within 48 hours after receipt of the goods at the latest; defects that can only be identified later shall be notified in writing within two working days after they become known by providing the specific details. If defects are not notified in due time and form, any claims shall be invalid and forfeited. If the objection is justified, FM is entitled, at its option, to take back the goods or to deliver a replacement.
• Damage claims for consequential damage are excluded; liability is limited to damage incurred to the delivered item as well as limited to intent or gross negligence. In any case, liability is limited to the amount charged for the affected goods. The same applies if goods other than the ordered goods are delivered.
• Any duty to compensate according to the Austrian Product Liability Act or other statutory provisions that provide for product liability are excluded for material damage incurred by companies and duties related to equalisation levies (Ersatzpflichten). The customer is obliged to agree to this disclaimer of liability and recourse with its other contractual partners and to impose on them such obligation to ensure that such disclaimer of liability and recourse subsequently will also be contractually agreed with other business partners with effect for FM.
• The customer must immediately inform FM about any damage that has become known to him caused by goods delivered by FM; particularly if damage compensation of disclosure of suppliers is requested by third parties from the customer, or if the customer otherwise becomes aware of a product defect in FM goods or if the customer suffers a loss or damage himself.
• Liability,  information or recourse request must be made in writing stating precisely the loss or damage, the facts giving rise to liability including evidence that the delivered goods originate from FM.
• Set-off or retention due to objections or counter-claims are excluded.

7. Notifications
   

• The customer must immediately notify FM about any change of its address in writing. Otherwise, written communications from FM shall be deemed received, using the normal postal service, if they were sent to the last address announced to FM.

8. Data protection
   

• With the conclusion of the contract, the customer gives its consent to the receipt of information and advertising materials by e-mail and phone from FM about the fields of agriculture, plant protection, animal feed and seeds on the basis of the Austrian Telecommunications Act. The customer may revoke such consent in writing at any time. This shall not affect the lawful processing of its personal data according to the data protection provisions. This revocation only causes that related electronic and telephone promotions/notifications are no longer received.
• The personal data submitted by FM to the customer may only be used by the customer in accordance with the currently applicable data protection provisions, may only be processed for the purpose of contract execution and is to be deleted immediately after such reason for processing no longer applies.
• With regard to FM’s duties to provide information under the data protection provisions according to Art. 13 and 14 of the General Data Protection Regulation, reference is made to the FM Privacy Statement which can be found at FM’s homepage.

9. Choice of law, place of jurisdiction
   

• Any disputes arising directly or indirectly from a business transaction shall be subject to the exclusive jurisdiction of the competent court of Vienna, Innere Stadt.
• In substantive terms, Austrian law is agreed, but with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods as well as international rules on conflicts of law.