General Terms and Conditions of Business of Neue Wiener Porzellanmanufaktur Augarten GmbH & Co KG
All deliveries and services of Neue Wiener Porzellanmanufaktur Augarten GmbH & Co KG (hereinafter referred to as ďAugartenĒ) shall be based on the following General Terms and Conditions of Business, even where no express reference is made to such terms and conditions. To be valid in law, any supplementary or divergent agreements, including in particular conflicting terms and conditions of business of the customer, shall require Augartenís express written, officially signed acknowledgement.
2.1. All orders shall become legally valid with the written order acceptance and, in the absence of such order acceptance, at the latest on acceptance of the delivery by the customer.
2.2. First orders shall be subject to a minimum order value.
Unless otherwise agreed, all prices shall be quoted net in euros, ex Augarten Vienna. Augarten shall issue its invoices in euros; the prices valid at the time the order was placed shall be legally valid.
4. Payment terms
4.1. Prepayment shall be deemed. Augarten may demand confirmation by a bank approved by Augarten. Payment shall be deemed to have been effected when Augarten has free disposal of the funds at its registered office. The customer shall bear the exchange risk for all payments in freely convertible currencies other than the invoice currency. Bank charges shall be borne by the customer. The customer acknowledges his obligation to pay default interest of 11% p.a. from the due date. Any rights in respect of claims, counterclaims or remuneration on the part of the customer shall not entitle the customer to postpone payments beyond their due date. Augarten reserves the right to change payment terms or to cease fulfilment of any agreement with the customer if this appears necessary on account of the customerís financial situation or payment history.
4.2. First orders shall only be accepted against advance payment.
4.3. If the payment period is exceeded by more than 60 days all deliveries shall be stopped until the outstanding amount has been credited to Augartenís account. New orders may be accepted by Augarten, but they shall not undergo any further processing or be delivered.
4.4. Augarten shall not be obliged to discount cheques and bills of exchange; they shall be credited on account of performance, subject to actual payment, with the value of the actual amount that can be disposed of. All costs incurred through the acceptance of bills of exchange and cheques, including in particular discount charges and interest, shall be borne by the customer.
4.5. In addition, in the event of default in payment, all remaining outstanding accounts receivable, including those in the form of bills of exchange, shall become payable immediately, irrespective of their due date. Augarten shall also be entitled to withdraw from all current contracts, to cease deliveries, to make deliveries subject to the provision of collateral, or to effect deliveries only against cash on delivery. The same shall apply in the event of the full or partial sale of the company, of another party acquiring a participating interest in the company or a change in the legal form of the customerís company, in the event of a major change or deterioration in the customerís financial circumstances (e.g. bill or cheque protest) or if Augarten becomes aware of circumstances that raise reasonable doubts about the granting of credit only after the order has been accepted. In all such cases Augarten may assert reservation of ownership pursuant to No. 8 and may to this end identify the customerís remaining stocks from its delivery and take these back; this shall not, however, result in withdrawal from the contract.
5.1. All deliveries shall be effected ex works Obere Augartenstrasse 1, A-1020 Wien. Deliveries shall be effected by Augarten as permitted by operating circumstances. Planned delivery dates shall not be binding. No claims for compensation may be asserted for non-performance or delayed performance. Partial deliveries shall be permitted and may be invoiced.
5.2. Fulfilment of the contract by Augarten shall be subject to unforeseen circumstances or circumstances that are beyond the influence of the respective party, e.g. all incidents of force majeure, war, interventions and prohibitions by authorities, transport and customs delays, transport damage, energy shortages, industrial disputes and delays in deliveries from suppliers, irrespective of the underlying reasons.
5.3. If it is not possible to dispatch goods that are ready for dispatch due to reasons for which Augarten is not to blame, or if the customer does not wish such goods to be dispatched, then Augarten may arrange warehousing of the goods at the customer's costs and risk; in such cases, delivery shall be deemed to have been effected. This shall not alter the agreed payment terms in any way.
6. Complaints in respect of defects, warranty
6.1. Complaints relating to obvious defects that can be identified during normal inspection at the time the goods are handed over must be notified in writing, with detailed information on the defect, within 14 days of the goods being received at the place of destination; in all other cases the goods shall be deemed to have been accepted.
6.2. Transport damage or losses must be notified to us without delay accompanied by a damage report signed by the transport company and the customer. A credit shall only be issued for transport breakages if transport breakage insurance has been taken out. Transport breakage insurance amounts to 3% of the value of the goods.
6.3. Damage caused by the effects of the weather shall be excluded from the warranty. We shall issue a credit where complaints are justified. The customer may not assert any other warranty claims. The customer shall not be entitled to additional claims, especially those involving compensation for indirect damage or consequential damage.
6.4. The above exclusions of liability shall not apply in the event of intent or blatant gross negligence on the part of Augarten. The burden of proof shall lie with the customer.
6.5. No liability shall be assumed for damage occurring when improving/repairing items that are the property of the customer.
7. Industrial property rights
The customer shall be entitled to use the trademarks/logos that are applied by Augarten to the goods or their packaging in order to identify the unmodified goods in their original packaging. In doing so the customer shall not acquire any rights to Augartenís trademarks, logos or other protected material. The customer undertakes to refrain from any more extensive use. Without exception, any use of Augartenís trademarks, names and company symbols in publications or printed forms shall only be permitted after Augarten's written consent has been obtained. Moreover, the customer undertakes not to use any similar signs or signs that could be confused with Augartenís signs or to have such signs protected in any way whatsoever. In the same way as samples, documents such as catalogues, brochures, illustrations, etc. shall always remain Augartenís property and enjoy protection under the relevant statutory provisions relating to duplication, imitation, competition, etc. The customer undertakes not to make such documents accessible to third parties either in whole or in part without the prior written consent of the other contracting party or to use them beyond the purposes for which he was given the documents. If an order is not placed all documents must be returned to Augarten.
8. Reservation of ownership
8.1. The goods or samples supplied shall remain Augartenís property until they have been paid for in full. The customer shall, however, be authorised to resell the goods on a customary commercial basis, in the ordinary course of his business. If goods that have not yet been paid for are sold then the customer shall assign all receivables arising against third parties to Augarten. Augarten shall be entitled to disclose such assignment. The customer must immediately provide Augarten with the information and documents required to pursue any claims.
8.2. The customer shall not be entitled to pledge any of Augartenís goods that have not been paid for or to assign such goods by way of security. He shall be obliged to assert Augartenís right of ownership vis-ŗ-vis third parties and to notify Augarten immediately in writing if third parties assert claims to the goods or if enforcement procedures are initiated.
9. Data protection and storage
Augarten shall take statutory provisions into account when storing and processing any personal data obtained in the course of its business relations with the customer. In concluding the contract, the customer declares his agreement Ė until revocation, which may be pronounced at any time Ė for his personal data to be stored by Augarten for marketing purposes.
10. Partial invalidity
If a provision in this contract becomes invalid this shall not affect the validity of the remaining provisions. The parties undertake that they will immediately agree a new, valid provision that approximates as closely as possible to the economic intent of the invalid provision.
11. Distributional restraint, contractual penalty
11.1. A customer who operates a commercial business undertakes only to use the goods received for retail sale purposes.
11.2. If the customer infringes these provisions Augarten shall be entitled to withdraw from current contracts and to refuse to effect future deliveries. For each case of infringement the customer undertakes to pay a contractual penalty (independent of blame) in the amount of Augarten's selling price. The customer must immediately provide Augarten with the written information required to determine the actual damages. Augarten expressly reserves the right to assert damages in excess of the contractual penalty.
12. Place of jurisdiction
This contract shall be governed by Austrian law. The UN Convention Relating to a Uniform Law on the International Sale of Goods shall not apply. The place of jurisdiction for disputes arising under the contract concluded with the customer or under the General Terms and Conditions on which the contract is based shall be Vienna.
Please insert the following sentence at the bottom of the front sheet of paper above our company details:
Unjustified cash discounts will be reclaimed at a later date.