SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter: TERMS) shall apply to any business between customer and PICHLER. Any terms and conditions of the customer in variance of these TERMS or of any amendments and modifications confirmed by written notice of PICHLER shall be expressly excluded. Any derogation from these TERMS shall be agreed in writing.
1.2 These TERMS shall be applicable to all future transactions between the Parties until PICHLER issues new TERMS, even if these transactions are concluded without reference to these TERMS.
ORDER, DELIVERY, RISK
2.1 PICHLER’s offers are without engagement. Any contracts on the customer’s orders shall be effective only when PICHLER sends a written confirmation of order or delivers the goods. The customer is bound by orders ten days upon PICHLER’s receipt of the order. The right to intermediate sale is reserved. Measures, weights, illustrations, descriptions and the like contained in PICHLER’s catalogues, prospectuses and other documents or on the Internet are approximate indications only; no warranty is accepted for any information. During the time of delivery, the right to make alterations to construction or shape in response to improvements of technology or legal requirements (in particular laws and jurisdiction) is reserved, providing that the alterations are reasonable and acceptable for the customer. As long as PICHLER has not confirmed an order in writing, PICHLER is not required to notify customer on its own initiative of any change or alterations. Any product of intermediate size or format not set out in the current price lists shall be ordered as manufactured to customer’s specification (cf. § 3.3).
2.2 Unless expressly agreed otherwise, the goods shall be deemed to be sold ex works (EXW). PICHLER has the free choice to place the goods at A-6020 Innsbruck headquarters or at any of its branches or affiliate companies and/or to deliver ex the sites mentioned above at PICHLER’s. PICHLER is entitled to partial deliveries. The INCOTERMS 2010 shall apply.
2.3 Delivery deadlines indicated by PICHLER are always without engagement and will be observed, if possible. In particular in case of business interruptions, strikes, public unrest, lock-outs, a shutdown of the entire or parts of the deliver plant, in case of war, government orders or force majeure the bindingly agreed delivery period will be prolonged for the time the disruption lasts and until the operational consequences are removed. Any of these events entitle PICHLER to withdraw from the contract without having to pay damages.
2.4 If the customer does not collect the goods on or before the agreed time, any risk shall transfer to the customer upon expiration of the agreed pick-up deadline or date.
2.5 If a certain period or a certain time-limit is agreed for PICHLER’s delivery and if the deadline or the time-limit is exceeded, default will occur only after a reminder has been issued and a grace period of generally at least six weeks has expired without any result. The customer may withdraw from the contract and assert damages only after default has occurred and another reasonable grace period granted to PICHLER has expired without any result.
2.6 Unless expressly agreed otherwise in writing, the delivery period starts with the following times at the latest:
a) The date of the confirmation of order.
b) The date on which the customer has complied with all technical, commercial and financial conditions incumbent on the customer.
c) The date on which PICHLER has received a down payment that is due prior to delivery of goods and / or a letter of credit has been issued.
3.1 The prices are set out in PICHLER’s price list valid from time to time. All prices are exclusive of VAT. All prices are without engagement and net ex the loading place determined by PICHLER. Not included in the price are in particular freight, packaging, transportation insurance and VAT, which are additionally charged.
3.2 Prices are calculated on the basis of the price valid on the contract execution date (§ 2.1). Any changes in producer prices / factory prices / list prices of PICHLER’s suppliers entitle PICHLER to appropriately change the prices also after the contract was executed or an order was placed.
3.3 PICHLER reserves the right, in particular during permanent business relations, to make the acceptance of customers’ orders dependent on minimum order values or to charge a minimum quantity surcharge. In case of manufacture to customer’s specification (cf. § 2.1 above) a surcharge applies. For manufacturing and technical reasons, with manufacture to customer’s specification, excess or short supplies of up to 10 % are permissible. The customer undertakes to accept the relevant produced product quantities.
3.4 Any special services which may be separately agreed, e.g. the affixing of the customer’s advertising materials or special packaging, will be subject to extra charges.
4.1 The invoices shall be payable in cash and immediately upon receipt, within 30 days from the invoice date at the latest, without deduction and before procurement of goods. PICHLER shall be entitled to demand prepayment for any delivery (advance payment).
4.2 Payments are timely made if payments are received by PICHLER in cash or are irrevocably credited to its account on the maturity date or on the last date of the deadline.
4.3 The customer automatically and without prior notice falls into default of payment upon expiry of the payment deadline.
4.4 Even if the customer is in default of one single payment, PICHLER is entitled to:
a) charge reminder fees up to the amount of EUR 15.00 net for each (own) reminder,
b) charge all costs incurred in connection with collection measures taken by third parties (legal fees/collection agency fees) at rates according to the Austrian Attorneys' Tariff or the Decree on collection fees (Inkassogebührenverordnung),
c) apply payments to cover first costs accrued, then accrued default interest and then earliest debt (any dedication of payments made by the customer shall be disregarded),
d) charge default interest at statutory rates, notwithstanding the right to assert additional default damage (interest will be higher whenever PICHLER is in turn required to pay higher interest),
e) assert a reasonable prolongation of the delivery period; the period during which the customer is in default will in any event be considered as a reasonable prolongation of the delivery period (this applies to any case in which the delivery period shall commence before full payment; see also Section 2.6),
f) retain further deliveries,
g) accelerate the payment of the full outstanding purchase price if payment was agreed in several instalments (clause providing for accelerated payment),
h) withdraw from the contract after having set a reasonable grace period and demand compensation.
4.5 PICHLER is entitled to charge the customer for all costs arising in connection with the outstanding liability.
4.6 Customer may set off counterclaims, if any, which PICHLER has acknowledged or which have been determined with final and non-appealable effect and if PICHLER is unable to pay. Furthermore, customers within the meaning of the Austrian Consumer Protection Act may set off counterclaims which are legally connected with the obligation of the customer.
4.7 Customer may retain payments only for counterclaims, if any, which PICHLER has acknowledged or which have been determined with final and non-appealable effect and if PICHLER is unable to pay. This shall not affect the right of retention (including the right to retain performance as provided in Section 1054 of the Austrian Civil Code) granted to consumers within the meaning of the Austrian Consumer Protection Act.
5.1 The statutory warranty rights of customers who are consumers within the meaning of the Austrian Consumer Protection Act shall not be affected. As a result, § 5.2 through § 5.6 apply to those customers only to the extent that these customers are also required to notify defects in writing to PICHLER in order to rely on warranty rights.
5.2 The customer shall inspect the goods immediately after receipt. The customer shall notify PICHLER any apparent defects immediately in writing. Defects which cannot be detected even after thorough examination or which might only appear later on shall be notified to PICHLER in writing immediately after they were discovered. The customer shall bear the risk that a notice of defect is actually received; if PICHLER does not receive a notice of defect, the notice is deemed to be regarded as not being stated. Should the customer not perform his obligation to examine the delivered goods as well as to notify PICHLER of defects in accordance with this paragraph in a timely manner, the goods are deemed approved, and the customer can no longer assert any claims due to defects (including but not limited to warranty claims, damages and error). Section 377 (5) of the Austrian Companies Act (UGB; regarding the case of fraudulent concealment of defects) shall not be affected.
5.3 Should a defect be given, PICHLER is entitled to subsequent fulfilment by remedying the defect or delivery of a non-deficient good (replacement delivery). PICHLER has the optional right either to remedy the defect or replace the good. PICHLER’s right to entirely refuse to remedy the defect or replace the good within the legal requirements (see, for example, Section 932 (4) of the Austrian Civil Code) remain unaffected.
5.4 The customer has however the optional right to withdraw from the contract (Wandlung) – unless the defect is only minor – or to ask for a purchase price reduction if subsequent fulfilment fails, in particular if fulfilment is impossible or if PICHLER does not manage subsequent fulfilment within due time, if such fulfilment is refused by PICHLER or culpably delayed by PICHLER.
5.5 The customer shall grant PICHLER the necessary time and occasion to remedy the defect or make a replacement delivery; otherwise, PICHLER is exempt from its warranty.
5.6 The customer is not entitled to assert warranty claims for insignificant defects. Any defects in respect of a part of a delivery do not entitle the customer to raise complaints in respect of the remainder of the delivery.
5.7 All warranty claims – except from those due to damage to life, body or health or due to gross negligence by PICHLER or its vicarious agents – become time-barred within twelve months upon delivery of the goods. Warranty claims may be asserted only by the relevant customer. Warranty claims shall not prevent the maturity of the purchase price claim.
5.8 PICHLER may request the customer either to send the defective part at PICHLER’s cost and expense to an address indicated by PICHLER or – at PICHLER’s election – to make the defective part/the defective goods available to allow PICHLER or an authorized third party to rectify the defect or replace the defective part directly at the customer's premises.
5.9 The customer may not assert a warranty claim based on normal or ordinary wear and tear. PICHLER specifically incorporates by reference the instructions for the use, utilization, care and cleaning of the goods, which are attached to the goods. PICHLER is not liable for any damage caused due to non-conforming use, cleaning and/or care.
5.10 PICHLER may refuse to improve or replace defective products as long as the customer has not fulfilled his payment obligations in an extent which corresponds to the defect-free portion of the provided delivery, if the defect-free portion of the provided delivery as such is of interest to the customer (e.g. if that part can be independently used). In respect of consumers within the meaning of the Austrian Consumer Protection Act, this shall not apply; to those customers, the statutory provisions apply.
5.11 PICHLER does not accept any warranty for the fulfilment of special regulations in the country of destination.
5.12 Signs and numbers on PICHLER’s products may not be modified or changed beyond recognition, in particular in case of warranty forfeiture (see § 6.3).
5.13 Claims for damage and for other compensation of the customer based on a defect are governed by § 6 of these TERMS.
6.1 The provisions of the Product Liability Act shall apply without restriction.
6.2 The parties consensually agree that PICHLER shall not be liable for any damage, unless PICHLER demonstrably violated its principal contractual obligations with intent or gross negligence. PICHLER shall in particular not be liable for consequential damage or lost profits in case of delayed or defective deliveries or in case of non-delivery. This shall not affect the customer's warranty right subject to § 5.
6.3 Insofar the liability of PICHLER is excluded or limited, this exclusion or limitation shall also be applicable to the personal liability of employees, representatives or the vicarious agents of PICHLER.
6.4 If the customer or any third person arbitrarily modifies products, PICHLER disclaims any warranty or liability. Furthermore, PICHLER disclaims any warranty for defects attributable to improper use. In case of liability for damages, PICHLER may be released from all claims by assigning them to the liability insurance company.
6.5 Unless expressly agreed otherwise, the customer shall bear the risk of transport (cf. § 2.2).
RESERVATION OF TITLE
7.1 Until full and complete payment of the purchase prices PICHLER shall retain title to all of its goods. The reservation of title is also valid against the carrier to whom the goods have been handed over at the request of the customer or of PICHLER.
7.2 Customer may resell the goods prior to full payment only after he has obtained and subject to PICHLER’s written consent. Any right to resell the goods shall forfeit automatically if the customer is in default of or has discontinued payment. The customer shall not be entitled to dispose of the goods subject to reservation of title other than in the afore-mentioned manner, in particular customer shall not be allowed to pledging or chattel of mortgage of goods, until full payment. The customer has to undertake measures to defend ownership of PICHLER against third-party interventions as well as pledging of goods subject to reservation of title. The customer is obliged to indicate PICHLER’s ownership. The customer shall notify PICHLER thereof immediately in writing.
7.3 PICHLER may insist on immediate surrender of the goods supplied but not yet fully paid, if the customer does not meet his payment obligations in time and in full amount or insolvency proceedings are applied for or opened in respect of the customer's assets and if such a petition for insolvency is rejected for lack of assets to cover costs, or if the customer in fact discontinues his payments or reaches an out-of-court settlement with his creditors.
7.4 In the event of resale prior to full payment (cf. § 7.2 above), the customer hereby assigns all his claims on purchase price against seller as well as any future receivables from the resale of goods, including all ancillary rights, to PICHLER and shall note the assignment of claims in his business records. The assigned claims serve as security for all claims pursuant to § 7.1. Upon PICHLER’s request, the customer shall notify PICHLER on the sale of the goods to third parties for the purpose of payment within seven days after PICHLER’s request and, within the same deadline, shall provide PICHLER with the information necessary to assert its rights and to deliver the documents to PICHLER. PICHLER may notify third-party debtors at any time of an assignment.
7.5 The taking back of the goods by PICHLER is not deemed withdrawal from the contract, unless this was specifically agreed in writing. Even if PICHLER takes back goods sold subject to reservation of title, PICHLER’s right to claim damages for non-performance shall not be affected. Buyer is deemed to hold in custody the goods sold subject to reservation of title until that reservation of title expires. The costs arising in connection with asserting PICHLER’s rights thereunder shall be borne by the buyer.
INTELLECTUAL PROPERTY, PROHIBITION OF IMITATION
8.1 The customer undertakes to resell PICHLER’s goods only under the names and trademarks PICHLER has determined.
8.2 The customer undertakes not to imitate (to reproduce) in whole or in part any goods produced and/or sold by PICHLER and/or not to make imitations available to third parties, whether in identical or modified form. This obligation and the prohibition of imitation apply irrespective of whether PICHLER holds any intellectual property rights.
8.3 The customer undertakes not to change any goods produced and/or sold by PICHLER.
8.4 The customer undertakes not to reproduce or make available to third parties any texts, sketches, drawings, films, pieces of music, pictures, photographs and any other content by PICHLER, unless these are materials which PICHLER has clearly marked as being intended for general distribution (e.g. advertising catalogue).
9.1 Any amendment of, modification and side agreement to these TERMS as well as any commitment shall be made in writing to be effective. This shall also apply to any waiver of this written form requirement.
9.2 The customer may not set off his counterclaims against PICHLER's claims or retain payments in reliance on defects. The customer may only set off counterclaims or assert a right of retention against claims that were expressly acknowledged by PICHLER or ascertained with legally binding effect.
9.3 Should individual terms of these TERMS or of the contracts supplemented by them be invalid in whole or in part, this shall not affect the validity of the remaining terms. In this event, the invalid term shall be replaced by a new term which corresponds to or closest reflects the economic purpose of the invalid term.
9.4 PICHLER stores and processes the customer’s name, address (postal address, mailing address, telephone number and fax number, if any) and account details in case of payment per direct debit. Customer’s data will only be handed over to third parties as far as this is necessary to fulfil the contract and in compliance with the Austrian Data Protection Act 2000.
9.5 These TERMS and the contracts supplemented by them shall be governed by and construed in accordance with Austrian law, excluding all bi- and / or multilateral agreements on the sale of goods, excluding the United Nations Convention on Contracts for the International Sale of Goods (= „CISG“ / „ Vienna Convention for Sale of Goods “) as well as excluding the conflict of law rules of private international law.
9.6 All disputes arising out of or resulting from this contractual relationship shall, if the customer is an entrepreneur, legal entity under public law or special fund under public law or has its residence or main business seat outside of Austria, be exclusively brought before the court having subject-matter jurisdiction for A-6020 Innsbruck, Tirol, Austria. PICHLER shall however also be entitled to sue the customer at the customer’s main business seat. Place of performance shall be A-6020 Innsbruck, Tirol.