General Terms and Conditions of Agrochemtrade GmbH – Terms and Conditions of Sale
GENERAL TERMS
All agreements and/or orders are based on the rules as stipulated in the General Terms and Conditions of Agrochemtrade GmbH (“SELLER”).The terms of purchase of the clients of SELLER shall not prevail over these general terms and conditions under any circumstances.
CONCLUSION OF CONTRACT
Offers and prices are without commitment. Orders are considered binding only after written confirmation of the SELLER or if the order is actually processed by SELLER. Oral agreements shall be confirmed by SELLER in writing in order to be effective.
PRICES
Prices are net and exclusive of any applicable taxes, unless otherwise stated. Any official charges or acts of authorities have to be borne by the client (hereinafter referred to as “BUYER”). Unless otherwise indicated, packaging material is not returnable.
TERMS OF PAYMENT
Unless otherwise agreed, all payments shall be made within fourteen days of delivery to SELLER’s bank account with IBAN AT 042011184486269100 (EUR), AT742011184486269101 (USD) without deductions or charges.
If the date of required payment is exceeded or in case of delayed acceptance or “Terminsverlust” (as defined below) SELLER shall be entitled to charge default interest and compound interest in the amount of 8 percentage points above the base rate of Oesterreichische Nationalbank, however, not less than 12 % p.a. In case of default BUYER shall be obliged, in addition to default interest, to reimburse all procedural and non-procedural costs of collection, which shall also include the fees of a lawyer commissioned by SELLER.
In the event of any failure by BUYER to make payment on the due date any loss suffered by SELLER especially due to depreciation of currency after such date shall be recoverable from BUYER.
“Terminsverlust” shall be deemed occurred if the contracting party is in delay with a payment under the contract. In this case SELLER may immediately declare the entire remaining invoice amount due for payment.
Moreover, the total residual claim of SELLER shall immediately become due for payment without regard to payment periods if execution is levied on the assets of BUYER with no success, if a forced sale of real estate or receivership is allowed, or if creditworthiness is otherwise reduced (in particular in case insolvency proceedings are opened). In these cases SELLER shall be entitled to render outstanding services only against advance payment or furnishing of security or to rescind the contract without granting a grace period or to claim damages on grounds
of non-performance.
Setting-off of claims against counterclaims or retention of payments for whatsoever reasons by BUYER shall not be permissible unless expressly agreed.
If the date of required payment is exceeded or in case of delayed acceptance or “Terminsverlust” (as defined below) SELLER shall be entitled to charge default interest and compound interest in the amount of 8 percentage points above the base rate of Oesterreichische Nationalbank, however, not less than 12 % p.a. In case of default BUYER shall be obliged, in addition to default interest, to reimburse all procedural and non-procedural costs of collection, which shall also include the fees of a lawyer commissioned by SELLER.
In the event of any failure by BUYER to make payment on the due date any loss suffered by SELLER especially due to depreciation of currency after such date shall be recoverable from BUYER.
“Terminsverlust” shall be deemed occurred if the contracting party is in delay with a payment under the contract. In this case SELLER may immediately declare the entire remaining invoice amount due for payment.
Moreover, the total residual claim of SELLER shall immediately become due for payment without regard to payment periods if execution is levied on the assets of BUYER with no success, if a forced sale of real estate or receivership is allowed, or if creditworthiness is otherwise reduced (in particular in case insolvency proceedings are opened). In these cases SELLER shall be entitled to render outstanding services only against advance payment or furnishing of security or to rescind the contract without granting a grace period or to claim damages on grounds
of non-performance.
Setting-off of claims against counterclaims or retention of payments for whatsoever reasons by BUYER shall not be permissible unless expressly agreed.
RETENTION OF TITLE
The delivered object of purchase shall remain the property of SELLER until full payment of the purchase price (including value-added tax, default interest and costs). In the case of processing or commingling, co-ownership shall be established in proportion to the shares at the time of processing or commingling. If BUYER does not (co-)own the principal item, BUYER hereby assigns all claims vis-à-vis the owner of the principal item for the purpose of securing our claims.
As long as title to an item is retained, a sale, pledging, transfer of ownership by way of security, negotiating or otherwise making available of the object of purchase shall only be permissible if SELLER was timely informed thereof and such information contained the name and exact address of the purchaser, and if SELLER has given his written consent to such sale, pledging, transfer of ownership by way of security, negotiating or otherwise making available of the object of purchase. If such consent is given by SELLER, BUYER already at this point assigns to SELLER all claims vis-à-vis third parties arising from resale in the amount of the relevant invoice amount agreed between BUYER and SELLER, and SELLER shall at any time be entitled to inform the third-party debtor of such assignment.
BUYER shall enter this assignment including the underlying legal ground into its books (customer account and outstanding accounts receivable list) and shall inform its customers of such assignment if SELLER so requests. Upon SELLER’S request BUYER shall furnish evidence to him of the proper entry by sending him the current outstanding accounts receivable list and a complete customer sheet. In case of an attachment of or other recourse to the object of purchase BUYER shall be obliged to claim SELLER’S ownership and to immediately inform SELLER thereof and to reimburse him all costs of maintaining title.
As long as title to an item is retained, a sale, pledging, transfer of ownership by way of security, negotiating or otherwise making available of the object of purchase shall only be permissible if SELLER was timely informed thereof and such information contained the name and exact address of the purchaser, and if SELLER has given his written consent to such sale, pledging, transfer of ownership by way of security, negotiating or otherwise making available of the object of purchase. If such consent is given by SELLER, BUYER already at this point assigns to SELLER all claims vis-à-vis third parties arising from resale in the amount of the relevant invoice amount agreed between BUYER and SELLER, and SELLER shall at any time be entitled to inform the third-party debtor of such assignment.
BUYER shall enter this assignment including the underlying legal ground into its books (customer account and outstanding accounts receivable list) and shall inform its customers of such assignment if SELLER so requests. Upon SELLER’S request BUYER shall furnish evidence to him of the proper entry by sending him the current outstanding accounts receivable list and a complete customer sheet. In case of an attachment of or other recourse to the object of purchase BUYER shall be obliged to claim SELLER’S ownership and to immediately inform SELLER thereof and to reimburse him all costs of maintaining title.
PASSING OF RISK
Irrespective of the place of performance benefit and risk shall pass to BUYER upon dispatch of the object of purchase or parts thereof from SELLER’S warehouse, in case of delivery ex works upon dispatch from the plant. In case of delayed dispatch from SELLER’S plant or warehouse which is due to circumstances for which BUYER is responsible, or if collection by BUYER has been agreed, the risk shall pass to BUYER upon notification of readiness for delivery or shipment. The risk of transport shall in any case be borne by BUYER, even if delivery
carriage paid was agreed with its own or third-party means of transport. A transportation insurance shall only be taken out upon written agreement and only on BUYER’S account by SELLER.
SELLER’S weights and analysis taken at the point of manufacture shall govern. Unless otherwise agreed on the face hereof, SELLER reserves the right to route shipments.
carriage paid was agreed with its own or third-party means of transport. A transportation insurance shall only be taken out upon written agreement and only on BUYER’S account by SELLER.
SELLER’S weights and analysis taken at the point of manufacture shall govern. Unless otherwise agreed on the face hereof, SELLER reserves the right to route shipments.
DISCLAIMER OF WARRANTIES
There are no warranties which extend beyond the description in the agreement and/or order, and SELLER shall make no warranty of any kind, express or implied, whether of fitness or against infringement or otherwise, except that the materials sold hereunder shall be of merchantable quality and shall comply with the specifications set forth and/or attached; and BUYER shall assume all risk whatsoever as to the result of the use of the materials purchased, whether used singly or in combination with other substances. Notice of defects shall be given by
BUYER immediately, but not later than 30 days after delivery of the object of the purchase or after the defect has become obvious, by registered letter stating the nature and scope of the defect; otherwise any claims shall be excluded. If notice of defect is not given or not given on time, the goods shall be deemed accepted. BUYER shall, in deviation from Section 924 Austrian General Civil Code, prove that the defect had already existed at the time of delivery of the object of the purchase.
BUYER immediately, but not later than 30 days after delivery of the object of the purchase or after the defect has become obvious, by registered letter stating the nature and scope of the defect; otherwise any claims shall be excluded. If notice of defect is not given or not given on time, the goods shall be deemed accepted. BUYER shall, in deviation from Section 924 Austrian General Civil Code, prove that the defect had already existed at the time of delivery of the object of the purchase.
LIMITATIONS OF CLAIMS
SELLER shall only be liable for intent and severely gross negligence. SELLER’S liability for lost profit or consequential damage shall be excluded. BUYER shall prove cause, illegality and fault. Claims for compensation shall become time-barred within six months of knowledge of the damage and of the party who caused the damage, in any case one year after passing of the risk.
The amount of any claim raised by BUYER shall not exceed the purchase price of the materials in respect of which damages are claimed.
The amount of any claim raised by BUYER shall not exceed the purchase price of the materials in respect of which damages are claimed.
PATENTS
SELLER shall not be responsible for BUYER’s infringement of letters patent owned by others; the sole responsibility regarding infringement of any letters patent lies with the BUYER, who agrees to assume all and any consequences thereof.
Provided that SELLER manufactures the object of purchase in accordance with instructions and plans of BUYER, BUYER represents that no proprietary rights, in particular patent rights or other third-party rights, are infringed by manufacturing in accordance with plant practices, putting into circulation, offering for sale or use of such products. If SELLER is held liable by a third party on grounds of violation of proprietary rights (in particular patent rights), BUYER shall be obliged to indemnify and hold SELLER harmless from and against such claims upon first written demand.
Provided that SELLER manufactures the object of purchase in accordance with instructions and plans of BUYER, BUYER represents that no proprietary rights, in particular patent rights or other third-party rights, are infringed by manufacturing in accordance with plant practices, putting into circulation, offering for sale or use of such products. If SELLER is held liable by a third party on grounds of violation of proprietary rights (in particular patent rights), BUYER shall be obliged to indemnify and hold SELLER harmless from and against such claims upon first written demand.
EXCUSES FOR NON-PERFORMANCE
If the manufacture, transportation or delivery of any materials covered hereby is prevented, restricted or interfered with by reasons of any event or cause whatsoever beyond the reasonable control of the party so affected, SELLER shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference. SELLER may allocate its available supply of any such material among its customers in such manner as SELLER deems proper, without thereby incurring liability for failure to perform this contract.
PRODUCT LIABILITY
Rights of recourse as defined by Section 12 Product Liability Act shall be time-barred within three years of obtaining knowledge of the damage and of the party who caused the damage, however not later than five years of putting the product into circulation.
APPLICABLE LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE
This contract shall be construed, and respective rights and duties of BUYER and SELLER shall be determined, according to the laws of Austria. Application of UN Sales Law shall be excluded.
All disputes arising from or in connection with a contractual relationship to which SELLER is a party shall be settled at SELLER’S option either by District Court Baden or by the court at the place of SELLER’S registered office having jurisdiction over the subject-matter. The place of performance for deliveries, services and payments shall be Ebenfurth, even if delivery takes place at a different place as agreed.
All disputes arising from or in connection with a contractual relationship to which SELLER is a party shall be settled at SELLER’S option either by District Court Baden or by the court at the place of SELLER’S registered office having jurisdiction over the subject-matter. The place of performance for deliveries, services and payments shall be Ebenfurth, even if delivery takes place at a different place as agreed.
MISCELLANEOUS
No statements, whether in oral or written form, made prior to or at the signing hereof shall vary or modify the written terms hereof; and neither party shall claim any modification or rescission from any provision hereof unless such modification or rescission is in writing and signed by the other party. Failure of SELLER to exercise any right under this contract shall not be deemed a waiver thereof.
