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General Terms and Conditions of Sale

§ 1 Scope

  1. These general terms and conditions shall apply to all supplies, services and offers by Kunststoffwerk Kremsmünster GmbH (hereinafter referred to as “KWK”). They shall apply to all present and future business between KWK and the contractual partner (hereinafter referred to as “Customer”), even if no express reference is made to them.
  2. Conflicting terms and conditions of the Customer are not accepted by KWK and shall not apply (even if submitted in a later document). Any objection by KWK is not necessary. Contractual performance by KWK shall not constitute an acceptance of these conflicting terms and conditions.
  3. Modifications of and amendments to this agreement shall be valid only when agreed in writing by KWK. The requirement of the written form itself can only be waived in writing.

§ 2 Offers and Contract Formation

  1. All offers by KWK are non-binding unless they are expressly declared binding.
  2. Orders of the Customer shall be considered as accepted only upon dispatch of a written order confirmation (i.a. email or fax), supply of the goods or performance of the services by KWK, whereby a contract is concluded.
  3. Subsequent modifications of and amendments to this agreement shall be valid only upon the written confirmation of KWK.
  4. KWK is not obliged to accept subsequent orders.

§ 3 Prices

  1. All prices are quoted in EURO and do not include taxes. Value Added Tax will be invoiced additionally at the applicable rate. Prices are quoted Incoterms® 2020 FCA KWK works in Kremsmünster (Kremsegger Straße 17, A-4550 Kremsmünster, Austria) and do not include transport costs. Any fees, customs duties and other charges shall be borne by the Customer.
  2. Orders for small quantities may be subject to an additional handling charge.
  3. Prices shall be valid only for the respective order. KWK is not bound to them with regard to any subsequent orders.
  4. All prices are based in particular on the current material, energy and wage costs. If prices have been agreed and the costs on which the prices are based subsequently change, KWK shall be entitled to modify the prices in accordance with the change in costs.
  5. In case of partial deliveries, partial invoices by KWK shall be permissible.
  6. If no justified objection against the invoice is raised in writing within 14 days, the debt shall be considered approved.

§ 4 Conditions of Payment

  1. The place of performance for payment is the KWK business premises in Vienna (Muthgasse 64, A-1190 Vienna, Austria).
  2. The payment period shall be 30 days from the invoice date.
  3. If payment by instalments is agreed, the entire outstanding amount shall become due and payable immediately in the event of default with only a single instalment. In this case KWK shall have the right to store the goods delivered under retention of title without withdrawingfrom the agreement, until the entire outstanding debt including incidental costs is fully paid.
  4. In the event of default, KWK is entitled to demand default interest at a per annum rate of 6% above the three-month Euribor rate as well as all dunning and collection costs. Claims for compensation for any further damage caused by default shall remain unaffected by this. Furthermore, in the event of default, KWK has the right to withhold all supplies and services until the Customer has fulfilled its payment obligations. After granting a reasonable grace period, KWK shall be entitled to withdraw from the contract.
  5. The Customer is not entitled to withhold payments due to warranty or other claims.
  6. Where there are reasonable grounds to doubt the solvency or creditworthiness of the Customer, or in the event of execution being levied upon the Customer's assets, KWK shall be entitled to demand immediate payment of all outstanding accounts arising from the business relationship and to withhold all supplies and services from any agreements not yet fulfilled.

§ 5 Conditions of Delivery

  1. Place of performance for supplies and services is the KWK works in Kremsmünster (Kremsegger Straße 17, A-4550 Kremsmünster, Austria). Shipment and transport shall be at the account and risk of the Customer.
  2. KWK will adhere to the delivery periods and dates with the utmost care. Unless expressly declared as binding, they are non-binding and are always to be understood as the expected time of provision or delivery to the Customer. The Customer shall be obliged to accept minor delays without being entitled to withdraw from the contract or claim damages.
  3. The delivery period shall depend on the presence of all commercial and technical specifications and documents necessary for the performance of the order. This shall also apply to moulds, templates, etc. that are to be provided.
  4. KWK reserves the right to deliver a short or excess quantity of up to 10% of the ordered quantity. The quantity actually dispatched shall be decisive for the invoicing.
  5. A withdrawal from the contract by the Customer due to delay in delivery shall only be permissible after granting a reasonable grace period of at least 30 days. The withdrawal shall be exercised by registered letter. However, the effect of this withdrawal shall be limited to that part of the delivery or service which is in default.
  6. The Customer is obliged to accept the supplies and services provided by KWK. In case of default of acceptance KWK shall be entitled to store the goods at the Customer's account and risk. Furthermore, KWK shall have the right to either insist on fulfilment of the agreement or to withdraw from the agreement after granting a reasonable grace period and to realise the goods elsewhere.
  7. KWK is entitled to partial supplies and services. In case of partial supplies or services the Customer is obliged to accept such partial supplies or services.
  8. KWK may engage subcontractors to perform any obligations under this agreement.

§ 6 Retention of Title

  1. KWK shall retain the ownership of the supplied goods until full payment has been effected. Resale shall be permitted only if KWK has been notified well in advance (stating the name or company name and the exact address of the buyer) and KWK agrees to the sale. If such consent is given, the Customer already now assigns the claims that arise from the sale to KWK and KWK is entitled to notify the third party debtor of this assignment at any time. The Customer shall be obliged to apply a notation about this assignment in its books. The Customer shall be entitled to collect this assigned claim in its own name and on behalf of KWK until this right is revoked by KWK or until the Customer is in default of payment.
  2. If the goods are processed, KWK shall acquire co-ownership of the new thing in proportion to the value of the goods supplied by KWK. The same shall apply if the goods are processed, mixed or combined with other items not belonging to KWK.
  3. Pledging the reserved property or transferring it by way of security is not permitted.

§ 7 Moulds and Tools

  1. Moulds, tools and other equipment manufactured by KWK or commissioned by KWK from a third party for the Customer shall remain property of KWK, unless otherwise agreed. The production costs shall be borne by the Customer. If co-ownership is stipulated, the Customer shall acquire an equal co-ownership share upon full payment of the purchase price.
  2. KWK is responsible for the proper storage, servicing and maintenance of the tool’s readiness for production. The Customer shall bear any refurbishment costs incurred due to the expected wear and tear.
  3. If expressly stipulated and as long as the Customer fulfils its payment and acceptance obligations, tools shall be used only for the Customer's orders. If no repeat order or other notification is given within 2 years of the last supply, KWK has the right to use the tools for any other purpose.
  4. KWK is not obliged to accept subsequent orders.

§ 8 Intellectual Property Rights, Samples and Confidentiality

  1. If the Customer provides KWK with specifications regarding the production or supply of goods or services (e.g. on the basis of sketches, samples, drawings or models), the Customer shall be liable for the ordered supplies and services to be free from third party intellectual property rights, shall indemnify KWK from all corresponding claims and shall be liable for any damage that may be incurred.
  2. Any blueprints, sketches and other documents such as brochures, catalogues, samples, presentations and the like shall remain the intellectual property of KWK. Any use, in particular the forwarding, duplication, publication andprovision, including copying (even in extracts), requires the express permission of KWK.
  3. All documents listed in Paragraph 2 can be reclaimed by KWK at any time and shall be returned to KWK immediately and without being requested, if the contract is not concluded.
  4. The parties undertake to maintain absolute confidentiality with regard to any knowledge obtained from the business relationship and to any trade or business secrets. The confidentiality obligation shall continue for 5 years after the end of the business relationship or independently from a business relationship for 3 years after submission of the offer.

§ 9 Warranty

  1. KWK warrants that the goods conform to the agreed specifications, whereby the customary industry tolerances apply. No warranty is made for the compatibility of the goods (cream pots, closures, drippers, etc.) with the substances bottled by the Customer.
  2. The warranty period is 6 months. It shall commence as soon as the goods are tendered for delivery to the Customer at the place of performance.
  3. The Customer shall bear the burden of proof that the defect already existed at the time of delivery. § 924 ABGB (The Austrian Civil Code) shall not apply.
  4. The goods shall be inspected carefully by the Customer immediately after delivery. Any defects discovered shall be notified to KWK in writing without delay, but no later than 21 days after delivery. The notification shall specify the type and scope of the defect and include a sample. Hidden defects are to be notified immediately after their discovery.
  5. If a notice of defects is not made in due time, the goods shall be deemed approved. The assertion of warranty claims or claims for damages as well as the avoidance on account of mistake due to defects are excluded in these cases.
  6. If the complaint is justified and made in due time, KWK has the right to choose the kind of remedy that it wishes to provide under the warranty (improvement, replacement, price reduction or cancellation of the contract).
  7. Recourse claims as per § 933b ABGB shall be precluded.

§ 10 Liability, Product Liability

  1. KWK shall be liable for damages only in the case of intent or qualified gross negligence. In cases of slight or simple gross negligence KWK shall be liable only for personal damage.
  2. KWK shall not be liable for any indirect damage, loss of profit, loss of interest, omitted savings, consequential and mere pecuniary damages and damage resulting from third party claims.
  3. If a contractual penalty is agreed upon, it shall be subject to the court's right to reduce the penalty. The assertion of claims for damages exceeding the penalty shall be excluded.
  4. Claims for compensation shall become time-barred after 6 months from gaining knowledge about the damage and the liable party. (5) Any recourse claims which contractual partners or third parties may have against KWK on the basis of product liability under the PHG (Austrian Product Liability Act) or other provisions shall be excluded unless the party entitled to recourse proves that the defect was caused within the sphere of KWK and was caused at least gross negligently.

§ 11 Set-off, Right of Retention and Mistake

  1. Any set-off against claims of KWK with counterclaims of any kind whatsoever shall be excluded.
  2. The Customer shall not have any right of retention.
  3. The avoidance of the contract on account of mistake of the Customer shall be excluded.

§ 12 Force Majeure

  1. Any kind of force majeure, operational or traffic disruptions, fire, flood, shortage of labour, energy, raw materials or auxiliary raw materials, strike, war, lockout, disruptions in shipping, official orders or any other cause beyond the reasonable control of the party, which delays production, dispatch or acceptance, or makes performance substantially more difficult, exempt from the obligation to supply or accept for the duration and extent of the disruption.

§ 13 Venue and Governing Law

  1. All disputes arising out of or related to this agreement shall be adjudicated exclusively in a court of competent jurisdiction in Vienna, Austria.
  2. This agreement shall be governed by and construed in accordance with the laws of Austria, without giving effect to any choice of law or conflict of law provisions that would cause the application of the laws of any jurisdiction other than Austria. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this agreement.

§ 14 Written Form

  1. Modifications of and amendments to this agreement shall be valid only when made in writing. The requirement of the written form itself can only be waived in writing.

§ 15 Severability Clause

  1. If any provision of this agreement is found to be illegal, unenforceable or invalid, the validity or enforceability of the remaining provisions shall not be affected. The parties will endeavour in good faith negotiations to replace the invalid or unenforceable provision with a valid and enforceable one which comes closest to the intent and economic purpose of the invalid or unenforceable provision.