of OMEGA food technology AG (Austrian Branch)
hereinafter referred to as OMEGA AG.
- APPLICATION
These General Terms and Conditions apply to all current and future
deliveries and services provided by OMEGA AG to the buyer, even if these
deliveries or other services are provided by OMEGA AG without use or
express reference to these General Terms and Conditions. With the order or
at the latest with receipt of the goods or service, the buyer acknowledges
these general terms and conditions. Deviating agreements require the written
consent of OMEGA AG. Deviating contractual conditions of the buyer are
expressly contradicted. Even the sending of an order confirmation by
OMEGA AG does not constitute acknowledgment of the buyer’s contractual
conditions. - CONCLUSION OF CONTRACT
OMEGA AG’s offers are non-binding. Purchaser’s orders are only accepted
by OMEGA AG’s written order confirmation or by delivery or service. The
information and illustrations contained in brochures or similar documents and
made with an offer are only binding if they are expressly designated as
binding. Minor deviations of the delivered item from the description of the
offer are considered approved and do not affect the fulfillment of the contract,
provided that the deviation is reasonable for the buyer and the buyer does
not complain about the deviations immediately after receipt of the delivery or
service. This applies in particular to changes and improvements that serve
technical progress. - OFFERS / PRICES / DELIVERY
Offers from OMEGA AG are subject to change and non-binding. All offers are
subject to prior sale and price changes. The prices valid on the day of delivery
or collection plus the respective statutory taxes and duties apply to the
calculation. The prices stated in price lists are non-binding. The prices that
result from the price lists of OMEGA AG that apply on the day the contract is
concluded between the parties apply. If the price lists of OMEGA AG change
between the conclusion of the contract and delivery, the customer is obliged
to pay the changed amount. However, should the prices increase by more
than 10% between the conclusion of the contract and delivery, the customer
is entitled to withdraw from the contract within 5 days of delivery. The contract
is deemed to have been concluded when OMEGA AG has sent a written
order confirmation, sent a delivery or provided goods for collection by the
buyer after receiving the order. Subsequent changes and additions to the
contract require written confirmation to be valid. The customer declares that
all persons working for him (possibly also outside of an employment
relationship) are authorized to represent OMEGA AG insofar as he does not
exempt individual, named persons from this in writing. Restrictions on the
quantities to be delivered are expressly reserved. Unless otherwise agreed,
OMEGA AG is entitled to deliver equivalent goods as a replacement at
reasonable prices. In the case of detailed orders, OMEGA AG reserves the
right to increase the quantity to be delivered to the next larger sales unit. The
agreed delivery times are generally non-binding, the customer cannot derive
any claims for damages from non-intentional exceeding. The buyer
irrevocably waives the assertion of the right of withdrawal according to § 918
ABGB. The buyer guarantees the timely provision of the free delivery area. - ACCOUNTING AND PAYMENT TERMS
OMEGA AG only invoices in Euro. Invoices from OMEGA AG are due for
payment within ten days net from the date of the invoice, unless other
individual payment terms have been agreed in writing with the buyer. The
buyer from another EU member state must notify OMEGA AG of any UID
number when placing the order at the latest. In the event of late payment,
OMEGA AG will charge default interest at the default interest rate charged
by the banks, but at least 10% p.a. The buyer bears the dunning, collection
and other costs associated with the collection of claims. If the buyer is in
arrears with a payment that is due, a check or promissory note issued by him
is not cashed, insolvency proceedings are opened against the buyer’s
company or an application for the opening of insolvency proceedings is
rejected due to lack of assets, or other facts become known from which If the
buyer’s financial circumstances deteriorate significantly, if the customer’s
company is dissolved or if enforcement measures are initiated against a
significant part of his assets, or if there are serious doubts about the buyer’s
ability or willingness to pay for other reasons, OMEGA AG is entitled to both
from the buyer and personally from the buyer’s managing director to demand
immediate payment of all outstanding invoices, even if checks or bills of
exchange have already been given for them, and to demand or reserve
payment in advance for all outstanding deliveries other rights that OMEGA
AG is entitled to withdraw from the contract after setting a reasonable
deadline. The buyer or the managing director of the buyer can avert the
assertion of these rights by providing a security acceptable to OMEGA AG.
All payments are to be made free of charges and without deductions, and in
particular all transfer, cheques, bill of exchange charges and all duties are to
be borne by the buyer. The buyer is only entitled to set-off, retention or
reduction, even if notices of defects or counterclaims are asserted, if the
counterclaims have been legally established or are undisputed. Payments
with debt-discharging effect can only be made to OMEGA AG or to
representatives of the delivery company who have been authorized to collect
by the company. Payments are only valid if and to the extent that the
corresponding amount is credited to OMEGA AG’s bank account or is
received by OMEGA AG itself. Payments are always credited first to the costs
(dunning fees, legal costs, etc.), then to the interest and finally to the capital,
specifically to the oldest debt in each case. Conflicting instructions of the
debtor are ineffective. Any written comments by the buyer on payment or
payment slips cannot be acknowledged by OMEGA AG due to automated
data processing and are irrelevant. In any case, bills of exchange and checks
are only accepted on account of payment. A cash discount is excluded when
paying with bills of exchange. OMEGA AG can reject offered payments in
checks or bills of exchange without giving reasons. - PROHIBITION OF ASSIGNMENT
An assignment of any claims of the buyer against OMEGA AG is not
permitted. If purchase price claims or claims for ancillary costs (e.g. default
interest or collection costs) are outstanding, an assignment of claims which
the buyer has against his customers due to the resale of the goods delivered
by OMEGA AG is not permitted. - DELIVERY AND PASSING OF RISK
OMEGA AG is entitled to make partial deliveries unless otherwise agreed in
writing. Each partial delivery is considered a separate transaction and can be
invoiced separately by OMEGA AG. An excess or short delivery of up to 5%
of the quantity of spices and spice extracts counts as fulfillment of the order.
The transfer of risk takes place in individual cases in accordance with the
agreed INCOTERMS (v. 2011), the standard is EXW (Ex Works or Ex
Warehouse). If there is no agreement to this effect, the risk passes to the
buyer as soon as the consignment has been handed over to the person
carrying out the transport or has left the OMEGA AG warehouse for the
purpose of dispatch. In addition to the personal handing over of the goods to
the buyer, handover also applies if the goods are handed over to a person
commissioned by him to accept the goods in his absence or are placed in a
place designated by the buyer. When the goods are handed over to the
buyer, the risk of loss, damage, theft, deterioration in quality and similar
impairment of the goods passes to the buyer. In addition to the personal
handing over of the goods to the buyer, handover also applies if the goods
are handed over to a person commissioned by him to accept the goods in his
absence or are placed in a place designated by the buyer. If shipping is
delayed at the request of the buyer, the risk passes to him upon notification
of readiness for shipping. OMEGA AG does not guarantee and is not liable
for the transport or the selection of the people involved. In any case, the risk
is transferred to the buyer upon dispatch, even if carriage paid delivery has
been agreed. If the shipment is delayed for reasons attributable to the
customer or his vicarious agent, the risk passes to the buyer when the goods
are made available. In the event of a delay in acceptance, the buyer – subject
to other rights to which he is entitled – is liable for storage interest. If ex works
(EXW) has been agreed, OMEGA AG will provide assistants for quick loading
at the request of the buyer. The use of these assistants is free of charge and
at the risk of the buyer. The indication of delivery dates is non-binding. Noncompliance
with the delivery dates only entitles the buyer to assert his
statutory rights if OMEGA AG does not carry out the delivery or service
despite having set a reasonable grace period in writing. The delivery period
is extended by the duration of the hindrance due to all circumstances not
covered by the will of the parties, such as late delivery by any sub-suppliers,
cases of force majeure, official intervention, delay in transport and customs
clearance, transport damage, lack of energy and raw materials and labor
disputes. If delivery periods and delivery dates have not been agreed in
writing, OMEGA AG accepts no liability or guarantee that they will be
observed. - RESERVATION OF TITLE
The goods sold remain the property of OMEGA AG until the purchase price
has been paid in full. The buyer can sell or process the goods in the ordinary
course of business. However, the sale or processing of the goods is not
permitted if the buyer is in arrears with the payment of the purchase price
claims. In the event of a delay in payment, OMEGA AG is entitled, without
prejudice to its right to insist on performance of the contract, to take back the
delivered goods at the expense of the debtor. If these are no longer clearly
identifiable because they have been mixed with similar goods owned by the
buyer, OMEGA AG is authorized to take back the corresponding quantity of
the same type and quality. Any pledging or transfer of ownership of these
goods by way of security in favor of third parties without the consent of
OMEGA AG is excluded.
The buyer must inform OMEGA AG immediately of any enforcement
measures against the goods subject to retention of title and hand over the
documents required for an intervention.
OMEGA AG’s retention of title only expires when all of OMEGA AG’s claims
arising from this business relationship have been paid in full. In the event of
access by third parties to the goods subject to retention of title, in particular
seizures, the buyer will point out that OMEGA AG is the owner and notify
OMEGA AG immediately so that it can assert its property rights. If the third
party is not able to reimburse OMEGA AG for the court or out-of-court costs
incurred in this connection, the buyer shall be liable for these. In the event of
breach of contract by the buyer – in particular default of payment – OMEGA
AG is entitled to withdraw from the contract and to demand the return of the
goods subject to retention of title. The buyer is obliged to insure the reserved
goods according to the principles of a prudent businessman and is also
obliged to provide the relevant evidence on request. The buyer hereby
assigns any insurance claims or any claims for compensation due to the loss
or deterioration of the reserved goods to OMEGA AG and OMEGA AG
accepts this assignment. - WARRANTY
OMEGA AG products are delivered free from manufacturing and material
defects; In general, the deadline for asserting claims for defects is 10 working
days from delivery of the products. Deviating from this, the warranty period
corresponds to the respective shelf life of the goods up to the best-before
date. OMEGA AG guarantees that the goods are in the agreed condition
when they are handed over to the transport person. If OMEGA AG’s
instructions for use are not followed, changes are made to the products, or
deviations from the dosages recommended by OMEGA AG are made or
applications are made that deviate from the original specifications, claims for
product defects shall lapse if the buyer makes a corresponding substantiated
assertion that only one of these circumstances caused the defect, not refuted.
If the purchaser commissions OMEGA AG to produce mixtures or
formulations specially made by the purchaser, OMEGA AG does not assume
any liability for the usability intended by the purchaser. - NOTIFICATION
The buyer must notify OMEGA AG of any defects in writing without delay, but
no later than five days after receipt of the delivery item. Defects that cannot
be discovered within this period even with careful inspection must be reported
to OMEGA AG in writing immediately after discovery, but no later than within
five days of discovery of the defect. If the buyer notifies the goods in good
time that the goods have a defect, OMEGA AG may, at its option and at its
own expense, demand that:
• The goods are sent to OMEGA AG for the purpose of checking and, if
necessary, for the purpose of rectification and subsequent return.
• The buyer has the goods ready and one or more employees of OMEGA AG
are sent to the buyer to inspect the goods.
If rectification is not possible or if it fails after a reasonable period of time, the
buyer can choose to demand a reduction in payment or demand that the
goods be exchanged. - DEFAULT IN ACCEPTANCE
If the customer defaults in accepting the consulting services or fails to
cooperate in spite of a reminder and setting a deadline, OMEGA AG is
entitled to terminate the contract without notice. Irrespective of the assertion
of this right of termination, OMEGA AG is entitled to compensation for the
damage or additional expenses incurred as a result of the delay or failure to
cooperate. - LIABILITY AND DAMAGES
Claims for damages are excluded regardless of the type of breach of duty,
including tortious acts, unless intentional or grossly negligent action is
involved. OMEGA AG is only liable up to the amount of the foreseeable
damage. Claims for lost profits, saved expenses from claims for damages by
third parties as well as for other indirect and consequential damages cannot
be demanded, unless a quality feature guaranteed by OMEGA AG
specifically aims to protect the buyer against such damages. The limitations
and exclusions of liability set out in point 11 do not apply to claims arising
from malicious behavior by OMEGA AG, liability for guaranteed
characteristics, claims under the Product Liability Act and damage resulting
from injury to life, limb or health. - CONFIDENTIALITY
Both sides undertake to maintain the strictest secrecy about all confidential
processes, in particular business or trade secrets of the other party, which
they have become aware of in the course of their work for the other party and
to neither pass them on nor exploit them in any other way. This applies to
any unauthorized third party, i. H. also towards unauthorized employees of
the parties, provided that the disclosure of information does not serve to
properly fulfill the contractual obligations. In cases of doubt, each party is
obliged to ask the other party for consent before such disclosure. The above
obligations do not apply to facts that are demonstrably obvious or belong to
the known state of the art or that the respective party became aware of prior
to notification by the customer or after notification by the customer again
through third parties who are not obligated to maintain confidentiality OMEGA
AG documents, have been communicated. - PRIVACY
The customer has been informed in detail about the scope, location and
purpose of the collection, processing and use of the collection, processing
and use of personal data required for the execution of orders. The customer
expressly agrees to the collection, processing and use of personal data. - OTHER PROVISIONS
The law of the Republic of Austria applies to these terms and conditions and
the entire legal relationship between the buyer and OMEGA AG.
The provisions of the UN sales law do not apply and are expressly excluded.
If the buyer is a merchant, a legal entity under public law or a special fund
under public law, the Commercial Court in Vienna (Handelsgericht Wien) is
the exclusive place of jurisdiction for all disputes arising directly or indirectly
from the contractual relationship.
Should a provision in these terms and conditions or a provision within the
framework of other agreements be or become invalid, this shall not affect the
validity of all other provisions of the agreement.
Vienna, June 12th, 2016