General trade conditions for delivery and service

 

 

biolitec AG, Untere Viaduktgasse 6/9, A-1030 Vienna

 

1.     General

1.1   The following terms and conditions apply to all our offers, sales, deliveries and services, and shall be part of the content of the contract. They do not apply if our contract partner is a consumer and the concluded transaction is not part of the operation of its company (Section 1 KSchG [Consumer Protection Act]).

1.2   Our terms and conditions apply exclusively; we do not recognise terms and conditions of the client which oppose or deviate from our terms and conditions, unless we agree to their validity expressly in writing. Our terms and conditions also apply if we carry out the delivery or service to the client unconditionally in knowledge of the terms and conditions of the client which oppose or deviate from our terms and conditions.

1.3   All agreements made between the client and us with regard to the fulfillment of this contract are put down herein in writing.

1.4   Our trade conditions are also applicable for all future transactions with the client

 

2.     Field of application

The following terms apply to the delivery of any kind of goods made by Biolitec AG to the client (specified as 'Delivery') as well as for the provision of other services of Biolitec AG to the client (specified as 'Services').

 

3.     Quotation, Conclusion of the contract, References of quotation

3.1   Our quotations are without any obligation as long as it is herein not clearly mentioned otherwise.

3.2   The purchase order of the client is qualified as defined by § 145 of the German Civil Code, we can accept it within four (4) weeks.

3.3   We reserve all sole rights of ownership and copyright for all our illustrations, drawings, calculations and other documents / records. This also applies for those written documents, which are marked as 'confidential'. The client is not allowed to pass on any such document to third parties, unless approved by us in writing.

 

4.     Prices, Terms of payment

4.1   Unless otherwise stated, prices mentioned in our quotations will be maintained for a period of four (4) weeks from the date of submitting the quotation.

4.2   All prices are quoted 'ex works' (ex factory), exclusive of packing charges; which will be invoiced separately.

4.3   All prices and charges are exclusive of Value Added Tax – VAT or other government charges, the Value Added Tax according to the law of the legal provision, will be shown in the invoice separately on the date of the invoicing.

4.4   Payments have to be made on the date of maturity as agreed without any deductions, latest within 30 days from the date of the invoice. When settlement is made to our bank account, the date of credit entry is relevant.

4.5   Cash discount will not be accepted unless a written prior agreement has been given.

4.6   In case the client delays the payment we are entitled to ask for an interest rate of eight (8) per cent over the prime rate p.a. We keep the right to claim the assertion of a higher interest rate or the assessment of further damages.

 

5.     Right of rejection of the performance principle, compensation, retaining lien

5.1   We may withhold a delivery or rather service in case of the following events: when, after having signed the contract, we recognize that our claim for payment of the price for our delivery or rather service is in danger due to the client's lack of obligation to perform, especially in such circumstances when an essential deterioration of the financial status of the client occurs. Our right of rejection of the delivery / service principle will no longer be applicable, if payment of our delivery or rather service has been made or if a security has been furnished. We reserve the right of all further legal rights, especially the right of withdrawal from the contract under the legal preconditions.

5.2   The client is only entitled to claim compensation rights when his counter claims have been established legally binding, uncontested, or admitted by us. Besides, he is entitled to pursuit a retaining lien only when his counter claim is based on the same contractual relationship.

 

6.     Terms of delivery, Delay in delivery, Partial deliveries

6.1   Delivery or rather service terms and dates are only mandatory if we express these in writing.

6.2   The adherence of our delivery or rather service obligations implies to duly adequate fulfillment of the commitments of the client and the clarification of all technical questions. The execution terms are extended appropriately, only if a hindrance is represented by the client and / or if the incumbent co-operating action of the client is omitted or it is not furnished within the due time, unless the delay is supported by us.

6.3   The period and / or the date of delivery or service extends itself in case of labor disputes, particularly strike and lockout, as well as with the occurrence of unexpected obstacles, that lie out of our control. For example Operational disturbances, delay in the delivery of substantial materials; as far as such obstacles are proved to the substantial influence at the delivery or service time. This does not apply, if hindrance or interruption is caused by labor disputes, which we have encumbered for illegal actions. The previously mentioned regulations also apply, if the circumstances occur with hypo suppliers. The delivery time and / or the date of delivery extends itself according to the duration of such measures and obstacles. The earlier mentioned circumstances will also not be represented by us, if they develop during an already available delay. We will notify the beginning and end of such obstacles as soon as possible to the client.

6.4   If we delay with the delivery or service, the client can withdraw from the contract in the context of the legal regulations, as long as the reason of the delay for the delivery or service is supported by us. With irrelevant breach of duty is the withdrawal from the contract impossible. Any change in the burden of proof to the disadvantage of the client is not connected with the previously mentioned regulations.

6.5   On our demand, the client is bound to explain within an appropriate period, whether he is withdrawing the contract or if he insists for the delivery or service.

6.6   Partial deliveries and partial services are permissible within the time of delivery indicated by us, as long as disadvantages for the use do not result.

 

7.     Passing of the risk, Acceptance, Transport insurance

7.1   If not mentioned otherwise, the delivery "ex factory" is agreed upon.

7.2   If the client wishes we would cover the delivery with transport insurance, the client will have to bear the cost according to the offer.

7.3   If acceptance is required, it is authoritative for passing of the risk. It must promptly be carried out on the acceptance date by the client, after notifying us about the acceptance readiness. Because of irrelevant defects, the acceptance cannot be denied.

7.4   If the client comes into default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand the insofar-occurring damages to be replaced including possible additional expenditures. In this case also the danger of a coincidental loss or a coincidental degradation of delivery or service during this time goes over to the client, with this the client falls into the acceptance or turns out to be the debtor. On going demands, remain reserved.

 

8.     Warranty – Casualty defects

8.1   We grant a general right of exchange within 8 days from the date of the invoice. All sterilised products are excluded from this. The purchaser is to inspect the goods received for completeness, transport damages, patent defects, quality and properties and to notify within a suitable period, in any case within 14 days. Patent defects are to be reported to us in writing by the purchaser within 1 week from the delivery of the object of the contract.

8.2   We are not obligated to a warranty if the purchaser has not reported a patent defect on time and in writing. There are no claims for defects if there is only an immaterial deviation from the agreed quality, in the case of insubstantial impairment to usability, in the case of natural wear and tear or damages which arise after the transfer of risk as a result of incorrect or negligent handling, excessive load, unsuitable tools or on the basis of special influences, which are not provided in the contract, as well as in the case of software defects which cannot be reproduced. If improper changes or repair works are carried out by the client or by third parties, there are also no claims for defects for these and the consequences resulting from them.

8.3   Insofar as a defect attributable to us exists in the goods and has been reported by the purchaser in good time and in writing, we are obligated - to the exclusion of the purchaser’s rights to withdraw from the contract or reduce the purchase price - to rectification, unless we are entitled to refuse rectification on the basis of the statutory rules. The purchaser is to grant us a suitable period for rectification for each individual defect.

8.4   For material defects, we can choose to fulfil the warranty through improvement or subsequent delivery, conversion or reduction of the price. The purchaser is to grant us a suitable period to remedy the defect. Only if we default on the remedy of the defect does the purchaser have the right to have the defect remedied itself or by a third party and to demand compensation for the necessary costs arising from us. The purchaser’s warranty claims are moreover based on the statutory provisions (Section 922 et seq. ABGB [Austrian Civil Code]).

8.5   The warranty period for the client’s claims against us due to a defect in the delivery or performance is twelve months from delivery.

 

9.     Commercial property rights and copyrights - defective titles

9.1   If not otherwise agreed, we are obligated to render the delivery to the country of the place of delivery without any / free from commercial property rights and copyrights.

9.2   If a third party raises demands for breach of industrial property rights against us, we are liable to contradict the client as in point 8, Para. 5 of these general trades conditions mentioned as follows: We have according to our choice the right to either procure the necessary royalty concerning the alleged violated rights or to provide the client a changed delivery item or part; if the damaged delivery article or its part is exchanged, the breach allegation concerning the delivery article is eliminated. Failing the after fulfillment, the client is entitled to the legal rights; he is particularly entitled, according to his choice to reduce or withdraw from the contract. In all other cases, the regulations of point 8 of these general trade conditions apply according to infringement of industrial property rights. Our obligation for the service for compensation is in accordance with point 10 of these general trade conditions.

9.3   The mentioned obligations exist for us only till then as long as the client does not acknowledge a violation and all preventive measures and measures out of court remain reserved with us.

9.4   Demands / claims by the client are not accepted, as long as he is representing the infringement of an industrial property right.

9.5   Demands / claims by the client are further not accepted, as long as the infringement of an industrial property right through special guidelines and use by the client, which is not predicted by us or what causes it and the delivery by the client is changed / modified or used with other products which were not delivered by us.

9.6   By presenting other defective titles, the regulations of point 8 and point 10 of these general trade conditions are applicable.

9.7   More or other demands / claims by the client against us and our liabilities as regulated in point 9 because of defective title are not accepted.

 

10.   Other claims for damages

10.1   For intentional or grossly negligent breaches of duty as well as for damages arising from injury to life, body or health, we are liable without limitation in accordance with the statutory provisions. We are also only liable if the contract duty breached is discernibly of material importance for achieving the purpose of the contract and is only limited to the amount of typically foreseeable damages. If data is lost, liability shall be limited to the typical expenses for recovery which would have materialized in the case of regular data backup appropriate to the level of risk by the client.

10.2   We are also liable for damages which are caused by simple negligence, insofar as this negligence concerns the breach of such contract duties, the observance of which is particularly important to achieve the objective of the contract (cardinal duties). We are however only liable insofar as the damages are typically connected with the contract and are foreseeable. We are moreover not liable in the case of simply negligent breaches of accessory obligations not material to the contract.

10.3   Insofar as we have provided a quality and/or durability guarantee regarding the goods or parts of the same, we are also liable within the framework of this guarantee. For damages which are based on the lack of guaranteed quality or durability, but which do not occur directly on the goods, we are however only liable if the risk of such a damage is evidently recorded by the quality and durability guarantee.

10.4   Any further liability is excluded without regard to the legal nature of the claim made. Insofar as the seller’s liability is excluded or limited, this also applies for the personal liability of its staff, employees, personnel, representatives and vicarious agents.

 

11.   Retention of title

11.1   We retain the right of property for the delivery of articles / items until all outstanding accounts from the business relationship with the client is completed, whatsoever the reason. The retention of the right applies also to outstanding amounts from earlier and future legal transactions and for outstanding account balance from a possibly existing current account relationship.

11.2   The client is entitled to further sell / dispose the delivery articles in a fair business process; he however now is assigned a claim to all outstanding amounts of the delivery price agreed between us and the client (including value added tax), which arise from the resale to his customers or third party, irrespective of whether the delivery article was sold without or after converting / working upon. The given assigned book account by the client relates to approved / accredited balance as well as in the case of the insolvency of the customer on the then existing "causal" balance. We accept the transfer, however, independent of it, we can intersperse our requirements directly against the client. The client is authorized to collect the payment request / amount after their transfer. Our authority to collect the outstanding balance remains unaffected by it. However, we commit ourselves not to collect the outstanding balance as long as the client discharges all the payment obligations on time, does not delay the payment and does not propose insolvency proceedings. If this is the case, we can demand that the client discloses the assigned book account and their debtors, gives all collection data along with the corresponding documents and informs the debtors (third party) about the transfer.

11.3   The client cannot mortgage or transfer the safety of the delivery articles. Executory officer and / or Third Party have to refer our ownership.

11.4   The converting or remodeling of the delivery articles for us is always made by the client. If the delivery articles are worked upon with other articles, which do not belong to us, we will acquire the co-ownership for the new things / articles in percentage of the value of the delivery articles (inclusive of value added tax) for the other converted articles at that time. For the happened cause / state, which resulted from the processing, the same applies for the articles supplied under retention.

11.5   If the delivery articles are inseparably mixed with other articles, which do not belong to us, we will acquire the co-ownership for the new things in percentage of the value of the delivery articles (inclusive of value added tax) at the time of the mix up. If the mix up takes place in such a way that it is regarded a main matter it applies as agreed upon that the client proportionately transfers the co-ownership to us. The client keeps the developed sole property or the co-ownership for us.

11.6   The client is obligated to handle the delivery articles with care; he is especially obligated to insure the original value of these against fire, water and theft at his own expenses. If maintenance and inspection work are necessary, the client must on time carry out these at his own expenses.

11.7   The client is to inform us immediately in writing in the case of seizures or other interference by third parties.

11.8   With an attitude of contrary to contract by the client, especially in delay of payment we are entitled to cancel the contract according to the lawful regulations and withdraw the delivery articles. The assertion of claims for damages remains unaffected.

11.9   Upon the request of the client we commit ourselves to release the to us entitled securities mentioned in point 11. If realizable value of our securities exceeds the securing balance amount for more than 10 %, the choice to release the securities incumbents on us.

 

12.   Nondisclosure / Secrecy

12.1   The parties are obligated to keep strict secrecy about all confidential documents and information as well as all commercial and technical details that are connected with the business. Such information may only be revealed to the third party in the manner expressly consented to the other contracting party. The secrecy obligation applies also after completion of the present contract. The obligation is not applicable if and as long as the knowledge contained in the documents and information or commercial and technical details without violating the contract of the other party were already known to the other party.

 

13.   Court / place of jurisdiction, Applicable law, Severability clause, Translations of these trade conditions

13.1   If the client is a buyer, legal entity of the public right or public law assets even then is our official place of business the exclusive place of jurisdiction. However, we are also entitled to sue the client at the court of his official place of business.

13.2   The laws of the Republic of Austria apply exclusively, to the exclusion of the UN CISG.

13.3   If one regulation should be or become ineffective, the remaining regulations will remain valid.

13.4   The englsh version of these terms and conditions serve only as information. Solely the German legal text is binding.

 

Status: 09/2017