General Terms and Conditions of Sale and Delivery
Our General Terms and Conditions will continue to be contractually effective despite any other, opposing GTCs (e.g. in documents such as orders, order acknowledgements, etc.), unless we have expressly given our written consent to deviations from our own GTCs. A customer’s terms and conditions of purchase are non-binding for us, even if we have not expressly objected to them. These GTCs shall be applicable to all subsequent shipments without requiring another express agreement. Supplementary verbal agreements and subsequent contractual amendments shall only be valid if they have been confirmed by us in writing. All offers that we make are subject to change. All prices are subject to prior purchase. All prices are based on the cost situation on the date of the relevant offer. If one or more cost factors change, we are entitled to adjust the relevant price. If authorities have taken samples from our shipments for the purpose of inspection, you are under an obligation to demand that the relevant authorities take a further official sample and send the same to us immediately. Any information about specifications, products, formulas, prices, terms of delivery, quantities, etc. must be treated confidentially and must not be shared with third parties. Insurances of any kind shall only be concluded at the customer’s instruction and expense and to the extent requested by the same.
2. Risk assumption and delivery periods
The latest point at which the risk is transferred is when the goods are sent to the customer (ex works); otherwise it shall be the agreed time of transfer. Transport risk and the risk of weight loss during transport shall be borne by the customer. If goods are ready for shipment but cannot be dispatched through no fault of our own or if the customer requests that the goods should not be dispatched, we may store the goods at the customer’s expense, provided that we have free storage capacities. In such a case shipment shall be deemed to have been effected, and the risk shall be deemed to have been transferred. The agreed delivery period shall be observed, subject to the proviso of unforeseeable circumstances or of circumstances not intended by the parties, such as force majeure or similar. This also includes military action, natural disasters, diseases, natural events, government intervention, official action or restrictions (including foreign authorities), delays in transport or customs handling, transport damage, shortage of energy or raw materials, industrial disputes, etc. Such circumstances, of which the above are mere examples, entitle us to cancel the contract or to extend delivery periods, including instances involving our own suppliers. Partial deliveries are permitted. In the event of a shortage of goods, we reserve the right to split a shipment into partial deliveries, depending on the quantity of available goods. Should the parties have agreed compensation for a delay in delivery at the conclusion of the contract, then such compensation shall only be paid if the customer has demonstrably suffered loss to the extent of the amount claimed. It is not acceptable for the customer to assert additional damage claims on this basis or to cancel the contract. If no compensation has been agreed, the customer cannot assert damage claims arising from a delay in delivery. Damage claims are not acceptable for instances where we cannot effect performance due to slight negligence on our part. We bear no liability towards companies, due to mandatory provisions under the Austrian Product Liability Act (Produkthaftungsgesetz), as amended.
Legitimate complaints shall only be considered if they are raised immediately upon the receipt of a shipment, if they are made in writing and if they contain a statement of reasons. The occurrence of defects does not entitle the customer to withhold payment of the purchase price or part thereof. Goods delivered by us shall be checked immediately upon receipt, shall be treated appropriately and shall be stored and/or processed in accordance with the relevant regulations (e.g. codes, guidelines, regulations, etc.), especially EU Regulation (EC) No. 853/2004, as amended, or its successor regulation. The goods shall be stored in an appropriate manner. This means: Refrigeration: Goods must be continually stored in suitably equipped cold stores, using appropriate refrigerators, at 0 to +4°C and according to the storage conditions printed on the relevant packaging. Deep freezing: Goods must be continually stored in suitably equipped freezer rooms, using appropriate deep freezers, at -18°C or lower. No reimbursement is provided for goods if complaints or returns are due to improper delivery or storage or the expiry of a best-before date or use-by date. Goods may only be returned if we have given our consent. We are only liable for warranty claims if there is demonstrable proof of gross negligence on our part. We are entitled, at our discretion, either to replace the deficient goods or partial shipments within an appropriate length of time, or to issue a credit note amounting to the invoiced value of the deficient goods. In either case, the customer is required to return those goods. Warranty and/or damage claims are not acceptable if they exceed the invoiced value of the goods. If goods have not been produced by ourselves, we shall only be liable towards the customer to the extent that our own supplier or the manufacturer is liable towards us. If warranty claims are asserted, resulting in our own claims towards our own suppliers, we may assign those claims to the goods recipient, in which case we are not to be held liable in any form whatsoever. The customer shall then refrain from asserting compensation claims towards us.
4. Terms of payment
Our prices are net, due and payable immediately upon receipt of the invoice, without deductions. In the event of delayed payment, we are entitled to receive interest on arrears at 4% p.a. above the bank rate applicable at the time. All debt collection expenses (especially reminders and collection charges), both in and out of court, and all costs incurred with a credit or debt collection company, shall be the debtor’s liability. The customer is not entitled to retain or offset warranty claims or other counterclaims against due payments. All outstanding receivables shall become payable immediately if the customer is in payment arrears or if, upon contractual conclusion, circumstances become known that cast doubt on the customer’s creditworthiness, or if the customer ceases to make payments, or if insolvency proceedings are being planned. Any payments we receive shall be used to settle liabilities in chronological order, starting with the oldest. In such a case we may only effect outstanding deliveries against cash payment, advance payment or the provision of collateral. The customer hereby agrees that we may act on behalf of companies within the Marcher Group in taking over the liability for debts which such companies may owe and also that we may offset outstanding receivables of the Marcher Group in relation to the customer.
5. Reservation of title
Delivered goods shall remain our property until payment has been made in full. If a product is subsequently treated or processed, we shall acquire sole ownership of the product (simple and extended reservation of title). If the delivered goods are resold, regardless of whether the goods have been treated or processed, the customer shall either assign the resulting purchase price claim to us or we acquire sole ownership of the sales proceeds. These reservations of title shall continue to be valid, even if, though not only, the product is processed or mixed, in whatever form, in whatever place and regardless of the persons effecting processing or mixing. Uncommon arrangements, such as the use of products as pledges or security liens, for their transfer to third parties, etc., are not accepted.
The customer shall notify us immediately if third parties gain access to outstanding receivables or goods which are under our reservation of title.
6. EU Regulation (EC) No. 853/2004
If delivered goods are meat or processed meat products, then the meat comes from animals deemed to be suitable for human consumption and has been obtained, processed, perhaps further processed, stored and transported in accordance with the provisions of EU Regulation (EC) No. 853/2004, as amended, or in accordance with the relevant successor regulation.
7. Place of performance and jurisdiction
The place of performance shall be our company’s place of business. The exclusive place of jurisdiction shall be the court of law with competence for our company’s place of business. This contract is subject to Austrian law.
As of February 2019
These General Terms and Conditions of Sale and Delivery have been written in German, and the English version merely serves the purpose of providing information. The German version shall be given priority in the event of doubt.