General terms and conditions of business and delivery
I. For customers of café+co Österreich Automaten-Catering und Betriebsverpflegung Ges.m.b.H.
These general terms and conditions of business and delivery (in short referred to as “GTCBD”) are part of the contract concluded and apply for the sale and delivery of goods by café+co Österreich Automaten-Catering und Betriebsverpflegung Ges.m.b.H.. The general terms and conditions of business apply exclusively for all business relationships between the customer and café+co Österreich Automaten- Catering und Betriebsverpflegung Ges.m.b.H (in brief “café+co Austria”).
The business address is: Vorarlberger Allee 14, 1230 Vienna. The range of goods of the company café+co Österreich Automaten- Catering und Betriebsverpflegung Ges.m.b.H currently incorporates vending machines, spare parts and filling materials.
3. Contractual relationship
Written notifications (also by means of fax or e-mail) from the customer are deemed to be an offer to conclude a contract. From the time of receipt of the order or other offers, the customer is bound to his or her contractual declaration for the duration of 3 months. The deadline commences with the receipt of the offer at café+co Austria.
The offer can be accepted by café+co Austria explicitly or tacitly, whereby a tacit acceptance exists when the ordered goods are sent. Employees of café+co Austria are not entitled under any circumstances to reach agreements that deviate from these general terms and conditions of business with the customer, either verbally or in writing.
Offers of café+co Austria are made in writing (also by means of fax or e-mail) and café+co Austria is bound to this offer for 14 days from when this offer is sent. The customer can accept this offer in writing (also by means of fax or e-mail). Binding delivery dates must be agreed in writing. The agreed delivery period commences with the date of the order confirmation.
The delivery period is extended appropriately if café+co Austria itself is not supplied by its suppliers in a timely manner, in the event of force majeure, occupational accidents, in particular strike and lockouts, and in circumstances that are not the responsibility of café+co Austria. Unless indicated separately, offers of café+co Austria are always exclusive of statutory VAT.
All prices named by café+co Austria are subject to change and are exclusive of shipping costs, expenses and insurance costs that are indicated separately.
Any import and export fees resulting from the shipment as well as any other fees and charges will be charged to the customer at all times.
5. Transfer of risk
Unless otherwise agreed in writing, the goods will be delivered to the delivery addressed notified by the customer. Responsibility for risk and accident will be transferred to the customer on handover of the goods. A handover pursuant to this provision also exists if the goods have been handed over to a forwarding agent or carrier. café+co Austria reserves the right to fulfil an order by partial deliveries.
6. Due date
The price for goods becomes due at the time of invoicing, unless otherwise agreed. The remuneration is to be transferred to the account named by café+co Österreich Automaten- Catering und Betriebsverpflegung Ges.m.b.H, free of any deductions, cash discounts and expenses. In particular, the customer is obligated to pay for any bank expenses associated with the payment.
7. Shipment & billing
The goods will be delivered using customary modes of shipment (post, delivery services, own fleet, etc.). The customer is not entitled to offset receivables of café+co Austria with its own receivables.
8. Retention of title
Until the complete payment of all claims of café+co Austria, the goods remain the property of café+co Austria. As long as this retention of title exists, the customer may not resell the goods or grant third parties a contractual right to use the goods without the consent from café+co Austria. In the event of executive access to the goods under retention of title for café+co Austria and in the event of the goods being moved to another location, the customer is obligated to inform café+co Austria of this in writing immediately and to notify the third party accessing the goods of the ownership of café+co Austria. The customer is liable towards café+co Austria for all resulting damage.
The customer explicitly acknowledges that café+co Austria, in the event of the fulfilment of the statutory prerequisites for a claim arising from the title of warranty/compensation, is entitled initially to improve in the form of exchange, replacement of the missing part and repair. Only after the unsuccessful expiry of an appropriate improvement period to be defined in individual cases can the customer file a claim for price reduction.
The defective goods are to be returned by the customer to café+co Austria immediately. Café+co Austria is not liable for consequential damage, indirect damage, losses or loss of earnings and in addition is only liable in the event of wilful intent or gross negligence. The liability in the event of slight negligence is expressly excluded by mutual agreement. The deadline for the filing of warranty is agreed to be one year from delivery of the goods.
In the event of other exclusion of warranty and compensation, the customer is obligated to check the goods pursuant to the provisions of the Companies Code (UGB) on delivery and to give notification of any defects/damage. No liability for guarantee or compensation will be assumed for used appliances. If the buyer does not accept the goods forming the subject of the purchase, café+co Austria is entitled optionally to insist on acceptance or to demand 30% of the purchase price as flat-rate compensation for damage and costs, whereby the right remains reserved to file higher claims for compensation.
10. Payment and arrears
If the customer is in arrears with payments, café+co Austria is entitled to charge an interest rate of 5% above the respective Euribor for arrears.
In the event of arrears, the customer is obligated to pay for all costs associated with the collection of the receivables, such as in particular collection fees, court and lawyer costs.
11. Final provisions
For all disputes regarding the question of the coming into existence of or arising from the contract, the parties agree the materially competent court in Vienna I. The UN sales law (UNCITRAL) and all provisions that refer to the UN sales law are explicitly excluded. The parties to the contract agree the application of Austrian law, under exclusion of all current and future conflict of laws rules.
If individual provisions of these general terms and conditions of business should be legally invalid, this does not affect the validity of the remaining provisions and the contracts concluded with the customer based on these terms and conditions. Any invalid provision shall be replaced by a provision that comes closest to the invalid provision in a lawfully permissible manner (corresponding to the commercial purpose).
II. For suppliers of café+co Österreich Automaten-Catering und Betriebsverpflegung Ges.m.b.H.
The general terms and conditions of purchasing apply to the purchase of goods and the subsequent handling between contractual partners and café+co Automaten- Catering und Betriebsverpflegung Ges.m.b.H (in brief “café+co Austria) as well as to framework agreements that are concluded between contractual partners and café+co Austria.
These terms and conditions of purchase are binding for the entire current and future business transactions between café+co Austria and the contractual partner, even if no explicit reference is made to this.
Any kind of contrary general terms and conditions of business or of general terms and conditions of purchase of suppliers are deemed to be not accepted by café+co Austria. Silence regarding contrary general terms and conditions of business and/or general terms and conditions of purchasing is not to be seen as approval. Supplementary provisions and general terms and conditions of business and/or terms and conditions of purchasing of the contractual partner only become a contractual component when they have been negotiated and confirmed in writing individually.
2. Formal requirement
Amendments or supplements to a contract must be made in writing. This also applies for the amendment of the written form requirement.
3. Award of orders
Orders will be awarded solely in writing or by e-mail.
4. Offer, submission of an offer, offer acceptance
Orders from café+co Austria are only legally binding if they are made in writing or by e-mail and are signed by a company representative.
An offer addressed to café+co Austria must be binding for at least 60 (sixty) days, unless otherwise agreed. The acceptance must be done in writing or by e-mail.
The creation of offers submitted to café+co Austria is free of charge, irrespective of the time and effort required to draw them up.
5. Ban on subcontracting
The order awarded may not be subcontracted out to other companies, either in its entirety or in part, without the consent from café+co Austria.
6. Prices, terms and conditions of payment
All services of the supplier will be remunerated at fixed prices, exclusive of VAT. The agreed fix price includes all services that are necessary to fulfil the contract. This includes in particular all costs for any licence fees, packaging, transport, insurance and unloading costs, public fees and levies, and any expenses.
If the supplier reduces the list prices for its services before acceptance, the prices will be adjusted accordingly. In all documents relating to the order, in particular invoices, the café+co Austria order number must be listed. Otherwise, café+co Austria is entitled to defer this without processing and in cases of doubt to view this as not having been received by café+co.
No advance payments will be made by café+co Austria. If there is no explicit, written agreement otherwise, the payment deadline is 30 days from receipt of invoice or the document otherwise triggering the payment deadline. After complete delivery of the goods, the supplier is entitled to submit an invoice. Deviating agreements must be made in writing.
In the event of arrears in payment, café+co Austria owes arrears interest in the amount of 2 (two) percentage points above the base interest rate published by the Austrian National Bank (OeNB). The claim expires if it is not filed within 6 (six) weeks after receipt of the invoice amount in writing. The filing of any claims for compensation that go beyond this is excluded.
An offsetting against claims of café+co Austria with counterreceivables, irrespective of their nature, is excluded.
8. Place of performance, acceptance, assumption of risk
Deliveries must be made solely to the agreed place of delivery. If no agreement has been made, they should be made to the company headquarters of café+co Austria, at the supplier’s risk. Deliveries must only be made in their entirety. Non-divisible total deliveries are agreed. There is no obligation on the part of café+co Austria to accept partial deliveries. The contract is not seen as fulfilled through the delivery and acceptance of a partial delivery. The contract is not fulfilled until the last partial delivery has been made. At this point in time, there will also be no overall acceptance of the entire delivery. Until overall acceptance, there will be no transfer of risk to café+co Austria.
If a delivery to the agreed place of delivery should not be possible, café+co Austria is to be informed of this immediately. The supplier will indemnify café+co Austria and hold it harmless for all delays that are the responsibility of the supplier due to an impossible delivery at the place of delivery.
The delivery has to be done solely at the delivery times indicated on the website of café+co Austria. An amendment of these is reserved for café+co Austria in the extent appropriate.
The supplier bears the costs and the risks of the transport until the handover behind the first lockable door at the site of café+co Austria or at the agreed place of delivery (INCOTERMS 2010 – DDP”). The risk of loss or damage is not transferred to café+co Austria until handover.
The supplier has to take out transport insurance for the goods and to pack the goods properly (see point 9.). Damage that is incurred due to improper packaging before acceptance by café+co shall be borne by the supplier.
On acceptance, a completed waybill corresponding to the international standards for air and road transport must be submitted. Every delivery requires the issuing of a separate waybill. The goods will not be accepted without the handover of the waybill.
9. Packaging, palleting
Consignments of goods, unless otherwise agreed, are to be delivered on pallets.
The packaging and palleting must be done in such a way that sufficient protection of the goods that they contain is guaranteed. The shipment packaging is to be labelled in each case on the outer side with the name of the product and the number of sales units contained in it, and all statutory certification marks, symbols and instructions, in accordance with the provisions valid in Austria.
The supplier must ensure sufficient transport safety by monitoring the loading regulations and by using any stowage aids.
If a deposit was charged for the palleting and packaging, the supplier is obligated to take back the pallet and packaging in return for reimbursement of the deposit paid.
10. Termination and dissolution of the contract
In the case of continuing obligations, café+co Austria can terminate the contract, giving a period of notice of 30 (thirty) days and the supplier can do the same, giving a period of notice of 90 (ninety) days, in each case to the last day of the month.
café+co Austria can terminate a contract without notice at any time for good cause. Good cause is deemed in particular to be, but not exhaustively, the reasons given in the following, or if the supplier goes into liquidation or insolvency proceedings are opened over the supplier’s assets or such proceedings are rejected due to a lack of assets to cover costs.
Café+co Austria is entitled to declare the immediate dissolution of the contract if good cause exists, in particular
(a) if the supplier breaches official regulations or provisions of these terms and conditions of purchasing;
(b) if the supplier has taken actions that are disadvantageous to café+co Austria, in particular if it has made agreements with other companies that are disadvantageous for café+co Austria, breach good morals or are anti-competitive;
(c) if the supplier has directly or indirectly promised or given benefits to employees of café+co Austria who are involved in the conclusion or the implementation of the contract, or has threatened or impose disadvantages on such employees.
An immediate dissolution of the contract for good cause does not require the giving of a period of notice by café+co Austria.
Goods of top quality are agreed. If samples were submitted, the goods must correspond to this quality.
With the delivery of the goods, the supplier guarantees that the goods meet all provisions valid in Austria and the storage suitability characteristic for them. Goods with a limited shelf life, among others those that have to be given an expiry date, are to be delivered as fresh as possible, taking the specific goods into account.
Section 377 of the Companies Code (UGB) does not apply.
In the event of warranty, café+co Austria is entitled to determine the type of warranty (improvement, exchange, price reduction or conversion).
During the entire warranty period, with perishable goods restricted to the period in which the goods should be usually used up, the supplier guarantees the agreed quality.
Disclaimers as well as restrictions in the liability of the supplier, in particular from the title warranty or compensation, will not be accepted.
The goods must be delivered in a timely manner. The agreed delivery dates are fixed dates. If the supplier can see that it will be in arrears with the delivery, it must notify café+co Austria immediately of the impending delay and the anticipated duration of the delay. This notification does not exempt the supplier from either the compensation to be paid as a result of the delay or the contractual penalties to be paid.
In the event of a delay in delivery, café+co Austria is entitled to withdraw from the contract in its entirety or in part at any time after setting an appropriate grace period.
If the supplier is in arrears, café+co Austria is entitled to charge a contractual penalty in the amount of 0.5% of the total order value, exclusive of VAT for each day commenced of the delay in delivery, but a maximum of up to 10% of the total order value, exclusive of VAT. This also applies if the supplier provides a partial delivery after the agreed delivery date and this is accepted by café+co Austria.
13. Disruptions in performance
café+co Austria is entitled to withdraw either with regard to the entire not yet fulfilled contract or only with regard to individual parts of it.
In the event of any kind of disruptions in performance, café+co Austria has the right to carry out replacement at the supplier’s risk and cost after written request to the supplier and setting a grace period of 21 (twenty-one) days (first reminder), and if this request should not be complied with during this time, giving a further grace period of 14 (fourteen) days (second reminder), and if this request should not be complied with after the expiry of a final grace period of 7 (seven) days (third reminder), in each case from the date of posting. In the event of risk in arrears, café+co Austria is authorised to make this replacement immediately without prior reminders. All costs and damage resulting from a replacement will be charged to the supplier. Café+co Austria can offset these with receivables of the supplier.
14. Product liability
café+co Austria is not liable for any claims under product law. The supplier will indemnify café+co Austria from all such claims that the buyer or third parties file against café+co Austria due to errors or faults in the goods. If the goods delivered prove to be faulty or defective, the supplier will inform café+co Austria of this immediately after this becomes known and will recall the goods at its own costs and/or by assuming all costs incurred by café+co Austria as a result of this. If the supplier does not comply with these provisions and if café+co Austria becomes liable for costs and compensation towards a buyer of the goods or a third party according to Austrian product liability law as a result, the supplier undertakes to fully indemnify café+co Austria and to hold it harmless in this regard.
The supplier must label the goods so that they can be assigned to a manufacturer or an importer with its registered office in the EEA area or the supplier itself.
The supplier is only liable for any damage incurred by café+co Austria from improper delivery or due to a delivery of defective or faulty goods.
The compliance policy that can be viewed on the website of café+co Austria forms an integral part of any contract concluded between café+co Austria and companies.
17. Place of jurisdiction, applicable law
Austrian law is deemed to be agreed, under exclusion of the UN sales law and international conflict of laws norms. The place of jurisdiction for all claims arising from the contract is deemed to be the local materially responsible court of the first Vienna municipal district.
The supplier hereby undertakes irrevocably to observe non-disclosure regarding all operating and business secrets made accessible or provided to him or her by café+co Austria or that become known to him or her in connection with or based on a business relationship or contact with café+co Austria and not to make these secrets accessible to third parties in whatever way without the consent from café+co Austria. In addition, the supplier undertakes to only use information on a “need to know” basis and only within the framework of the contract concluded.
The non-disclosure obligation continues to apply for 3 (three) years after the termination of the business relationships with café+co Austria or independently or a business relationship for 3 (three) years after the obtaining of an offer from café+co Austria.
Advertising and publications regarding orders of café+co Austria as well as the inclusion of café+co Austria in the reference list of the supplier require the prior written consent from café+co Austria.
19. Severability clause
If a provision of these terms and conditions of business is or becomes legally invalid or unenforceable, either in its entirety or in part, this will not affect the legal validity of all the other terms and conditions of business. The contractual parties will replace the legally invalid or unenforceable provision by a valid and enforceable provision that comes as close as possible to the content and purpose of the legally invalid or unenforceable provision.
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