Termes et conditions

General Terms and Conditions of

PACKNATUR GMBH

I. SCOPE OF APPLICATION, CONTRACT CONCLUSION, AND CONTRACT CONTENTS

These General Terms and Conditions apply to all offers and contracts made by Packnatur GmbH (companies register number 504659x), Angerstraße 28, 8292 Neudau (hereinafter referred to as the “Seller”) with any other party qualifying as an entrepreneur within the meaning of section 1 of the Business Code (Unternehmensgesetzbuch, UGB), German Imperial Law Gazette no. 1897/219, as amended from time to time, (hereinafter referred to as the “Buyer”) when offering or supplying goods and/or services. These General Terms and Conditions are not applicable to legal transactions with consumers within the meaning of section 1 (1) item 2 of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG), Federal Law Gazette no. 140/1979, as amended from time to time.
The Seller’s offers are not binding and are made without obligation. A contract is entered into only upon written confirmation of the order by the Seller. The scope of delivery is conditional on the Seller’s written order confirmation. These General Terms and Conditions are an integral part of the contract concluded between the Seller and the Buyer. In the event of discrepancies or conflicting provisions, individual agreements made in writing take precedence over these General Terms and Conditions.
Any deviations from these General Terms and Conditions or from specific contract terms as well as alterations of drawings and similar documents are binding on the Seller only if they have been accepted by the Seller in writing. The applicability of any conflicting terms stipulated by the Buyer, for example on any order forms or in any other manner, is expressly excluded, without requiring the Seller’s specific objection.
These General Terms and Conditions are legally binding even if individual provisions thereof are or become ineffective for whatever reasons.

II. RESERVATION OF TITLE

Goods are delivered subject to a reservation of title, as extended by the following clauses:

The Seller reserves title to the goods delivered until such time as payment of all claims, including any claims arising in the future, has been received in full.
The Buyer is entitled to process the goods and to transfer ownership of them, subject to the following provisions:
In the event of actions by the Buyer contrary to the contract, including without limitation any default in payment, the Seller is entitled to reclaim the goods following a payment reminder, and the Buyer is obligated to surrender the goods.
The Seller’s assertion of the right of reservation of title and attachment of the goods is not deemed a withdrawal from the contract, unless expressly stated in writing by the Seller.
The Buyer is entitled to resell the goods in the ordinary course of business. However, the Buyer hereby agrees to assign to the Seller all claims accruing to the Buyer from such resale, in the amount of the purchase price (including value-added tax) agreed between the Seller and the Buyer, irrespective of whether or not the goods are resold before or after their processing.
The Buyer is entitled to collect such claims following their assignment. The Seller’s right to collect such claims remains unaffected; however, the Seller agrees not to collect such claims as long as the Buyer duly meets its payment obligations and is not in default of payment. If the Buyer does not meet its payment obligations and is in default of payment, the Seller can require the Buyer to disclose to the Seller the assigned claims and their debtors, to provide all details required for collection, to deliver any related documents, and to notify the debtors (third parties) of such assignment.
Any processing and/or mixing of the goods carried out by the Buyer is always performed on behalf of the Seller. If the reserved goods are processed/mixed with goods not owned by the Seller, the Seller acquires co-ownership of the new goods thus created in the proportion of the value of the reserved goods to the value of the other processed/mixed goods at the time of the processing/mixing. The Buyer shall properly store such new goods jointly owned on behalf of the Seller.
The Buyer shall not pledge, or assign by way of security, any reserved goods. The Buyer shall immediately notify the Seller of any attachment, seizure or other orders by third parties and shall provide the Seller with all information and documentation required to safeguard the Seller’s rights. Enforcement officers and/or third parties must be advised of the Seller’s title.
The reservation of title remains in full force even if the Seller adds individual claims to an open account and the account balance has been determined and accepted.
If the security provided by the reservation of title exceeds the claim to be secured by 20 percent, the Seller shall release deliveries that have been fully paid at the Seller’s discretion.
Any amounts that are received for assigned claims must be kept separately until they are remitted.

III. RETENTION AND SET-OFF

The retention of any invoiced amounts due, any set-off with counterclaims (unless such counterclaims are undisputed or have been established by a final declaratory judgment by a court) as well as any deductions are not permitted.

IV. RIGHT OF CANCELLATION

If the Buyer cancels a given order without just cause, the Seller is entitled to claim an amount of 10 percent of the selling price as a compensation for the costs incurred in connection with the processing of the order as well as for lost profit, without prejudice to the Seller’s right to claim any actual damage exceeding this amount. It is the Buyer’s responsibility to prove that the damage was less.

V. DELIVERY AND PASSING OF RISK

The Buyer is obligated to accept the goods delivered. Unless otherwise agreed (delivery performed by the Seller), delivery is effected at the Seller’s registered office in Neudau. The Buyer is obligated to accept the goods within 14 days, unless the Buyer is temporarily prevented from accepting the goods without any fault on the Buyer’s part.
If the Buyer fails to take delivery of the goods for a period exceeding 14 days from receipt of the notice indicating readiness to deliver, the Seller, having granted an additional 14 days’ period, is entitled to withdraw from the contract or to claim damages on the ground of non-performance. An additional period does not have to be granted if the Buyer seriously or finally refuses acceptance or is obviously unable to pay the purchase price within such period.
The risk passes to the Buyer upon acceptance of the goods. If the Buyer declares that it will not accept the goods, the risk of accidental loss or accidental deterioration of the goods passes to the Buyer at the time of such refusal.

VI. FORCE MAJEURE, INTERRUPTION OF OPERATIONS

If a party is prevented from complying with a contractual obligation due to an event of force majeure, the party is released from any performance obligation for as long as such prevention persists. After the event has passed, the party affected shall endeavour to perform the services not yet provided, as far as this is possible, taking into account technical capacities, and as far as this can be expected from the party, taking into account any other obligations. For the computation of periods, the agreed date of delivery is replaced by the actual date of delivery.
Events of force majeure as referred to in this provision are, for example, strikes, lockouts, interventions by authorities, energy and raw materials scarcity, transport bottlenecks or obstacles beyond a party’s control, impediments to operations for which the affected party is not at fault (for example due to fire, water and machinery damage) and any other impediments that, on objective consideration, have not been culpably caused by a party.
The parties shall inform each other without delay about events by which they are affected and provide evidence of such events upon request. If an event of force majeure lasts for more than three weeks, each party is entitled to withdraw from the contract without keeping a notice period. However, this right of withdrawal may only be exercised until the party affected by the event has given notification of its ability to deliver the goods.

VII. WARRANTY

Natural wear and tear is in any case excluded from warranty.
The Seller shall provide a warranty for a period of 6 months from the delivery date, provided that the Buyer gives notice of defects pursuant to section 377 of the Business Code in writing within 12 days from receipt of the goods. Any warranty beyond this period is excluded. Any presumed defectiveness at the time when the goods were handed over (date of delivery) is expressly excluded.
Pursuant to section 377 of the Business Code, notices of defects must be given within a reasonable time, but no later than 12 days after receipt of the goods at their destination, failing which the notices are deemed to have been received too late and do not have to be dealt with any more. The Seller must be given the opportunity to ascertain, on site, a defect of which notice was given.
The Buyer is obligated to immediately check any delivered goods for transport damage prior to acceptance and, if any damage is established, to request a confirmation thereof from the carrier. If any damage is established, such goods must not be processed prior to an inspection by the claims adjuster. If the Buyer fails to fulfil this obligation, the delivery is deemed accepted in perfect condition. In this case, the Seller is not liable for any compensation whatsoever.
If tube netting is processed for purposes not suitable according to the relevant state of the art, any notice of defects is excluded.

VIII. DAMAGES AND LIABILITY

The Seller is liable towards the Buyer for any damage or loss only in the event of wilful intent or gross negligence. The Seller’s liability is excluded in the event of slight negligence, with the exception of damage to persons. Claims based on defects and loss or damage may be raised only up to the value of the goods delivered, to the extent that this is possible under law.
Any duty to pay compensation in the event of damage to property under the Product Liability Act (Produkthaftungsgesetz, PHG), Federal Law Gazette no. 99/1988, and any product liability claims resulting from slight negligence which may be derived from other provisions are excluded, except in the case of damage to persons. These limitations of liability must be fully passed on to any buyers, with the obligation to pass on such limitations to any further buyers.
The Seller is not liable for any consequential damage, lost profit, loss or damage resulting from third-party claims or mere financial loss or damage.
The Seller does not provide any warranty for non-compliance with delivery deadlines caused by any circumstances beyond the Seller’s control and is not liable for compensation for any resulting consequential damage.
One-way pallets and cardboard packaging will neither be invoiced nor taken back. Therefore, the Buyer agrees to re-use any packaging materials supplied by the Seller or to ensure the recycling or recovery of any such material as provided for in the Packaging Regulation (Verpackungsverordnung) and other waste legislation on sales packaging.
The Buyer shall keep appropriate records of the further use or processing of the packaging materials and, upon request, shall make such records accessible to the Seller, in order to enable the Seller to provide any evidence required by waste legislation.
In the event of inappropriate storage, claims for damages are excluded in any case.
The Buyer can assert claims for damages in court only within six months from obtaining knowledge of the damage and the party causing the damage, but no later than within three years from the event giving rise to the claims. In such case, the Buyer shall provide evidence proving that the damage was caused by the Seller’s fault. In any event, the amount of liability is limited to the lower of the amount of remuneration or the amount of the Seller’s valid third-party liability insurance.

IX. PAYMENT

Payment must be made in euros. Payments are deemed to have been made in time if the Seller has been provided, within 30 days from the invoice date, a statement issued by the credit institution confirming receipt of the payment.
If an invoice is not paid within the payment period, the Buyer is deemed to be in default even if no payment reminder is sent. Without prejudice to any other rights, the Seller may invoice default interest in the amount of 9.2% above the base lending rate as currently applicable.
Any failure to comply with payment terms due to circumstances which suggest that the Buyer’s creditworthiness is impaired and of which the Seller learns only after the conclusion of the contract results in all outstanding amounts becoming due immediately even if the payment period has been extended.
Any delays in payment release the Seller of its obligation to make further deliveries.
If the balance of claims exceeds the amount of insurance coverage (default risk insurance), the Seller is entitled, at the Seller’s discretion, to demand cash-in-advance payment or other securities for all further deliveries.

X. TITLE AND COPYRIGHT

The Seller reserves title and the copyright to images, drawings, calculations and other documents. This also applies to written materials marked “confidential”. Before disclosing such materials to third parties, the Buyer shall obtain the Seller’s express written consent.

XI. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, AND APPLICABLE LAW

The Seller’s registered office in Neudau, Austria, is the place of performance.
The Seller’s registered office or the place of the Seller’s management in Neudau, Austria, is the exclusive place of jurisdiction. However, the Seller is entitled to bring legal action also in a court at the registered office of its branch establishment or at the registered office or place of residence of the Buyer.
The contracts concluded by the Seller are governed exclusively by Austrian law, excluding its conflict-of-laws rules and the UN Sales Convention.

XII. MISCELLANEOUS

The transfer of any of the Buyer’s rights and obligations under the contract concluded with the Seller is effective only if accepted by the Seller in writing.