General terms and conditions of business
LUKAS Heil-Betriebsstätte GmbH
(hereinafter referred to as “LUKAS”)
SCOPE & DEFINITION
- These terms and conditions of sale and delivery apply to all our contracts, deliveries and services. They also apply to all future contracts. These terms and conditions shall be deemed to be accepted by the contractual partner at the latest upon receipt of our delivery or service:
- We hereby expressly object to any counter-confirmations of our contractual partners with reference to their own terms and conditions. We always provide deliveries and services only on the basis of our terms and conditions. Deviations from these terms and conditions are only binding if they have been expressly agreed to in writing. A contract shall not be concluded on terms other than those set out in these GTC and the deviations acknowledged by “LUKAS” in writing.
CONCLUSION OF CONTRACTS
- Our offers are always subject to change without notice.
- By ordering the goods, the customer makes a binding declaration that he wishes to purchase the ordered goods. A contract is only concluded by our written order confirmation or by delivery of the goods. All contractual agreements must be made in writing. Deviations and additions, as well as additional agreements only become part of the contract if they are confirmed by us in writing.
- The conclusion of the contract is subject to the correct and timely delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction is concluded with our supplier. The customer will be informed immediately about the non-availability of the service. The consideration will be refunded immediately.
- Illustrations, quality specifications, dimensions, weights, percentages, mixing ratios or other performance data are only binding if this is expressly agreed in writing.
- We reserve the right to make changes and deviations from illustrations, samples, etc., as long as this corresponds to technical progress or fashionable concerns and is reasonable for the client.
- All activities not expressly stated in the order are excluded.
DELIVERY AND PERFORMANCE TIMES
- Delivery dates and periods can be agreed upon bindingly and without obligation. A binding effect exists only in the case of an express written assurance. If delivery periods are measured in days, weekends and public holidays are not to be included.
- The delivery period shall be extended appropriately even within a delay in delivery in the event of force majeure and in the event of unforeseen obstacles occurring after conclusion of the contract for which “LUKAS” is not responsible, insofar as such obstacles demonstrably have a considerable influence on the delivery of the ordered item. They also apply if these circumstances occur at our suppliers or their sub-suppliers. We shall inform the customer of the beginning and end of such obstacles as soon as possible. If, at the customer’s request, we do not declare within four weeks whether we will withdraw from the contract or deliver within a reasonable period of time, the customer may withdraw from the contract himself.
- Our liability for delay or impossibility of delivery with regard to all claims of slight negligence is excluded. We are therefore only liable for gross negligence on our part.
- If the delivery is delayed for reasons for which we are responsible, the customer shall only be entitled to withdraw from the contract if he has granted us a period of grace of at least four weeks in writing.
- We are entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the customer.
PLACE OF PERFORMANCE, RISK BEARING & TRANSPORT INSURANCE
- Place of performance is Maglern 60, A-9602 Thörl-Maglern
- Delivery shall be ex works, unless another delivery condition has been expressly agreed upon. The customer bears the costs and the risk of the transport.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover, in the case of sale by delivery to a place other than the place of performance upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. This also applies if we carry out the transport ourselves. If shipment becomes impossible through no fault of ours, the risk shall pass to the customer upon notification of readiness for shipment.
- At the express written request of the customer, we shall take out transport insurance at the customer’s expense. This is to be remunerated separately.
APPROVAL / ACCEPTANCE OF GOODS
- The customer is obliged to accept the goods made available or delivered “ex works”.
- LUKAS is entitled to make partial deliveries. These must also be removed.
- Goods not accepted by the agreed date shall be stored at the customer’s risk and expense, for which LUKAS shall charge a storage fee, yet to be defined, per calendar day or part thereof. At the same time, LUKAS is entitled either to continue to insist on fulfilment of the contract and acceptance of the delivery, or to withdraw from the contract, granting a period of grace of 2 weeks, and – if possible – to use the goods elsewhere. In the event of withdrawal and realisation, a contractual penalty shall be deemed to have been agreed, irrespective of the storage fees due and further claims for damages.
- We guarantee that our products are free from manufacturing and material defects. The warranty begins with the free delivery. Unless otherwise agreed, the work is carried out according to the state of the art.
- Entrepreneurs must examine the received goods immediately after arrival for defects, condition and guaranteed properties. Defects discovered during this inspection must be reported within one week, hidden defects immediately after their discovery. Obvious defects must be notified immediately upon delivery, and within 8 days in the case of shipment. Otherwise, the assertion of warranty claims and other related claims is excluded. The timely dispatch of the postmark, fax confirmation or e-mail confirmation, etc. is sufficient to meet the deadline. The claimant bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defects.
- In the event of justified and timely complaint about the goods, we shall, at our discretion, either provide warranty by repair or replacement. If the repair or replacement fails after a reasonable period of time, the customer may, in principle, at their discretion, demand a price reduction and, in the case of insignificant and unrecoverable defects, cancellation of the contract. In the case of minor (even significant) defects, the customer is only entitled to receive a price reduction.
- If the customer chooses to withdraw from the contract due to a legal or material defect after unsuccessful improvement, he shall not be entitled to any additional claims for damages due to the defect. If the customer chooses compensation after a failed subsequent performance, the goods remain with the customer if this is reasonable. The compensation for damages is limited to the difference between the purchase price and the value of the defective item. This shall not apply if “LUKAS” has caused the breach of contract through gross negligence.
- For entrepreneurs the warranty period is one year from delivery of the goods. For consumers the period of limitation is two years from delivery of the goods.
- No liability can be assumed for the quality and usability of the articles provided by the customer. If the filling material and/or the packaging is provided by the customer or mixed or produced according to his specifications, we cannot assume any liability for its long-term stability. In this case, we also do not assume any warranty for any effects of the active ingredients on the packaging. An inspection of the product intended for filling for its compatibility with the packaging shall only be carried out upon express written agreement and at the expense of the Customer. The result of this investigation cannot, of course, make any statements about the long-term stability of the active substances supplied thereafter. It is incumbent on the client to request a new investigation here. For products without preservatives, we cannot guarantee their shelf life. The responsibility for the shelf life (expiry date) lies with the customer.
- The client is liable for compliance with all legal provisions to which the product is subject and shall ensure that the consumer is informed accordingly if the ampoules are printed with a text provided by the client. “LUKAS” shall not assume any responsibility for the correctness of the contents. These shall be borne by the client.
- The information provided by the customer will not be checked by us. If costs are incurred due to incorrect information, these will be passed on.
- Liability for loss of profit is excluded in cases of slight negligence. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We shall not be liable to entrepreneurs for slightly negligent breach of insignificant contractual obligations. For damages beyond this, in particular financial losses, etc., “LUKAS” shall only be liable in all cases of gross negligence.
- The customer’s claims for damages due to a defect become time-barred after one year from delivery of the goods. This does not apply if “LUKAS” can be accused of gross negligence in this respect, or in the case of attributable physical injury and damage to health or loss of life of the customer.
TERMS OF PAYMENT AND PRICES
- The prices are indicated NET in EURO (The statutory value-added tax will be charged additionally at the currently valid rate). Our prices are “ex works” and do not include the costs of transport.
- LUKAS is entitled to offset a down payment. In case of agreed partial deliveries, partial invoices are also permissible.
- Our invoices are payable strictly net 14 days after receipt of the invoice, unless otherwise separately agreed in the offer or contract.
- A payment is only deemed to have been made if we can dispose of the amount. In the case of cheques, bills of exchange or the like, payment shall not be deemed to have been made until they have been honoured. The costs and expenses incurred in this connection shall be borne by the payer.
- If a discount has been granted, this can only be deducted if the deadlines for this have been duly observed and no older invoices are outstanding.
- 14 days after receipt of the goods at the latest, default of payment occurs. During the period of default, the entrepreneur must pay interest on the debt at a rate of eight percent above the base rate. We reserve the right to prove and assert higher default damages against the entrepreneur.
- If the customer does not meet his payment obligations despite reminders and setting of a deadline, suspends his payments or if after conclusion of the contract it becomes known that insolvency proceedings will be opened or an out-of-court settlement will be made or circumstances arise which reduce creditworthiness, we are entitled to make the entire remaining debt immediately due for payment. In this case we can also demand advance payments or securities. In such cases the customer can only receive further deliveries against prepayment or cash on delivery.
- Our customers may only set off claims if they are undisputed by us or have been established by a court of law. The assertion of a right of retention due to counterclaims that have not been recognised or established by a court of law is excluded, unless these claims are based on the same contractual relationship. If a notice of defects is asserted, payments by the customer may be withheld to an extent that is in reasonable proportion to the defects that have occurred.
RESERVATION OF TITLE
- We reserve the right of ownership of the goods until the purchase price has been paid in full, as well as until all claims from an ongoing business relationship have been settled in full. This shall also apply if individual or all claims have been included in a current invoice or the balance has been struck and accepted.
- The ownership of a new object created by processing our goods in accordance with the reservation of title shall be retained in full and transferred to us. The handover is replaced by the fact that the customer stores the newly created item for us free of charge.
- The customer is obliged to treat the goods subject to retention of title with care. If maintenance and inspection work is necessary, the customer must carry this out regularly at his own expense. The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted.
- In the event of conduct on the part of the customer in breach of contract – in particular default of payment – we shall be entitled to take back the reserved goods at the customer’s expense or, if necessary, to demand assignment of the customer’s claims for return against third parties. The taking back or seizure of the reserved goods by us does not constitute a withdrawal from the contract.
INTELLECTUAL PROPERTY RIGHTS & COPYRIGHT
- If we deliver items and materials according to the information or documents provided by the customer, the customer shall guarantee that the property rights of third parties are not infringed and shall indemnify us against any legal action.
- If we are prohibited by a third party with reference to a property right belonging to him from manufacturing and supplying items which are manufactured according to drawings, specifications, samples etc. of the customer, we are entitled, to the exclusion of all claims for damages by the customer, to stop manufacturing and supplying and to demand reimbursement of the costs incurred. Further claims for damages on our part remain unaffected.
- We reserve all rights for our intellectual property in our drawings, specifications, recipes, samples, products etc. Any misuse, especially any kind of imitation (in whole or in part) is prohibited and obligates the customer to pay compensation.
MORE OR LESS DELIVERIES
- We reserve the right to make an excess or short delivery up to a maximum of 10% of the quantity ordered.
- Material which is ordered by us on behalf of the customer and which has not been consumed during the processing of the order shall be stored by us for a maximum of two months after the end of the current supply contract. Afterwards we will invoice and make the remaining quantity available to the customer. If the customer does not accept the materials, we will additionally charge the usual storage costs.
- The shrinkage of packaging material and contents resulting from the machine adjustment is at the expense of the customer.
The customer hereby irrevocably undertakes to keep secret all business and trade secrets which have been made accessible or made available to him on the basis of the business relationship or contact with LUKAS and not to make them accessible to third parties in any way whatsoever without the consent of LUKAS. Furthermore, the customer undertakes to use all information made available to him, while respecting LUKAS’ industrial property rights, only on a “need to know” basis and within the scope of the contract concluded. This obligation to maintain secrecy shall also apply if an offer is merely made or if no contract is concluded, and shall remain in force even after termination of the business relationship with LUKAS. The secrecy regulations of the UWG remain unaffected.
- The exclusive place of jurisdiction for delivery and payment as well as for all disputes arising between the parties is the provincial court of Klagenfurt.
- For the execution of all contracts concluded by us, the law of the Republic of Austria shall be exclusively applicable – excluding the UN Convention on Contracts for the International Sale of Goods.
- If the customer has its registered office outside of Austria, the law of the Republic of Austria shall also apply – excluding the UN Convention on Contracts for the International Sale of Goods.
- In case of invalidity of a contractual provision or a factual or interpretation gap, the validity of the remaining provisions shall remain unaffected. The ineffective or missing clause is to be replaced or supplemented by a clause that comes closest to the economic purpose of the ineffective or missing clause, which would have been chosen if the ineffectiveness or the loophole had been considered.
- All declarations essential to the contract (acceptance, termination, etc.) as well as deviations from these terms and conditions and the changes to this written form clause must be made in writing.