General terms of business and delivery
1.1 The following General Terms and Conditions of Business and Delivery (hereinafter referred to as: "GT&C") are applicable to all deliveries, services and offerings of Hochreiter Fleischwaren GmbH (hereinafter referred to as: "Hochreiter"). These GT&C also apply to situations where Hochreiter acts in the name of and/or on behalf of natural and/or legal persons it represents.
1.2 The general terms and conditions of business and contract forms (in particular terms and conditions of purchase) of customers are explicitly barred and shall not be part of any contract, even if they are not disclosed to the company until the business relationship is already in existence. In particular, acts of compliance on the part of Hochreiter do not constitute consent to any divergent provisions.
1.3 The following terms and conditions also apply to subsequent transactions, even if they are not separately agreed to each time.
1.4 Exceptions from the GT&C must be made in writing. Changes to the "in writing" requirement must also be made in writing.
2. Entering into contracts
2.1 All offers are non-binding. Illustrations, sketches, drawings, photos, samples, etc. are non-binding.
2.2 Contracts are entered into when the order confirmation is sent to the customer, or if no order confirmation is sent, when Hochreiter makes the delivery or renders the service.
2.3 The customer has an obligation to obtain all official government licenses and permits and other formalities required to complete the transaction on its own without undue delay.
3. Terms and conditions of delivery/Transfer of risk/Delay in acceptance
3.1 Ex works (from Hochreiter's headquarters) is hereby stipulated, unless explicitly otherwise agreed. Goods that the customer has been notified are ready for shipment must be called off by the customer immediately, but no later than within 2 working days of the notification date. Ex works entails the customer taking possession of the goods and assuming the risks, burdens and contingencies at the time the goods are made available at Hochreiter's premises. In the event that the customer is unable to take possession of the goods it has been notified are ready for shipment due to no fault of Hochreiter, or if the customer desires later shipment of the goods or the customer does not take possession of the goods on the agreed date, Hochreiter is entitled, but not obliged, to store the goods at the expense and risk of the buyer in its own storage facilities or otherwise in a suitable manner (Section 373 Austrian Commercial Code).
3.2 However, in the event that Hochreiter undertakes to deliver the goods to the customer at a specific location, the following shall apply: The transfer of ownership of the goods to the customer shall be deemed complete at the time the goods were handed over to the carrier. The same applies if Hochreiter arranges for transporting the goods.
3.3 In the event that a specific delivery timeframe is agreed, this timeframe begins when the contract is entered into, but not before the customer has met all required obligations to cooperate. Compliance with the agreed delivery timeframe on the part of Hochreiter is subject to unforeseeable or unavoidable circumstances, such as force majeure (including government intervention and labour conflicts). These circumstances cause the delivery timeframe to be postponed. In the event of such circumstances, Hochreiter is entitled to withdraw from the contract or to meet its obligations under a new delivery timeframe.
3.4 In the event that indemnification for delayed delivery (penalty) was stipulated at the time the contract was entered into, this indemnification will only be paid to the extent that the customer has incurred a verifiable direct loss at least as high as the amount of the penalty and Hochreiter is responsible for it.
4. Pricing/Payment terms/Exclusion of retention and offsetting/Due dates/Billing methods
4.1 All of Hochreiter's prices are net prices (excluding shipment, VAT and postage/customs) that are payable and due immediately after the invoice is sent without any discounts. The prices are based on the cost basis at the time of submission of the offer. Hochreiter reserves the right to adjust prices accordingly if and to the extent that there are material changes with respect to the conditions decisive for setting the prices within three weeks of submission of the offer, but prior to delivery/rendering of services (e.g. material price increases or new collective agreements).
4.2 In the event that the customer defaults on payment, Hochreiter is entitled to charge late payment interest and compound interest without prejudice to other claims. Late payment interest is to be paid in the amount of the current statutory interest rate (currently Section 456 Austrian Commercial Code). The customer is obliged to pay Hochreiter dunning charges and debt recovery costs (first reminder: EUR 15.00, second reminder: EUR 20.00, third reminder: EUR 25.00, plus VAT in each case) and other pre-litigation costs (e.g. debt collection agency).
4.3 The customer is not entitled to withhold or set off payments on any legal basis whatsoever, provided that such claims have not been legally established or recognized in writing (signature) by Hochreiter.
4.4 Incoming payments are first applied to covering dunning charges and interest incurred and then to repaying the oldest liability at the time. Hochreiter is entitled to require cash payments and/or prepayments for deliveries.
5. Warranty/Liability/Laesio enormis/Statute of limitations
5.1 Defect complaints must be submitted by the customer immediately but no later than within 48 hours of receipt of the goods in writing. The customer must also waive any related claims and substantiate the defect complaint. The customer must inspect the delivered goods immediately upon receipt and store them properly. The goods must be stored in accordance with the storage conditions specified on the packaging and delivery slips. "Keep refrigerated" means that the goods should be stored in a refrigerated location with a temperature between +2°C and +4°C, and "keep frozen" means that the goods should be stored at a temperature of -18°C or lower. Any liability on the part of the company lapses in the event that the goods are not stored in accordance with these guidelines; this is assumed to be the case provided that the customer does not prove the contrary (contractual storage). Otherwise, sections 377f Austrian Commercial Code apply, with the exception of Section 377 para. 4 Austrian Commercial Code.
5.2 The customer is required to preserve products subject to a complaint properly for any legal proceedings/expert opinions. In the event that the goods subject to a complaint are not (to a sufficient extent) preserved, it will be irrefutably presumed that the delivery was free of defects.
5.3 Hochreiter will pay for reasonable and absolutely necessary costs of returning the goods, provided that a defect complaint as defined in (1) was submitted in advance and that Hochreiter has given prior written consent to the return. Hochreiter is entitled to satisfy claims that have been asserted and recognized under an agreement by choosing to either make subsequent deliveries within a reasonable grace period or provide credit in the amount of the invoice for the defective goods.
5.4 Hochreiter is only liable to the customer for defects in relation to goods not produced by Hochreiter to the extent that the supplier/manufacturer is liable to Hochreiter and discharges this liability in advance. Hochreiter is also entitled to assign claims against the supplier or manufacturer to the customer, releasing Hochreiter from any liability to the customer.
5.5 In the event of official complaints or in the event of sampling by the Food Police, the customer is obliged to allow control samples to be taken at the expense of the customer. The customer must freeze these control samples immediately and notify Hochreiter promptly, no later than within 24 hours, in writing or via email or fax. In the event that the customer fails to take this precaution, the customer will lose any resulting claims against the company.
5.6 Warranty claims and/or claims for damages exceeding the invoice amount as well as claims for consequential damage (e.g. lost profits and pecuniary losses) are barred in all cases. Claims for damages on account of impossibility of performance are barred even if Hochreiter is the party responsible.
5.7 To the extent that Hochreiter is liable to the customer, this liability is only applicable in the case of gross negligence, and the burden of proof under paragraph 6 is excluded. Unless Hochreiter has explicitly recognized the claim in writing (signature), all claims of the customer against Hochreiter in connection with or resulting from the legal transaction in question must be asserted in court within one year of the time the contract is entered into, or else the claims will lapse. Otherwise, the application of Section 934 Austrian Civil Code (laesio enormis) is barred.
6. Retention of title
6.1 The goods shall remain the property of Hochreiter until full payment of the purchase price is made.
6.2 Title may only be transferred by the customer to third parties provided that the customer's claim for payment of the purchase price on the third party is legally assigned to the company concurrently with the transfer of title. Only the inchoate right of the customer to acquire title to the goods may be transferred to third parties until legal assignment (as collateral) of said claim for payment of the purchase price to the company.
6.3 The retention of title shall remain intact until all of Hochreiter's claims from other business relationships have been settled.
6.4 The customer has an obligation to use the consideration received from third-party resale of the goods to immediately pay off open claims, at least all claims resulting from and/or in connection with the underlying transaction.
6.5 In the event that the customer acquires co-ownership shares in the goods by exploiting the goods in such ways as mixing, combining or processing them, the customer agrees now in advance to assign this share to Hochreiter as collateral. Hochreiter is entitled to recover the customer's claim on the third-party buyer concurrently with the assignment of the goods in respect of the third-party buyer The proceeds from the third-party sale must be set aside separately in trust for as long as the customer has not paid for the goods.
6.6 Written notice of access on the part of third parties (insolvency, execution etc.) to the goods in the possession of Hochreiter or the proceeds of their sale must be given immediately.
7. Data protection, address changes, intellectual property
7.1 The customer hereby explicitly consents to the use of all data transmitted by the customer during the course of the business relationship with Hochreiter in a conventional manner during the course of this business relationship (e.g. stored, transmitted, filtered and processed).
7.2 The customer has an obligation to maintain confidentiality with respect to price negotiations and the existence of the business relationship.
7.3 Hochreiter must be notified immediately without prompting of any changes to the residential/business address of the customer, otherwise notices, letters etc. to the customer will be deemed received when sent/transmitted to the most recently disclosed address.
7.4 Samples, catalogues, prospectuses, illustrations, plans, sketches, technical documentation etc. are always the sole property of Hochreiter. Customers do not receive usufructuary and exploitation rights of any kind whatsoever.
8. Impossibility, penalties
8.1 In the event that performance by the company after the contract is entered into is fully or partially impossible in law or in fact due to no fault of the company, in particular due to force majeure, including strikes and major business interruptions, for the company and/or a supplier of the company, either the obligation of the company to perform lapses or the company is entitled to withdraw from the incomplete part of the respective contract.
8.2 In the event that the customer withdraws from the contract or requests its rescission, the company can choose to either insist on performance of the contract or consent to the rescission of the contract. In the latter case, the customer has an obligation to pay a penalty regardless of who is at fault equal to 10% of the invoice amount. This amount is not subject to the court's right to reduce the damages payable and is without prejudice to further claims.
9. Final provisions (place of performance, applicable law, legal venue, severability clause)
9.1 The place of performance for delivery and payment is the headquarters of the company (currently: A-4190 Bad Leonfelden).
9.2 The contract is exclusively subject to Austrian law; the conflict of law rules and provisions of Austrian law and the United Nations Convention on Contracts for the International Sale of Goods are excluded. The contractual and correspondence language is German.
9.3 The parties agree on the exclusive jurisdiction of the competent court in A-4020 Linz for all legal disputes arising from or in connection with the present contract. The company reserves the right to assert its claims against the customer in other jurisdictions as well.
9.4 The rest of the provisions shall not be affected in the event that individual provisions of these GT&C are or become invalid in full or in part. In this case, the GT&C should be formulated in such a way and supplemented where needed in such a way that the originally intended commercial meaning is met in a legally permissible manner; should this prove impossible, the commercial meaning of the invalid provision should be met as closely as possible. This also applies to events and circumstances not explicitly mentioned in these terms and conditions.