Legal
General Terms and Conditions of Sale (GTC) of Eisberg Österreich GmbH
valid from January 1, 2020
1. Scope of application
1.1 All business relations with Eisberg Österreich GmbH (“Eisberg Österreich”), on the basis of which Eisberg Österreich sells Products to a third party, shall be governed exclusively by the following General Terms and Conditions.
1.2 The contractual partner (“Customer”) of Eisberg Austria is any commercial reseller and/or bulk consumer and the latter expressly agrees to the exclusive and unrestricted application of these GTC by placing orders.
1.3 The Customer’s GTC shall not become part of the business relationship, even if the Customer refers to them and Eisberg Austria does not expressly object to their inclusion.
2 Offers / Prices / Delivery
2.1 Offers from Eisberg Austria are strictly subject to change and non-binding. All offers are subject to prior sale and price changes. The prices valid on the day of the order plus the respective statutory taxes and duties shall apply. Prices are also subject to change and are quoted in euros (EUR).
2.2 Unless otherwise agreed, Eisberg Austria is entitled to deliver equivalent goods as replacement at reasonable prices.
2.3 Any delivery dates and deadlines are generally non-binding, unless the dates are expressly agreed in an order. If Eisberg Austria has individually promised a specific date, this shall be +/- 24 hours (“waiting period”); if the delivery is only determined by day, the waiting period shall commence at the close of business of the Customer on the day of delivery. Eisberg shall only be liable for damages resulting from delay, commencing after expiry of the Waiting Period, if (i) the delivery was made under Incoterms DDP 2010 and (ii) the delay in delivery is due to intent or gross negligence on the part of Eisberg Austria or its vicarious agents.
2.4 Eisberg Austria shall be released from any delivery obligation and delivery period if the delivery cannot be made or cannot be made in time for reasons for which Eisberg Austria is not responsible (force majeure, default of the upstream supplier, non-availability of the goods). Similarly, Eisberg Austria shall be released from the delivery obligation and the delivery period if the Customer is in default with the payment of an earlier invoice. For this period of time, withdrawal from the contract pursuant to § 918 ABGB is excluded.
2.5 Eisberg shall be entitled to make and invoice partial or subsequent deliveries.
2.6 Eisberg reserves the right to postpone delivery dates for important reasons without granting compensation. Delivery dates may be postponed during public holiday weeks.
3 Transfer of risk
3.1 The risk shall pass to the customer when the ordered goods are deposited in the customer’s area of control (e.g. company premises or defined unloading point), even if no confirmation of acceptance is completed by the customer (e.g. delivery outside business hours).
3.2 Starting with the takeover of the goods or the fiction according to 3.1 of these GTC until the time when the goods are transferred in their original condition, modified or processed to a business partner of the Customer or the final consumer, the Customer shall be liable for compliance with the applicable legal regulations and shall establish and maintain the technical and organizational means that correspond to the recognized state of the art in the food sector; in particular, the Customer shall maintain the cold chain and create the necessary hygienic conditions. The Customer is obliged to indemnify Eisberg Austria against all damages, fines, costs and other disadvantages incurred by Eisberg Austria due to the fact that the goods were not properly stored, processed, transported or resold by the Customer.
4. empties
Some of the Eisberg Austria goods delivered via the logistics providers are delivered in returnable transport containers. These transport containers are exchanged step by step. Any outstanding amounts will be invoiced at the currently valid unit price. Unlawful collection or use is prohibited and may be reported to the police.
5 Payment
5.1 Invoicing shall take place upon delivery/service (final invoice).
5.2 Unless special terms of payment have been demonstrably agreed, the price shall be due for payment in full immediately upon receipt of the invoice without any deductions. Payments shall be made promptly in the agreed currency to the bank account designated by Eisberg Austria free of charges and deductions. Timeliness of payment shall be determined by the irrevocable crediting of the entire invoice amount to the bank account of Eisberg Austria.
5.3 Collection and transfer charges as well as all other charges and/or deductions shall in any case be borne by the Customer. Objections to Eisberg Austria’s invoices shall be made within one month after receipt; otherwise the invoices shall be deemed approved.
5.4 Payment terms deviating from these GTC must be in writing and must be proven by the Customer. If the Customer is demonstrably granted a longer payment period in individual cases, the payment shall be deemed deferred (pure deferral); if the payment period is exceeded, the deferral shall lapse.
5.5 Eisberg Austria is entitled, notwithstanding any provisions or dedications of the Customer to the contrary, to set off payments first against the Customer’s older debts. If costs (of any kind) and interest have already been incurred due to the delay, Eisberg Austria shall be entitled to offset the payment first against costs, then against packaging, freight and expenses, then against other expenses and ancillary fees, then against interest and finally against the main services.
5.6 Discounts or bonuses are only valid if they are expressly granted by Eisberg Austria in writing. The Customer is obliged to provide evidence for this. Discounts or bonuses granted are subject to the condition precedent of timely receipt of full payment; in case of late payment of the total price, any discounts or bonuses shall be irrevocably forfeited.
5.7 Installment payments are only valid if they are expressly granted by Eisberg Austria in writing. The Customer shall be obliged to provide evidence for this. In case of non-payment of an installment as well as in case of violation of any other contractual provision, the entire amount shall become due immediately.
5.8 In case of default of payment, the Customer undertakes to pay the statutory default interest according to § 456 UGB (Austrian Commercial Code) in the amount of 9.2% above the applicable base interest rate. In addition, Eisberg Austria shall be entitled to stop further deliveries immediately in case of default of payment without the Customer being able to claim compensation.
5.9 If insolvency proceedings are opened against the Customer and the business is continued, Eisberg Austria has the right to deliver exclusively against advance payment irrespective of previous payment claims.
6 Export
6.1 The customer acknowledges that the goods are intended for the Austrian market and that the information on the packaging and labeling complies with the requirements in Austria. Sale in other countries is prohibited.
6.2 If the Customer wishes to sell the products in other countries, he has to inform Eisberg Austria in writing before placing the order. Eisberg Austria and the Customer shall then examine the possibilities of an export.
7 Retention of title
The goods shall remain the property of Eisberg Austria until all claims of Eisberg Austria against the Customer have been settled and may in particular neither be pledged nor assigned as security to third parties. The retention of title shall only expire upon full payment of all claims of Eisberg Austria arising from this business relationship.
8. notice of defects
8.1 Eisberg Austria provides warranty for defects of the delivered goods exclusively to the original purchaser.
8.2 A warranty shall only apply if it has been asserted in writing immediately, at the latest within 24 hours after receipt of the goods.
8.3 Eisberg Austria is entitled to replace defective goods with similar faultless goods within a period of time customary in the industry or to remedy the defect within a reasonable period of time. This shall void any claim for rescission of the contract or price reduction.
8.4 The liability of Eisberg Austria is limited to damages caused to the object of delivery itself. Claims of the Customer for compensation for consequential damages are excluded, unless Eisberg Austria is guilty of intent or gross negligence.
8.5 The Customer is obliged to indemnify and hold Eisberg Austria harmless from any liability for infringement of third party rights or violations of law.
8.6 Eisberg Austria cannot be obliged to take back goods that have already been delivered.
8.7 If the goods are taken back in an accommodating manner in individual cases, a handling fee of 10% of the invoice value shall be charged to the Customer in any case, plus compensation for any damage to the goods taken back, which shall be calculated from the value as new – without taking into account any reduced current value.
9 Know How
Eisberg Österreich GmbH is exclusively entitled to the intellectual property associated with the products, the recipes, the packaging, the graphic design and other aspects of the product. The Customer undertakes not to attack this intellectual property, in particular not to carry out reverse engineering or to initiate or promote reserve engineering by third parties.
10. data protection
The Customer acknowledges the privacy policy of Eisberg Austria, which can be viewed at https://www.eisberg-oesterreich.at/en/datenschutz/.
11. combating corruption
11.1 The parties undertake to consistently pursue corruption.
11.2 The parties undertake to refrain from any action in their relationship with each other and with third parties that could give rise to suspicion of bribery, corruptibility, fraud or any other action relevant under criminal law. The parties further undertake to ensure, monitor and control compliance with the above obligation by their own employees and subcontractors within their own sphere of influence and competence and to punish any misconduct.
11.3 The parties shall inform each other immediately if
a) a person who is in the organizational area of one of the parties has been offered a personal advantage by a person from the organizational area of the other party in connection with this contract or has been granted such an advantage;
b) a person who is in the organizational area of one of the parties offers or grants a personal advantage to a person from the organizational area of the other party in connection with this contract;
c) the respective party itself or a person who is in the organizational area of one of the parties is offered or accepts a personal benefit from a third party or offers or grants a benefit to a third party in connection with the business relationship existing between Eisberg Austria and the Customer.
12 Place of jurisdiction, applicable law
12.1 For all disputes arising from these Terms and Conditions, the competent court at the registered office of Eisberg Österreich GmbH shall be deemed agreed.
12.2 It is agreed that Austrian substantive law shall apply exclusively, to the exclusion of conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.