General terms and conditions of business
Frisch & Frost Nahrungsmittel GmbH terms of sale, delivery and payment
These terms and conditions apply exclusively to deliveries of goods by us and to the contracts underlying such deliveries. Other general terms and conditions of business that conflict with these terms are expressly excluded. The purchaser’s conflicting terms and conditions of business shall only be effective where expressly agreed in writing. Any agreements that deviate from these terms of sale, delivery and payment must be made in writing. The same shall apply to any supplementary agreements. Oral agreements, including an agreement to dispense with the written form, shall not be effective.
The ineffectiveness or invalidity of any individual provision of these terms and conditions shall not affect the effectiveness of the other provisions. Any ineffective or invalid provision shall be replaced by a legally valid provision that approximates most closely to the commercial purpose of the ineffective or invalid provision. Special terms and any oral agreement by sales representatives to terms that deviate from these terms and conditions shall apply only to individual transactions and require our express written confirmation.
2. Offers and quotations
2.1. All of our offers are non-binding and do not constitute an obligation to accept an order.
2.2. Quotations shall only be issued in writing.
3. Fulfilment, transfer of risk, complaints
The place of fulfilment for delivery and payment is our business premises, including in cases where goods are delivered to another location by agreement. Notwithstanding the above, the transfer of use and risk to the purchaser shall take place when the goods to be delivered are dispatched from our warehouse, or in case of delivery ex works when they leave our works, irrespective of the agreed delivery terms (e.g. carriage paid, etc.), unless any damages were culpably caused by us.
Delivery within the delivery period is agreed with the reservation that it may be prevented by unforeseeable circumstances or circumstances outside our control, including all cases of force majeure, armed conflict, interference or prohibitions by public authorities, transportation and customs delays, damage in transit, power outages and labour disputes; delivery periods may also be extended where such circumstances affect our suppliers.
In the event of delayed dispatch from our works or warehouse due to circumstances for which the purchaser is responsible, risk shall be transferred on the day that goods are ready for dispatch to the customer. Where delivery on call has been agreed, goods shall be deemed to have been called in full six months following the order at the latest. We shall inform the customer in good time prior to the expiry of such a period, and remind the customer of the consequences of not calling goods. If fulfilment by us is not possible due to the lack of arrangement for delivery on the part of the customer, the consequences of default of acceptance shall be effective immediately.
We reserve the right to make and invoice partial or advance deliveries.
Complaints in respect of alleged non-delivery or incomplete delivery must be made in writing within three days of receipt of the delivery note at the latest. Where the customer has not received a delivery note, complaints must be submitted in writing within three days of receipt of invoice.
We reserve the right to apply to the amounts invoiced all cost and price increases that are outside our control and occur between the time of order and delivery.
Unless otherwise stated, prices are quoted net in euros plus statutory value added tax and including delivery, but excluding charges for packaging materials and pallets.
A deposit is payable for all packaging materials. The amount of the deposit shall be based on the cost of the materials in question. Packaging materials remain our property, are non-transferable and must be returned within 80 days of delivery of goods. We shall only accept packaging materials that were delivered by us and are returned in the same undamaged condition in which they were supplied. Materials that are not our property will not be accepted.
In the event of delayed return we reserve the right to charge a fee for use of packaging materials. The deposit shall only be reimbursed on the basis of a credit note issued by us. We shall be entitled to deduct the cost of any damage to the materials from the deposit.
Unless otherwise agreed, payment shall be due immediately upon receipt of invoice. We reserve the right to charge interest at an annual rate of 13% (plus all applicable value added tax) on any arrears. Should market developments lead to a general increase in lending rates, we shall be entitled to raise the interest rate accordingly.
Purchasers in default of payment shall bear all court and other costs for recovery of the debt, including fees charged by a legal professional engaged by us.
We are not obliged to accept payment by bill of exchange or by cheque. Where such forms of payment are accepted, they shall only be deemed to have been received after conversion to cash. All related charges and discount rates are borne by the customer.
Set-offs against the purchase price based on counterclaims made by the purchaser are excluded.
Payments received shall be redeemed against interest and incidental charges first, before being applied to outstanding purchase amounts, beginning with the oldest outstanding amount.
7. Retention of title
We shall retain ownership rights and all intellectual property rights including rights of use (in particular under the Urheberrechtsgesetz [Copyright Act] and the Musterschutzgesetz [Design Protection Act]) to all delivered goods until the purchase price has been paid in full. In case of payment default we shall be entitled, without prejudice to our other rights, to take back goods to which we have retained title. This shall not constitute rescission of the contract.
In case of confiscation or seizure of goods, the purchaser has a duty to declare retained title and rights of use, and to notify us immediately.
Where goods that are subject to retention of title are resold by the purchaser, our ownership rights and rights of use shall extend to the future revenue or resale price resulting from the transaction. We must be notified of any resale, and the revenue must be held separately and transferred to us in the amount of the outstanding resale price. If goods are resold to a third party on the basis of a credit purchase, the purchaser shall assign to us, as of now, the amount receivable from its customer as a result of the resale. The purchaser is obliged to inform its customer of the assignment.
Where goods delivered by us are worked, processed or combined with other goods, we shall have a share of co-ownership rights to the objects produced by working or processing, equivalent to the ratio of the value of the goods delivered by us to the other, processed goods at the time of processing or combining.
8. Defects and liability
We shall only be liable to the initial purchaser for defects in the delivered goods. We shall only be liable for such defects if the purchaser notifies us in writing within eight days of receipt of the goods at the latest. Such notification is to be sent directly to us and not to our representative. We are entitled to replace defective goods with similar, defect-free goods within a reasonable period of time or to correct the defect within a reasonable period of time, whereby any claim to cancellation of contract or to a price reduction shall become void.
Our liability is limited to damages that are caused by the delivered goods alone. Claims by the purchaser to compensation for other damages are excluded, insofar as they are not due to gross negligence or wilful intent on our part.
We accept no liability for the contents of the purchaser’s goods or products supplied to us. We do not have a duty to inspect such contents, nor do we have a duty of inspection in respect of intellectual property law, food law or any other civil, administrative or criminal law. The purchaser shall indemnify and hold us harmless in case of any infringement of third-party rights or of the law.
In principle we have no obligation to accept returned goods. If, as an exception, a return is accepted, an administrative fee of 10% of the invoice amount shall in any case be payable by the purchaser, in addition to compensation for any damages to the returned goods, calculated on the basis of the value of the goods as new without consideration of any reduced present value. If the return of goods results in the purchaser not meeting the required quantity of goods purchased to qualify for the agreed rebate in accordance with the respective rebate scale, the purchaser will also be charged for the quantity discount originally offered.
Correctly ordered and delivered goods may not under any circumstances be returned after expiry of the recommended shelf life.
10. Rights to packaging designs
We retain all rights, in particular rights of ownership and rights under the Urheberrechtsgesetz (Copyright Act), the Musterschutzgesetz (Design Protection Act) and trademark legislation, and rights guaranteed by other laws, to packaging designs for our products (i.e. designs, images, drawings, photographs, copy, logos, models, patterns, documents, templates, etc.). We grant the purchaser a simple, non-exclusive and non-transferable permission to use the packaging design. We reserve the right to use such packaging designs for other customers at our discretion.
Neither original packaging designs nor copies may be altered without our written consent. Reproductions of our packaging designs or of imitations of them are not permitted.
The materials made available to the purchaser by us (images, drawings, photographs, text, logos, models, patterns, documents, templates, etc.) are used by us on the assumption that the purchaser is entitled to use them and will not infringe third-party rights by processing or using them. We accept no liability for the content of materials supplied by us and have no duty of inspection in respect of such materials. The purchaser shall indemnify and hold us harmless in case of any infringement of third-party rights or of the law. We also have no duty to examine and/or warn in this respect.
We shall not be liable for faulty digital or analogue transfer of materials, nor do we have an obligation to back-up or store data. If any damages occur during the processing of materials supplied to the purchaser, the purchaser shall indemnify and hold us harmless.
Should a claim be asserted against the purchaser for infringement of third-party protective rights (copyright, brand and trademark rights, design rights or other intellectual property rights), we shall only be liable if the purchaser immediately notifies us of such claim and provides all relevant information and documents. The purchaser also agrees only to engage a lawyer nominated by us and subject to our instructions for the purposes of resolving any legal disputes.
The purchaser acknowledges that we shall be relieved of any liability if an infringement of third-party protective rights results from directions given by the purchaser, or if the purchaser – without our agreement – takes actions that it knows may infringe third-party protective rights and which are perceived by a third party as an infringement.
In the event of an actual or potential infringement of intellectual property rights, we shall be entitled to acquire the necessary rights, or to exchange the goods/products in question or adapt them in respect of such rights, or to refund the value of the goods/products (taking any depreciation into account) at our own expense.
Written correspondence shall be deemed to have been properly delivered with legal effect when sent to the last address provided by the contractual party.
12. Data processing
The purchaser gives its consent for data made available in the course of its business relationship with us to be stored, transferred and processed electronically for operational purposes.
Unless otherwise agreed in writing, Austrian law shall apply exclusively to the order, its execution and any resulting claims. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. In case of doubt all goods/products require official approval for export. The purchaser shall recognise Austrian, foreign and international export control provisions and limitations, and has a duty to conform to such provisions, and to obtain any necessary export documents at its own expense. In case of legal disputes we are entitled, but not obliged, to call on the support of the competent court in Vienna at our discretion, instead of the competent court under national or international regulations.
A minimum quantity surcharge of EUR 20 will be applied to orders of less than 100kg. An administration fee of EUR 15 will be charged in case of unjustified claims. Packaging supplied is released under ARA licence number 902 and Interseroh 95289. The general terms and conditions of business of Frisch & Frost Nahrungsmittel GmbH apply. Status as at January 2014. Subject to change. No liability accepted for printing errors.
Terms of sale, delivery and payment of Frisch & Frost Nahrungsmittel GmbH, Puchgasse 5, 1220 Vienna