General terms and conditions of business
I. General terms and conditions of sale and delivery
A. General, offers
1. These general terms and conditions of business (subsequently “GTC”) are part of the purchase agreement between REZI Microfaserprodukte GmbH, Sägerstrasse 41, 6890 Lustenau, Austria (subsequently “REZI”) and the customer (subsequently “buyer”).
2. These GTC are binding for all current and future business transactions with REZI even if these are not specifically referred to. Any regulations which oppose or differ to these GTC only apply if REZI has expressly agreed to this in writing. The buyer does, however, agree that, in the case of doubt, the REZI GTC will apply.
3. Offers from REZI are non-binding unless described as binding. The buyer’s order which occurs on the basis of an offer from REZI (based on these general terms and conditions of sale and delivery), is only regarded as accepted with the written (correspondence by e-mail and fax is regarded as writing) order confirmation from REZI with which a contract is formed.
4. The buyer tolerates any appropriate and justified changes to the service obligation.
5. The buyer ensures that his employee who is responsible for the business transaction with REZI is authorised for the conclusion of legal business transaction with REZI.
B. Prices & payment
1. The subject of these GTC is primarily the sale of goods (in particular, REZI microfibre products).
2. The delivery and transport costs are assumed by the buyer (ICC Incoterm 2010 “ex works”), unless agreed otherwise.
3. The purchase price / our outstanding payments are to be paid concurrently upon receipt of the goods unless stated otherwise in the order confirmation. A discount (for early payment / within a certain period) is only accepted / recognised if specifically agreed. If payment is delayed (also with only part payment), any discount agreements will lose their validity. The buyer’s payments are only valid once the payment has been received in the REZI business account. If the payment has not been received by the due date, interest will be charged.
4. Invoices for part of the agreed amount are permitted for part deliveries.
5. In the case of payment delay, REZI is entitled to charge the buyer in accordance with § 458 Austrian Commercial Code a flat rate expenses sum (currently €40.00) as well as all further costs caused by the non-fulfilment of the contractual obligations particularly for the cost for the payment reminder and the use of a debt collecting agency / lawyer.
6.REZI shall be entitled of its own accord, as well as at the request of the buyer, to adjust the contractually agreed fees if changes of at least 10% have occurred since the conclusion of the contract with regard to cost factors necessary for the performance of the service, such as wage costs, raw material costs, material costs, energy costs, transport costs, exchange rates, etc. The adjustment shall be made to the extent that the actual (production) costs at the time of the conclusion of the contract change compared to those at the time of the actual performance of the service. The adjustment shall be made to the extent that the actual (production) costs at the time of the conclusion of the contract change compared to those at the time of the actual performance of the services, provided that REZI is not in default.
7. Payments received are first used to cover expenses and delayed payment interest.
C. Offsetting, retention
The buyer is only entitled to offset amounts due if his counterclaims are undisputed or established as final and absolute. The buyer is only entitled to rights of retention in the case of counterclaims from the same contractual relationship.
D. Delivery, risk of loss
1. Deliveries are always divisible and the buyer is obliged to accept (part) deliveries.
2. The delivery is subject to the timely and correct fulfilment of the buyer’s obligations. REZI reserves the right to object to unfulfilled contracts.
3. Once the goods are sent, the buyer assumes the risk of accidental loss or accidental deterioration of the goods (transport risk).
4. In the event of default of acceptance or other culpable violation of obligations of the buyer, REZI is entitled to compensation of the resulting damage including additional expenditure. The right to make further claims is reserved. In this case, the risk of accidental loss or accidental deterioration of the goods – in so far as the risk has not already been assumed in accordance with Point D3 – is assumed by the buyer at the time of default of acceptance or other violation of the buyer’s obligations.
5. Delivery deadlines and delivery dates are always non-binding for REZI and are subject to the delivery possibilities of all suppliers. Fixed delivery dates can only be given in exceptional cases and require their own agreement. Events of force majeure entitle REZI to postpone any arrangements for the period of the event/occurrence or wholly or partly rescind the fulfilment of these without the buyer being entitled to delivery, compensation due to delay or a right of withdrawal.
6. Goods which have not been received by the agreed date will be stored for a maximum of 6 (six) weeks at the risk and cost of the buyer (either at REZI or a logistics partner chosen by REZI) for which the buyer will be invoiced a warehousing fee of 10.00 EUROS net per pallet/day plus the costs for admission to / taking out of storage. At the same time, REZI is entitled to either insist upon contract fulfilment or, after granting an appropriate period of grace and enforcing a contract penalty of 40 (forty) per cent of the net invoice sum, withdraw from the contract and use the goods in another way.
E. Reservation of title
1. The goods remain the property of REZI until full payment has been received. If the buyer breaches the contract including payment delay and insolvency of the buyer, REZI is entitled to withdraw from the contract, take back the goods and enforce a contract penalty as stated in Point D.6.
2. If the buying price is not fully paid, the buyer must inform REZI in writing immediately if the goods are burdened by third party rights or subjected to other interventions by third parties.
3. The buyer is only entitled to resell the goods for which the title is reserved if REZI has been informed of this in time with the name / company name and exact (business) address of the new buyer and if REZI agrees to the resale. In such a case, the original buyer will assign, already now, any claims from such a resale to REZI. Without prejudice to the authority of REZI to collect the debt itself, the original buyer remains authorised to collect debts even after the assignment. In this context, REZI is obliged to not collect the debt in so far as the buyer fulfils his payment obligations, there is no application for insolvency or similar and there is no stoppage of payments.
1. Any warranty and / or damage claims of the buyer are subject to his correct fulfilment of all duties of inspection and objection in accordance with § 377 f UGB (Austrian Commercial Code). The buyer must provide immediate and specific notification of any faults in writing. In the case of guarantee, REZI is entitled to determine the type of guarantee (improvement, exchange, price reduction or transformation).
2. Guarantee of properties of the purchased item or parts of this only apply if this has been agreed explicitly and in writing prior to the contract agreement.
3. The warranty period is 6 (six) months unless the type of product is usually meant for shorter use due to multiple signs of use or wear.
G. Liability, damages
1. REZI’s liability is limited to foreseeable typically occurring damages with a sum dependent on the respective goods value although not exceeding €25,000. Furthermore, liability is excluded for slight negligence, loss of profit, consequential damage, loss of interest, savings which did not occur, consequential and financial losses, damages arising from claims of third parties as well as the loss of data and programmes and their recovery. In the case of slight negligence, REZI only assumes liable for personal damage.
2. Liability will expire in 6 months from the time when the buyer learns of the damage and the liable party.
3. In so far as a contractual penalty has been agreed at the expense of REZI, this is subject to the court’s right to reduce the fines. Enforcement of damage compensation going beyond the contractual penalties is excluded.
H. Place of fulfilment, applicable law, place of jurisdiction
1. The place of fulfilment (particularly for delivery of goods as well as money debts, etc.) is, unless agreed otherwise, the company REZI in 6890 Lustenau, Sägerstrasse 41.
2. This contract is subject to the law of the Republic of Austria. The provisions of the UN Convention on Contracts for the International Sale of Goods are subsidiary to these general terms and conditions of business, the Austrian Commercial Code and the ABGB (General Civil Code). The contract language is German.
3. Any disputes arising from the contract (with REZI) – including a dispute on the existence or non-existence of the contract – will be settled exclusively at the courts at the REZI headquarters (6890 Lustenau, Austria).
II. General terms and conditions of purchase
A. Validity of terms and conditions of purchase
1. These terms and conditions of purchase (subsequently “TCP”) are an element of the purchase agreement between REZI Microfaserprodukte GmbH, Sägerstrasse 41, 6890 Lustenau, Austria (subsequently “REZI”) and the respective suppliers (subsequently “seller”). They only apply if REZI has concluded a purchase agreement on the buyer’s side. Otherwise, business transactions with REZI are subject to their general terms and conditions of business (general terms and conditions of sale and delivery).
2. Any regulations which differ to these TCP – particularly the general terms and conditions of business or terms and conditions of sale and delivery of the seller – as well as supplements only become a component of the contract if these are acknowledged by us in writing.
B. Offer and conclusion of contract
1. The offer is binding for at least 8 weeks unless stated otherwise by REZI. Orders from REZI are only legally binding if these are in writing and signed on behalf of the company. The written form is also fulfilled if the order is made by fax or electronically via e-mail. The compilation of offers to REZI, irrespective of the preparations which were necessary for this, are free of charge.
2. Indivisible complete services are agreed.
3. REZI has the right to withdraw from the contract upon payment of a forfeit sum (§ 909 General Civil Code) of 10 % of the price excl. VAT without stating any reasons for this. If the actual damage is less than this only this sum is to be paid.
4. Documents from REZI (plans, illustrations etc.) which belong to the order remain the property of REZI which reserves all copyright on these documents. If a purchase agreement is not agreed, these documents must be returned to REZI immediately.
C. Advertising – reference list
Advertising and publications referring to orders from REZI as well as the inclusion of REZI in a reference list of the seller, requires the prior written consent of REZI.
D. Transport costs and transport risk
The seller assumes the costs and the risk of the transport up to delivery of the goods behind the first door which can be locked at the REZI premises in Lustenau / at the agreed place of delivery (Incoterms 2010 - „DDP“). The risk of loss or damage is only assumed by REZI once the goods are delivered. The seller must take out transport insurance for the goods and must package these correctly. Any damages which arise from incorrect packaging before delivery to REZI will be assumed by the seller.
1. All services of the seller will be remunerated with fixed prices. The agreed fixed prices include all services which are required for contract fulfilment particularly including all possible licence fees, packaging, transport, insurance and unloading costs, public charges and fees as well as all social security contributions and expenses.
2. The prices are valid from place of installation/assembly and use and place of delivery (Incoterms 2010 - „DDP“). The REZI order number must be included on all correspondence relating to the order particularly invoices otherwise REZI is entitled to delay processing of these or in case of doubt deem these as not having been received. REZI is entitled to a discount of 3% if invoices are paid within 14 days of invoice receipt. REZI does not make advance payments. Unless agreed otherwise, payment limit is 30 days from receipt of invoice or a certificate which starts the payment deadline. In so far as acceptance of the deliveries and services of the seller is agreed, the seller is entitled to submit an invoice after successful acceptance; if only delivery transactions are involved, this can occur after the complete delivery.
F. Place of fulfilment and acceptance
1. Place of fulfilment for deliveries and/or services is, unless agreed otherwise, the company REZI in 6890 Lustenau, Sägerstrasse 41.
2. If the seller realises that there may be a delay with the delivery / service he must inform REZI of this delay and its probable duration immediately. This notification will not lead to exemption from the below outlined fine for breach of contract.
3. Price reduction in case of delay: if the seller is delayed, REZI is entitled to a price reduction of 0.5% of the total order value excluding VAT per day of the delay up to a maximum of 10 % of the total order value excluding VAT. This also applies if the seller makes a part delivery / renders part service after the agreed delivery and/or service date and this is also accepted by REZI.
G. Guarantee /liability
1. In the case of guarantee, REZI is entitled to determine the type of guarantee (improvement, exchange, price reduction or transformation).
2. § 377 of the Austrian Commercial Code does not apply.
3. Exclusion of liability as well as liability limitations of the seller particularly from the guarantee or damage compensation title are invalid for delivery transactions to REZI as buyer.
H. Court of jurisdiction and choice of law
1. Any disputes arising from the contract (with REZI) – including a dispute on the existence or non-existence of the contract – will be settled exclusively at the courts at the REZI headquarters (6890 Lustenau, Austria).
2. This contract is subject to the law of the Republic of Austria under exclusion of UN Convention on Contracts for the International Sale of Goods.
I. Cancellation and withdrawal from the contract
1. REZI is entitled to withdraw from the contract if there is an important reason, particularly if:
- the seller violates official regulations or infringes the provisions of these terms and conditions of purchase
- the seller has taken action particularly made agreements with other companies which are disadvantageous for REZI or which are contrary to morality or the competition principle
- the seller has directly or indirectly promised or given the REZI employees who are responsible for the conclusion of the contract benefits or threatened or caused disadvantages to these.
2. If one of the reasons stated in § 9.1 occurs, REZI is entitled to withdraw from either all of the unfulfilled part of the contract or individual parts of this.
3. If one of the reasons occurs which entitle withdrawal from the contract, REZI is entitled, after a written request to the seller and after granting a period of grace of 14 days (from assignment postmark) for the seller (although if there is a risk of delay, immediately) to order substitute performance upon the risk and cost of the seller. All costs and damages involved with this substitute performance are to be assumed by the seller. REZI can offset such sums against the seller’s payment demands.
4. If the seller has made agreements with other companies which are disadvantageous for REZI, contrary to morality or the competition principle (e.g. unauthorised price agreements etc.) the seller is obliged to pay REZI a no-fault contract penalty of €10,000 (ten thousand euros). The contract penalty is due once REZI learns of such unlawful agreements of the seller. To enforce the claim and the contract penalty, it is sufficient if REZI learns of the final judgement (relating to cartel / competition law) of the seller via a medium and which affects the period (even if only partly) of the business relationship with the affected seller with REZI. This does not affect REZI’s right to claim damages going beyond the contract penalty.
J. Other provisions
1. The offsetting of our claims with counterclaims of the seller of any kind is only permitted in so far as his counterclaims are undisputed or recognised by a final court.
2. The assigned order may not be forwarded, either in part or whole, to sub-contractors without our agreement