General Terms and Conditions („GTC“) of GEOtec Zeichen- u. Kunststofftechnik GmbH
§ 1 – GELTUNGSBEREICH
1.1 These General Terms and Conditions of Sale and Delivery (GTCSD) shall apply to all sales transactions between GEOtec and its business partner. GEOtec’s General Terms and Conditions for Work Orders shall apply to work orders. Any general terms and conditions of the business partner, insofar as they deviate from these GTSD or from amendments and supplements confirmed in writing by GEOtec, are hereby expressly waived. Deviations from these GTSD can only be agreed in writing.
1.2 These GTCSD shall also apply to all future business transactions until GEOtec issues new GTCSD, even if these are concluded without reference to the GTCSD.
§ 2 – ORDER, DELIVERY, RISK
2.1 Offers from GEOtec are non-binding. The contracts for the orders of the business partner shall only come into effect upon dispatch of a written order confirmation or delivery of goods by GEOtec. In the case of orders, the business partner shall be bound for ten days from receipt of the order by GEOtec. The right to prior sale is reserved. The dimensions, weights, illustrations, descriptions, etc. stated in GEOtec’s catalogs, brochures and other documents or on the Internet are only approximate; all information is provided without guarantee. GEOtec reserves the right to make changes to the goods ordered by the business partner that are attributable to improvements in technology or legal requirements (in particular statutory or case law) during the delivery period, provided that these changes are reasonable for the business partner. GEOtec shall not be obliged to inform the business partner of any changes outside of the written order confirmations.
2.2 If the order confirmation deviates from the business partner’s order, the business partner must object in writing without delay, but at the latest within seven calendar days of receipt of the order confirmation. Otherwise, the contract shall be concluded on the terms stated in the order confirmation.
2.3 Unless expressly agreed otherwise, the goods shall be deemed to be sold „ex works“ (EXW). GEOtec shall make the goods available at its headquarters A-6300 Wörgl or at one of its branch offices or affiliated companies at its own discretion or, in the case of delivery orders, shall deliver (ship) from the aforementioned locations. Partial deliveries by GEOtec are permissible. The INCOTERMS shall apply in their currently valid version.
2.4 Delivery deadlines specified by GEOtec shall always be subject to change and shall be adhered to as far as possible, in particular in the event of operational disruptions, strikes, public unrest, lockouts, complete or partial shutdown of the delivery plant, in the event of war, in the event of an official order or in cases of force majeure, the delivery deadline shall be interrupted for the duration of the disruption and the elimination of the operational consequences. Each of these events entitles GEOtec and the business partner to withdraw from the contract without any obligation to pay compensation if delivery deadlines are extended by more than four weeks as a result.
2.5 If collection of the goods by the business partner is agreed, the risk shall pass to the business partner upon expiry of the agreed collection period or collection date. If the goods are delivered (shipped), the risk shall pass to the business partner as soon as the delivery (shipment) has been handed over to the person carrying out the transportation. If shipment is delayed at the request of the business partner, the risk shall pass to the business partner upon notification of readiness for shipment.
2.6 If a specific time or a specific deadline has been agreed for delivery by GEOtec, default shall only occur after a reminder has been issued and a grace period of at least six weeks has expired without result if the date or deadline is exceeded. The business partner shall only be entitled to withdraw from the contract or to claim damages after the occurrence of default and after the fruitless expiry of a further reasonable grace period set by GEOtec.
2.7 Unless expressly agreed otherwise in writing, the delivery period shall commence on the latest of the following dates: a) Date of the order confirmation. b) Date of fulfillment of all technical, commercial and financial requirements incumbent on the business partner. c) Date on which GEOtec receives an advance payment to be made before delivery of the goods and/or a letter of credit to be issued is opened.
2.8 Deliveries of goods outside the European Union shall only be made by separate written agreement.
§ 3 – PRICES
3.1 The amount of the prices shall be shown in the respective valid GEOtec price list. All prices are exclusive of VAT. All prices are subject to change and apply net from the loading point specified by GEOtec. The prices do not include freight, packaging, transport insurance and VAT, which will be charged separately.
3.2 Prices shall be calculated at the price valid on the day the contract is concluded (§ 2.1). Price changes are permissible if there are more than six weeks between the conclusion of the contract and the agreed delivery date. Changes to the producer prices/works prices/list prices of GEOtec’s suppliers shall entitle GEOtec to change the prices accordingly even after conclusion of the contract or order.
3.3 GEOtec reserves the right to make the acceptance of orders dependent on minimum order values (in any case EUR 2,500.00) or minimum packaging units or to charge small quantity surcharges, in particular also in permanent business relationships.
3.4 Any agreed special services, such as the affixing of the business partner’s advertising materials, special packaging or delivery orders, shall be invoiced additionally.
§ 4 – PAYMENT
4.1 Invoices shall be payable immediately upon receipt, at the latest within 30 days of the invoice date, without deduction. GEOtec shall be entitled to make deliveries dependent on advance payments (cash in advance).
4.2 Payments shall be made on time if they are received by GEOtec in cash or irrevocably credited to its account on the due date or on the last day of the payment period.
4.3 The business partner shall be in default of payment automatically and without reminder upon expiry of the payment deadline.
4.4 If the business partner is in arrears with even one payment, GEOtec shall be entitled to a) charge reminder fees in the amount of EUR 40.00 net for each (own) reminder, b) charge all costs incurred for collection steps by third parties (lawyer’s fees or costs of debt collection agencies) in accordance with the applicable lawyer’s tariff or in accordance with the provisions of the Collection Fees Ordinance. c) to offset payments first to cover accrued costs, then to cover default interest incurred and then to the oldest debt (any payment defaults by the business partner are hereby agreed to be irrelevant) d) without prejudice to the right to assert further damage caused by default, to demand default interest at the statutory rate (this interest rate shall be set correspondingly higher if GEOtec itself has to bear a higher interest rate), e) to claim a reasonable extension of the delivery period, whereby the period of default in payment shall in any case be a reasonable extension period (this provision shall apply to cases in which the delivery period would have already begun before full payment was received on the basis of an agreement to this effect, for the basic start of the delivery period see § 2. 7), f) to withhold further deliveries, g) if payment in several purchase price installments has been agreed, to declare due the entire outstanding balance of the purchase price (loss of deadline), h) to withdraw from the contract, including any related ancillary agreements, if a reasonable grace period is not complied with and to assert any claims for compensation.
4.5 GEOtec shall be free to charge the business partner for all costs incurred in connection with the outstanding liability.
4.6 Offsetting due to any counterclaims is only permitted with counterclaims of the business partner recognized by GEOtec or legally established and in the event of GEOtec’s insolvency. Business partners who are consumers within the meaning of the Consumer Protection Act (hereinafter referred to as „KSchG“) are also entitled to offset counterclaims that are legally related to the business partner’s liability.
4.7 The withholding of payments due to any counterclaims shall only be permitted due to counterclaims of the business partner that are recognized by GEOtec or have been legally established and in the event of GEOtec’s insolvency. However, business partners who are consumers within the meaning of the Austrian Consumer Protection Act (KSchG) shall be entitled to the statutory rights of retention (including the right to refuse performance pursuant to Section 1052 ABGB) without restriction.
§ 5 – WARRANTY
5.1 The statutory warranty rights of business partners who are consumers within the meaning of the KSchG shall remain unaffected. The provisions of § 5.2 to § 5.6 shall therefore only apply to them insofar as they must also notify GEOtec in writing of any defects that occur in order to claim warranty rights.
5.2 The business partner shall inspect the goods immediately upon receipt. GEOtec must be notified immediately in writing of any recognizable defects. Defects which cannot be discovered even after careful inspection or which only become apparent later shall be reported to GEOtec in writing immediately after their discovery. The business partner shall bear the risk of receipt of the notification of defects; if this is not received by GEOtec, it shall therefore be deemed not to have been made. If the business partner fails to comply with the inspection and notification obligations under this paragraph in a timely manner, the goods shall be deemed approved and the business partner can no longer assert any claims due to the defect (in particular not from warranty, damages and error).
5.3 If there is a defect, GEOtec shall be entitled to subsequent performance by remedying the defect or delivering a defect-free item (replacement delivery). GEOtec shall be entitled to choose between rectification of the defect and replacement delivery. GEOtec’s right to refuse the rectification of defects or replacement delivery if the legal requirements are met (cf. e.g. § 932 para. 4 ABGB) shall remain unaffected.
5.4 However, each contractual partner shall be entitled to terminate the contract (rescission), unless the defect is minor, or to demand a reduction of the purchase price if the subsequent performance fails, in particular is impossible or GEOtec does not succeed within a reasonable period of time, is refused by GEOtec or is culpably delayed by GEOtec.
5.5 The business partner shall give GEOtec the necessary time and opportunity to carry out the subsequent improvements or replacement deliveries, otherwise GEOtec shall be released from liability for defects.
5.6 There shall be no warranty claim for insignificant defects. Defects in part of the delivery shall not entitle the customer to complain about the rest of the delivery.
5.7 All claims for defects – except those due to injury to life, limb and health or due to gross negligence on the part of GEOtec or its vicarious agents – shall become time-barred twelve months after delivery of the goods. Warranty claims can only be asserted by the respective business partner. Warranty claims shall not prevent the purchase price claim from falling due.
5.8 GEOtec may demand from the business partner that the defective part is sent to an address specified by GEOtec at GEOtec’s expense, or – at GEOtec’s discretion – that the business partner keeps the defective part or the goods ready and GEOtec or a third party commissioned by GEOtec carries out the rectification of defects or the replacement directly at the business partner’s premises.
5.9 Normal wear and tear or normal wear and tear of the goods shall not justify a warranty claim, and express reference is made to the operating, usage, care and cleaning instructions enclosed with the goods. GEOtec accepts no liability for damage caused by deviating operation, use, cleaning and/or care.
5.10 GEOtec may refuse to repair or replace the goods as long as the business partner has not fulfilled its payment obligations to the extent that corresponds to the defect-free part of the delivery provided, if the defect-free part or the goods are of interest to the business partner in themselves (e.g. in the case of independent usability). This provision shall not apply to consumers within the meaning of the Consumer Protection Act, for whom the statutory provisions shall apply.
5.11 GEOtec assumes no liability for the fulfillment of special regulations in the country of destination.
5.12 Claims for damages and other claims for compensation by the business partner due to a defect shall be governed by §6 of these GTSD.
§ 6 – LIABILITY, COMPENSATION FOR DAMAGES
6.1 The provisions of the Product Liability Act shall apply without restriction.
6.2 Any liability of GEOtec for any damages shall be excluded by mutual agreement, unless GEOtec is proven to have acted with intent or gross negligence in the breach of main contractual obligations. This shall also apply in particular to consequential damages and loss of profit, especially in the event of delayed or defective delivery or non-delivery. The business partner’s right to warranty shall remain unaffected in accordance with § 5.
6.3 Insofar as GEOtec’s liability is excluded or limited, this shall also apply to the personal liability of GEOtec’s employees, representatives and vicarious agents..
6.4 GEOtec shall not assume any warranty or liability for unauthorized modifications to products by the business partner or third parties. Furthermore, GEOtec shall in particular not assume any warranty for errors that are attributable to improper operation. Insofar as GEOtec is liable for damages, GEOtec shall be entitled to release itself from all claims by assigning all claims of GEOtec against a liability insurer to the business partner.
6.5 The risk of transportation shall be borne by the business partner, unless expressly agreed otherwise (cf. § 2.5).
§ 7 – RETENTION OF TITLE
7.1 The goods shall remain the property of GEOtec until full payment has been made. The retention of title shall also be valid vis-à-vis the forwarding agent to whom the goods are handed over at the request of the business partner or at the instigation of GEOtec.
7.2 The business partner shall only be entitled to resell the goods prior to full payment after obtaining written consent from GEOtec. The authorization to resell shall automatically lapse if the business partner is in default of payment or has suspended payments. The business partner shall not be authorized to dispose of the goods subject to retention of title other than as described above, in particular to pledge them or assign them as security, until payment has been made in full. Interventions by third parties in the property of GEOtec as well as seizure of the goods subject to retention of title must be averted by the business partner. The business partner shall be obliged to point out GEOtec’s ownership. The business partner must inform GEOtec of this immediately in writing.
7.3 GEOtec shall be entitled to demand the immediate surrender of the delivered but not yet fully paid goods if the business partner does not meet its payment obligations punctually and in full or if insolvency proceedings are applied for or opened against the assets of the business partner or if bankruptcy proceedings are dismissed due to a lack of assets to cover costs or if the business partner effectively ceases its payments or approaches its creditors due to the conclusion of an out-of-court settlement.
7.4 In the event of resale before full payment of the goods (see § 7.2 above), the business partner hereby assigns to GEOtec the purchase price claim to which it is entitled against the buyer as well as all claims with ancillary rights to which it is entitled from the resale and notes this assignment in its books. The assigned claims shall serve to secure the claims according to § 7.1. The business partner shall inform GEOtec of the sale of the goods to third parties for the purpose of payment to GEOtec within seven days of being requested to do so and shall provide GEOtec with the information and documents necessary to assert its rights within the same period. GEOtec shall be authorized to inform the third-party debtors of the assignment at any time.
7.5 The taking back of the goods by GEOtec shall not be deemed a withdrawal from the contract unless this is agreed separately in writing. GEOtec’s right to claim damages for non-performance shall remain in force even if the goods sold subject to retention of title are taken back. Until the retention of title expires, the buyer shall be deemed to be the fiduciary custodian of the goods sold subject to retention of title. The costs arising from the assertion of GEOtec’s rights from the retention of title shall be borne by the buyer.
§ 8 – INTELLECTUAL PROPERTY, PROHIBITION OF IMITATION
8.1 The business partner undertakes to sell GEOtec’s goods exclusively under the name and trademark specified by GEOtec, unless they are „private label products“ manufactured on behalf of the business partner.
8.2 The business partner undertakes to refrain from imitating (reproducing) goods distributed by GEOtec in whole or in part and/or making imitations available to third parties, whether in identical or modified form. This obligation or this prohibition of imitation shall apply in any case irrespective of whether GEOtec can invoke the respective industrial property rights.
8.3 Furthermore, the business partner undertakes to refrain from making any changes to the goods distributed by GEOtec.
8.4 The business partner undertakes neither to reproduce texts, sketches, drawings, images, photographs and other content originating from and/or used by GEOtec nor to make them available to third parties, unless they are materials clearly intended by GEOtec for general distribution (e.g. advertising catalog).
§ 9 – PLACE OF JURISDICTION AND FINAL PROVISIONS
9.1 Amendments, supplements and collateral agreements to these GTCSD as well as assurances of any kind must be made in writing to be effective. This also applies to any agreement to waive this formal requirement.
9.2 Should individual provisions of these GTCSD or the contracts supplemented by them be invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the invalid provision shall be replaced by a new provision that corresponds or comes closest to the economic purpose of the invalid provision.9.3 The business partner shall not be entitled to offset counterclaims against claims by GEOtec or to withhold payments with reference to defects. The business partner may only offset against claims expressly recognized by GEOtec or legally established claims or assert a right of retention.
9.4 GEOtec shall store and process the name, address (postal address, e-mail address, telephone and possibly fax number) and, in the case of direct debit, also the account data of the business partner. Personal data of the business partner shall only be passed on to the extent that this is necessary for the fulfillment of this contract and within the framework of the provisions of the Data Protection Act.
9.5 These GTCSD and the contracts supplemented by them are subject to Austrian law to the exclusion of the UNCITRAL Sales Convention (= „UN Sales Convention“ / „CISG“ / „Vienna Sales Convention“) and to the exclusion of the conflict of law rules of private international law and Rome I.
9.6 For all disputes arising from the contractual relationship, if the business partner is an entrepreneur, a legal entity under public law or a special fund under public law, or has its place of residence or business headquarters outside Austria, the court with subject-matter jurisdiction for A-6300 Wörgl, Tyrol, Austria, shall have exclusive jurisdiction. However, GEOtec shall also be entitled to sue the business partner at the latter’s place of business. The place of performance shall be A-6300 Wörgl, Tyrol, Austria.
GEOTEC Zeichen- und Kunststofftechnik GmbH Wörgl, December 2023