The following provisions apply to all deliveries and products/services provided by Texport Handelsgesellschaft m.b.H. and its subsidiaries and form part of the sales contract.

Our General Terms and Conditions (in their respective valid version) also apply to all follow-up business transactions without them needing to be explicitly mentioned or agreed upon again when said transactions are conducted.

We hereby object to any terms and conditions contained or referred to in any buyer confirmations, counter-offers or other communications from the buyer; deviating terms from the buyer shall only apply if we have agreed to them in writing.

The buyer shall only be permitted to transfer rights arising from legal transactions conducted with us with our express consent.

Our offers/quotations — in particular with regard to quantity, price, and delivery time — are always non-binding, unless expressly stated as binding.

Information contained in catalogues, brochures and similar are non-binding and only authoritative if they have been expressly confirmed by us in the order confirmation.

Any public authority or third-party licences/permits required for the fulfilment of an order must be obtained by the client, who must notify, indemnify and hold us harmless in this respect. We shall not be obliged to begin any work before such permits are granted in a legally binding fashion.

Upon request, prospective buyers must also promptly reimburse us for any reasonable time and materials expended for drafts, sketches, or samples created at the client’s request even if the anticipated contract is not awarded.

The contract is considered as having been entered into when we have sent the written order confirmation to the address provided by the client or actually performed the delivery. Modifications/additions to the contract require our written confirmation in order to be valid.

The recipient must inspect the contents of the order confirmation and provide notification within 7 days if there are discrepancies between it and the order he submitted, failing which the business transaction shall be carried out according to the contents of our confirmation.

Quoted prices shall become binding when we confirm them in writing upon specifying the scope the service/delivery. We may charge separately for deliveries or products/services which exceed this scope of the service/delivery.

Unless otherwise agreed in writing, all prices are in euros and do not include value added tax. All transport and packaging costs, freight and insurance fees, customs duties, fees and charges shall be borne by the customer. If the delivery agreed includes delivery of the service/products to an address specified by the buyer, the prices stated do not include unloading or carrying the products to a specific location.

The statutory value added tax shall be charged additionally at the prevailing rates. The customer will be responsible for paying any associated fees.

The prices listed apply “ex works” according to INCOTERMS 2010 and do not include the costs for transport, transport and packaging costs, freight and insurance fees, customs duties, fees and charges.

The prices are based on the costs at the time of publication. We reserve the right to adjust the prices if the order deviates from our overall quote or if the costs have changed by the time of delivery. If no specific prices are agreed when entering into a contract, the price applicable on the day of delivery or on the day the delivery is completed shall be charged. In the event that any additional fees become payable or if the agreed fees increase – in particular customs duties, levies, currency adjustments – between the time the contract is entered into and the delivery due to changes in legal norms, we reserve the right to increase the purchase price agreed upon accordingly. The same applies to inspection fees.

In particular, we reserve the right to invoice additional costs incurred due to any delays for which we are not responsible associated with the clarification of any technical or legal requirements concerning the delivery, or as may result from any overtime work, night work, or work on Sundays desired by the purchaser.

The delivery date will be specified in the order confirmation.

We reserve the right to deliver earlier than specified and to make and invoice partial deliveries.

Our delivery obligations shall always be subject to our receiving punctual and proper deliveries ourselves.

In cases of force majeure or a major or important workpiece belonging to us or one of our suppliers becoming unusable, we reserve the right to extend the delivery period to a reasonable extent without being in default or having to adjust the prices. Delivery problems due to force majeure or unforeseen events for which we are not responsible, such as breakdowns, strikes, lockouts, official decrees, subsequent loss of export/import options as well as our reservation to being supplied ourselves pursuant to section 5.3 above shall release us for the duration and scope of their impact from the obligation of complying with any agreed delivery or unloading times. The above shall also entitle us to withdraw from the contract without such entitling the purchaser to any compensation or other entitlements.

We will only store raw materials, semi-finished or finished products subject to prior written agreement and will charge separately for any such services. If a product that is ready for delivery is not dispatched within one month after invoicing for reasons outside our responsibility, or if its dispatch is delayed at the client’s request, our product/service shall be considered to have been rendered and we shall be entitled to put the product into storage at the client’s expense. The client must reimburse us promptly for the associated storage costs. This shall not affect the agreed payment terms.

Packaging made of paper or cardboard shall be charged at cost price and cannot be returned to us.

In cases where we fail to deliver on time, the following applies: A delivery delay demonstrably caused by gross negligence on our part entitles the client to delay compensation of half a per cent per full month of delay, but in total only up to a maximum of 3% of the invoice amount for the part of the delivery or product/service affected which cannot be used as a result of untimely delivery of a significant part, provided that the client has demonstrably suffered loss in this amount. We will not accept any claims for compensation from the client in excess of the above amount. If we exceed an agreed delivery or unloading time in the absence of a delivery problem pursuant to section 5.4, the buyer must grant us a reasonable grace period of at least 4 weeks in writing. If we then culpably fail to comply with this grace period, the buyer will be entitled to withdraw from the contract; however he is not entitled to assert compensation claims due to non-performance or delay, unless such failure is due to intent or gross negligence on our part.

The goods/products will always be transported uninsured, and the associated risk shall be borne by the buyer. This also applies to carriage-paid deliveries and regardless of the means of transport used. We will only take out transport insurance at the express request of the buyer. All associated costs shall be borne entirely by the buyer.

In the absence of any written agreements to the contrary, we shall decide the choice of delivery location, forwarding route, and means of transport at our best discretion, without assuming any liability for choosing the cheapest and fastest method of transport.

If the buyer provides the means of transport, he is responsible for on-time provision of the same. The buyer must notify us of any delays. Costs arising from this are to be borne by the buyer.

Our delivery obligations shall always be subject to our receiving punctual and proper deliveries ourselves. If we ourselves are not supplied punctually, fully, or properly even though we have entered into a contract with our upstream supplier for covering the needs of the buyer, we shall be freed of our delivery obligations and are permitted to withdraw from the contract. In cases where deliveries we are to be supplied with are at risk, we shall inform the buyer of this without delay.

The delivery deadline shall be considered to have been met if, upon its expiry, the delivery item has left our factory or, in the cases of direct deliveries, has left the factory of the upstream supplier or notification has been made of the readiness for dispatch. If a customer asks for an order to be changed or amended after having placed the same, the delivery period for that order will be extended accordingly.

Specified delivery and unloading times are always non-binding unless otherwise agreed in writing.

The responsibility for the use and the risk associated with the delivery passes to the client when the delivery item leaves our factory or our warehouse, or if stored as described in section 5.4. of the preceding provisions; this is independent of the payment terms agreed for the delivery or product/service.

Separate agreements on quality inspections or sample goods do not affect the provisions regarding the place of fulfilment and transfer of risk.

If the agreed delivery method is delivery on-call, we shall have the right to consider the goods as having been requested and to demand performance/provision of the product/service owed by the client one year after the order placement date.

All additional products/services that we have not included in the order confirmation and that are necessary for the fulfilment of the contract must be provided by the client at his own expense.

Material to be procured by the client, regardless of quantity or nature, must be delivered to us carriage-free. Our confirmation of receipt does not constitute a confirmation of the correctness of the nature and quantity of items delivered. For larger batches, the client must promptly reimburse us for the costs and storage fees associated with the counting and quality inspection at our request.

The client bears the full risk for any samples, documents, etc., handed over to and that are stored with us. The insurance for these goods, regardless of the hazard, is the exclusive responsibility of the client. We are indemnified against all liability for damage or loss of these items, regardless of the reason, unless we are culpable for the damage or loss due to gross negligence.

Unless special payment terms have been agreed in writing, the invoice amount (net price plus VAT) is due within 14 days from the date of invoice, with no deductions for expenses and discounts, with respect to which the invoice recipient consents to receiving our invoices by email until such time as we receive a written objection to the same.

In cases of partial billing, the corresponding partial amounts are due upon receipt of the relevant invoices. This also applies to additional amounts billed which arise due to subsequent deliveries or other agreements exceeding the original amount agreed, regardless of the payment terms agreed for the main delivery. If we provide larger quantities of goods within the context of the contract, it is hereby agreed that payment for the same shall be made immediately.

Payments are to be made on time by bank transfer without any deductions and free of charge to our paying agent in the currency specified on the invoice. The day we or our paying agent receives the funds shall be deemed the date of payment.

The client shall not be permitted to withhold payments due to warranty claims or other claims of any nature, or to offset them with counterclaims.

If the client is in default with payment or other products/services, in particular with licences/permits to be obtained or services to be provided in advance by the client, we shall be entitled to the following while reserving the right to assert other rights and claims:

a) postpone the fulfilment of our obligations until the outstanding payment or other product/service is rendered b) extend the delivery deadline by a reasonable period
c) demand immediate payment of the remaining outstanding purchase price (shortening the deadline)
d) charge a dunning fee of €40 as compensation for operating costs pursuant to Section 458 UGB (Corporate Code)
e) charge interest on default of 1.0% p.m. above the respective base interest rate starting from the payment deadline, as well as charge compound interest from the day of the goods’ handover, or
f) in the case the client fails to comply with a reasonable grace period, withdraw from the contract.

If the buyer no longer has ordinary business operations, in particular if his assets are to be seized, if a cheque or bill is being protested, or if payment is delayed or stopped, or if he submits an application for judicial or out-of-court insolvency proceedings, we shall be entitled to require immediate payment of all our claims from the business relationship, even if we have accepted bills or cheques. The same applies if the buyer is in default with his payments to us or other circumstances become known which cast doubt upon his creditworthiness. Furthermore, in such a case we shall be entitled to require advance payments or securities or to withdraw from the contract.

The buyer shall only be entitled to offset, withhold or reduce payment if the counterclaims he has asserted in this context have been established in a legally binding fashion or have been expressly recognised by us.

As part of our credit assessment, we may, at any time, require securities to be pledged to hedge existing or future claims and withhold deliveries until such securities are provided.

We shall retain ownership of the delivered goods until the purchase price has been paid in full. The customer shall bear the full risk for the reserved goods, in particular for the risk of damage, loss or deterioration.

In cases where the goods are altered, processed or combined with third-party items, our ownership shall extend to the new item. The customer is entitled to sell the delivered goods to other parties in the course of regular business operations. Until the full payment of the purchase price, the customer shall cede to us all claims and rights to securities he is entitled to from such a sale to third parties on account of payment. He shall undertake to record this cession in his books. In the event the customer is in default with payment, we shall be entitled to notify the new purchaser of the goods, the details of which the customer must disclose to us, of the cession and to demand that payment be made to us.

Any pledging or transfer by way of security of our delivered goods subject to retention of title in favour of third parties without our consent is prohibited. Acknowledgement of the balance of the account shall not affect the retention of title, and nor shall the submission of bills or cheques until they have been properly and actually cashed. If we need to exercise our rights associated with our retention of title and take back the goods, the credit note for the goods that are taken back based on the retention of title shall be issued subject to a reasonable price reduction that takes into account the storage duration, the wear, as well as other circumstances, but no less than 30% of the invoice value. The purchaser shall undertake to notify us in advance of filing for insolvency in a way that will allow us to take back any goods delivered subject to retention of title and that are our property.

In the case of a default in payment, we shall be entitled to secure the goods, whereby doing so shall not release the customer from the obligations of the sales contract, in particular to make payment. In cases where goods to which we retain the title to are seized by third parties, the customer must inform us of the same without delay and in detail. Similarly, the customer shall not be permitted to single out our goods in connection with any imminent insolvency debts while the retention of title is in effect. The goods delivered under retention of title must be stored properly and insured against all of the foreseeable risks that are associated with the customer’s ordinary business operations.

According to the following provisions, we shall, within the two-year warranty period, undertake to eliminate any defect in the delivery item which affects its functionality and that already existed at the time of delivery and which stems from a design error on our part, a defect in the material or the workmanship.

The warranty claims will only be accepted if the client provides written notification of the occurring defects without delay and has described them in detail. In particular, this also applies in the case of defects involving contracts for work. Defects affecting part of the delivery shall not entitle the buyer to complain about the entire delivery. If a defects claim is justified, we may, at our discretion, replace or rework the defective goods or the defective parts of the same.

Upon delivery to the agreed-upon destination and/or in the case of self-collection, the buyer must, upon its acceptance, immediately

a) inspect the goods with regard to quantity, weights and packaging and note down any complaints regarding these aspects on the delivery note or waybill and/or the notification of receipt and
b) at least by way of representative random sampling, perform a quality check, open the packaging to a reasonable extent for this purpose, and inspect the goods themselves with regard to external properties.

When submitting a complaint regarding any defects, the buyer must observe the following formal requirements and deadlines:

a) Written notification of defects must be submitted immediately upon receipt of the delivery and product/service, but no later than within 8 days; notification of hidden defects must be submitted within 3 days upon discovery, but no later than two weeks after delivery of the goods and/or their handover. The buyer must provide adequate reasons for the complaint and provide proof of the relevant defect.
b) The detailed complaint must reach the addressee by the deadlines mentioned above in writing, via fax or via email. We do not accept complaints made over the phone. Complaints submitted to trade representatives or agents shall not be taken into account.
c) It must be possible to clearly identify from the complaint the nature and scope of the alleged defect.
d) The buyer is obliged to keep the allegedly defective goods on standby at the inspection site so that we, our suppliers or experts commissioned by us may inspect the same.
e) Any goods for which we have not received any formally correct complaints within the deadlines given shall be considered to have been approved and accepted.

If a product/service is produced/rendered based on design specifications, drawings, models, samples and other specifications provided by the client, our liability shall only extend to those aspects of the production/service provision that we are responsible for. We provide no warranty for the sale of used items. If we agree to perform repairs or to make modifications or conversions, we only provide a warranty for the work performed. Minor technical changes as well as deviations from drawings and catalogues shall hereby be considered approved in advance.

Excluded from the warranty, even when a warranty is granted, are defects which are caused to our products due to overuse, negligent or improper handling, use of unsuitable materials, instructions from the client or third-party work performed on our products. We shall not be liable for damage caused by the actions of third parties, atmospheric discharge, surges and the effects of chemicals. Parts which are subject to natural wear and tear are excluded from the warranty. A warranty promise is to be understood as our taking responsibility for defects which occur after handover and within the agreed warranty period and that the customer complains about within this period.

The warranty shall immediately become null and void when modifications or repairs are made to the delivery item without our consent. Work and deliveries provided under the warranty do not extend the warranty period.

Discrepancies between the materials we have used and the specifications of the contract shall only constitute a defect if they significantly exceed the tolerances contained in the terms of delivery of the relevant supplier.

We shall only be liable for lightfastness, variability and discrepancies in colours to the extent that they stem from defects which were easily recognisable before the use of the affected materials upon proper inspection.

For contracts for work, the customer hereby releases us from the duty to warn pursuant to provisions in other T&Cs similar to Section 1168a ABGB (Civil Code) or other applicable legal regulations.

In the case of formally correct and factually justified complaints submitted by the deadline, the buyer shall be entitled to demand a reduction in price, but we also reserve our right to instead replace or rework the goods with the defect. We shall be entitled to make multiple rework attempts and replacement deliveries. We do not accept any conversion claims.

The buyer is not entitled to any other rights and claims. In particular, we are not liable to the buyer for compensation due to non- or inadequate performance, unless the goods we have delivered are missing a characteristic that we have expressly promised or if we have acted with intent or gross negligence.

Unless otherwise specified in these provisions, our liability in all cases shall be limited to damage that originated in the object of our delivery. Any other claims for compensation or reimbursement for costs, in particular due to the breach of obligations from the contract and illicit acts, or for consequential damages shall not be accepted unless we are being accused of gross negligence.

This does not apply if we are liable under law, e.g. under the Product Liability Law, in cases of intent, gross negligence, due to injury to life, limb or health, and in the case of a breach of essential contractual obligations. Compensation claims for the breach of essential contractual obligations, however, are limited to foreseeable damage typical for the contract, unless we have acted with intent or gross negligence or are liable due to injury to life, limb or health. The preceding provisions do not bring about a change in the burden of proof to the disadvantage of the buyer.

If our deliveries should be delayed due to gross negligence and despite having exhausted a grace period, the client is permitted to withdraw from the contract.

In addition to the cases in section 7.5., we are entitled to withdraw from the contract:

a) if the performance of the delivery, commencement or the continuation of the delivery of the product/service is either impossible or subject to further delays despite having granted a grace period for reasons within the customer’s responsibility
b) if the customer declines to provide advance payments at our request or to provide a suitable security before delivery for financial reasons
c) if the extension of the delivery deadline due to the circumstances specified in section 5.4. amounts in total to more than half of the delivery deadline, but no less than 6 months.

In the case of the aforementioned section 11.2., the customer may also withdraw from part of the contract only.

If judicial insolvency proceedings are initiated regarding the assets of our client or insolvency proceedings are declined due to the lack of cost-covering assets, we may withdraw from the contract without granting a grace period.

Without prejudice to our compensation claims, in the case of a withdrawal, we shall be entitled to payment for deliveries or products/services already rendered, as well as for the preparatory activities provided with regard to the contract, even if the contract was only partially fulfilled. Even if no delivery took place, we shall be entitled to reimbursement of the costs incurred for preparing it.

If the delivery is impossible, the buyer is entitled to demand compensation, unless we are not at fault for the impossibility. However, the buyer’s compensation claims are capped at 3% of the value of the part of the delivery that cannot be delivered due to the impossibility. This limitation does not apply if we are liable under law in cases of intent, gross negligence, due to injury to life, limb or health. This does not bring about a change in the burden of proof to the disadvantage of the buyer. The purchaser’s right to withdraw from the contract remains unaffected by this.

If unforeseeable events as described in section 5.4. significantly change the economic significance or the contents of the delivery or have a significant impact on our operations, the contract shall be amended accordingly in good faith. If this is economically not feasible, we are entitled to withdraw from the contract, whereby, if we wish to assert this right of withdrawal, we are to inform the buyer upon realising the implications of the event, even if an extension of the delivery deadline was initially agreed upon with the buyer.

We are entitled to print company or brand names as well as to affix logos on the products to be produced/delivered, even without express approval from the client.

We reserve all rights to the drafts, quotes, and projects we have used, as well as the associated drawings, dimensional drawings, cross-sections, descriptions, presentations and photos. Even if they are not from us, the client is not permitted to use such documents in a manner that exceeds the contents of the contract. In particular, they are not to be reproduced or made accessible to third parties. They are to be returned to us immediately upon our request.

The client shall undertake to indemnify and hold us harmless against all claims made by third parties arising from violations of copyright law, ancillary copyrights, other commercial proprietary rights or personal rights. In the event a legal dispute is initiated against us, we shall undertake to inform the client of the dispute. If the client does not join the proceedings as a co-plaintiff on our side, we shall be entitled to recognise the claim.

The export of certain goods and information may, for example, be subject to approval regulations due to the nature or intended use and/or final destination. The buyer shall strictly observe the relevant export regulations for the goods and information. In particular, pursuant to Regulation (EC) No 1207/2001, he shall provide all the necessary declarations and information for this purpose, allow inspections by the customs authorities, and procure the required official confirmations at his own expense.

Furthermore, the buyer shall in particular verify and ensure that no company or persons listed on the relevant EU or US lists (e.g. DPL or SDN) receive information or goods from us.

Orders or other declarations from the customer with legal effect may be sent using our electronic forms and via email, but need to be received by us in an error-free condition in order to be valid. The customer shall bear the risk for transmission errors – regardless of their cause.

In the event an error occurs in our data processing system, we reserve the right to immediately utilise suitable means (individual message, announcement on our websites) to revoke the validity of individual or time-limited declarations regarding legal transactions and to once again perform or request a valid transmission of these declarations.

The place of fulfilment for the delivery of the goods is the domicile of Texport Handelsgesellschaft m.b.H. in Salzburg. The same applies for payments unless a different paying agent is specified on the invoice.

For all direct and indirect disputes arising from this contract, the jurisdiction of the relevant competent ordinary court for Salzburg is hereby agreed upon. However, we are also entitled to file a suit at the domicile of the buyer or his subsidiaries.

The material law of the Republic of Austria shall apply exclusively, to the exclusion of the rules of private international law (e.g. IPRG, Rome I-VO, etc.) and the UN Convention on Contracts for the International Sale of Goods (CISG).

The unenforceability of individual provisions of these General Terms of Sale do not affect the enforceability of the remaining provisions. Unenforceable provisions shall be deemed as having been replaced by such enforceable provisions as are suitable for realising the economic purpose of the invalid provision to the greatest extent possible.

The provider and the customer are bound to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR), as well as any other legal confidentiality obligations.

Texport Handelsgesellschaft m.b.H. only processes the necessary personal data for the purposes of contractual fulfilment. For detailed data protection information (data protection notice) pursuant to Art 13 ff GDPR, please refer to our website at: https://www.texport.at/de/datenschutz