I. Scope of application
The deliveries, services and offers of Format Werk GmbH (hereinafter referred to as Format Werk) are exclusively based on these General Terms and Conditions of Sale and Delivery. Amendments and supplements to these terms and conditions of sale and delivery as well as recognition of the customer's terms and conditions will not be recognised by Format Werk unless there is express written confirmation by Format Werk. Contract fulfilment actions by Format Werk are not regarded as agreement to conditions which deviate from these General Terms and Conditions of Sale and Delivery. These General Terms and Conditions of Sale and Delivery also apply as a framework agreement for all further legal transactions between the contracting parties.
Quotations from Format Werk are subject to change. Deviations require written confirmation.
of contract A contract offer from a customer requires an order confirmation. The dispatch of the goods ordered by the customer also effects the conclusion of the contract. Subsidiary agreements as well as promises made by representatives require written confirmation in order to be legally effective.
The prices apply ex works or ex warehouse of Format Werk excluding value added tax. The prices are based on the costs at the time of the initial price quotation. If the costs increase up to the time of delivery, Format Werk is entitled to adjust the prices accordingly if nothing to the contrary has been agreed.
V. Terms of payment, interest on arrears
If no terms of payment have been agreed, the following shall apply: payable net within 8 days of the invoice date. Discount deductions require a separate agreement. In the event of default in payment, including partial payments, any discount agreements shall also cease to apply. Payments by the customer are only deemed to have been made at the time of receipt on the business account of Format Werk. Any acceptance of bills of exchange or cheques shall always be on account of payment. All interest and expenses in connection with this shall be borne by the customer. If the customer is in arrears with payment, Format Werk is entitled to demand interest on arrears at the rate of 10% p.a. or at the statutory rate or compensation for the actual damage incurred. Format Werk is furthermore entitled to demand compound interest in the event of default in payment. Furthermore, the customer undertakes to reimburse all costs, expenses and cash outlays arising from the delay in payment, from whatever title they result, and arising from the pursuit of the claims. Offsetting against claims of Format Werk is excluded.
VI. Withdrawal from the contract
In the event of important reasons, such as in particular bankruptcy of the customer or rejection of bankruptcy for lack of assets as well as in the event of complete or partial default of acceptance or payment by the customer, Format Werk is entitled to withdraw from the contract after setting an appropriate period of grace. In the event of default of payment, Format Werk is furthermore entitled to retain outstanding deliveries or services and to demand advance payments or securities or to withdraw from the contract after setting an appropriate period of grace. In the event of withdrawal, Format Werk has the choice, if the customer is at fault, to demand a lump sum compensation amounting to 15% of the gross invoice amount or compensation for the actual damage incurred. In the event that the customer withdraws from the contract or requests its cancellation without being entitled to do so, Format Werk has the choice to insist on the fulfilment of the contract or to agree to the cancellation of the contract. In the latter case, the customer is obliged, at Format Werk's discretion, to pay a flat-rate compensation amounting to 15% of the gross invoice amount or to compensate for the actual damage incurred.
VII Delivery, transport, default of acceptance
The sales prices do not include any costs for delivery, whereby, at the request of the customer, these services will be provided or organised by Format Werk against separate payment. For transport or delivery, the actual costs incurred including a reasonable overhead surcharge, but at least the freight and carriage charges applicable or customary on the day of delivery for the selected type of transport will be invoiced. The minimum order value per order and/or minimum delivery value per delivery will be agreed separately in writing between Format Werk and the customer. In addition, all necessary order and/or delivery details for a smooth processing of the order and/or delivery, such as e.g. determination of the order day, determination of the delivery day etc., will be determined in writing between Format Werk and the customer. In the event that the customer has not taken delivery of the goods as agreed (default of acceptance), Format Werk is entitled, after setting an appropriate period of grace to no avail, either to store the goods, for which a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof will be charged, or to store the goods at the expense and risk of the customer with an authorised tradesman. In this case Format Werk is furthermore entitled to insist on fulfilment of the contract or to withdraw from the contract after setting an appropriate period of grace. Deliveries are in any case made for the account and at the risk of the customer.
VIII. Delivery period
Information from Format Werk about delivery dates is in principle non-binding. Format Werk is only obliged to carry out the performance when all obligations on the part of the customer, which are necessary for the performance, have been fulfilled. Format Werk is entitled to exceed the agreed dates and delivery periods if there is a justified reason. Force majeure or other unforeseen obstacles in the sphere of the customer or his suppliers release Format Werk from adherence to the agreed delivery time.
IX. Place of fulfilment and transfer of risk
Use and risk are transferred to the customer with the departure of the delivery ex works or ex warehouse, irrespective of the pricing agreed for the delivery (e.g. carriage paid, CIF, etc.). This shall also apply if the delivery or transport is carried out or organised and managed by the seller. The place of performance is the place of business of Format Werk.
X. Changes to the performance and delivery obligation
Minor changes or other changes which are reasonable for the customer to the performance or delivery obligation of Format Werk are deemed to have been approved in advance by the customer. All goods are only delivered in original packaging. Orders which deviate from this will be adjusted by Format Werk. For custom-made products, deviations of +/- 10% are deemed to be approved by the customer.
XI. Warranty, obligation to examine and give notice of defects
If a defect occurs, the customer can initially only demand the improvement or replacement of the goods, unless the improvement or replacement is impossible or would involve a disproportionately high effort for the customer. Format Werk undertakes to carry out the improvement and the exchange after handover of the goods within a reasonable period of time. If both the improvement and the replacement are impossible or would involve a disproportionately high effort for Format Werk, the customer has the right to a price reduction or, if it is not a minor defect, the right to cancellation. Warranty claims must be asserted in court within 6 months of delivery of the goods. If the customer claims the existence of a defect, any resulting claims, in particular for warranty or damages, can only be asserted if the customer proves that the defect was already present at the time of delivery of the goods; this also applies within the first 6 months after delivery of the goods. In addition, the customer must inspect the goods within the meaning of § 377 f of the German Commercial Code (HGB) immediately after delivery, but within 6 working days at the latest. Defects discovered in the course of such inspection shall be notified in writing without delay, at the latest, however, within 3 working days after their discovery, stating the type and extent of the defect. Hidden defects shall be notified in writing without delay, but no later than 3 working days after their discovery. If a notice of defect is not made or not made in time, the goods shall be deemed to have been approved. Claims in accordance with § 933 b ABGB (Austrian Civil Code) shall become statute-barred 6 months after delivery of the goods.
Except for personal injury, claims for damages by the customer are excluded if Format Werk or a person for whom Format Werk is responsible has not caused the damage intentionally or through gross negligence. The limitation period for claims for damages is 3 years from the transfer of risk.
XIII Product liability
Recourse claims in the sense of § 12 of the Product Liability Act are excluded, unless the person entitled to recourse proves that the fault was caused at least in the sphere of Format Werk and was caused by gross negligence on the part of Format Werk.
XIV. Retention of title
All goods are delivered under retention of title and remain the unrestricted property of Format Werk until payment has been made in full (including interest and costs). The assertion of the reservation of ownership by Format Werk does not represent a withdrawal from the contract by Format Werk. If the goods still owned by Format Werk are seized or confiscated, the customer undertakes to inform Format Werk immediately. The customer bears the full risk for the goods subject to retention of title, in particular for the risk of destruction, loss or deterioration.
XV. Assignment of claims
In the case of delivery under retention of title, the customer, Format Werk, already now assigns his claim against third parties, insofar as these arise through the sale or processing of the goods, until the final payment of the claim of Format Werk. This assignment is to be made clear to the respective customer in the business books, delivery notes, invoices, etc. The customer is obliged to pay Format Werk in full. If the customer is in arrears with his payments, the sales proceeds received by him are to be segregated and the customer has or holds these only in the name of Format Werk.
The customer is not entitled to withhold payments due because of existing guarantee or warranty claims or other complaints.
XVII Jurisdiction and applicable law
For possible disputes, the local jurisdiction of the competent court at the place of business of Format Werk is expressly agreed. Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
XVIII. Data protection and change of address
The customer gives his consent that the personal data contained in the sales contract may be stored and processed by Format Werk with the aid of automated systems in fulfilment of the contract. The customer is obliged to inform Format Werk of changes to his residential or business address as long as the legal transaction which is the subject of the contract has not been fulfilled by both parties. If the notification is omitted, declarations shall be deemed to have been received even if they are sent to the address last notified.
XIX Final Provisions
For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide for other provisions. If individual provisions of these terms and conditions are or become invalid or ineffective, this shall not affect the validity of the remaining provisions. The customer expressly waives the right to contest the concluded terms and conditions of sale and delivery, as whatever the reason, also on the grounds of reduction by more than half of the value of the goods as well as on the grounds of error. Status: 09.10.2012 The latest version of our Terms and Conditions of Sale and Delivery can be found online at www.formatwerk.com/AGB.