GENERAL TERMS AND CONDITIONS FOR PURCHASE OR DELIVERY OF GW COSMETICS GMBH
§ 1: General Remarks
- These terms and conditions (the “Terms”) shall exclusively apply to all contracts in connection with purchases and deliveries between GW Cosmetics GmbH (“GWC“), Achauerstraße 49a, 2333 Leopoldsdorf, FN 149362a (registered at the Companies Register at the Court of Korneuburg) and Purchasers.
- General Terms of the Purchaser shall never apply.
§ 2: Conclusion of Contracts
- Products have to be ordered by the Purchaser in writing, via e-mail or fax. Every order must contain the article number and the composition number of the respective product. Order forms must be used if available.
- None of the information given by GWC on their website or in any other public form shall be deemed a legally binding offer to enter into a contract according to the Austrian Civil Code (“Allgemeines Bürgerliches Gesetzbuch” – “ABGB”). Instead it is a non-binding invitation to potential purchasers to submit an offer for the conclusion of a contract.
- Contracts between GWC and the Purchaser become binding as soon as GWC has accepted the Purchaser’s offer in written form. In case the written acceptance differs from the offer, the text of the former shall be binding, if the Purchaser does not object within seven days after its receipt.
§ 3: Delivery
- GWC shall perform within the period of time stated in the written acceptance or, if no such period is agreed upon, within the standard periods of time.
- GWC shall not be held liable if the exact amount and weight of the delivered products differ slightly (up to 5%) from the confirmation of order.
- Whether the products are in accordance with the contractual provisions shall be determined by the amount and weight of the products as calculated at the place where GWC stores them.
- In case of delay of payment or any other substantial violation of contractual obligations (concerning a particular or any other order) by the Purchaser GWC shall be entitled to refuse performance.
- GWC delivers ex Works (EXW) Leopoldsdorf according to INCOTERMS 2010. The Purchaser shall pick up the products within one week after notification. In case of delay, GW is entitled to charge the Purchaser storage costs of € 10,00 plus VAT per day and pallet.
§ 4: Terms of Payment
- Unless agreed otherwise, invoices are payable in full within 14 days after the invoice date.
- In case of delay of payment GWC is entitled to charge default interest of 12 % per year without a prior reminder.
- Moreover, in case of delay of payment GWC is – irrespective of charging default interests – entitled to withdraw from the contract after granting an additional respite of seven days, to demand a security deposit for all contracts that have not been completely fulfilled yet, and to demand advance payments for other due deliveries at own discretion.
§ 5: Retention of Title
- All goods delivered by GWC shall remain GWc’s property until all of GWC’s claims arising from the commercial relationship with the Purchaser have been paid in full. The Purchaser shall return goods promptly at his own expense if he does not or does not attend fully to his duties of payment. The Purchaser shall bear all risks of destruction or deterioration of goods to which GWC retains title. Unless agreed otherwise, an exercise of the rights under this clause by GWC shall not include a withdrawal from the contract unless explicitly stated otherwise.
- The Purchaser shall bear full costs related to the exercise of the retention of title and the return of goods. If a third party claims goods to which GWC retains title from the Purchaser.
- The Purchaser shall immediately notify GWC and carry all arising costs, in particular costs related to the exercise of the retention of title. The Purchaser hereby assigns all claims arising from a resale or manufacturing of goods to GWC who accepts the assignment.
- This assignment shall cease as soon as the Purchaser has paid the full invoice amount of the respective individual contract. For this purpose, the Purchaser shall inform GWC of the name and address of his customers and notify them of the assignment. The assignment shall be registered in the Purchaser’s accounting records, at shipping orders and invoices.
§ 6: Packaging
- The Purchaser shall pay the full price for the packaging used for the goods. GWC will accept the return of packaging within six months after billing if it is in clean condition. If the packaging is returned in time and is still in usable condition the Purchaser shall receive a credit note on the price paid by him. GWC will not accept the return of packaging which is not in the same usable condition at time of purchase(e.g. because of refilling with other products).
- Original packagings are subject to a license agreement with ARA which exempts companies from their obligations under the Austrian Packaging Ordinance. These packagings will not be accepted for return by GWC.
§ 7: Obligation to purchase
- If it is agreed that the Purchaser is under an obligation to purchase a certain quantity of goods within a certain period of time and the Purchaser fails for whatever reason to purchase the whole stipulated quantity, GWC is entitled
a. to withdraw from the contract in full or in part after granting an additional respite,
b. to transfer the remaining quantity to the next period or
c. to dispose the goods on the open market and to charge the Purchaser any difference due to a loss and all costs and expenses caused by disposal.
- GWC is entitled to charge the Purchaser adequate storage costs from the time of delay.
§ 8: Goods provided by the Purchaser
- In case it is agreed upon that GWC shall work or process goods provided by the Purchaser, GWC shall only carry out this work if the Purchaser hands over a valid certificate of analysis by the original manufacturer.
- If GWC works or processes goods provided by the Purchaser despite the fact that the Purchaser has failed to hand over the abovementioned certificate, GWC shall not be held liable for the result of its work or any damage resulting from it.
- If the goods provided by the Purchaser are soiled, GWC shall be entitled to refuse the processing of those. In this case GWC will send the goods back to the Purchaser at his costs.
- If the Purchaser hands over packages or barrels to GWC for processing, GW is only obligated to inspect those for such defects that can be easily detected by a visual examination. Unless agreed otherwise, GWC is not obliged to carry out a more detailed inspection.
§ 9: Intellectual Property Rights
- GWC shall be the holder of all intellectual property rights on compositions created by GW for the Purchaser.
§ 10: Liability
- In case GWC fails to fully comply with the contractual provisions it shall only be held liable within the boundaries of mandatory statute law. Any warranty obligations are fulfilled at GWC’s own discretion by correction, exchange or reduction of price. The Purchaser has to proof that specific defects were inherent at time of delivery. The warranty period is 12 months from delivery.
- The Purchaser shall notify GWC in writing of any defects of the products within eight days after receipt, in case of concealed defects within three days after discovery, otherwise GWC shall not be liable. Notice of defects has to be issued in due time including details to type and scope of the defects, otherwise the notice of defects is invalid and the delivered goods are accepted.
- The right of avoidance on account of mistake due to defects is excluded.
- GWC shall only be held liable for willful intent or very gross negligence. Claims for damages come under the statute of limitations within 6 months from knowledge of damage and damaging party, but in any case after 18 months of delivery.
- A liability for consequential damages, including lost profits, is excluded.
- For delay of delivery based on force majeure, engine breakdown and/or unforeseen material shortage, GWC shall not be held liable.
- Compensation claims from the title of product liability are excluded, except the claimant proves that the error was caused at least under gross negligence in the sphere of GWC.
§ 11: Standard of Care
- GWC and the Purchaser shall exercise their contractual duties with the diligence of a prudent businessman.
§ 12: No Set Off of Claims
- Offsetting against claims of GWC with counterclaims, of any kind whatsoever, is prohibited.
§ 13: Applicable Law, Jurisdiction
- These terms and conditions, including the question of their formation, shall be governed by Austrian law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods as well as conflict rules referring to foreign law are excluded. Contract language is German. In case of differences concerning the interpretation of an existing bilingual or multilingual agreement, which was concluded between GWC and other parties, only the German version is binding.
- Legal disputes arising from or connected to this agreement have to be brought exclusively at the courts having subject-matter and local jurisdiction in 1010 Vienna/Austria. GWC has also the right to claim at the place of general jurisdiction of the other party.
§ 14: Final Provisions
- To the extent a part or parts of these terms and conditions are rendered void, the contract and the remaining parts of these terms and conditions shall not be affected. The parties agree that the void part or parts shall be replaced by conditions that are economically equal or equivalent.
- Any act or omission of one party does not present a relinquishment of rights, unless such is declared specifically in writing.
- The Purchaser agrees to receive advertisement and information about GWC and GWC products via e-mail. He takes note of the fact that his data necessary for the transaction is recorded and processed by EDP support. Amendments pf this GTC relating to customer agreements require written form.
- For contractual interpretation differences of a bilingual or multilingual contract the German Version shall always prevail. This also applies to the German version of these GTC.
GENERAL TERMS OF PURCHASE OF GW COSMETICS GMBH
§ 1: General Remarks
- The following General Terms and Conditions (hereinafter referred to as “GTC”) shall exclusively apply to all legal transactions and legal relationships between GW Cosmetics GmbH (hereinafter referred to as “GWC”) and suppliers of GWC (hereinafter referred to as “Supplier”). Services of GWC and Suppliers are provided exclusively on the basis of these GTC and the quality standards of GWC. The latest version in time of the contract formation is binding.
- The applicability of the Supplier’s own general terms and conditions is hereby ruled out, except where express provision is made to the contrary by explicit consent in writing by GWC in each individual case; this also applies if the Supplier’s terms and conditions provide to the contrary. Any reference to the Supplier’s general terms and conditions and miscellaneous offer conditions within the order process by GWC cannot be qualified as an acceptance. For future orders of GWC these GTC apply as amended from time to time.
§ 2: Offers/Orders
- All quotations must exclusively be consistent with the inquiry of GWC; any deviation must be pointed out in writing. Offers by Suppliers are to be made free of charge. Only written orders will be considered valid and will commit GWC.
- A quotation from a Supplier shall be irrevocable for a period of 10 working days after its receipt by GWC.
§ 3: Price
- Unless otherwise expressly agreed, the prices stated in our orders are fixed prices in EURO (where applicable) plus value added tax, free delivery at destination, including packaging, and duty-paid. Escalation clauses or similar clauses of that kind will not be accepted by GWC.
- If the prices are agreed in a foreign currency, an appreciation of the agreed currency by more than 3 % since placing the order entitles GWC, either at no cost consequences to withdraw from the order or to recalculate the order value and to reduce it to another amount. Any claimsby the Supplier based on currency fluctuations are excluded.
§ 4: Delivery Time/Delivery Quantity
- All delivery dates and deadlines are binding. The delivery period starts after the Supplier receives the order and is deemed to be met if the ordered goods arrive complete and undamaged and are handed over until the contractually agreed date at the indicated location.
- Earlier deliveries or part consignments may be undertaken only with our expressed prior written consent. If the delivery period is exceeded, GWC is entitled either to set an appropriate period of grace and insist on the delivery or to withdraw from the order without a grace period. GWC is entitled to claim any kind of damage attributed to the delay. In case of withdrawal, GWC is entitled to make a covering purchase from the supplier who is able to deliver the goods the fastest. The Supplier is liable for any additional costs incidental to GWCs covering purchase, including additional cost for products of better quality as the originally agreed product or additional cost for alternative products.
- The supplier is obliged to pay a penalty of 2 % of the order value per day of delay. The penalty will be set off against the receivables. Any further compensation claims remain unaffected.
- For the determination of the delivery quantity the number of goods which has been recorded by us is authoritative for both parties. In case of an excess delivery, we expressly reserve the right to return at the Supplier’s risk and expense.
- If the Supplier is prevented to meet the agreed delivery dates by force majeure or an unforeseen event such as business disruption, official intervention, etc., the Supplier has to inform us as soon as possible of the circumstances and their expected duration. GWC reserves the right either to maintain the contract or to withdraw from the agreement free of charge.
- Any confirmation of goods received or the discharge of invoices do not imply an acknowledgement of proper delivery.
§ 5: Packing/Shipping/Documents
- The supplier has to take care of the adequate, appropriate and workmanlike packaging and dispatch preparation which also has to fully comply with the applicable provisions. In the event of transportation of dangerous goods, the provisions of ADR/RID have to be fulfilled.
- The Supplier has to take back the packaging material that accumulates through the delivery or to calculate the charges with ARA for the waste disposal. The supplier must declare legally binding with the start of the business relationship with GWC, and subsequently at the beginning of each calendar year or at the time of the first delivery of each calendar year to participate in the collection and recycling system ARA and indicate his license number. In case the binding declaration is missing, we are entitled to carry out the licensing or to return the packaging material or to arrange a professional disposal in each case at the Supplier’s expense. GWC will without obligation support foreign Suppliers in this process.
- All deliveries have to be sent to the address indicated in the order. For every shipment a proper shipping notice has to be sent to us (confirmed by fax or e-mail). In the event the proper shipping documents are missing, the shipment will be stored at the Supplier’s expense and risk until receipt of proper shipping documents. In the delivery note / invoice the order number, our article number, the container sizes, the gross / net and tare weight have to be indicated. Furthermore, the following documents must be included with each delivery: Certificate of Analysis, Material Safety Data Sheet or clearance certificate for packaging.
- In case of violation of these terms of shipment, the Supplier is liable regardless of culpability for all damages, disadvantages, costs resulting there from, eg additional freight, demurrage charges. If we commission a transport at our expense, the means of transport specified by us have to be chosen accordingly and the indicated shipping company / carrier has to be hired. The following documents are required with each delivery: commercial invoice, delivery note, certificate of origin, confirmation of customs clearance by an Austrian customs office, accident leaflet and any accompanying administrative documents.
- The supplier has to provide adequate insurance of delivery at his own expense and on request provide confirmation thereof.
§ 6: Qualities of the Goods/Services
- The delivered goods must comply with all legal provisions, ÖVE regulations, CE regulations, and any other applicable provisions and standards according to the technical and scientific standard as applicable from time to time. Moreover, the Supplier is obliged to comply with the applicable safety regulations when performing service on GWS’s sites.
- When purchasing substances, preparations or products according to the REACH Regulation EC 1907/2006 within the European Economic Area, the Supplier warrants that he has fully complied with its obligations under the REACH Regulation. The Supplier warrants that the delivered products meet the requirements for registration, evaluation, authorization and restriction of chemicals (REACH Regulation) and that the substances contained in the products supplied by him, insofar as they are subject to the REACH Regulation, were properly (pre-) registered. The Supplier is obliged to provide the safety data sheets respectively the in accordance with Article 32 of the REACH Regulation required information without request.
- The Supplier warrants that the delivered goods are suitable and registered for the purpose indicated in our order.
- The delivered goods must be durable for at least four months from the date of receipt.
§ 7: Guarantee/Warranty/Liability
- The Goods are only deemed to be handed over after takeover with written confirmation at the place of destination. Goods are only taken over under the reservation that they are delivered in proper condition. The goods will be examined by us within an adequate period of time.
- Notice of defects can be issued within the statutory warranty periods. Deliveries that do not comply with standards set by GWC or the qualities usually preconditioned can be rejected by us in full, even if the defect only affects a part of the delivery. The same applies in case only a part of the goods does not meet the REACH registration. All characteristics confirmed by the Supplier are considered expressly assured.
- If defects occur within the warranty period, the supplier is obligated to exchange or amend the defective goods at our discretion free of charge or to reduce the price. If there are not merely minor defects, we are entitled to rescind the contract.
- In addition, the Supplier is liable for all damages and disadvantages resulting from the faulty or defective delivery, in particular for consequential damages and lost profits. Compensation claims are not subject to any threshold amounts. Restrictions or exclusion of the liability for defective or deficient delivery or for consequential damages are not valid for us. This also applies for changes of the legal burden of proof at the expense of GWC.
§ 8: Invoice/Payment
- The payment has to be effected by the end of the deadlines specified in the order. If there is no deadline specified, invoices are due for payment within 30 days after receipt of the invoice, at the earliest however after receipt of the goods, fulfillment of the service and acceptance of the goods.
- There is no exclusion of offsetting for GWC. The Supplier is not entitled to set-off or to assign his receivables against us to third parties without our written consent.
- GWC isentitled to withhold full payment in the event of defects, regardless of their origin or severity until the complete cure of the defect.
- Bills that, due to lack of information, cannot be assigned to an order are not due and will be returned at the Supplier’s risk and. In this case the invoices are deemed not to be issued until receipt of the correct invoices.
- Invoices and order confirmations may not be included with the shipments, but have to be sent separately.
§ 9: Reservation of Proprietary Rights
- All deliveries to GWC are made without retention of title. The acceptance of our order by the supplier is considered as a guarantee that the goods are his unrestricted and not, encumbered property.
§ 10: Production Documents
- Any samples, models, drawings, plans, clichés or other auxiliary material which were provided by us remain our material and intellectual property and have to be returned after the execution of an order.
- The return of these materials shall be part of the accepted order. In cases where the models or casting molds for simplicity reasons are stored at the Supplier, the Supplier hast to unsolicited confirm the storage at the turn of the year for inventory purposes.
§ 11: Industrial Property Rights
The Supplier warrants that no intellectual property rights of third parties are infringed by delivery of the goods or rendering of the services. The Supplier has to indemnify GWC against any claims by third parties concerning violations of industrial property rights upon first request and bear all costs and expenses arising to GWC in this context.
§ 12: Disclosure
The Supplier undertakes to treat all commercial and technical matters that come to their attention in the course of the business relationship as confidential and shall impose this obligation on their employees. The obligation to confidentiality remains in force for an unlimited period of time after the end of the business relationship.
§ 13: Performance/Jurisdiction/Applicable Law/Miscellaneous
- Claims against Suppliers according to these GTC exist regardless of culpability and include the obligation of the Supplier to indemnify and hold harmless GWC.
- The place of performance for all deliveries and services is at our discretion either the specified place of receipt or GWC’s company domicile.
- Jurisdiction for any disputes which may arise out of, under or in connection with these GTC shall lie exclusively with the competent court in Vienna Inner City, Austria. However, we are entitled to assert our claims at the general jurisdiction of the Supplier.
- These GTC, including the issue of conclusion, shall be governed by the substantive laws of the Federal Republic of Austria, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws that refer to foreign law.
- Should any provisions of these GTC entirely or partially be invalid, this shall not affect the validity of the remaining provisions. The ineffective regulation is to be replaced by a valid provision, which resembles the economic purpose of the invalid provision. The same shall apply to any possible loopholes in the agreement. Amendments of this GTC require written form.
§ 14: Applicable Languages
For contractual interpretation differences of a bilingual or multilingual contract the German Version shall always prevail. This also applies to the German version of these GTC.
Stand: 11. 1. 2016
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