Vendor, RUPP AG (FN 263494 t), RUPP Cheese Innovation GmbH (FN 76905 x), RUPP Käseexport Gesellschaftm.b.H. (Commercial Register Number 69120 y), SCHREIBER & RUPP Gesellschaftm.b.H. (Commercial Register Number 342258x)
Buyers: by enquiry to RUPP as approached company Goods: processed cheese products, foodstuff preparations, natural cheese, cream cheese etc.
2. Conclusion of contract
Terms & Conditions of purchase for the buyer shall only be binding on RUPP if RUPP expressly acknowledges them. Failure to oppose them shall not imply agreement by RUPP in any manner whatsoever. Should any conditions be contradictory, then the RUPP Terms and Conditions of Sale and Supply shall expressly apply as agreed. Any terms and conditions pertaining to purchasing and any other terms and conditions on the part of the buyer are herewith expressly opposed by RUPP.
All supplies made, including future supplies, and services rendered by RUPP shall be based exclusively on these Terms and Conditions of Sale and Supply.
Offers supplied by RUPP are subject to change without notice and limited to 90 days.
Customer orders, to be effective, require the acceptance in the form of a written statement (confirmation of order) by RUPP.
Prices are valid ex supplier plus local or foreign value added tax at the respective statutory amount.
The information given in the confirmation of order is definitive with regard to prices and terms and conditions of payment and the details of the recipient’s account.
Payment shall be made free of bank charges without any deduction for discount, exclusively by means of bank transfer to arrive in RUPP’s bank account within 30 days from date of invoice. Any costs and expenses of whatever kind related to payment shall be borne by the buyer.
In the case of late payment, RUPP will charge interest at 5% p.a. above the Austrian National Bank’s base rate, and a minimum of 9% p.a. In addition the buyer will compensate for any reminder fees and collection expenses which have been incurred.
Insofar as no value added tax is to be invoiced to the buyer in a member state of the European Union, the buyer shall immediately and without being asked provide RUPP with the evidence which RUPP requires regarding the legal provisions and value added tax in particular, in order to demonstrate the tax exemption on the supplies to the tax authorities. This applies in particular to proof of delivery of goods to another member state of the European , Union, the value added tax registration number or personal exemption of the buyer.
If the agreed payment terms are not adhered to, if the pecuniary circumstances of the buyer should considerably deteriorate or if it should become apparent subsequent to conclusion of the contract that poor pecuniary circumstances had already been in existence prior to conclusion of the contract, RUPP shall be entitled to pronounce all outstanding receivables immediately due and payable and refuse its services to the buyer until such time as the consideration has been paid or secured. If payment agreements are not fulfilled, in the event of payment default as well as where the agreed payment targets have been exceeded, or if the buyer is unable to pay or is over-indebted, RUPP shall additionally be entitled to withdraw from any contract without granting a period of grace.
des Offsetting of the buyer’s counter claims against RUPP’s claims from goods supplied is excluded, unless the counter claim is recognised by RUPP or legally established by court decision.
All taxes, custom duties and other charge for which the buyer is liable on account of accepting the object of contract shall be borne by the buyer, unless the vendor has expressly obligated himself to payment of such in writing RUPP reserves the right to change, prices accordingly if costs increase after three months after conclusion of the contract, in particular due to changes of commodity prices. RUPP will provide customers with evidence for such price changes. The buyer can object in writing to any notification of price change within 3 working days with the result that RUPP’s further obligations to deliver end on receipt of the objection.
Should a conversion of the invoice currency or open balances deriving from it occur as a result of currency policy changes, the rule shall apply by mutual agreement that when settling a calculated € amount the debt is owed in € or in another currency at the rate of exchange prevailing on the day of the remittance.
4. Reservation of Proprietary Rights
RUPP shall retain ownership of the supplied goods up until receipt of payment in full of the purchase price including all additional charges including default charges and costs. In the adaptation, processing and combination of the supplied goods with other items, RUPP shall hold the resulting co-ownership share in the matter arising from the adaptation and processing in proportion of the purchase price of the supplied goods to the value of the remaining processed items at the time of processing or combination.
The buyer shall take all necessary measures to safeguard the
reservation of proprietary rights. Should RUPP so request, the buyer shall ensure that the goods are adequately insured. Specifically, the buyer is not allowed to pledge or transfer the goods to a third party by way of security or to dispose of
these goods to the advantage of a third party in any way other than through sale by way of standard business practice.
In the event of third party claims, the buyer advise of the right of ownership which RUPP has to the goods and inform RUPP immediately and in writing of such so that RUPP may enforce its ownership rights. Should the third party not be in a position or be not obligated to reimburse RUPP for the costs of the enforcement of ownership, then the buyer shall be liable for any loss incurred by RUPP. This shall equally apply if the enforcement became necessary due to any action of the part of the buyer.
Should the goods be resold prior to full payment of the purchase price including all ancillary fees and costs, then, in place of the reservation of proprietary rights, the purchase price received from the resale to a third party shall be considered to have been ceded to
RUPP. This assignment for security shall be recorded in the buyer’s accounting records (customer’s account as well as the outstanding items list), giving the date of conclusion of the contract and the full official name for RUPP (cessionary). As soon
as possible and at the very latest upon conclusion of the contract with the third party, the buyer shall inform the same of the existence of this assignment and notify RUPP of the sale. In addition, the buyer shall grant RUPP irrevocable power of attorney to inform the third party of the assignment on the buyer’s behalf. Furthermore, the buyer undertakes to keep the proceeds of the sale separate and to transfer the proceeds to RUPP when the claims fall due for payment.
5. Delivery dates and times
The stated delivery dates and times are subject to change without notice. Therefore, any claims for damages of any kind whatsoever with reference to delivery dates and times are excluded, with the exception of wilful or gross negligence, whereby the burden of proof rests with the buyer, and liability shall be limited to the amount of the value of the order of the respective delivery. RUPP will, however, make every effort to adhere to delivery dates and times.
Clause 5.1 notwithstanding, delivery periods commence on the date of the confirmation of order by RUPP, but not, however, before full clarification of all details and the acquisition of all necessary local or foreign official certifications. Delivery times shall be deemed as adhered to with the notification of readiness for shipment, even if the product cannot be dispatched on time through no fault of RUPP. Delivery dates and times shall be extended by the period by which the buyer is in default regarding the buyer’s obligations to RUPP arising from this transaction.
Any events of force majeure and any other events over which RUPP has no control, in particular but not limited to delays in delivery by an upstream supplier of RUPP as well as strikes, lockouts and other circumstances which considerably impede or make delivery by RUPP impossible, shall entitle RUPP to cancel any outstanding promises of delivery or delay delivery by the period of the duration of the impediment. In the latter case, the buyer can request from RUPP a statement whether RUPP is withdrawing from the contract or will deliver within an appropriate timeframe. Should RUPP not make such a statement within an appropriate timeframe, the buyer can withdraw from the contract by granting an extension of at least of 4 weeks. Any claims of the buyer above and beyond this are excluded.
Should the buyer not accept the goods at the agreed location or within the agreed period of acceptance, RUPP shall then be entitled to choose either to withdraw from the contract or to request immediate payment for the goods. In the latter case, the goods shall be stored at the cost and risk of the buyer. RUPP may exercise the same rights if the goods are not called off in the stipulated manner and time where goods are sold on a call-off order basis. The entitlement of RUPP to restitution of any other damages caused remains unaffected thereby.
RUPP is entitled to make partial deliveries; all contractual conditions apply thereto.
Minor under- or over-deliveries of +/- 10 % are permitted. Deviations in size, weight and other quality characteristics are permitted in the context of the relevant standards or existing practice.
6. Shipping and transfer of risk:
The type of shipping and bearing of costs are determined by the confirmation of order (e.g. Incoterms 2000).
Upon handover of goods to the shipper or forwarder (and for EXW deliveries upon handover of the goods at the factory), at the latest, however, upon leaving the factory or warehouse, the risk shall pass to the buyer in all cases – e.g. also in FOB and CIF transactions. For the rest, insofar as no other agreement has been made, the valid version of Incoterms 2000 shall be decisive for the interpretation of the various sales clauses.
In the event of damages in transit, the buyer shall immediately arrange to have the facts recorded by appropriate persons and on request hand over the evidence to RUPP at once.
7. Liability for defects and compensation for damages:
Any defects in the goods, including a lack of warranted characteristics, shall be treated in accordance with the below mentioned provisions.
Visual inspection, weight control, sampling/sample analysis shall be carried out immediately on receipt of the goods. The analysis of the goods shall be carried out in accordance with the guidelines in the specification. The adaptation or processing of the goods in the absence of a relevant analysis report shall mean that liability for defects and compensation for damages no longer applies.
Any notice of defects by the buyer must be received by RUPP in writing immediately, at the latest however, within five working days after receipt of the goods at the destination. Defects which cannot be discovered within this period, even with the most careful checking, shall be notified in writing immediately on discovery, with prompt cessation of any adaptation or processing, but within 14 days after receipt of the goods at the latest. On expiry of the 14-day period liability for defects, for any reason whatsoever, is excluded. In the case that any defects were already present at the time of handover, the buyer shall always carry the burden of proof.
In the case of justified notices of defects made within the time limit, RUPP shall accept the return of the defective goods and shall deliver goods free of defect in their place. Any claims on RUPPpursuant to Section933b ABGB (Austrian Civil Code) by the buyer are excluded.
Should the buyer not immediately give RUPP the opportunity to satisfy itself of the defect(s), or should the buyer not immediately make the faulty products and samples available, or should the buyer not grant a specialist nominated by RUPP an opportunity to remedy the defect, then all liability for defects and compensation for damages shall no longer apply. Any claims for defects and compensation shall lapse at the latest one month after written rejection of the notice of defects by RUPP.
Any liability by RUPP is based exclusively on the agreements made in the above mentioned clauses. All claims not expressly permitted therein, including claims to damages arising from slight negligence, replacement of subsequent damages from defects (in particular resulting from production downtimes), compensation for lost profits, replacement of purely financial losses – for any legal reason whatsoever – are excluded.
Furthermore, any liability by RUPP is limited in total to compensation from its liability insurance, in the case of violations of contractual obligations, in any case to the contract value of the respective delivery which was the cause of the damage. The above mentioned limitations of liability shall not apply to personal injury as a result of loss of life, physical injury or a person’s health. The limitations of liability do not, therefore, include the compulsory entitlements in accordance with product liability law.
8. Other matters
RUPP is entitled to correct obvious mistakes (clerical errors and miscalculations) on quotations, cost estimates, confirmation of orders, delivery notes, etc. at any time.
Should provisions of the contract be or become invalid or unenforceable, this shall not affect the remainder of the contract. These provisions shall apply when replaced by valid and enforceable provisions which are most likely to achieve the intended commercial purpose.
Any written statements shall be deemed as received if they have been sent to the last address given by the contractual party.
Any departures from these Terms and Conditions of Sale and Supply as well as the standard formal requirements require express written agreement. The buyer acknowledges that the employees engaged by RUPP or third parties are not entitled to make any commitments which deviate from the contractually agreed obligations (such as payment terms, quality assurances, delivery conditions).
The buyer gives his approval for the electronic storage by RUPP of all personal data included in the contract documents for the completion of this contract.
Formulations and similar
(i) Formulations, procedural methods, technical documentation, samples, prospectuses, images and similar are the intellectual property of RUPP, and the buyer has no utilisation or exploitation rights of any kind.
(ii) It is established that this provision concerning the protection of intellectual property is already binding in the phase of contract initiation, irrespective of a later conclusion of a contract.
The buyer is not permitted to utilise the trademarks of RUPP.
Packaging material which was acquired by RUPP at the instigation of the buyer shall be reimbursed by the buyer to RUPP irrespective of the circumstances of the goods purchased.
9. Applicable law, place of fulfilment and jurisdiction
The place of fulfilment for the supply and service is the legal seat of RUPP. The place of fulfilment for payment is A- 6912 Hörbranz, Austria.
With regard to Section 104 JN (Austrian Code on Court Organisation) and Section 23 EUGVVO (European Ordinance on Jurisdiction of the Courts and Recognition and Enforcement of Civil and Commercial Decisions) and Section 17 LGVÜ (The Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters), the contractual parties expressly agree that for all litigation arising from this legal relationship the Regional Civil Court of Feldkirch, A-6800 Feldkirch, Austria shall be the competent court of jurisdiction.
In addition, RUPP expressly reserves the right to take legal action against the buyer at any other court competent for the buyer.
Austrian law shall apply, with the exception of its reference provisions and conflict rules (EVÜ [Convention on the Law Applicable to Contractual Obligations], IPRG [Austrian Federal Code on the Conflict of Laws]) and excluding the United Nations Convention on Contracts for the International Sale of Goods.