General Terms and Conditions
Status: 22 May 2024
1. scope of application
1.1 These Terms and Conditions shall apply between us (any European Sappi company) and natural and legal persons (hereinafter referred to as "Customer") for the present legal transaction as well as for all future transactions relating to [general description of the transactions covered by these Terms and Conditions], even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.2 The current version of our GTC, which were sent to the customer at the time the contract was concluded, shall apply.
1.3 Any terms and conditions of the customer or amendments or supplements to our GTC shall require our express written consent in order to be valid. The customer's terms and conditions shall not be recognised even if we do not expressly object to them upon receipt.
2. offer/conclusion of contract
2.1 Our offers are non-binding. The contract is concluded with our written order confirmation.
2.2 Promises, assurances and guarantees on our part or agreements deviating from these GTC in connection with the conclusion of the contract shall only become binding upon our written confirmation.
2.3 Cost estimates are non-binding and subject to a fee. If an order is placed for all services included in the cost estimate, the fee for the cost estimate shall be credited to the invoice in question.
3. prices
3.1 Prices are quoted exclusive of the applicable statutory VAT and ex warehouse. Packaging, transport, loading and shipping costs as well as customs duties and insurance shall be borne by the customer.
3.2 The customer shall arrange for the professional and environmentally friendly disposal of old material. If we are commissioned to do this separately, the customer shall additionally remunerate us for this to the extent agreed, in the absence of an agreement on remuneration.
4. terms of payment
4.1 All payments must be made within 14 (fourteen) days net from the date of invoice without deduction.
4.2 In the event of culpable default of payment, we shall be entitled to charge 9.2 % points above the base interest rate in accordance with § 456 UGB.
4.3 We expressly reserve the right to assert further claims for damages caused by delay.
4.4 If the customer is in default of payment under other contractual relationships with us, we shall be entitled to suspend fulfilment of our obligations under this contract until fulfilment by the customer. We shall then also be entitled to declare due all claims for services already rendered from the current business relationship with the customer.
4.5 The customer and its affiliates are not entitled to set off amounts owed under this agreement against claims against us or our affiliates.
4.6 If the payment deadline is exceeded, any remuneration granted (discounts, rebates, etc.) shall be forfeited and added to the invoice.
5. credit check
5.1 The customer declares his express consent that his data may be transmitted exclusively for the purpose of creditor protection to the state-authorised creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870 (KSV).
6 Obligations of the customer to co-operate
6.1 The customer shall be liable for ensuring that the necessary technical and legal requirements for the work to be produced or the delivery item are met, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer should have known on the basis of relevant expertise or experience. Our obligation to perform the service shall commence at the earliest as soon as the customer has created all these prerequisites for performance.
6.2 If the customer does not fulfil this obligation to cooperate, our performance is not defective - solely with regard to the fact that the customer's performance is not fully available due to incorrect information provided by the customer - and we and our affiliated companies are not liable for this.
6.3 The customer shall arrange for the necessary authorisations, inspections and certifications by third parties as well as notifications and approvals by authorities at its own expense.
6.4 The customer is not authorised to assign claims and rights arising from the contractual relationship without our written consent.
7. performance execution
7.1 For a change to the delivery item, a written order supplement in the form of a contract amendment in agreement between us and the customer is necessary. In particular, changes to the purchase price and delivery conditions must be taken into account.
7.2 Reasonable, objectively justified and minor changes to our performance shall be deemed to have been approved in advance.
8 Performance deadlines and dates
8.1 Delivery and completion dates are not fixed delivery dates, but are estimates made in good faith.
8.2 Our obligations under this contract shall be suspended if an event beyond our control prevents us from fulfilling them ("force majeure"). Force majeure includes, for example, natural disasters, wars, terrorism, sabotage, pandemics, epidemics, strikes, lack of raw materials and other essential materials, machine breakdowns, lack of labour and means of transport and other events beyond our control. We will inform the customer as soon as possible about the beginning and the expected duration of such circumstances. If the force majeure event lasts longer than 4 (four) consecutive weeks, both we and the customer have the right to terminate the contract.
8.3 If the start or performance of the service is delayed or interrupted due to circumstances attributable to the customer - in particular in the event that the customer has not fulfilled all obligations incumbent on him, such as the provision of all necessary documents and authorisations - the performance periods shall be extended accordingly and agreed completion dates shall be postponed accordingly.
8.4 We shall be entitled to charge a reasonable amount for the storage of materials and equipment and the like in our company which is necessary as a result, whereby the customer's obligation to pay and his obligation to accept shall remain unaffected by this.
8.5 If, in deviation from point 8.1, binding delivery dates have been agreed and we are in default with the fulfilment of the contract through our own fault, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period. The grace period must be set in writing (by registered letter) with a simultaneous threat of cancellation.
9. reference to limitation of the scope of services
9.1 Damage may occur during assembly and repair work, for example to existing stock as a result of unrecognisable conditions or material defects. We shall only be responsible for such damage if we have culpably caused it.
10. makeshift repair
10.1 Temporary repairs will only be carried out in consultation with the customer. In the case of makeshift repairs, there is only a very limited durability corresponding to the circumstances, which is why a warranty is excluded.
10.2 In the event of makeshift repairs, the customer must arrange for professional repairs to be carried out immediately.
11. transfer of risk
11.1 The risk shall pass to the customer as soon as we hold the delivery item, the material or the work ready for collection from the factory or warehouse, deliver it ourselves or hand it over to a carrier.
12. default of acceptance
12.1 If the customer is in default of acceptance for more than four weeks (refusal of acceptance, default with advance performance or otherwise) and if the customer has not ensured the elimination of the circumstances attributable to him which delay or prevent the performance of the service despite setting a reasonable grace period, we may otherwise dispose of the delivery item while the contract is still valid.
12.2 If the customer is in default of acceptance, we are also entitled to demand any expenses (such as storage and transport costs) from the customer. Furthermore, the risk of accidental loss of the delivery item shall pass to the customer and the warranty period shall commence on the agreed delivery date.
12.3 This shall not affect our right to demand payment for services rendered and to withdraw from the contract after setting a reasonable grace period. In the event of a justified cancellation of the contract, we may demand lump-sum compensation from the customer in the amount of 10 % of the order value without proof of actual damages. The obligation to pay compensation is independent of fault. The assertion of higher damages is permissible.
13. reservation of title
13.1 We retain title to the delivery item until full payment of the price and all other claims against the customer arising from our business relationship.
13.2 The customer may further process or resell the delivery item within the framework of proper business management. The customer hereby assigns to us all claims arising from the resale or further processing of the delivery item.
13.3 Until the transfer of title, the customer undertakes (a) to hold the delivery item as trustee for us; (b) to store the delivery item separately and to ensure that it can be identified as our property; (c) to insure the delivery item against any damage and loss and to inform us immediately of any measure taken by third parties which is in conflict with the retention of title (e.g. seizure of the delivery item which is the subject of the said retention of title); and (d) to grant us unannounced access to its premises in order to (d) to grant us unannounced access to its premises in order to repossess the delivery item subject to retention of title in the event that full payment for the goods is not made on time and/or insolvency proceedings (within the meaning of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast)). opened or not opened due to a lack of cost-covering assets.
13.4 The retention of title does not affect the provisions on the transfer of risk under point 11.
14. industrial property rights of third parties
14.1 If the customer provides intellectual creations or documents and if third-party property rights are asserted with regard to such creations or documents, we shall be entitled to suspend the manufacture of the delivery item at the customer's risk until the rights of third parties have been clarified and to claim reimbursement of the necessary and appropriate costs incurred by us, unless the claims are obviously unjustified.
14.2 The customer shall indemnify and hold us harmless in this respect. Furthermore, we shall be entitled to demand reasonable advance payments from the customer for any legal costs.
14.3 For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer alone shall guarantee that the manufacture of these delivery items does not infringe the industrial property rights of third parties.
14.4 If third-party industrial property rights are nevertheless asserted, we shall be entitled to cease production of the delivery items at the risk of the customer until the third-party rights have been clarified, unless the claims are manifestly unjustified.
14.5 We may also claim compensation from the customer for necessary and useful costs incurred by us.
15 Our intellectual property
15.1 Plans, sketches, cost estimates and other documents provided by us or created by our contribution shall remain our intellectual property.
15.2 The use of such documents outside the intended use, in particular the passing on, duplication, publication and making available, including copying even in extracts, requires our express written consent.
15.3 Furthermore, the customer undertakes to maintain confidentiality vis-Ã -vis third parties with regard to the knowledge obtained from the business relationship.
16. warranty
16.1 Unless otherwise agreed herein, the statutory warranty provisions shall apply.
16.2 The warranty period for our services shall be one year from handover. If the daily operating time of the delivery item exceeds the agreed or customary scope, the period shall be shortened accordingly.
16.3 Unless otherwise agreed (e.g. formal acceptance), the time of handover shall be the time of completion and at the latest when the customer has taken over the service into his power of disposal or has refused acceptance without giving reasons. The customer must always prove that the defect already existed at the time of handover.
16.4 Defects in the delivery item which the customer has discovered or should have discovered by inspection in the ordinary course of business after delivery must be reported to us in writing immediately, at the latest 10 days after delivery. Hidden defects must also be reported within this reasonable period from discovery. If a defect is not reported within this period, the goods shall be deemed approved and the customer shall forfeit his claims in accordance with § 377 UGB.
16.5 The customer shall grant us at least two attempts to remedy the defect.
16.6 The customer shall immediately cease any use or processing of the defective delivery item which threatens further damage or makes it difficult or impossible to determine the cause, unless this is unreasonable.
16.7 If the delivery items are manufactured on the basis of information, drawings, plans, models or other specifications (e.g.: use of certain products or materials) (the "Specifications") of the customer, we shall only provide a warranty for the execution in accordance with the conditions. This means that the liability and warranty does not extend to the correctness of the design, but only to the fact that the design was carried out in accordance with the customer's specifications. We do not provide any warranty for defects that are attributable to specifications expressly requested by the customer.
16.8 It is expressly stated that there are no explicit or implicit guarantees with regard to the marketability or suitability of the delivery item for a specific purpose.
16.9 The defective delivery or samples thereof shall be returned to us by the customer - if economically justifiable. The costs for the return transport of the defective item to us shall be borne in full by the customer.
16.10. The warranty is excluded if the customer's technical equipment is not in a technically perfect and operational condition or is not compatible with the delivered items, insofar as this circumstance is causal for the defect. The warranty is also excluded if the customer or a third party makes changes or modifications to the delivered item without our written consent.
17. goods provided
17.1 Equipment and other materials provided by the customer are not covered by the warranty.
17.2 The customer shall be responsible for the quality and operational readiness of supplies.
18. limitations of liability
18.1 In no event, whether based on contract, action, omission (including negligence), non-contractual or statutory liability, shall we be liable to the customer or any third party for (a) loss of profit, revenue or business opportunity, (b) loss due to (partial) loss of production, and (c) indirect or consequential damages of any kind.
18.2 Furthermore, our liability for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorised by us, or natural wear and tear is excluded if this event was the cause of the damage.
18.3 Notwithstanding clauses 18.1 and 18.2, our total liability in all cases permitted by law for all claims arising out of or in connection with this Agreement shall be limited to the value of the relevant Order.
18.4 Claims for damages must be asserted in court within two years, otherwise they shall lapse.
18.5 The exclusion of liability also includes claims against our employees, representatives, subcontractors, suppliers and vicarious agents due to damage caused by them to the customer without reference to a contract between them and the customer.
18.6 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through its own insurance or insurance taken out in its favour (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of the insurance benefit and our liability shall be limited to the disadvantages incurred by the customer as a result of making use of this insurance (e.g. higher insurance premium).
19. severability clause
19.1 Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
19.2 We and the customer undertake now already jointly - based on the horizon of honest contracting parties - to agree on a substitute provision which comes closest to the economic result of the invalid provision.
20 Applicable law and place of jurisdiction
20.1 Austrian law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules.
20.2 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the customer is the competent court in Graz.