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General terms and conditions
Lenzing Plastics GmbH & Co KG
(valid as of August 1, 2016)
I. General Provisions
1. Lenzing Plastics GmbH & Co KG (hereinafter "LPG") shall effect orders and deliveries for their Contractual Partners (hereinafter "Buyers") only in accordance with the present General Terms and Conditions of Sale and Delivery even if those Terms and Conditions were not specifically stated in any oral negotiations.
2. Consequently, any general terms and conditions of business of the Buyer shall herewith be explicitly excluded. Irrespective of the point in time at which we receive such terms and conditions of business of the Buyer, they shall in any case remain legally ineffective even if they are not contested. Furthermore, any actions taken by LPG in performing contractual obligations shall not be deemed consent to the Buyer's terms and conditions of business. Any deviations from these Terms and Conditions of Sale and Delivery of LPG shall require the explicit written consent by LPG to take effect.
3. By entering into or resuming its business relationship with us, the Buyer acknowledges these General Terms and Conditions of Sale and Delivery, which apply not only to a specific transaction but, unless explicitly stated otherwise by LPG, to any and all followup transactions.
II. Offers, orders and side agreements
1. Unless specifically agreed otherwise, offers by LPG are made without engagement.
2. Orders shall only be binding if and to the extent they have been confirmed in writing by LPG or they have been met by fulfilment and invoicing. If the order confirmation by LPG deviates from the Buyer's order, such deviation shall be deemed approved unless we receive different information from the Buyer within 10 days of dispatch of the order confirmation.
3. Any and all side agreements shall be made exclusively in writing.
1. In the absence of any indication or agreement to the contrary, any and all prices quoted shall be deemed net prices. These prices shall apply only to the places of delivery specified in the order confirmation, shall be considered ex works in case of any doubt, and shall not require delivery to other places.
2. Prices shall always be calculated on the basis of the unit of measurement (weight, running metre, square metre, etc.) determined at LPG's factory. If a foreign currency in which a contract has been concluded depreciates by more than 3% vis-à-vis the euro following conclusion of such contract, LPG shall have the right either to withdraw from the contract or to adjust the price to maintain the original value and adapt any invoices unpaid at the time of such depreciation accordingly.
1. Unless otherwise agreed, payments shall be effected net of any discounts within 30 days of invoice date.
2. Payments shall always be applied to the oldest receivable outstanding and any related ancillary claims.
3. The Buyer shall only be entitled to offset any claims against those of LPG if such counterclaim of the Buyer is undisputed or has been legally recognised to exist.
4. Bills of exchange and cheques shall be deemed valid payment only after they have been cashed. Any and all expenses, including discount rates, related to the payment by and cashing of checks and bills shall be at the Buyer's expense.
V. Default, impairment of Buyer's assets
1. In the event of delay in payment, the relevant legal regulations (§ 458 UGB, § 1333 para 2 ABGB) shall apply to the reimbursement of any and all reminder and collection costs; to the same effect, the relevant legal regulations (§ 456 UGB) shall apply to the maturity and amount of interest on arrears.
2. If the Buyer is 14 days behind on any payment, or LPG has reason to doubt the former's ability to pay, LPG is entitled to make any and all outstanding claims due and payable forthwith. Moreover, LPG shall have the right in such case to interrupt the execution of orders already started, suspend delivery of already completed orders, demand collateral, as well as withdraw from individual or all existing contracts in part or in full.
3. Delay in acceptance on the part of the Buyer shall not preclude LPG from invoicing ordered products.
1. Partial deliveries shall be allowed. Unless explicitly agreed otherwise, references to delivery dates shall be taken to mean delivery ex works.
2. If the Buyer modifies the specifications of their order without prior notice, they shall be obliged to accept the goods produced in accordance with the previous specifications.
3. LPG shall store goods for no more than 3 months from the delivery date originally advised to the Buyer, or no more than 3 months from the expiry of blanket orders. Afterwards, LPG shall have the right to deliver the goods to the Buyer at the latter's expense and risk, or to prepare them for collection at the Buyer's expense. In any case, invoices may be presented from the time delay in acceptance occurs.
4. The same shall apply to raw materials and semifinished products that had been procured based on announced deliveries or blanket orders.
VII. Force Majeure, hardship
1. Force Majeure, such as natural disasters or operational disruptions in LPG's own factory or those of suppliers, unpredictable shortage of labour, energy or raw materials, strikes or traffic disruptions shall relieve LPG of its duty to perform its contractual obligations for the duration and to the extent of such disruption and shall entitle LPG to withdraw from the contract in part or in full if such Force Majeure Event persists for an extended or unpredictable period of time.
2. This shall apply mutatis mutandis to any and all other circumstances that are beyond LPG's control and could not, or hardly, be anticipated at the time of conclusion of the contract (such as, for example, massive price changes in raw materials), and which make it economically unfeasible for LPG to perform the contract at the conditions agreed.
VIII. Reservation of title
1. LPG shall reserve its title to sold goods until any and all claims by LPG against the Buyer with regard to the sale of the goods in question have been settled.
2. The Buyer is obliged to insure the goods subject to reservation of title to an adequate extent and at its own cost (fire, water, theft, etc.). The Buyer shall therefore assign its claims from such insurance contracts to LPG in advance.
3. The Buyer shall have the right to sell on the goods in the ordinary course of business. However, at this time already, the Buyer shall assign, and LPG shall accept such assignment, any and all claims to the extent of the invoice amount of the goods subject to reservation of title.
1. Any additional cost of packaging exceeding customary levels shall be at the Buyer's expense. Crates, containers and pallets shall remain our property unless the Buyer pays for them separately or a different procedure is agreed in each case.
2. At our request, packages shall be returned to us free of any freight charges and in accordance with our instructions. We shall have the right to issue debit notes as appropriate for damaged, lost or unreturned packages.
X. Transportation, insurance, performance
1. All goods shall be deemed sold ex works unless specifically agreed otherwise.
2. Deliveries shall be deemed effected when the goods leave storage. If delivery is delayed through no fault of LPG, the point in time at which the goods were ready for dispatch shall be deemed the time of performance.
3. If LPG (merely) undertook to make the goods available at a different location, LPG shall determine route and means of transportation. Insurance of the goods shall not be included and shall only be taken out at the Buyer's express request and expense.
4. In addition, any Incoterms agreed shall apply in the version valid as of the day of conclusion of the contract.
XI.Warranty, notice of defect
1. In derogation of § 377 UGB, the Buyer shall inspect the delivered goods forthwith upon delivery or collection. Patent defects shall be notified to LPG within 6 days, and latent defects within 6 days from detection - in any case, prior to handling and processing the goods in question - in writing substantiated by evidence and, in particular, stating invoice number, roll number and packing unit number. Representative samples shall be submitted, if applicable.
2. LPG guarantees that its goods comply with standard quality criteria subject to normal manufacturingrelated variations. LPG shall not offer any guarantee for properties that are not specified separately and in writing. The Buyer shall therefore, in particular, bear the risk of suitability of the goods for the use intended by the Buyer as well as any all risks resulting from handling or using the goods. The Buyer acknowledges that storing the goods for an extended period of time may make processing them difficult or impossible; therefore, LPG shall, in particular, not offer any guarantee for processability if the goods are processed more than 90 days after date of invoice.
3. Any and all samples or templates presented or handed to the Buyer (particularly also larger sample deliveries) shall only serve the purpose of presenting the standard specification and quality of the products and do not warrant that the products absolutely need to match such specification and quality.
4. Any and all claims of the Buyer due to the delivery of defective goods shall require a justified notice of defect in conformity with legal and contractual provisions, with LPG having the right to replace defective goods or take them back in return for reimbursement of the purchase price. In the event of shortfalls (underdelivery), LPG shall have a choice of delivering the missing items or offering a credit in that amount. Any warranty claims beyond that - as well as the presumption rule of § 924 ABGB and the right of recourse under § 933b ABGB - shall be precluded.
XII. Damages, product liability
1. LPG shall be liable only under mandatory law, i.e., only for intent and extremely gross negligence.
2. Therefore, especially claims for damages against LPG for consequential damage or lost profit shall be excluded unless LPG were guilty of extremely gross negligence.
XIII. Place of performance, place of jurisdiction and applicable law
1. LPG's registered office, i.e., Lenzing, shall be the place of performance for delivery of the goods and payment of the purchase price.
2. Unless LPG and the Buyer have agreed in a legally effective manner the exclusive authority of a court of arbitration, any disputes shall be settled exclusively by the court factually and geographically competent for the Seller in Austria. The Seller shall, however, have the right to elect to enforce its claims also at the court factually and geographically competent for the Buyer as well as anywhere the Buyer has operations or assets.
3. The legal relationship between LPG and the Buyer shall be subject to Austrian law under exclusion of the UN Convention on International Sales of Goods as well as under exclusion of Austrian as well as international conflict rules.
1. If any provision of these General Terms and Conditions of Sale and Delivery is or becomes invalid or illegal, the validity of the remaining provisions shall in no way be affected or impaired. Any invalid or illegal provisions shall in each case be replaced by such legal provisions as most closely reflect the economic purpose of the invalid or illegal provision.