General Terms and Conditions for the Sale and Delivery of Goods and Services through Raps GmbH
Raps GmbH, Handelsstraße 10, 5162 Obertrum
1.1 These General Terms and Conditions for the Sale and Delivery of Goods and Services shall apply exclusively for all quotations and contracts for delivery of goods and services of RAPS GmbH & Co. KG (hereinafter the “Vendor” or “we” or “us” etc.), including current and future business relations. Deviations herefrom shall be binding for us only when we have agreed to them expressly in text form.
1.2 We expressly object to general terms and conditions of trade and purchase of the Buyer. They shall only obligate us when we have agreed to them expressly in text form.
1.3 In as far as a text form requirement is laid down in these Conditions of Sale and Delivery, this text form requirement can only be waived expressly in text form.
1.4 This rule is not applicable to side agreements which have been individually agreed by the parties during the conclusion of the contract.
2.1 Our offers are non-binding, i.e. we can revoke offers until acceptance; subject to prior sale.
2.2 Our field service is not authorized to make agreements of any kind whatsoever. Such agreements require our confirmation in text form to be valid.
2.3 Samples and specimens are only considered as illustrative pieces for quality, dimension, color, packaging and presentation. These properties will not be guaranteed. Errors and misprints in illustrations, texts and prices shall remain reserved.
3.1 The prices quoted by us are ex works, resp. delivery warehouse including packaging plus the applicable sales tax in the currency stated.
3.2 Any lattice boxes, containers or similar transport packaging (returnable container) provided on loan remain the property of the Vendor and shall be returned to the Vendor in good order and at the expense and risk of the Buyer within a reasonable period of time after delivery. The Buyer shall be liable for any damage or loss of the returnable container. Failure to return any of the returnable container shall be compensated by the Buyer on the basis of the time value of the returnable container.
4. Payment Terms
4.1 The invoiced amounts will be due within 30 days, received by us, in the invoiced currency without deductions.
4.2 Complaints about the invoice shall be conveyed immediately in text form. The invoice shall be deemed as accepted if the Buyer does not object to the invoice within a period of 30 days following the date of the invoice. The Vendor will inform the Buyer of this stipulation in each invoice separately. The agreed payment period counts from the date of the invoice.
4.3 If the Buyer is an entrepreneur, any right to reject the deliveries of the Buyer is excluded. This shall not apply when the counterclaim, on which the right to reject the deliveries is based, is undisputed both in the substance and in terms of amount or has been confirmed by a court.
4.4 If the Buyer is a consumer, a set-off is only possible in the cases of Sec. 6 para. 1 no. 8 Austrian Consumer Protection Act (KSchG).
4.5 We are entitled to offset due claims against the purchaser with due claims of the purchaser.
4.6 If an invoice is not paid in due time, default interest in the amount of 12 % p.a. shall be due. We reserve the right to assert further claims. The purchaser undertakes to bear all costs and expenses associated with the collection of the claim, in particular reminder fees, collection fees or other costs necessary for appropriate prosecution.
5. Time of Delivery and Delivery
5.1 The deadline for delivery shall commence on the day of our order confirmation. Delivery dates and delivery periods stated by us are non-binding. If we are in default with delivery periods and delivery dates expressly agreed in writing, the Buyer must set us a reasonable grace period in writing. After unsuccessful expiration of the grace period, the Buyer may withdraw from the contract. Claims for defects or other claims of the Buyer arising from non-compliance with delivery periods or dates are expressly excluded.
5.2 The Buyer may not refuse acceptance of the delivery due to insignificant defects pursuant to Sec. 932 para. 4 Austrian General Civil Code (ABGB).
5.3 Circumstances beyond our control, such as in particular events of force majeure (e.g. natural disasters, war, civil unrest, epidemics, pandemics) as well as unforeseeable and unavoidable events, such as in particular strikes, lockouts, machine defects, official restrictions, in particular lock-down measures, failed harvests or reduced harvests, shall release the Vendor from the obligation of on time delivery. In these cases we also have the right to withdraw from the contract, to reduce the contractually agreed quantity and the quantitative and/or qualitative selection quota or to postpone the delivery by the duration of the hindrance. The same shall apply if we are not supplied by our sub-suppliers or are not supplied on time.
5.4 Deliveries will be made ex works or warehouse. If the agreement has been entered into by a Buyer who is an entrepreneur, any risk shall be passed over to the Buyer with the handover to the shipping agent or freight forwarder, at the latest however, when the goods leave the production facility or the warehouse.
6. Warranty, Notice of Defects, Damage Claims
6.1 Statements about the conformity of the goods with provisions of whatever nature, and any recommendations of goods given by the Vendor or its agents, as well as product descriptions of the Vendor or the manufacturer do not represent a warranty or guarantee.
6.2 The agreed quantities are approximate quantities which entitle the Vendor to an excess or shortfall of up to 10%. The weight at departure shall be decisive. The Vendor shall only be liable for weight loss during transport under the conditions stated herein.
6.3 Claims for defects cannot be made for insignificant deviation from the agreed quality/texture or for customary loss.
6.4 The Buyer is obliged to comply with the obligation to inspect the goods and give notice of defects. (Sections 377, 378 Austrian Commercial Code (UGB)). The Buyer must notify to the Vendor any defects by sending a claim notice of defects in text form within 10 days to the Vendor, receipt at our premises, after the Buyer has received the goods at the agreed place of delivery. Complaints will only be taken into account if the goods are still in the condition in which they were delivered. Hidden defects can only be claimed within an appropriate period of time the duration of which is dependent on the nature of the goods. Hidden defects must be notified to the Vendor without undue delay after they have been discovered, at the latest, however, within 7 working days. This clause 6.4 applies only vis-à-vis entrepreneurs.
6.5 If it is a mutual business-related legal transaction and the delivery is defective within the meaning of Sec. 922 et seq. ABGB, we have the option to choose between replacement delivery and price reduction. Further claims of the Buyer, such as the cancellation of the contract (redhibitory action) by the Buyer, are excluded.
6.6 Any return of delivered goods will only be accepted if such returns are based on a legitimate exercise of warranty claims which give the right to return the goods. The returned goods must - notwithstanding the claimed defect - be without any other damage and the time period until the expiry of the “best before date” shall, as a rule, not be less than four months. The foregoing clause shall not apply if such clause leads to an unlawful reduction of the limitation period.
6.7 Warranty claims shall expire upon expiry of the “best-before date” indicated on the product, provided that the storage and processing instructions are complied with, or, in the case of those products which do not have a best-before date, at the latest upon expiry of a period of 6 months from the transfer of risk. Warranty claims of consumers shall become statute-barred within the statutory periods.
6.8 Claims for defects of the Buyer are excluded, unless they are based on intent or gross negligence of the Vendor. This exclusion of liability shall not apply to personal injury of consumers.
6.9 Product liability claims for property damage are excluded. The Buyer is obliged to transfer the exclusion to his customer. Compensation for consequential (defect) damages as well as other property damages, financial losses and damages to third parties is excluded.
6.10 Claims for defects of the delivered goods and any damage claims for other legal reasons shall expire after 12 months following the commencement date of the legal statute of limitations. This period does not apply where the law compulsory prescribes other periods.
6.11 The customs numbers given are recommendations derived from the EU customs tariff. We assume no liability for the correctness, especially not for the same tariff in the receiving country.
6.12 In case of export of the Vendor's goods by the Buyer's customers in territories outside Austria, the Vendor shall not assume any liability if the Vendor's products infringe third party property rights. The Buyer shall be obliged to compensate for any damage caused by the Vendor due to the export of goods which the Vendor has not delivered expressly for the purpose of export.
7. Retention of Title
7.1 Until the full purchase price of the delivered goods has been paid, the Vendor shall remain owner of the sold goods. Vis-à-vis entrepreneurs as contractual partners, the Vendor furthermore shall remain owner of the sold goods until the Buyer has paid all outstanding debts in full, even if they result from other deliveries of the Vendor to the Buyer. The goods for which the ownership has not yet passed to the Buyer according to the stipulations above are in the following referred to as the “Reserved Goods”.
7.2 If Reserved Goods are processed by the Buyer to a new, moveable item the new item will become property of the Vendor. If the Buyer processes the Reserved Goods together with other goods which are not the property of the Vendor, the Vendor shall acquire co-ownership in the new item in accordance with the ratio of the Reserved Goods to the other goods at the point of time of processing.
7.3 The Buyer shall be entitled to sell the Reserved Goods in the regular course of business. The Buyer hereby assigns to us all future claims arising from the sale of the Reserved Goods to its customers in the amount of the still existent purchase price debt. The Buyer must disclose the names of its customers upon our demand.
7.4 The Buyer is obliged to notify to us any third party access to the Reserved Goods immediately.
8. Additional Sales and Delivery Conditions for Sausage Casings
8.1. The Vendor uses sausage casings of renowned manufacturers. We only assume a warranty for the sausage casings to the extent that we are entitled to legal warranty claims against the respective manufacturer and only within the legally applicable periods. Any liability beyond this is expressly excluded.
8.2. Print motifs designed by us or a member of the Raps Group are our intellectual property and require our written consent for use by the Buyer or third parties. If print documents are provided to us by the Buyer or if we have to comply with specifications communicated by the Buyer, we shall not be liable for collisions with the rights of third parties or in the event of a violation of food law regulations due to the motif or text design; the Buyer shall indemnify us against corresponding claims. Any liability of the Vendor for violations of food regulations due to motif and text design as well as the condition of the sausage casings is excluded.
8.3. Sausage casings printed or made up as special orders, i.e. orders made to customer specifications, cannot be returned or exchanged, except in the case of justified quality defects. In the case of special orders, no notice of defects can be given for rejects of up to 3%. Slight color deviations from the designs are possible and not unusual, therefore a notice of defects in this regard is excluded. In the case of special orders, the Buyer shall undertake to accept partial deliveries. The order shall also be deemed to have been fulfilled in the event of short or excess quantities of up to 15%.
8.4. If the Buyer is a consumer as defined by KSchG, warranty claims shall become statute-barred within the statutory periods. Claims for damages due to material damage of the consumer are excluded if it is a matter of slight negligence. This exclusion of liability does not apply to personal injury to consumers.
9. Data Protection and Confidentiality
9.1 The personal data provided by the Buyer will be processed by us exclusively within the framework of the statutory provisions (DSGVO, Data Protection Act). The data required for the processing and execution of the order and disclosed by the Buyer will be processed and stored by IT. The processing serves the fulfillment of a contract iSd Art 6 para 1 lit b DSGVO and will be deleted after expiry of the statutory storage obligations. The data will be treated confidentially and will only be disclosed to third parties if this is necessary for the fulfillment of the contract.
9.2 The Buyer is obliged to treat as strictly confidential the internal information of the Vendor which becomes known to him through the order and its processing. If the Buyer does not comply with his obligation, the Buyer is obliged to compensate us for the resulting damage.
9.3 The confidentiality obligation to shall continue to exist after the termination of the contract.
10. Place of Fulfilment and Jurisdiction
10.1 The place of fulfillment for the contractual obligations of both parties shall be the registered office of the Vendor.
10.2 The exclusive place of jurisdiction shall be the court with subject-matter jurisdiction for commercial matters and local jurisdiction for the city of Salzburg. If the legal transaction is not related to a business, the statutory provisions for jurisdiction shall apply.
11. Final Provisions
11.1 The contractual relationship between Buyer and Vendor shall be governed exclusively by Austrian law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 Should these provisions be invalid in part or contain loopholes, the validity of the remaining provisions shall not be affected by this. The invalid provision shall be replaced by one that is most likely to fulfill, in a legally permissible manner, the economic purpose of the invalid provision and the contractual relationship.
Status: February 2021