GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale of AUSTRIA CARD-Plastikkarten und Ausweissysteme Gesellschaft m.b.H. (“AUSTRIACARD”) shall apply to any and all products and services supplied and/or provided by AUSTRIACARD (“Goods”) to a buyer (“Buyer”).
Any proposal or offer made by AUSTRIACARD for the Goods as well as any and all contracts entered into by AUSTRIACARD with a Buyer shall be exclusively governed by these General Terms and Conditions of Sale, unless agreed otherwise between AUSTRIACARD and the Buyer in writing.
2. OFFER AND ORDER CONFIRMATION; CONTRACT
Any and all proposals and offers made by AUSTRIACARD shall be non-binding, even if not explicitly so mentioned in the proposal or offer.
The Buyer’s written acceptance (hereinafter “Order”) of AUSTRIACARD’s proposal or non- binding offer shall be deemed the Buyer’s unconditional and irrevocable offer for the purchase of the Goods and consent to these General Terms and Conditions of Sale and waiver of the Buyer’s own terms and conditions of purchase, even if the Buyer’s Order refers to its own terms and conditions of purchase. Any terms and conditions set forth in an Order, which conflict with these General Terms and Conditions of Sale, shall be null and void. AUSTRIACARD’s General Terms and Conditions of Sale shall apply exclusively, even if AUSTRIACARD makes deliveries of the Goods without reservation to the Buyer in respect of the Buyer’s terms and conditions of purchase.
The Buyer’s Order is subject to acceptance or non-acceptance on the part of AUSTRIACARD. No Order may be cancelled or modified after AUSTRIACARD has received it.
A contract shall be deemed concluded if and insofar as AUSTRIACARD has accepted in writing the Buyer’s Order or actually effects delivery (“Confirmation”).
AUSTRIACARD is entitled to modify or withdraw from each proposal or non-binding offer by giving written notice to the Buyer at any time, until a contract regarding the subject matter thereof has been validly concluded. In such case, AUSTRIACARD shall not be liable for any costs and/or damages incurred by the Buyer in connection therewith.
Appropriate expenses for drafts, designs, samples or the similar, made at the Buyer’s request, shall be reimbursed at AUSTRIACARD’s request, even if a prospective Order is not placed by the Buyer or a Confirmation is not made by AUSTRIACARD.
All licenses, permits, authorizations or alike, required and necessary for executing an Order, shall be obtained by the Buyer and provided to AUSTRIACARD free of charge and in a timely manner.
Unless agreed otherwise in writing, prices stated in the offers, proposals or a Confirmation are to be understood EXW (Incoterms 2010) and exclude in particular packaging, unloading, loading, shifting, transportation, insurance, taxes, customs duties, levies and other charges whatsoever.
Unless otherwise stated in the offers, proposals or a Confirmation, all prices are quoted in Euro currency, excluding statutory value-added tax.
All prices shall be based on the costs applicable at the time of their notification. AUSTRIACARD shall be entitled to adjust prices if the costs have changed up to the time of delivery due to circumstances not attributable to AUSTRIACARD.
AUSTRIACARD shall be entitled to invoice additional costs incurred due to a delay, which is beyond AUSTRIACARD’s responsibility, or as a result of overtime, night work or Sunday work requested by the Buyer.
Delivery of the Goods shall be EXW AUSTRIACARD’s premises (Incoterms 2010). The place of performance and delivery shall be EXW AUSTRIACARD’s premises even if AUSTRIACARD organizes the transport for the Buyer, assumes responsibility for the transport and/or AUSTRIACARD carries out the transport itself.
Unless agreed otherwise in writing, the delivery schedule with its delivery dates shall be approximate only and non-binding and AUSTRIACARD shall not be liable for nor shall AUSTRIACARD be in breach of its obligations towards the Buyer, if delivery of the Goods is executed within a reasonable time after the stated delivery dates.
The delivery schedule shall be included in a Confirmation and shall begin from the last of the following occurrences:
a) Confirmation by AUSTRIACARD;
b) receipt by AUSTRIACARD of all information, documentation and data necessary to fulfil an Order;
c) receipt by AUSTRIACARD of all permits, licenses and authorizations necessary for the fulfilment of an Order and delivery of the Goods; in case that a down-payment or a substitute were agreed, the receipt by AUSTRIACARD of the down-payment or its respective substitute.
AUSTRIACARD shall be entitled to make and invoice advance deliveries and/or partial deliveries. AUSTRIACARD reserves the right to deliver quantities that may deviate from the quantity of the ordered Goods by more or less than ten percent (+/- 10 %). In such case, the Buyer shall pay the price for the quantity of the Goods actually delivered. Any delivery of the Goods within this tolerance range (+/- 10 %) shall be deemed proper fulfilment of AUSTRIACARD’s obligations.
AUSTRIACARD shall be entitled to invoice and the Buyer shall pay the raw materials ordered for the Buyer and/or semi-finished goods (such as card bodies ready for personalization) produced for the Buyer and to store such raw materials and/or semi-finished goods at the Buyer’s risk and expense. The title and risk in and to the invoiced raw materials and/or semi-finished goods shall pass to the Buyer on the date of storage by AUSTRIACARD.
If the Goods are ready for delivery, but the delivery of the Goods or any part thereof is delayed due to circumstances not attributable to AUSTRIACARD or postponed at the Buyer’s request, AUSTRIACARD reserves the right to store the Goods or any part thereof at Buyer’s risk and expense. In such case, (i) the performance of AUSTRIACARD’s obligations shall be deemed effected; (ii) AUSTRIACARD shall have no liability in connection with the storage of the Goods; (iii) the purchase price for such Goods shall become due and payable on the date the Goods are ready for delivery; and (iv) the Buyer shall pay all costs and expenses for the storage of the Goods.
In the event of shortages, AUSTRIACARD may allocate its available production and goods, at its sole discretion, among its customers and as a result may deliver to the Buyer a lesser quantity of the Goods than specified in a Buyer’s Order or a Confirmation or the contract, as the case may be.
In case AUSTRIACARD, as an exception, has committed to a firm delivery date and is in delay with the delivery of the Goods, AUSTRIACARD shall have the right to be granted a grace period of minimum fourteen (14) days beyond the scheduled delivery date.
Any manuscripts, samples, plates, documents, films or other items provided to AUSTRIACARD in connection with an Order are stored with AUSTRIACARD exclusively at the Buyer’s risk. It is the sole responsibility of the Buyer to insure these items against any risks and losses whatsoever. AUSTRIACARD shall not in any case be liable for any damage or loss of these objects for any reason.
Any material, data or goods to be supplied to AUSTRIACARD by the Buyer shall be delivered to AUSTRIACARD DDP (Incoterms 2010). AUSTRIACARD’s acknowledgment of receipt shall not be regarded as confirmation of the quality and quantity described as delivered. At AUSTRIACARD’s request, the Buyer shall reimburse AUSTRIACARD promptly all costs and expenses in connection with the counting, quality testing and storage of such goods.
In the absence of a written agreement regarding the packaging of the Goods, the choice and manner of packaging shall be at AUSTRIACARD’s discretion.
5. PERFORMANCE AND PASSING OF RISK
The title and risk in and to the Goods shall pass to the Buyer at the time of delivery in accordance with Section 4.1 hereinabove, except where another delivery term was agreed by the parties in writing. In case of delivery pursuant to Section 4.6 hereinabove , the title and risk in and to the Goods shall pass to the Buyer on the day the Goods are ready for delivery.
Any separate agreements regarding quality tests or service trials shall not affect the performance and passing of risk as set forth herein.
6. INVOICING AND PAYMENT
Unless agreed otherwise in writing, the price for the Goods and any other costs invoiced (e.g. VAT, package, insurance, transport, etc.) shall be payable within thirty (30) days from the invoice date. Neither early payment nor payment in due time shall result in a discount or reduction of the price invoiced by AUSTRIACARD.
In case of partial invoicing, the corresponding partial payments are due on issuance of the respective invoice.
AUSTRIACARD shall be entitled to issue and the Buyer herewith consents to accept electronic invoices to be sent to an e-mail address designated by the Buyer.
All payments shall be made via direct bank transfer to the account number provided for in the invoice in Euro currency, unless another currency is stated on the invoice. The Buyer shall bear all bank fees and other costs and expenses in connection with the bank transfer and/or the currency exchange, if any. The day on which AUSTRIACARD receives full payment of the invoiced amount shall be deemed the payment day.
Unless otherwise agreed to in writing by AUSTRIACARD, the Buyer shall not be entitled to withhold any payments or set-off any counterclaims, including but not limited to warranty claims, against the price invoiced by AUSTRIACARD.
In case the Buyer is in delay with the payment of the price invoiced by AUSTRIACARD or any part thereof, AUSTRIACARD may, without prejudice to other rights or remedies available, without any liability to the Buyer, as of the date of maturity: a) suspend performance of its obligations until the entire overdue payment has been effected; and b) charge the Buyer interest on the amount unpaid, equal to the latest basis bid rate published by the Austrian National Bank plus eight percentage points (8%) plus VAT, if any, per annum until AUSTRIACARD receives the entire outstanding amount; and c) accelerate maturity of all outstanding amounts (deadline loss); and d) rescind the contract and/or cancel any pending Order upon fruitless expiry of a ten (10) day grace period granted by AUSTRIACARD to the Buyer in writing.
In case that the Buyer fails to effect payment on the due date, the Buyer shall indemnify AUSTRIACARD for all damages, costs and expenses incurred by AUSTRIACARD in connection therewith, including but not limited to costs of a debt collection agency, attorney- at-law or other means of persecution.
In case of Buyer’s delay with payment, AUSTRIACARD is entitled to suspend or cancel any pending contract or Order with the Buyer without incurring any liability in connection therewith.
AUSTRIACARD undertakes to remedy defects of the delivered Goods, which impair the functionality of the Goods and which were present already at the time of delivery, for a period of twelve (12) months from the transfer of title/risk, in accordance with the following provisions of this Section 7. The warranty obligation of AUSTRIACARD as set out herein shall apply only to the extent that the Goods were used and maintained under normal condition .
Section 377 and 378 of the Austrian Commercial Code (Inspection and Notice of Non-Conformity) are applicable. The Buyer is obligated to inspect the Goods promptly upon delivery and undertakes to report to AUSTRIACARD any apparent defects, such notice to describe the defects and be accompanied by all relevant documents and information, within a period of five (5) business days from the delivery.
Hidden defects must be notified to AUSTRIACARD in writing, including a detailed description, within five (5) business days as of their detection at the latest. Single defective Goods in a delivery shall not result in a notice of defect for the entire delivery. In case AUSTRIACARD’s inspection of the returned Goods results in a confirmation that the Goods are defective, AUSTRIACARD shall, at its sole discretion, repair or replace the defective Goods or the defective parts thereof. AUSTRIACARD’s warranty obligation is limited to and shall not go beyond the repair or replacement of the defective Goods or parts thereof. However, in case neither repair nor replacement of the defective Goods, as deemed by AUSTRIACARD, is technically feasible or economically reasonable, the Buyer may request price reduction.
The warranty period shall not be extended as a result of any replacement or repair undertaken by AUSTRIACARD under this warranty section.
The Buyer shall make available all auxiliary staff, materials and tools necessary for AUSTRIACARD to render the remedies to the Buyer under the warranty, free of charge.
In case the Goods have been produced according to designs, drawings, models or other specifications provided by or on behalf of the Buyer, AUSTRIACARD shall only warrant that the Goods are in accordance therewith. In case that AUSTRIACARD procures the Goods or parts thereof, such as software or any other components, from third party suppliers, AUSTRIACARD’s warranty shall be strictly limited in time and substance to the warranty granted to AUSTRIACARD by its supplier.
AUSTRIACARD provides no warranty whatsoever for defects arising from (i) negligent or improper treatment, maintenance or storage of the Goods, (ii) instructions made by or on behalf of the Buyer, (iii) normal tear and wear, (iv) assembly work, modification or repair of the Goods carried out by the Buyer or third parties without AUSTRIACARD’s written approval, (v) use of the Goods in an operating environment other than for which they were designed or intended for. Furthermore, AUSTRIACARD shall not be held liable for defects or damages arising out of third party actions or claims, atmospheric discharge, excess-voltage or chemical influences.
Deviations from the quality conditions agreed upon in a contract shall be deemed a defect of the delivered Goods only in case such defect substantially impairs the functionality of the Goods. Deviations under two percent (2%) from the respective measured variable are deemed to be insignificant and therefore excluded from any liability.
AUSTRIACARD shall not be liable for errors, if proofs where sent to the Buyer before printing and declared ready for press by the Buyer. Any requests for corrections notified by telephone shall only be binding if they are confirmed in writing by AUSTRIACARD before start of the printing process. In case of coloured reproductions in any printing process, colour deviations from the original shall not be deemed defects. The same applies to colour deviations between specimen print (sample) and edition print caused by the printing technology.
The Buyer shall pay freight charges and other costs and expenses incurred by AUSTRIACARD for returned Goods that are not found to be defective or non-conforming.
AUSTRIACARD shall be discharged from the obligation to give warnings in accordance with Section 1168a of the Austrian Civil Code (“ ABGB ”) or any other applicable legal provisions.
Notwithstanding the above, the Buyer shall not have any warranty claims whatsoever against AUSTRIACARD in case the Buyer (i) does not, for whatever reason, carefully examine sample cards or other specifications of the delivery and/or (ii) requires AUSTRIACARD to use certain materials or third party services specified by the Buyer, which AUSTRIACARD would otherwise not use.
The warranty granted by AUSTRIACARD to the Buyer shall be conclusively dealt with in this section. Thus, the Buyer expressly waives all other warranties, rights or remedies, whether statutory, express or implied arising by law or otherwise with respect to any defects of the Goods.
AUSTRIACARD’s liability with respect to direct damages to the Goods delivered by AUSTRIACARD or arising from bad performance or non- performance of AUSTRIACARD’s obligations shall be limited to such damages arising from AUSTRIACARD’s severe gross negligence (“ krass grobe Fahrlässigkeit ”) or intent (“ Vorsatz ”). AUSTRIACARD’s liability shall not exceed in any event the amounts actually received by AUSTRIACARD under the Order or contract for the Goods delivered in the twelve (12) months immediately preceding the event giving rise to the liability.
ustria Card shall not be, in any case whatsoever, liable to the Buyer or any of its employees, agents, representatives or distributors for any indirect, special, consequential or incidental damages arising out of or in connection with any Order, contract concluded with AUSTRIACARD, the Goods delivered by AUSTRIACARD or generally the business relationship with AUSTRIACARD, including but not limited to any losses, costs, damages, loss of revenue, loss of profit, loss of use.
Under no circumstances shall AUSTRIACARD be liable for any damages resulting from illegal and/or fraudulent use of the Goods by the Buyer or any third party.
9. FORCE MAJEURE
AUSTRIACARD shall not be liable, neither in whole nor in part, for non-performance or a delay in performance of its obligations under any Order or a contract with the Buyer for reasons of Force Majeure. For the purpose of this section, “Force Majeure” shall mean any event beyond the reasonable control of AUSTRIACARD, including without limitation: acts of God, government restrictions (incl. cancellation and non-availability of all necessary licenses and/or authorizations required), wars, embargo, insurrections, terrorist attacks, civil commotion, sabotage, failure or delay of suppliers, subcontractors and carriers, labour strike (either at AUSTRIACARD or any of its suppliers), delay from a supplier facing a Force Majeure event as defined herein, shortage of fuel, raw material or machinery, technical failure.
In case of a Force Majeure event, AUSTRIACARD shall notify the Buyer in writing thereof and shall provide for an estimate of time necessary to overcome the Force Majeure event. In any case, the fulfilment of AUSTRIACARD’s obligations shall be extended by the estimated time period.
If AUSTRIACARD cannot perform its obligations, in whole or in part, for reasons of a Force Majeure event, AUSTRIACARD shall be entitled to cancel any Order and/or terminate the contract concluded with the Buyer, without any liability to the Buyer or any third party. The Buyer’s payment obligations for the Goods delivered by AUSTRIACARD shall not be affected by a Force Majeure event.
10. IMPRINTING BRANDS; MARKETING
AUSTRIACARD shall be entitled to imprint its company name and/or brand onto the Goods as well as to refer to Buyer’s identity and use voided samples for marketing purposes.
11. INTELLECTUAL PROPERTY RIGHTS, INFRINGEMENT
All data, information, drafts, offers, projects, drawings, dimensions, sketches, descriptions and alike provided to the Buyer by AUSTRIACARD in connection with the Goods (collectively “Data”) shall remain the exclusive property of AUSTRIACARD together with all intellectual property rights, including but not limited to patent rights, copyrights and trademarks, attached thereto. In this context, no right, title or interest is transferred to the Buyer in trademarks, patents (including pending patents), copyrights or other intellectual property rights in and to the Goods. The Buyer shall use the Data only for the purpose for which they were provided for.
To the extent that software is embedded into any of the Goods supplied by AUSTRIACARD, the sale of such Goods shall not constitute the transfer of ownership rights or title in such software, but shall only imply a non-exclusive license granted to the Buyer under AUSTRIACARD’s intellectual property rights to use such software in conjunction with and as embedded in the Goods as supplied by AUSTRIACARD. Such license shall only be granted if and beginning with the date the Goods delivered have been fully paid by the Buyer on due date.
AUSTRIACARD retains ownership of all inventions, designs and processes made in connection with the Goods.
The Buyer shall indemnify and hold harmless AUSTRIACARD in case any design, drafts, drawings, sketches, specifications or data provided to AUSTRIACARD by the Buyer or the Goods produced based thereon, infringe or are likely to infringe third party rights, in particular, but not limited to intellectual property rights. In such case, AUSTRIACARD shall notify the Buyer of the claim and shall give control of the legal proceedings to the Buyer, at the Buyer’s expense. If the Buyer does not intervene in the legal proceedings as a joined party, AUSTRIACARD shall be entitled to recognize the claim. The Buyer shall reimburse all costs and expenses, including but not limited to legal expenses, incurred by AUSTRIACARD in connection with such legal proceedings and the claim.
AUSTRIACARD shall indemnify and hold harmless the Buyer against all claims that the use of the Goods directly infringe a third party’s intellectual property right in the country where the Buyer has its registered seat, provided that: a) the Goods have been fully paid for by the Buyer on due date and were used in accordance with their specifications and intended usage; and b) AUSTRIACARD is notified in writing promptly after the Buyer first became aware of the claim of infringement, but in no event later than within fifteen (15) days of the date on which the Buyer first received notice of such claim; and c) AUSTRIACARD is, at AUSTRIACARD’s request, given sole control of the legal proceedings and all reasonably requested assistance in connection therewith; and d) the Buyer refrains from any legal measures with respect to the claim. In case that AUSTRIACARD procures the Goods or parts thereof, such as software or any other components, from third party suppliers, AUSTRIACARD’s indemnity obligation with respect to infringement of third party’s intellectual property rights shall be strictly limited in time and substance to the indemnity granted to AUSTRIACARD by its supplier.
AUSTRIACARD’s indemnity provided in Section 11.5 hereinabove does not extend to the Goods supplied by AUSTRIACARD that are: a) altered in any way by the Buyer or any third party, unless the Buyer can prove that such alteration was approved or ordered by AUSTRIACARD; b) combined with any products, elements, software or application of the Buyer or any third party; c) designed and/or used in accordance with the Buyer’s designs, specifications, or instructions if the alleged infringement would not have occurred but for such designs, specifications, or instructions.
If the Goods supplied by AUSTRIACARD have been seized or its further use forbidden as a result of a claim as described in Section 11.5, AUSTRIACARD will at its sole discretion: a) obtain for the Buyer the right to use such Goods; or b) replace the infringing Goods with an equivalent product reasonably acceptable to the Buyer; or c) modify the Goods so as to become non- infringing; or, if none of the above mentioned solutions is feasible, d) accept the return of the Goods in stock and refund the purchase price.
If an infringement related to the Goods is alleged prior to completion of the delivery of Goods, AUSTRIACARD shall have the right to refuse further delivery of such Goods.
The indemnity provided by AUSTRIACARD in this section shall be subject to the limitations set forth in Section 8 hereinabove and shall be the sole, conclusive and entire liability of AUSTRIACARD and the remedies provided for herein are the conclusive remedies against AUSTRIACARD with respect to the infringement of any third party’s intellectual property right(s).
The Buyer shall keep all information, material and data supplied by AUSTRIACARD in connection with an Order, the contract or the Goods generally, strictl y confidential and shall disclose such information, material and data only to those employees which have a need to know and provided that such employees are also bound by a confidentiality obligation.
Neither AUSTRIACARD nor the Buyer shall, without t he prior written consent of the other, have the right to assign or transfer to any third party the rights an d obligations under an Order or any contract or generally the legal relationship between the partie s. However, AUSTRIACARD shall have the right to trans fer and assign any Order or contract with the Buyer, or any of its rights and/or obligations under any Orde r, contract or legal relationship of whatever nature w ith the Buyer to any of its Affiliated Companies. For t he purpose of this section “Affiliated Company” shall mean any legal entity which is controlled by or controls AUSTRIACARD; and for the purpose of above definition, “control” shall mean direct or indirect ownership of more than thirty percent (30%) of the nominal value of the issued equity share capital or of more than thirty percent (30%) of the shares entitl ing the holders to vote for the appointment of director s or persons performing similar functions.
14. WITHDRAWAL FROM CONTRACT / CANCELLATION OF ORDERS
Without prejudice to any other remedies AUSTRIACARD may have at law or otherwise, AUSTRIACARD shall be entitled to cancel any Order and/or withdraw from a contract by giving written notice to the Buyer with immediate effect in case: (i) the Buyer – despite of a grace period set by AUSTRIACARD – fails to make payment for the Goods delivered hereunder; (ii) any insolvency, bankruptcy, liquidation or winding-up proceedings are initiated or an application with respect thereto has been made against the Buyer; (iii) the Buyer breaches any of the provisions of these General Terms and Conditions of Sale; (iv) delivery of the Goods is impossible or further delayed for reasons the Buyer is responsible for, despite a period of grace having been set; (v) AUSTRIACARD has reservations regarding the Buyer’s creditworthiness and the Buyer refuses to make an advance payment at AUSTRIACARD’s request or to provide suitable comfort.
In case AUSTRIACARD cancels an Order and/or withdraws from a contract, all payments to be made by the Buyer for the Goods already delivered by AUSTRIACARD or services already rendered shall become immediately due and payable, even if an Order or a contract were only partially fulfilled and without prejudice to other claims for damages. If the Goods have been produced but not delivered at the time of cancellation and/or withdrawal, the Buyer shall nevertheless pay the full price.
15. APPLICABLE LAW, DISPUTE RESOLUTION
The proposals, offers, Orders and any contract concluded as well as the entire business relationship between AUSTRIACARD and the Buyer shall be exclusively construed and enforced, in all respects, in accordance with the laws of Austria, with the exception of any conflict of laws rules or mechanism. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
If the Buyer has its corporate seat within the European Union, any and all dispute between AUSTRIACARD and the Buyer arising out of or in connection with an Order, any contract or the business relationship between AUSTRIACARD and the Buyer shall be settled by the Commercial Court in Vienna, Austria, which shall have exclusive jurisdiction to decide on such dispute. In case the Buyer has its corporate seat outside the European Union, upon AUSTRIACARD’s sole discretion, any and all disputes arising out of or in connection with an Order, any contract or the business relationship between AUSTRIACARD and the Buyer shall be (i) either settled by the Commercial Court in Vienna, Austria, or (ii) finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules). The number of arbitrators shall be one if the amount at stake is less than € 300.000 (Euro three hundred thousand), otherwise three. The language to be used in the arbitral proceedings shall be English. The venue of arbitration shall be Vienna.