General Terms and Conditions (GTC)
1. Scope and Application
1.1. These General Terms and Conditions (GTC) form an integral part of all agreements for the sale and delivery of products of InterCal Austria GmbH – hereinafter referred to as ICA – and its customers – hereinafter referred to as the Customer (CU) -, hereinafter jointly also referred to as “the Parties”.
1.2. Deviations from these GTC as well as any terms and conditions of the CU’s business shall be ineffective and shall not become part of the contract unless they are accepted by ICA in whole or in part in writing.
2. Delivery/Delay in Delivery
2.1. Unless expressly agreed otherwise in writing, delivery shall be made “Ex Works” (in accordance with Incoterms in the version valid at the time of conclusion of the contract) of ICA.
2.2. Each individual delivery or collection shall be mutually agreed between ICA and CU. If delivery periods and delivery dates are not expressly agreed as fixed, they shall always be deemed to be non-binding. ICA is entitled to make partial deliveries and provide partial services.
2.3. Orders must be placed in writing (email, fax, by post); ICA will not accept telephone orders.
2.4. Orders placed by CU without prior submission of an offer by ICA cannot be processed.
2.5. The contract shall only be concluded upon ICA’s written confirmation of the order/of the assignment. ICA may revoke offers at any time before issuing an order confirmation.
2.6. Orders by CU must regularly be placed at least 4 (four) working days before the desired delivery date. In exceptional cases, the deadline for individual deliveries can be shortened by up to 2 (two) working days if ICA expressly agrees to this. In the event of non-compliance with this timeframe, ICA reserves the right to charge a penalty of 20% of the respective order value.
2.7. Unforeseen operational disruptions (e.g., unplanned furnace shut-down), delivery delays or delivery failures on the part of ICA’s suppliers, shortages of labour, energy or raw materials, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, official decrees and cases of force majeure (see Section 9.) shall release ICA from the delivery obligation for the duration of their effects. ICA shall inform CU immediately of the occurrence of such an event. If consequently, delivery is delayed by more than 40 days, CU shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery, excluding all further claims.
2.8. In the event of an objective delay in delivery due to force majeure or extraordinary events in accordance with point 9, the CU shall not be entitled to any claims for damages against ICA.
2.9. If an expressly agreed delivery period is culpably exceeded, CU shall be entitled to withdraw from the contract or demand compensation after expiry of a grace period of 10 (ten) working days, to be set by CU in writing, under the exclusion of any further rights. However, claims for compensation by CU due to delay and/or non-performance shall be limited to the amount of 25 % of the invoice value of the quantity of goods not delivered or not delivered on time, unless a limitation of liability is not allowed in accordance with mandatory statutory provisions due to intentional or particularly gross negligent behavior. CU’s duty to mitigate damages shall remain unaffected by this.
2.10. ICA’s compliance with the expressly agreed delivery and performance period shall be conditional upon CU’s timely and proper fulfilment of its obligations.
2.11. Loading, transportation and unloading of products shall be at CU’s own risk and expense. ICA shall not assume any liability in this context. CU shall be solely responsible for ensuring that the carrier commissioned by him does not load the vehicle beyond the officially approved maximum weight or inadequately secures the transported goods.
2.12. Deliveries shall comprise at least the net loading weight of the vehicle on which the respective tariff is based and, unless CU expressly requests the loading of a smaller quantity when placing the order, ICA reserves the right to use the full load capacity of the vehicle. Costs due to shortages, re-weighing, disposal etc. shall be borne by CU. For quantities ordered but not accepted, ICA shall be entitled to charge the price as well as the costs for their return transport and manipulation. Any additional costs due to an excessively long unloading time (longer than one hour) shall be borne by CU.
3. Default of the CU
3.1. ICA’s obligation to deliver shall be suspended as long as CU is in default with a due payment. CU shall not be entitled to subsequent delivery of quantities which ICA has not delivered because of CU’s overdue payments. ICA’s other rights arising from the default in payment shall not be affected thereby.
3.2. If CU is in default of acceptance or violates other duties to cooperate, ICA shall be entitled to demand compensation for the damage resulting therefrom, including any additional expenses. Irrespective of this, ICA reserves the right to assert further claims.
3.3. If a fixed delivery date has been agreed, the risk of accidental loss or accidental deterioration of the goods shall pass to CU at the point in time at which CU is in default of acceptance or payment.
4. Prices and Terms of Payment
4.1. Prices offered are subject to change. Changes to the calculation components and/or introduction or increase of cost-relevant taxes or charges (customs duties, energy costs, allocation of CO2-certificates or CO2 related charges, etc.) entitle ICA to make appropriate price adjustments.
4.2. If ICA’s costs for CO2 (CO2 tax, CO2 emission rights, etc.) and/or energy have increased by more than 10 % at the time of delivery of the goods, compared to the costs at the time the offer was submitted, ICA shall be entitled to increase the agreed prices to the extent of this cost increase.
4.3. The weight determined on ICA’s calibrated works scales shall be relevant for invoicing. If packaged goods are delivered, the quantity stated on the delivery documents is relevant for invoicing.
4.4. Unless otherwise agreed, invoices are due for payment within a period of 30 days from the invoice date. Payment is deemed to be on time if it is received on ICA’s account within the payment period.
4.5 The deduction of a price (agreed discount) requires a special written agreement. If partial payments have been agreed, any agreed discount shall be cancelled in its entirety.
4.6 Collection and discount charges shall be borne by CU.
4.7 In the event of default in payment, statutory provisions apply.
4.8 In case of default in payment, as well as in the event of justified doubts about CU’s solvency and creditworthiness, ICA shall be entitled, without prejudice to its other rights, to demand advance payment for outstanding deliveries and to make all outstanding – including deferred – invoiced amounts due immediately.
4.9 CU is not entitled to withhold payments. Claims from ICA can only be offset against counterclaims of CU if the latter have been expressly acknowledged by ICA or have been legally established.
5. Quality and warnings
5.1. In the event of transfer to third parties, CU is obliged to observe all warnings in accordance with the enclosed product information (delivery note, bag imprint or product data sheets) and the respective valid safety data sheet. CU is liable for full compliance with these warnings, both in the event of its own use of the goods and in the event of resale or transfer.
6. Transfer of risk
6.1. Costs and risk pass to CU upon takeover of the products/goods at the ICA’s plant (Incoterms see item 2.1). This shall also apply if ICA carries out and organises the transport.
6.2. In the event of delays in delivery attributable to CU, the risk with regard to the products shall already pass to the CU upon notification of readiness for delivery.
6.3. The place of fulfilment is the ICA’s plant.
7. Retention of title
7.1. The products remain the property of ICA until full payment has been made.
7.2. CU undertakes to handle the products carefully and separately from other goods from other suppliers, so that it is possible to assign ownership to ICA at any time.
7.3. In the event of a seizure or other claim, CU is obliged to point out ICA’s right of ownership and inform ICA without delay.
7.4. CU is entitled to sell the delivered goods. However, at the time of sale, CU shall already assign to ICA the resulting claims against its clients with all rights, until the complete settlement of all claims by ICA, irrespective of whether the reserved goods have been unprocessed, processed or resold to one or more clients. CU shall make a corresponding note of assignment in its books and in the list of outstanding debtor items (open items list) and, at the request of ICA, inform its client of the assignment and provide ICA with the information and documents required to assert its rights against the client.
8. Warranty and compensation for damages
8.1. ICA warrants that, at the time of handover, the products comply with the requirements, technical approvals and standards specified in the product data sheets of the respective products. Any further warranty or liability is excluded.
8.2. The warranty period is twelve (12) months and shall begins at the time of transfer of risk pursuant to item 6.
8.3. CU or persons attributable to CU have to notify ICA of any defects immediately at the place of handover, or of hidden defects immediately after their occurrence, stating the type and extent of the defect. If CU does not personally take receipt or has products taken receipt by another person attributable to CU, they shall be deemed to have been handed over free of defects. Defective products are not to be used until final clarification with other exclusion of liability and have to be stored properly by the CU.
8.4. In the event of defects, ICA shall initially provide warranty, at its discretion, by either rectifying the defect or supplying a replacement. Within the scope of the warranty, ICA shall only bear material costs, but not travel time, labour or transport costs.
8.5. Claims for damages, except for personal injury, can only be asserted in the event of culpable misconduct (intent, particularly gross negligence). The claim for damages in any case only include the repair of the damage caused by the defect, but no further claims, such as claims for consequential damages or loss of profit or contractual penalties to be paid by CU. However, ICA shall only be liable up to the maximum amount of the respective delivery that led to the claim.
8.6. The reversal of burden of proof pursuant to § 1198 of the Austrian Civil Code (ABGB) is excluded. It is upon CU to prove that ICA was at fault.
8.7. CU’s claims for damage due to a defect for which ICA is responsible, become statute-barred within 6 (six) months after knowledge of the damage, but at the latest within 3 (three) years after handover.
8.8. Any dimensions, weights and quality specifications contained in technical data sheets, advertising material and documentation published by ICA, as well as samples or test pieces, are approximate values of the respective average production of ICA. Cu is solely responsible for the choice and proper processing of the product, taking into account the processing and advisory instructions in the product data sheets, the applicable technical standards, the specific properties of the products and the specific intended use and must consult a specialist if in doubt. Please note that the product data sheets provided for information purposes are subject to ongoing changes and the current version can be found at www.intercal.at. All drawings, plans, quantity specifications or requirements calculations made available to CU are non-binding, remain the property of ICA and may only be made accessible to third parties with ICA’s prior written consent.
9. Force majeure
9.1. Cases of force majeure (e.g., war, natural disasters, strikes, epidemics, pandemics, official measures) and other events beyond the reasonable control or expectation of the parties and which prevent the parties from fulfilling their obligations under this Agreement in whole or in part, shall release both parties accordingly from the fulfilment of this Agreement in whole or in part, until the force majeure ceases or the event ceases. The party affected by the force majeure shall immediately notify the other party thereof.
10. Place of jurisdiction, applicable law
10.1. These GTC and their legal effect, interpretation and performance, as well as entire legal relationship between the Parties shall be governed by Austrian law, excluding the conflict-of-law rules. Application of the UN Convention of Contracts for the International Sale of Goods is expressly excluded.
10.2. For all disputes arising from the GTC or relating to their conclusion, violation, dissolution or invalidity, the court in Klagenfurt with jurisdiction over commercial matters shall have exclusive jurisdiction.
11. Data privacy
11.1. CU expressly consents to the processing and transmission of its data within ICA’s group of companies to the extent this is necessary for the provision of the services covered by these GTC and for advertising purposes. CU shall be entitled to revoke the consent to the processing and transmission of its data at any time.
12. Confidentiality
12.1. The parties undertake to treat confidential information made available to the respective other party within the scope of this contractual relationship as confidential without restriction and to keep it secret from third parties. This confidentiality obligation shall continue to exist after termination of the business relationship.
13. Severability clause
13.1. Should one or more provisions of these GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity or enforceability of the remaining provisions. In place of the invalid provision, a valid provision shall be deemed agreed that corresponds to the meaning and purpose of the invalid provision; the same shall apply to any loopholes in these GTC.