Standard business conditions of ULIKETT GmbH
1. Scope/Application of General Terms and Conditions
1.1. These General Terms and Conditions (hereinafter “General Terms and Conditions") of Ulikett GmbH (hereinafter “Contractor”) concern the governance of the business relationship and of legal transactions between Contractor and its customers. The customer’s General Terms and Conditions shall not apply unless Contractor agrees to their application expressly and in writing. The General Terms and Conditions are exclusively applicable to legal relationships with entrepreneurs, hence B2B.
1.2. For permanent business relationships, the General Terms and Conditions shall also apply to future transactions even when they are not expressly referred to as long as they were agreed on in an earlier order.
1.3. Orders shall only become binding with confirmation by Contractor. Offers by Contractor are non-binding and subject to change.
1.4. The customer shall be notified of amendments to the General Terms and Conditions and it shall be deemed to have agreed if the customer does not object to the amended General Terms and Conditions in writing within 14 days; the customer shall be expressly notified of the meaning of silence in the notification.
2. Scope of Performance, Price, Property Rights
2.1. The scope of supply and services is given by the order confirmation. It is to be reviewed by the customer and released within three business days of receipt by the customer. After this period has elapsed without response from the customer, it shall be deemed as accepted by the customer.
2.2. Reasonable partial deliveries are permissible. The scope of supply and services cited in the order confirmation is a non-binding guideline; deviations of +/- 10 % from the stipulated scope of supply and services are permissible and shall not be considered as a failure of the order execution.
2.3. The prices quoted shall be understood to mean ex Contractor’s location. Unless otherwise agreed, the customer shall bear the costs of shipment. Unless otherwise agreed, the shipment shall be made without transport insurance and at the customer’s risk.
2.4. All duties, fees and taxes (esp. VAT) shall be calculated based on the respectively applicable legal requirements. Additional taxes or duties imposed shall be at the customer’s risk.
2.5. Possible delivery dates begin with the date of the order confirmation or – if this occurs later – with receipt by Contractor of a possible prepayment or advance payment or the necessary documents or materials. Delivery times shall be extended for the Contractor to a reasonable extent owing to delays due to force majeure or other circumstances for which Contractor is not responsible.
2.6. The dies, embossing tools, printing plates manufactured by Contractor and other tools produced or acquired for the production process shall remain the property of Contractor, even if these expenditures have been charged to the customer pro rata. However, Contractor may only use these tools for the purpose expressly stipulated. The agreed remuneration for samples, drawings, drafts or similar that are expressly ordered or commissioned by the customer is also to be paid if the main order for the samples, drawings, drafts or similar is not issued.
3. Customer’s Duty to Cooperate, Intellectual Property Rights
3.1. Any documents to be provided by the customer to process the order (e.g. templates or print media) must be in a condition suitable to perform the service. Contractor is neither obligated to examine the documents or materials, nor does it have a duty to warn in terms of § 1168a of the Austrian Civil Code (ABGB).
3.2. Shipment of all materials and documents to Contractor and back shall be made for the account and at the risk of the customer. The customer shall bear the cost of work that must be redone or that is delayed due to the customer’s documents being incorrect, incomplete or subsequently amended.
3.3. Furthermore, the customer shall undertake to review the documents and materials provided for execution of the order for any copyrights, trademark rights, labelling rights or other third-party rights and shall guarantee that they are free from third-party rights and can therefore be used for the purpose intended. Contractor shall not be held liable in the case of infringement of such third-party rights. The customer shall hold Contractor harmless should Contractor be held liable by a third party due to such an infringement.
3.4. Contractor shall store the documents or materials provided by the customer for up to two weeks after execution of the order. Thereafter, Contractor shall not be liable for documents or materials that are not reclaimed. Unless agreed otherwise, Contractor is entitled to charge the customer for storage-related costs.
3.5. Contractor has the right to retain documents or materials provided by the customer until the customer pays the agreed price in full.
4. Engagement of Third Parties
4.1. At its own discretion, Contractor is entitled to execute the order itself, to make use of qualified third parties as vicarious agents to execute the order and/or to pass the order on to qualified third parties.
5. Terms of Payment, Retention of Title
5.1. Unless agreed otherwise, the invoices submitted by Contractor including value-added tax are payable at the latest 14 days from the invoice date without any deductions and free of charges. At its own choice, Contractor shall issue invoices in paper form or electronically. The customer expressly agrees with the submission of electronic invoices, unless there is a written objection.
5.2. With respect to orders that include several sub steps, Contractor is entitled to submit a partial invoice after performance of a sub step.
5.3. In the case of default of payment on the part of the customer, the statutory default interest shall apply at the rate applicable for transactions to which a consumer is not a party. Further, in the case of default, the customer shall undertake to compensate Contractor for the reminder and collection expenses incurred to the extent necessary to appropriately assert its rights.
5.4. Compliance with the agreed payment dates constitutes an essential condition for the fulfillment of the contract by Contractor. Non-compliance with the agreed payment dates shall entitle Contractor to stop current work and/or to rescind the contract subject to a grace period. All associated costs and losses of profits are to be borne by the customer.
5.5. The customer is not entitled to withhold payments due to incomplete delivery, liability or warranty claims or other claims with respect to Contractor or to set-off against receivables from Contractor arising from contested or legally unestablished counterclaims.
5.6 Until payment of the agreed price in full, goods supplied shall remain the property of Contractor. The customer shall bear the risk during this time and shall ensure proper maintenance. As security for all claims by Contractor, the customer’s receivables from a resale of reserved goods shall be assigned to Contractor upon placement of the order. The customer may not pledge or collateralize reserved goods. The customer shall immediately inform Contractor should a third party take possession of the reserved goods.
5.7 Unless otherwise expressly agreed, the Contractor shall license all packaging and carrier material for the product that is marketed domestically through the ARA - System under license number 80511 or another collecting society recognized by the Federal Ministry. The ARA fees shall be passed to the customer. If the customer dispenses itself from the obligation concerning the product or the packaging / carrier material through a system of its choice, it must provide Contractor unsolicited with a written confirmation thereof. Contractor is to be indemnified and held harmless if the customer does not provide Contractor unsolicited with this confirmation or if the ARA or the Federal Ministry makes demands because the customer does not meet its levy payment obligation for utilization. Export products are not licensed.
6. Place of Performance, Transfer of Risk
6.1. The place of performance is the Contractor’s principal place of business.
6.2. The risk shall pass to the customer as soon as the goods have been handed over to the person carrying out the transport or have left Contractor’s location for the purpose of shipment. Damage in transit may only be recognized if they have been noted by the customer on the delivery documents upon acceptance of the goods.
6.3. If shipment is delayed upon the customer’s request, the risk shall pass to the customer upon notice of readiness to ship.
6.4. Force majeure: - In the event of force majeure, e.g. natural disasters, etc., actions by governments, operational disruptions, difficulties with traffic, strikes, lockouts and other interruptions of operations, etc., Contractor shall be released from fulfillment of its delivery obligation in whole or in part without the customer being entitled to any claim or the customer being able to cancel the order.
7.1. The customer is obligated to review the delivery. A delivery shall be considered approved if a notification of defects is not made within 6 months. The customer shall substantiate the existence of the defect. Deviations in size, color that are customary or material-dependent, Delta E2 passers and die cutters of under 0.2mm in variance, or other characteristics shall not constitute a defect. Over- or under-deliveries of 10% shall be considered as the accepted tolerance, unless expressly agreed otherwise. The printing data released by the customer shall be considered binding for Contractor. Contractor is not obligated to again check, correct or supplement the data after it has been released by the customer. Deviations in productions arising due to incorrect data released by the customer lie beyond Contractor’s area of responsibility. Any costs incurred, whether form of a credit note, reprint or the like, is excluded.
7.2. The warranty period is 6 months from delivery date.
7.3. With respect to remediable defects, Contractor shall only be obligated to, at its choice, either repair or replace the defective goods that were delivered upon their return. If a defect is not remedied within a reasonable period or if the remediation would be associated with a disproportionately high expense, the customer shall have the right to a price reduction and to cancel the contract – provided that the defect is not minor. If the defect involves performances that are severable, a cancellation may only be demanded with respect to the defective partial performance. Any further claims of the customer are excluded.
8.1. Liability on the part of Contractor shall be excluded in cases of slight negligence. In cases of gross negligence, Contractor’s liability is, to the extent permitted by law, limited to the respective order value. The customer shall prove that gross negligence exists.
8.2. To the extent permitted by law, Contractor shall not be liable for loss of profit, consequential damages, loss of earnings, frustrated expenditures, intangible losses, consequential damages resulting from defects, damages resulting from third party claims or loss of data.
8.3. Claims by the customer arising from the product liability law shall remain unaffected by the exclusions of liability.
9. Data Protection, Use of Data
9.1. Contractor and the customer shall undertake to maintain secrecy of the confidential information of the other contractual partner which they receive and not to make it accessible or disclose it to third parties.
9.2. However, the customer agrees that its personal data, namely its name/company, registration number, powers of representation, contact person, business address and other addresses for the customer, telephone number, fax number, e-mail address, bank details, UID number is automatically identified, stored and processed for the purpose of performance of the contract and customer support as well as for advertising purposes of the Contractor and for purposes of referencing current or previous business relationships with the customer and may be used by Contractor for these purposes.
10. Applicable Law, Place of Jurisdicition
10.1. A contract concluded between the contractual partners shall be subject to Austrian law under the exclusion of the conflict-of-law rules and the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
10.2. The place of jurisdiction shall be the competent court for commercial matters in Vienna.
11. Final Provisions
11.1. Should a provision of these General Terms and Conditions be invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions of these General Terms and Conditions shall remain unaffected thereby. The invalid or unenforceable provision shall be replaced by that valid and enforceable provision considered to most closely approximate the economic purpose that the contractual parties pursued by means of the invalid or unenforceable provision.
11.2. Changes or amendments to a contract must be made in writing. This shall also apply to a waiver of the written form requirement.