GENERAL TERMS OF BUSINESS
of
CosFab cosmetic fabrication GmbH,
Reicharten 614, 6932 Langen b. Bregenz, Österreich

1. GENERAL

1.1 The present Terms of Delivery shall apply to all business relations of CosFab cosmetic fabrication GmbH (“supplier”) with contractual partners who are not subject to the Austrian Act on Consumerism as consumers (“buyers” and together with “supplier” referred as “parties”). In particular the supplier shall provide all services and supplies (“services”) to the buyer exclusively on the basis of these General Terms of Delivery, whether explicitly referring to them or not.

1.2. The buyer shall accept these General Terms of Delivery latest at the date of the buyer’s declaration of agreement with the supplier. No General Terms of Business of the buyer shall become part of the contract, irrespective of whether the buyer refers to them and irrespective of the time of receipt of such buyer’s Terms at the supplier. This especially also applies if the supplier does not oppose any General Terms of Business of the buyer or provides services unconditionally while being aware of buyer’s deviating, opposing or supplementing General Terms of Business.

2. CONCLUSION OF CONTRACT

2.1. All quotations of the supplier are without obligation and subject to modification. Buyer’s orders not containing a deadline for acknowledgement shall bind the buyer for two weeks.

2.2. Any contracts with the supplier shall not become effective unless confirmed in writing by the supplier (“order acknowledgement” / “order confirmation”). The order acknowledgement together with the documents referred to in it and this General Terms of Delivery provide for the total subject matter of the contract.

2.3. Any deviations in the order acknowledgement, or the documents referred to in it, in relation to any prior declarations by the parties shall be considered as accepted if the buyer does not contradict the deviation in question expressly and in writing, within a reasonable period of time, latest within seven days from the receipt of the order acknowledgement. The buyer shall have no right to contradict the applicability and validity of the present General Terms of Delivery. Amendments and additions to the contract are not effective unless confirmed in writing by the supplier. General Terms of purchase of the buyer are binding upon the supplier only if they are separately accepted by the supplier.

2.4. The supplier concludes the contract under the reservation to cancel the delivery or deliver partially, if the supplier herself was not supplied properly and in time. The supplier is going to inform the buyer if the goods are not, or only partially, available and is going to return any benefits partially or entirely received.

3. SUBJECT OF THE DELIVERY

3.1. The subject of the delivery (“contract works“, “good/s” or “product“) shall be exclusively determined by the indications in the order acknowledgement and the documents referred to in it. Reference to external reference numbers shall be deemed as references to the corresponding products of the supplier.

3.2. The product quality agreed upon, particularly the properties, characteristics and possible use, is determined only by the description of the goods in the order acknowledgement and the documents referred to in it. Specifications given in public statements, targeting or advertisement – such as catalogues, brochures, newsletters, price lists and images – are binding for the supplier only if this was expressly agreed upon in writing; this applies in particular for reference numbers, dimensions, quantities, prices, design and weight.

3.3. The supplier is entitled to use products of a third party for the production of the contract works or to have the goods produced by a third person respectively.

4. INDUSTRIAL PROPERTY RIGHTS, SECRECY

4.1. The supplier shall retain the industrial property rights and copyrights with regard to all documents, especially illustrations, drawings and templates / models (“the documents“) and all pieces of information on these documents or made available to the buyer in any other manner (“the information“). Even if a supply or service is based on the buyer’s specification or the buyer contributes to it in any other manner, the rights of use shall be attributed fully and exclusively to the supplier. The documents and information must not be passed on to any third party or put to any use beyond the concrete agreement without the prior express written consent of the supplier.

4.2. Except where publicly known information or information that was rightfully obtained from third parties is concerned, the buyer shall treat any of the supplier’s business information and know-how that has been disclosed to the buyer or has otherwise come to his knowledge confidentially also after termination of the business relationship.

 

 

5. REMUNERATION AND TERMS OF PAYMENT

5.1. Prices quoted by the supplier are subject to the legal value-added tax, if any. The price lists are intended for information only and are without responsibility. Estimates and appraisals are given by the supplier without engagement.

5.2. The prices are ex works at Reicharten 614, 6932 Langen b. Bregenz, Austria, without loading.

5.3. Unless otherwise agreed the supplier’s prices are founded on the cost structure at the time of quotation by the supplier. Changes of this cost structure by the time of the (partial) delivery are at the expense of the supplier.

5.4. The supplier delivers only after receipt of a 100 % prepayment. This is to be paid free of costs and deductions within 7 days of receipt of the order acknowledgement.

5.5. In case of payment delay default interest of 8 percentage points above the base ratio of the European Central Bank per anno accrue. The supplier reserves to claim a higher damage caused by delay. The buyer shall reimburse all costs arising in connection with the claim and execution of the outstanding amount in course of adequate assertion thereof. The supplier is entitled to additional EUR 50,- plus VAT for each reminder. For the rest the recourse of the supplier corresponds to the maximum rate for collection costs under BGBl 141/1996.

5.6. The buyer shall not be entitled to offset any claims against sums due to the supplier except if such claims have been legally ascertained or have been expressly accepted by the supplier in writing.

5.7. The assertion of a claim under § 934 ABGB by the buyer is excluded.

5.8. If the buyer cancels or changes his order after the order acknowledgement by the supplier, the supplier is entitled to decide whether to insist on the fulfilment of the contract or to charge 30 % of the price for the amended goods as flat rate penalty (“penalty”).

6. SUPPLY

6.1. The supplier shall deliver the supplies ex works (EXW in accordance with INCOTERMS 2010) only.

6.2. Packaging is carried out at the expense of the buyer according to custom and usage, in order to avoid damaging under standard transportation to the determined destination and is taken back by the supplier only if so agreed.

6.3. Contracts entered into by the supplier shall be deemed as transactions for delivery by a fixed date acc. to
article 919 of the (Austrian) General Civil Code only if this has been expressly agreed in writing. In addition, delivery periods and deadlines shall be binding on the supplier only if the latter has expressly guaranteed these to the buyer in writing.

6.4. The supplier shall have the right to make partial deliveries.

6.5. Any delivery periods shall not start to run until the 100 % prepayment is booked at the bank account of the supplier. The timeliness of the supply is only determined by making the goods available at the supplier’s works. As long as the supplier does not have available all documents and information necessary to produce the goods or as long as the buyer does not meet his obligation to co-operate entirely, the term for delivery shall be suspended. The delivery periods shall be suspended if the supplier has not received all documents and pieces of information required for carrying out the contract or for such time as the buyer fails to completely fulfil his obligation of participation.

6.6. If delivery is delayed for reasons beyond the supplier’s control – in particular, force majeure, measures of authorities, confiscation, natural disasters, unrest or war, transport disruptions, operational disruptions, work conflicts, unperformed self-supply of the supplier in contravention of the contract – the delivery period shall be extended (and/or the delivery deadlines shall be postponed) accordingly. If delivery is delayed by more than twice the duration of the original delivery period (respectively, the time between the receipt of the 100 % prepayment and the delivery deadline), each party shall be entitled to withdraw from the contract by giving express written notice within 14 days after expiry of the extension period, stating that it wishes to withdraw from the part of the delivery concerned.

6.7. If due to any legal provisions the buyer has the right to withdraw from the contract on account of a delay on the part of the supplier, in case of partial deliveries, he can only do this by expressly written statement, which has to provide for a respite determined by a stipulated end date; this right shall be limited to the delayed part.

7. WARRANTIES

7.1. The warranty period shall be 12 months from the receipt of the goods. In the event of a noticed defect the period starts new only with regard to the exchanged products, but is not extended otherwise.

7.2. Certain properties, features and possible uses of the contract works shall only be considered as warranted if represented expressly and in writing. In particular, the supplier does not provide any warranty for any abilities and possible uses not expressly represented in writing. In addition, any warranty shall be excluded for any deficiencies attributable to material made available by the buyer for manufacture of the contract works or instructions given by him or deficiencies resulting from deviating from the given instructions, common depletion, breach of storage, or other usage directions, from changes not authorised by the supplier or from any other improper handling of the goods. Warranties and representations of the supplier, especially regarding properties, shall not be considered as warranties in the legal sense, except if otherwise agreed expressly in writing.

 

 

 

 

 

7.3. If the supplier has to perform a warranty, he shall, at first, at his option, either remedy or replace the good concerned within reasonable time. Replaced objects shall become the supplier’s property and shall be returned to him. If the supplier fails to remedy or replace the object in question or refuses to do so or if the object cannot be remedied and replaced, or if this entails considerable inconveniences for the buyer or cannot be demanded of him due to cogent reasons related to the person of the supplier, the buyer may, at his option, request a reduction of the price, or, if the deficiency is not just a minor one, cancellation of the contract. In the event of contracts permitting partial deliveries, the right of cancellation is limited to the partial deliveries not yet performed properly. The buyer shall relinquish the right of cancellation by selling, changing or processing the good while aware of its deficiency.

7.4. The assumption according to Article 924 of the (Austrian) General Civil Code is excluded.

7.5. The buyer shall carry the burden of proof for all eligibility criteria, particularly for the deficiency itself, the specific date of determination of the deficiency and the timeliness of the claim.

8. NOTICE OF DEFECTS

8.1. The buyer shall assess the goods upon receipt according to the quality contract standards provided for by the supplier.

8.2. Notice of any defects of the contract works shall be given expressly and in writing by the buyer to the Seller within a reasonable period, in the event of obvious defects within seven days maximum from the receipt of the goods, and in the event of hidden defects, latest within seven days from detection. In the event of partial and successive deliveries, any defects in individual deliveries have to be notified separately. The notice of defects shall be considered as being too late if the supplier can no longer verify the rejected good. From the time of detection of the deficiency, any sale, treatment or processing of the good is forbidden without the supplier’s prior express written consent, otherwise all claims shall be voided.

8.3. The buyer shall ensure that the notice of defects is actually served upon the supplier and shall bear the onus of proof. Merely returning the goods shall not be considered as notice of defects.

8.4. The assertion of any claims for warranty, damages for the defect itself and based on an error as to the goods being free from defects is excluded if the notice of defects is not submitted in due time.

8.5. Upon giving a notice of defects the buyer shall return the parts concerned by the notice of defects to the supplier at his own cost and risk, to give the supplier the opportunity to verify the alleged contract infringements. Neither the verification of the good nor the unconditional acceptance of returned goods shall constitute a waiver by the supplier to object to the notice of defects being made too late or not made at all. The buyer shall cooperate in the verification and removal of defects as far as reasonable and shall especially provide information. If after verification the supplier does not accept the defects notified, the buyer shall indemnify the supplier for all costs connected with the verification.

9. LIABILITY

9.1. The supplier’s liability shall be limited to cases of intentional or grossly negligent actions. The onus of proof of Seller’s gross negligence shall rest with the buyer.

9.2. The supplier shall not be liable for any consequential damage, financial losses, especially loss of profit, and damage from third-party claims against the buyer.

9.3. The limitation of liability shall not be applicable to personal injuries and the application area of the Product Liability Act.

10. RESERVATION OF TITLE

10. 1. The supplier shall retain ownership of the contract works until the purchase price has been paid in full.

11. SUPPLIER’S RIGHT OF TERMINATION

11.1. If the buyer fails to fulfil certain essential obligations resulting from the Contract – especially payment of the purchase price, or default in fulfilling the cooperative actions required from the buyer to enable the supplier to perform the contract – the supplier shall be entitled to terminate the contract by granting an additional period of time of reasonable length of two weeks maximum.

11.2. The supplier shall have the right to terminate the contract for important reasons. Such an important reason shall especially be bankruptcy proceedings, composition or other insolvency proceedings being opened against the buyer’s assets or not being opened due to a lack of sufficient assets to cover the costs.

 

 

12. PLACE OF PERFORMANCE, LEGAL VENUE, APPLICABLE LAW AND SEVERABILITY

12.1. The place of performance for deliveries, payments and other performances shall be the seat of the supplier
A-6932 Langen b. Bregenz, Reicharten 614, Austria.

12.2. The legal venue for any disputes arising from or in connection with the contract, including its conclusion and validity, shall be the competent court for business-related proceedings with regard to the seat of the supplier. The supplier can choose to assort claims against the buyer with the competent court with regard to the buyer’s seat.

12.3. The contract shall be subject to the material laws of Austria, excluding the choice of law standards under international private law, of the Rome convention and the United Nations Convention on Contracts for the International Sale of Goods.

13. SEVERABILITY CLAUSE, NOTIFICATION AND AMENDMENTS TO CONTRACT

13.1. If any of the clauses of the present General Terms of Delivery is ineffective, invalid or unenforceable, this shall not affect the effectiveness, validity or enforceability of the other clauses. In such a case the clause concerned shall be replaced by a clause that corresponds to the original economic result as closely as possible and is not ineffective, invalid or unenforceable.

13.2. All written correspondence provided to the Contract or this Terms and Conditions of Delivery can be delivered effectively to the suppliers address as last mentioned (or to his address as stipulated in the companies’ register).

13.3. Amendments and additions to this General Terms and Conditions of Delivery or any other contracted agreement between the parties are effective only if executed in writing. This applies also on the deviation of the writing requirement.