The present terms of delivery and payment of Franz Barta GmbH (“Barta”), in the version of October 2013, shall be binding for all offers, legal transactions and services of Barta, unless any other terms and conditions have been explicitly acknowledged by us in writing.For the chinese general terms and conditions please see our Delivery and Payment Terms Franz Barta Far East Limited.
OFFERS, PRICE AND ORDER
Our quotations are based on the applicable current prices for raw materials and labour. Quotes addressed to us (“orders”) shall be binding upon receipt by us. We shall reserve to accept/carry out the order – for any reason whatsoever. Quotes sent by us are without any binding effect and shall merely be deemed a request to place an order; we shall not be liable for the accuracy of cost estimates. Agreements (“contracts”) on our deliveries and services (“deliveries”) shall require our explicit acceptance to be legally binding. Any objections by the customer due to deviations of our order confirmation from the customer’s order letter must be raised within 2 workdays after receipt of our order confirmation; otherwise the customer shall have acknowledged the content of our order confirmation to be correct. The customer shall be obliged to verify the correctness of the content of our order confirmation, especially as to whether we have designated the required fonts, subjects or illustrations correctly. Any increase of the materials price and of the labour cost due to collective bargaining agreements after determination of the price, but before execution of the delivery shall entitle us to invoice the resulting price increase. Oral agreements or agreements by telephone shall require a written confirmation to be binding. Basically, we shall be entitled to request an order letter properly signed on behalf of the customer before executing any contract.For automotive customers the following ruling applies to the confirmation of PPAP files: PPAPs submitted by Franz Barta GmbH to a customer become valid after 10 working days in case no writtten customer confirmation is provided.
TERMS OF PAYMENT, NOT SET-OFF
The following payment terms shall apply to invoices issued by us: payment without deduction after 30 days or within 8 days with a cash discount of 2%. In case the term of payment is exceeded, default interest amounting to 9.2% above the basic rate of interest per annum, but in any case not less than 12% per annum, shall be paid. The customer shall not be authorised to offset its own claims against any of Barta’s claims.
RESERVATION TITLE
We shall retain ownership of the delivered goods until payment in full of all our claims associated with the respective contract. If the goods are processed or combined with other items, we shall be co-owners of the new object in the amount of the proportion deriving from the value of the processed goods subject to retention of title in relation to the value of the new object. The customer shall be entitled to pass on the goods in the course of regular business transactions, provided he is not in default of payment. Any goods produced using our products must not be handed over before payment of our claims in full. Now already, without any further special declaration of assignment being required, the customer assigns to Barta the claims accruing to him from reselling the goods subject to retention of title vis-à-vis his buyers for redemption of all our claims including all ancillary rights, namely in the amount of the value of our unpaid delivery. The same shall analogously apply in case of finishing or processing, combining or mixing. If our goods or the things produced using them become essential parts of third-party goods, the customer hereby assigns to us its claims acquired in this respect, which may also cover its remaining services, together with all ancillary rights, in the amount of the value of our delivery. The customer must neither pledge the goods subject to retention of title nor transfer them as security. In case of seizures or other claims raised by third parties, the customer shall be obliged to assert our right of ownership and notify us accordingly without delay. The customer shall reimburse us for the costs associated with the objection of nullity of the claim.
PACKAGING
The price only includes the simple wrapping of the printed products. If the customer requests any special packaging or bundling, the latter shall be charged at cost.
DELIVERY PERIOD
The delivery period shall start on the date of dispatch of our order confirmation, provided that all working documents are clearly and unequivocally available and nothing to the contrary has been noted in our order confirmation. Due to the technical difficulties that may arise during the manufacture of our special products, any information given as to delivery periods shall basically be non-binding and without obligation. If in specific cases, a binding date is explicitly granted by us in writing, we shall retain the right to ask for a reasonable period of grace, even if there is no force majeure. In case of a delay in delivery, the customer cannot assert its statutory rights before granting a reasonable period of grace of at least 30 days and declaring the rescission of the contract. Any loss of profit cannot be claimed under any circumstances. Moreover, the amount of any claim for damages shall be limited to a maximum of 10% of the respective contract amount. Damages claims for delayed delivery shall be excluded. Force majeure shall basically release us from any obligation to deliver, regardless of whether said event of force majeure has taken place in our plant or in the plants of our suppliers. In such cases, the customer shall not be entitled to withdraw from the contract. Claims for compensation, of any kind whatsoever, vis-à-vis Barta cannot be derived from such circumstances.
DELIVERY
Delivery shall take place ex works, 1150 Vienna, for the account and risk of the customer, unless any explicit agreement to the contrary was made. Excess or short deliveries by us shall be admissible up to 10% and shall be invoiced pro rata at the agreed invoice price.
LIABILITY (WARRANTY, COMPENSATION, LEGAL AND OFFICIAL REQUIREMENTS)
Unless agreed otherwise, the statutory warranty rules shall apply. Specific properties shall only be deemed warranted if they were explicitly promised by Barta. The fact that Franz Barta GmbH commences any bidding, production and delivery activity does not constitute an automatic or conclusive consent to contracts and provisions of the customer. Any consent by Franz Barta GmbH must be given explicitly and in writing. Information contained in product descriptions does not constitute any explicitly warranted properties. Complaints (notices of defects) shall only be admissible within one week after receipt of the goods and must be notified immediately. Defects in part of our delivery cannot entail the rejection of the entire delivery. We may demand improvement or replacement at our discretion. Complaints in case of hidden defects that cannot be detected within 8 days even through careful examination of the delivered goods, must be raised immediately after being detected, but no later than within 3 months after delivery in any case. On principle, we shall not be held liable for the improper use of our products. Our technical product and data sheets as well as other technical information correspond to the best of our knowledge; however, no binding commitment as to the results to be achieved when using our products may be derived therefrom. Colours according to RAL, HKS, PMS and/or other colour catalogues will always be printed in line with the latest colour catalogue available on the market. We shall not assume any liability for deviations from previous colour catalogues. Special colour requests shall be communicated to Franz Barta GmbH based on original artwork. Colours in products supplied shall be considered approved for follow-up orders upon the goods arriving at the customer. Warranty claims for minor deviations in colour shades and formats, as well as for minor deviations between press proof and production print and/or original and production print, shall be excluded and cannot be the object of a notice of defect. A warranty for the authenticity of colours, bronzes, varnishing and impregnations will only be provided to the extent that upstream suppliers assume a corresponding undertaking towards us or to the extent explicitly granted by us in writing. We shall not be liable for any misprints and bad workmanship which the customer has overlooked in the photocopies, layouts, press proofs or artwork designated by him as ready for press. We shall carry out any text and artwork modifications notified by telephone without assuming any liability for their correctness. Should the specific characteristics of goods supplied by us involve the risk that, by processing them, an unsatisfactory result might be obtained or even damage caused to other objects, we shall provide those goods on the condition that the customer both provides for adequate trial processing and applies the required care during processing itself, in order to avoid any damage caused through obvious or hidden defects of the goods. Any liability for damage caused by the further processing of our goods shall be excluded. Otherwise Barta shall be liable for damage caused in the course of performing the contract only in case of gross negligence and/or intent. The compensation of consequential damage or economic loss shall be excluded in the same way as for lost savings, interest losses and loss due to third-party claims against the customer. The contract does not provide any protection in favour of third parties. In all instances of liability on the part of Barta (also under the remaining provisions of the present GTC), the customer shall have to prove Barta’s fault that gives rise to liability. Should the customer be held liable under the Austrian Produkthaftungsgesetz (PHG; product liability act), it shall explicitly waive recourse within the meaning of § 12 PHG. Claims for damages shall become time-barred six months after finding out about the damage and the injuring party, but in any case three years after provision of the service. Other claims, of any kind whatsoever, for compensation by the customer shall be excluded – except for instances of very gross negligence or intent. When placing an order the customer commits to honor all legal and official requirements of the country of destination.
PROCESSING
By awarding the contract, the customer declares that it has ascertained the expediency of the goods ordered from us, based on processing a sample with a view to the intended use. The tests carried out by the Barta laboratory with product and material shall be effected according to internal test specifications. They will be carried out in line with internationally recognised test standards, but are not certified. All tests required by the customer beyond that shall be carried out at the latter’s expense and initiative using original material. The customer will only obtain valid results if our product is transferred to the former’s original material under manufacturing conditions. We undertake to manufacture the goods, with respect to their technical properties, in the same way as the samples tested upon the award of the contract. In any case, we shall not be held liable for any problems and damage caused through insufficient preliminary testing or, after preliminary testing, through modifications to any production factor (substrate, processing temperature, working method etc.).
OWNERSHIP TITLE, COPYRIGHT
The lithographs, drawings, slides and printing plates, as well as any other material required for the production process, shall remain our unalienable property, even if the customer has compensated us for this work. The same shall apply to manufacturing documents that were prepared by another company on our behalf.
SPECIAL COSTS
The costs of layouts and press proofs will be additionally invoiced and are not included in the delivery prices. The same shall apply to all special requests of the customer beyond what is customary, e.g. for any special way of cutting and bundling the goods. Any later requests for modifications on the part of the customer or its agents shall be separately charged according to calculation methods commonly used in the industry.
STORAGE AND CALL-OFF DELIVERIES
Any material provided by the customer, such as manuscripts, originals, printing plates, films, data and data carriers, of any kind whatsoever, shall be delivered free our works in 1150 Vienna. Said material shall be stored at our premises at the risk of the customer exclusively. The customer shall exclusively be responsible to take care of insuring these goods against any risk whatsoever at its own expense. We shall not assume any liability for damage to or loss of said items, unless the damage or loss was caused through very gross negligence or intentionally by Barta. Should any limited storage of finished goods be explicitly agreed, we cannot be held liable for any damage occurring in spite of taking reasonable care. Nor shall we be obliged to take out insurance for stored goods. In case of call-off orders the customer undertakes to purchase the entire quantity within 6 months, unless any other agreement was explicitly made in writing. At an ambient temperature of -25 to +25 degrees Celsius & a humidity of 40 to 60%, the storage stability of our products is at least two (2) years from completion of the goods. Any deviating storage periods for special products will be explicitly communicated by Franz Barta GmbH. In case the storage period indicated is exceeded, tests shall be carried out to determine the product quality on original material.
CORRECTIONS
We shall only be obliged to submit a proof, draft, press proof or a photocopy if this was explicitly made a condition and confirmed by us upon ordering. If such artwork is not returned by the customer with a note of approval or modification within 8 days after receipt, this failure to reply on the part of the customer shall be deemed an approval. The same shall apply to PPAP documents upon expiry of 10 days. However, if the subsequent performance of the contract absolutely requires the customer to make a statement, the period during which he failed to make a statement shall always be deemed an interruption of any delivery period agreed upon. Should any such interruption of the delivery period caused by the customer exceed a period of 4 weeks, we shall be entitled to invoice the work already done on a pro rata basis, unless explicitly granted otherwise by us.
RIGHT OF REPRODUCTION
We shall not be obliged to verify if our customer is entitled to use the artwork and have it reproduced or otherwise use it as intended, rather we are entitled to assume that our customer disposes of all the rights required for the execution of the order even vis-à-vis third parties. Our customer shall be obliged to indemnify us with respect to all claims asserted by third parties due to infringements of copyrights, ancillary copyrights, other proprietary rights or protective personal rights. We shall notify our customer of such claims and implead him in case of any legal action against us. If upon the third-party notice our customer fails to join us in the proceedings by way of a joinder of parties, we shall be entitled to acknowledge the plaintiff’s claim and to seek compensation from our customer regardless of the lawfulness of the acknowledged claim. In any case, the contractor shall fully indemnify us with respect to any such claims asserted against us by third parties or public authorities.
WRITTEN FROM REQUIREMENT
All agreements shall be made in writing to be effective. Oral agreements shall not be valid, unless confirmed by us in writing. Even deviating from this formal requirement shall require a written agreement.
CORPORATE AND TRADEMARK IMPRINT
Basically, we are entitled to print our company name and trademark on the printed material ordered even without any specific approval by the customer.
LEGAL VENUE
The place of performance for all contractual relationships subject to the present terms of delivery and payment shall be Vienna. The legal venue for disputes concerning the existence or non-existence of such contractual relationships and for disputes arising from such contractual relationships shall exclusively be the court materially competent for Vienna or the general place of jurisdiction of the customer – at our discretion – in case of complaints filed by us, or the court materially competent for Vienna in case of complaints filed against us.
APPLICABILITY OF DELIVERY AND PAYMENT TERMS, DEVIATIONS
Any deviations from these terms of delivery and payment shall only take effect upon being approved in writing. Any terms and conditions of the customer are hereby objected to; they shall not be binding upon us, even if Barta fails to reiterate its objection to them upon contract conclusion. The present terms of delivery and payment shall apply as a framework agreement to all subsequent deliveries associated with the contract as well as to all additional legal transactions with the customer (especially additional and follow-up contracts), even if their application was not explicitly agreed in each case. Should any provision of the present GTC be invalid or unenforceable in whole or in part, this shall not impair the legal effect of all the remaining provisions. The contracting parties shall replace the invalid or unenforceable provision by a valid and enforceable provision approximating the purpose and content of the invalid or unenforceable provision as closely as possible.
DATA PROCESSING
The business transactions shall be recorded in the books by means of electronic data processing. The legal provisions, in particular those of the DSG (data privacy act) as amended, shall be observed in this respect.electronic data processing. The legal provisions are complied with.
APPLICABLE LAW
All legal relationships arising from the contractual relationship shall be governed by the law of the Republic of Austria to the exclusion of remittal rules and of the application of the UN Convention on Contracts for the International Sale of Goods.
