General Terms and Conditions of Sale („GTCS“)
Issued by Wewalka GmbH Nfg. KG (FN 164314 p), having its statutory seat in Sollenau, Austria and its registered offices at Anton Gsellmann-Straße 4, 2601 Sollenau, Austria (hereinafter referred to as „Wewalka“).
(1) The following GTCS shall apply to any and all supplies, services, offers, deliveries and other services to customers rendered by Wewalka. Any and all supplies, services, offers, deliveries and other services are rendered by Wewalka only according to these GTCS.
(2) Wewalka’s customers’ general terms and conditions are herewith explicitly rejected. Any deviating terms and conditions shall be binding only if expressly acknowledged by Wewalka in writing. This shall apply in particular if a customer makes reference to its own purchase conditions or to other set of rules.
(3) These GTCS also apply to all follow-up orders placed by a customer, including orders placed in continuous business relationship, subsequent deliveries, additional orders in the course of continuous business relationship and in case of release orders in the event of valid framework agreements between Wewalka and its customers, even without explicit reference to these GTCS by Wewalka.
Unless otherwise expressly provided herein, any offer of Wewalka is made without engagement and shall not be binding to Wewalka irrespective of its form (orally, in writing). Such offers shall be qualified as an invitation to an order towards a customer only.
(1) A customer shall be bound by its order as from receipt by Wewalka. Wewalka is free to accept any order placed by a customer within a term of two weeks as from its receipt. The customer shall be bound by its order until expiration of said term.
(2) The customer shall be obligated to check order confirmations forwarded by Wewalka without delay. In case of deviations, the customer shall be bound to notify Wewalka in writing within two days, otherwise the customer shall be deemed to have accepted the order confirmation concerned.
(3) Any and all alterations and amendments of contracts or orders shall be valid only if made in writing and subject to Wewalka’s written confirmation.
(4) Neither the contract nor individual rights or duties arising from its contractual relationship with Wewalka may be assigned by the customer without Wewalka’s prior explicit written consent.
(5) Wewalka is entitled to rely on third parties for performing its contractual duties. Wewalka is further entitled to assign its rights and duties to third parties entirely or partly without the customer’s consent.
All prices shall be calculated, invoiced and paid in Euro and are understood to be exclusive of the statutory value-added tax. Unless something else has been agreed in writing, all prices shall be understood ex works, Sollenau (EXW, Incoterms 2010), and do not include packaging other than standard packaging, handling, insurance and transportation. Wewalka shall deliver the products at its manufacturing premises. In as far as Wewalka supports the customer or the respective carrier or forwarder in loading or handling the products, Wewalka will provide such support without incurring any obligation under exclusion of liability of Wewalka and/or its employees and at the sole risk of the customer in respect of damages caused thereby. Under no circumstances shall Wewalka be liable for damages or loss of the products after delivery according to section 7 paragraph (2) of these GTCS.
5. Terms of payment
(1) Invoicing shall be effected with every delivery. Unless otherwise agreed in the individual case, invoices are payable net within a term of 14 days as from receipt of the invoice without deduction. The timeliness of payment is determined by the date the amount is credited to the bank account of Wewalka.
(2) If the term of payment is not met, the customer is in default of payment without further notice. In case of late payment, Wewalka shall be entitled to the refund of reminder and collection charges as well as to default interest in the amount of 12 percent per annum. Furthermore, customer in default is obligated to reimburse Wewalka any other cost, such as, but not limited to, pre-litigation lawyers’ fees.
(3) The customer may not retain payments because of alleged claims of whatever reason and is not entitled to set-off payments against receivables of Wewalka.
(4) Payments to employees of Wewalka are only considered as discharging if these employees are authorized by Wewalka to the collection in writing.
6. Formation of an agreement
Wewalka shall be bound to orders in accordance with section 3 of these GTCS only when accepted by written acknowledgement or commencement of performance by Wewalka.
7. Delivery and transfer of risk
(1) Wewalka will use its best efforts to affect delivery within 7 business days as from written confirmation of the order. Any delivery terms, such as this term of 7 business days, are preliminary estimates only and shall not be binding to Wewalka. Contractual penalties or claims for damages, based on whatever legal ground, are excluded in case of delayed delivery.
(2) The products shall be deemed delivered at the moment when the customer has been informed about placement of the goods at disposal. The customer is obligated to collect goods placed at disposal without delay, however, within 2 business days at the latest. Otherwise, Wewalka is entitled to separately charge storage-fees for these goods.
(3) In case another place of delivery than stipulated in section 4 has been agreed individually, Wewalka’s obligation to deliver the goods shall be deemed performed once the delivery has left the manufacturing premises. In this event, Wewalka shall neither be liable for damages incurred during or because of transportation nor shall Wewalka be liable for timely delivery at the customer.
(4) In any case, Wewalka is entitled to supply the goods against advance payment only.
(1) Wewalka warrants that the products delivered pursuant to a contractual obligation have been manufactured in accordance with all laws and regulations applicable in Austria for the production of these products and will have the shelf-life specified by Wewalka for each product.
(2) The customer is obligated to check the products upon delivery. The customer shall be bound to notify Wewalka in writing of any claims in respect of wrong deliveries or shortfalls without delay. Quality defects have to be notified immediately once the consumer has discovered or reasonable ought to have discovered such quality defects, but in no event later than after expiration of the product’s shelf-life.
(3) Wewalka shall be given the opportunity, at its sole discretion, either to inspect any allegedly defective products at the customer’s premises or other current locations of the products, or the request samples thereof to be returned to Wewalka.
(4) If it is found that any products were in fact defective, Wewalka shall at its sole discretion either replace such products or give the customer credit for the amount paid for the defective products. The parties to the contract shall agree in good faith on appropriate delivery lead times to be allowed for the replacement of products.
(5) Except as set forth in these GTCS, Wewalka undertakes no other liability as either to replace the defective products or to grant a price reduction; any further liability on the part of Wewalka shall be excluded (except as expressly set forth otherwise in these GTCS).
(6) In the event that the costumer fails to timely give a claim notice in accordance with paragraph (2), the customer shall be deemed to have accepted the products concerned, so that Wewalka shall have no further liability to the customer with respect to that delivery.
(7) In addition to the stipulations set forth in paragraph (1), Wewalka shall indemnify the customer for damages caused by defects of the products, provided that, and to the extent, such damage is covered by Wewalka’s product liability insurance. Any further liability of Wewalka under to provisions of product liability laws is excluded to the greatest extent permitted by law.
(8) Wewalka shall in no event be liable for the compliance of the goods manufactured and/or supplied by Wewalka with any laws, statutes and regulations applicable outside Austria on the production or packaging of the products, or for the merchantability of the products outside Austria.
(9) The costumer shall distribute the products only in sales markets in which the products are legally merchantable and shall indemnify and hold Wewalka harmless from and against any and all claims raised against Wewalka as a result of a breach of this obligation.
(10) Wewalka accepts no liability if the quality of the products changes due to the fault or negligence of the buyer during reception, storage, transport or processing of the products, or because of any other reason outside of Wewalka’s sphere.
(11) Under no circumstances shall Wewalka be liable to the customer for any indirect or consequential damages or lost profit.
(12) The burden of proof for Wewalka’s fault causal to any damage lies with the customer.
(13) The customer’s claims for damage against Wewalka shall lapse within six months once the customer has discovered or reasonably ought to have discovered such damage and of the party in fault.
A customer cannot contest a contract signed with Wewalka due to misconception.
10. Retention of title
(1) Wewalka retains full title of the products delivered until all accounts receivable have not been settled in full.
(2) In the event of resale of the goods subject to retention of title, the customer assigns its rights and claims against its business partners arising from such resale on account of payment to Wewalka until final settlement of Wewalka’s open debt claims, without special declarations being required at a later date.
11. Data protection
The data required for order handling are stored with strict adherence to the applicable legal provisions. All personal data will be kept confidential. The customer expressly declares to agree that Wewalka is entitled to use these data for its own advertising purposes.
The customer is obligated to treat all information, expertise and other business secrets, that the customer has learnt from or about Wewalka, as well as the content of any agreement concluded between Wewalka and the customer, strictly confidential and shall explicitly impose these duties on its employees.
13. Place of jurisdiction, applicable law
(1) The competent ordinary court of Wiener Neustadt, Austria, is agreed upon as the sole place of jurisdiction.
(2) The laws of Austria are applicable to the entire legal relationship between Wewalka and its customers with the exclusion of the regulations regarding the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods.
14. General provisions
(1) If any provision of these GTCS is invalid partly or in full, the validity of the remaining provisions of these GTCS shall not be affected thereby. It is agreed that the invalid provision shall be replaced by such a valid provision which corresponds to the original intention and commercial purpose of the invalid provision.
(2) Headings in these GTCS shall serve for better clarity only and may not be used to interpret the provisions of these GTCS.
(3) Any and all agreements or amendments deviating from these GTCS are only valid if agreed upon in writing.
(4) If these GTCS should be drafted or translated in any other language than the German language for whatever reason, the German version shall be decisive. In the event of discrepancies between the German version and any foreign language version, the German version shall prevail and shall be solely used to interpret these GTCS.
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