I.
1.1 These terms and conditions form the foundation of all agreements, offers and deliveries. They are agreed when an order is placed or a delivery accepted. Any divergent conditions of the purchaser that have not been explicitly agreed by us in writing are non-binding even if we do not expressly refute them.
All of the vendor’s offers remain in principle subject to change. The purchase agreement will come into force only with the content confirmed by the vendor and only on the vendor’s agreement in writing.
1.2 Delivery: deliveries diverging from the agreed delivery quantity by an amount up to +/- 5 % over 1000m and +/- 10% under 1000m delivery quantitiy, will be approved by the purchaser. Within the period of the delivery, the vendor has the choice of making part deliveries, unless a different agreement has been made in writing. The purchaser is obliged to accept each part delivery. Non-acceptance of individual part deliveries entitles the vendor to withdraw from the entire agreement without setting a period of respite and to claim compensation.
1.3 Fixed deadlines will only count as agreed if we have explicitly agreed to such deadlines in writing.
II.
2.1 The place of supply shall be the vendor’s factory, warehouse or dispatch office. Goods will be considered delivered as soon as they leave the vendor’s factory, warehouse or dispatch office or are there made available to the customer and ready for dispatch.
2.2 At the point of delivery, the risk is transferred to the purchaser. This applies also to the dispatch risk, even if the vendor has taken out an insurance policy to cover this risk.
2.3 Deliveries will only be in arrears if once the agreed delivery period has expired a written warning is sent by the purchaser, setting a reasonable extension not exceeding 6 weeks. Once this extension has expired, the purchaser is entitled to withdraw from the agreement to the extent that the deliveries have not as yet been made. Claims for compensation due to delays in delivery are excluded. Deliveries are not in arrears as long as all due claims by the vendor on the purchaser have not been settled.
2.4 Circumstances for which the vendor is not responsible, including in particular force majeure, shortage of raw materials, unforeseen operational difficulties, restricted operation, shutdown of operations, labour disputes, dispatch problems, breach of contract by the vendor’s suppliers or other unforeseen obstacles making manufacture or dispatch of the goods impossible in part or entirely for the vendor or the vendor’s suppliers, shall release the vendor from the duty of due date delivery for the period of the disruption or of its effects. They also entitle the vendor to extend the delivery period appropriately or, at the vendor’s choice, to withdraw from the as yet unperformed part of the agreement.
If the agreed period of delivery is exceeded by more than 2 months, both parties are entitled to withdraw from the agreement, to the extent that the agreement has not already been performed. If economic life in the country of the purchaser or the vendor is seriously disrupted by war, civil war or similar events, the vendor is entitled to withdraw from the part of the agreement not already performed.
2.5 If the purchaser does not accept the goods within the agreed delivery period, the vendor may choose either to demand the performance of the contract as agreed and compensation for damages arising from the delayed performance of the agreement, or withdraw from the agreement and demand compensation for non-performance of the agreement.
III.
3.1 Payment: payment is only considered to have been made when and to the extent that vendor may freely dispose of the invoiced amount in a bank within the vendor’s country.
3.2 The vendor is not obliged to accept cheques, bills of exchange or other securities. Receipt shall be solely on account of payment, not in lieu of payment. Discount costs, stamping costs and bank charges are to be refunded by the purchaser immediately in cash. The vendor is not liable for cheques being presented, protested or collected on time or correctly.
3.3 If the purchaser is in arrears with the payment of a due demand for more than a week, if a bill of exchange is protested or a cheque not collected, all claims arising from the business relationship with the vendor will become due immediately. Under these conditions, the vendor is also entitled to withdraw from the agreement without setting a period of respite and to demand compensation for damage arising from non-performance.
Where part or successive deliveries are concerned, the vendor can choose subsequently to demand advance payments for deliveries still outstanding or demand adequate securities if and for as long as the purchaser is in arrears with payment for previous deliveries.
3.4 Payments are initially credited against interest, costs and extra charges and then against the oldest main debt. If payment is in arrears, interest payable on the arrears is agreed at 7 % above the national bank interest rate.
The offsetting of any counter-claims by the purchaser against demands by the vendor is permitted only if the counter-claims are legally defined or have been explicitly recognised by the vendor. Warranty claims will not affect the due date for payment.
3.6 Any changes after conclusion of the agreement (date of confirmation of order) to the agreed foreign currency or to the exchange rate for the euro will be borne by the customer.
IV.
4.1 Reservation of ownership: the vendor retains ownership of the goods supplied until all the vendor’s claims against the purchaser have been settled in full. The pledging, assigning as security or creation of any other rights in favour of third parties are excluded unless the vendor agrees. If pledging the goods, the purchaser is obliged to inform the vendor without delay.
The purchaser is entitled to treat or process the goods supplied. The treatment or processing is carried out on behalf of the vendor, without any obligation arising for the latter from the treatment or processing.
If the goods are treated or processed and combined with other goods that do not belong to the vendor, the vendor is entitled to the share of the ownership of the object thus created in proportion of the value of the supplied goods to the other processed goods at the time of processing and combination. If however treatment or processing of the goods together with other goods creates a new object, the purchaser already at this stage grants the vendor a share in the ownership of the new object in proportion of the processed or combined reserved ownership goods to the new object, and will store the latter, without fee, on behalf of the vendor until it is sold in the course of customary business operations.
In cases of goods for resale in cash sales, the proceeds do not become property of the purchaser of the reserved goods to the amount of the purchase price still outstanding. The purchaser will charge the purchase price on behalf of the vendor and keep it separate and immediately pay it over to the vendor. If the goods are resold elsewhere, the purchaser already at this stage cedes his claims arising from the resale against these further purchasers to the amount of the outstanding purchase price, or respectively undertakes already at this stage to cede to the vendor these claims arising and to inform the vendor immediately if the goods are resold, giving the name of the further purchaser.
V.
The purchaser acknowledges that slight divergences in quality or features of the yarns or threads are technically unavoidable and do not form the foundation for any warranty claims. In particular, this applies to slight variations in colour and small traces of other fibres.
The purchaser is obliged to check the goods carefully after receiving them. Notice of defects must be made within 10 days of the purchaser receiving the goods, giving exact information regarding the type and extent of the defects claimed. Once this period has expired, warranty claims – with the exception of those for hidden defects – are excluded.
Excluded in all cases are any claims arising from title to warranty, to compensation and other legal titles as soon as the goods are treated or processed in any way. This also applies to hidden defects.
In the case of hidden defects, complaint must be made immediately after the defects are discovered. The burden of proof that the defect is a hidden defect lies with the purchaser. In all cases, the right to complaint will expire 3 months after receipt of the goods. If the purchaser has made a justified complaint of defects in good time, the vendor may choose whether to supply replacement for the defective goods or to make a suitable reduction in price. There is no claim on the part of the purchaser to cancellation or price reduction. Compensation claims based on consequential harm caused by defects, delays in or impossibility of replacement delivery or any other form of disruption of performance are excluded.
Warranty claims will not affect the due date for payment.
VI.
Without prejudice to the regulation of divergence in quality in Point 1.2 of these Conditions, the purchaser will approve divergence in quality with regard to weight and setting if this does not exceed a percentage of +/- 5 %.
In particular, the purchaser will be considered to have approved the goods if the weight per square metre of the fabric and the shrinkage length does not exceed
+/- 5 % of the agreed value.
VII.
7.1 Place of performance for all obligations arising from this contractual relationship shall be the head office of the vendor.
7.2 For disputes between the supplier and the purchaser, it is agreed that the court in Feldkirch shall be the sole competent court for such matters, and Austrian law shall apply exclusively. If individual provisions of the purchase agreement and those purchase and delivery conditions that form an integral part of the purchase agreement cannot be brought into accord with mandatory statutory provisions, this shall not affect the remaining provisions. This also applies in cases where individual provisions may prove to be void. In such cases, the contract provision that comes closest to the meaning of the provision affected shall be considered agreed.
7.3 The purchaser is obliged to co-operate, at the vendor’s demand, in all measures required to secure the rights of the vendor.