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GENERAL SALES AND DELIVERY TERMS AND CONDITIONS OF CANDOL

1. General

1.1       These sale and delivery terms and conditions apply to all services of Candol Production and Trade PLC (hereinafter referred to as "Candol"), unless agreed otherwise expressly and in writing. These terms and conditions are an integral part of each offer of Candol and each contract concluded with Candol.

1.2       The contractor of Candol (hereinafter referred to as "Contracting Party") agrees that in the event of the contracting party using terms and conditions, it is assumed they use the terms of Candol, even if the conditions of the contracting party remain uncontested. Contract fulfilment actions by Candol shall not be interpreted as consent to terms and conditions that differ from those general sale and delivery conditions. Terms, of any kind whatsoever, which conflict with these terms and conditions shall apply and be effective only insofar they were confirmed in writing by Candol. 

2. Contract

2.1       The offers of Candol are non-binding and do not include any obligations to accept the order.

2.2     A contract obtains legal binding for Candol only if Candol confirms the order in writing or if the order matches the actual facts. Promises of the sales representatives are ineffective. Likewise, performance acts of sales representatives do not result in order acceptance. 

2.3       Objectively justified and reasonable changes in the performance or delivery obligations of Candol, especially reasonable delays in delivery shall be deemed approved in advance.

2.4       All information contained in brochures, drawings, dimensional drawings and descriptions and information about each object of the agreement and its appearance, in particular its shape and color, are only approximate and not binding. Samples represent only a rough state of the goods to be delivered; commercially available differences in quantity or quality of the delivered goods shall not constitute defects. Candol reserves technical or formal changes and adjustments.

3. Prices

3.1       The prices of Candol are determined according to the respective valid price lists and the duration of any agreed delivery period. Prices in the price list shall be subject to any misprints. Should the delivery dates be postponed for reasons which are not within the fault of Candol, Candol reserves the assertion of cost increases.

3.2     All prices quoted by Candol are, unless expressly stated otherwise, net prices exclusive of all fees and taxes ex works of Candol in Mödling, without packaging, loading, transport, insurance and disposal. All additional costs of a contract shall be borne by the contractor.

3.3       Should costs change between the conclusion of the contract and the contract performance, in particular labour costs and / or acquisition costs of the materials needed, be it by law, regulation, collective agreement, statutes, official recommendation, other government measures or due to changes in world prices, the prices in question increase or diminish accordingly, unless the time between placing the order and the completion of the performance is less than three months.

4. Payment terms

4.1       The registered office of Candol in Mödling is the place of payment. Payments to Candol must be made with discharging effect only on an account that has been designated by Candol. In case of transfers, the credit note on the account declared by Candol is binding for the punctuality of the payment. Checks or bills are accepted only after prior agreement and only on account of payment without obligation for timely presentation and protesting. In the case of bills, the acceptor has to pay all interest and charges in connection therewith (such as collection costs and discount charges).

4.2       Candol is entitled at any time to render account for already performed services.

4.3       In case of delayed payment, the discounts given to the contracting party are inapplicable.

4.4     In the case of a devaluation of the (non-Euro) invoiced currency in export contracts between the contract closing and the payment, it is agreed that the extent of this devaluation is at the expense of the contracting party.

4.5       In the event of default or insolvency of the contracting party, Candol is entitled to withdraw from the contract without setting a grace period. In these cases Candol - notwithstanding the application of point 7 – has the right to take back already delivered products.

4.6       Offsetting with counterclaims or the withholding of payments by the contracting party for any reason is inadmissible for lack of an explicit agreement.

5. Delivery

5.1       Unless agreed otherwise, the place of performance for deliveries is the plant of Candol in Mödling. The goods are provided to the contracting party in the product packaging of Candol without loading on the collecting means of transport -for lack of an expressly written agreement solely in a manner usual for the truck traffic transport packaging to the usual packaging sizes of Candol. Subsequent information provided by the contracting party regarding transport packaging will not be accepted. Solely the collector is responsible for the safeguarding of the goods in the means of transport. The contracting party has to provide itself all the evidence it needs for export and / or import of the goods and, where appropriate for the transit through every country and is responsible for this itself.

5.2       Terms of delivery are always non-binding, if a fixed date has not been agreed explicitly. The term of delivery starts with the commencement of the order. In the case of an agreed change of the order Candol is entitled to reschedule the delivery date. In the event of involuntary delays the contracting party waives the right to cancel the purchase contract. In other cases, the contracting party is only entitled to cancel the contract after setting a grace period of at least 4 weeks The delivery obligation does not apply to force majeure or other non influenceable delays, even if they occur at our subcontractor (for example, fire, strike, embargo, lack of means of transport).  In such cases it is up to the contracting party to cancel the contract without being liable for damages.

5.3       Packaging material will not be taken and disposed of by Candol.  The contracting party is responsible itself for complying with the applicable disposal regulations in its destination country. Any costs associated with the disposal of the packaging and the goods are to be borne by the contracting party itself.

6. Transfer of risk and default of acceptance

6.1       Regardless of the agreed place of delivery and the agreed price, benefit and risk are passed to the contractual partner in any case with the notification of dispatch readiness or - failing that - with the departure of the goods from the factory of Candol in Mödling.

6.2       In case of a default of acceptance Candol is- regardless of their other claims - also entitled to send the goods according to their choice in the name, at the expense and risk of the contractual partner or store it in any manner in the name and on behalf of the contractor.

7. Reservation of ownership

7.1   The contractual item remains the property of Candol until full payment of the purchase price (including VAT, default interest and costs) has been made.  In case of a processing or connection, a joint property is formed in relation to the value of shares at the time of processing or connection. If the contracting party is not the owner of the main thing, it hereby assigns all claims against the owner of the main thing to secure the claims of Candol.  The contracting party is obliged to keep the goods in good condition during the period of the reservation of ownership.

7.2       Moreover, Candol remains subject to ownership of all goods consigned by Candol to the contracting party until all claims of Candol- including interest rate, fees and costs – have been accomplished.

7.3       The contracting party is entitled, provided he is not in default of payment, to resell the goods delivered under reservation in its ordinary course of business. By now, the contracting party assigns as payment all claims from the resale against claims third parties are entitled to at the invoice amount agreed between the contracting party and Candol. The contracting party is entitled to collect the payments, provided it is not in default of payment. However, the contracting party is obliged to return all documents to Candol and to disclose the names of their customers so Candol is able to collect the claims themselves. The contracting party is required to disclose the assignment to their customers.

7.4       As long as the reservation of ownership exists, a sale (except in the case of point 7.3), a pledge, an assignment as security, an exchange or another transfer of the contractual object is not allowed.  In the event of approval of Candol for these dispositions, the purchasing price claim is considered as assigned to Candol at this stage and Candol is entitled at any time to inform the garnishee of this assignment.

       The contracting party is obliged to keep the contractual item in good condition during the period of the reservation of ownership.

7.5       The withdrawal of the goods by Candol does not apply to withdrawing from the contract. All rights of Candol from the legal transaction, including the right to claim damages for non-compliance remain.

8. Warranty

8.1       The warranty period is 6 months starting with the transfer of risk to the contracting party. The correction of defects does not extend the original warranty period.

8.2       The contractual item is to be checked by the contracting party immediately, but no later than 5 working days after acceptance, stating the type and extent of the defect. Upon takeover, defects that can be determined immediately, shortfalls or wrong deliveries are to be specified in detail on the delivery note or consignment note, if not, any claims shall be excluded. If upon takeover no immediate examination is possible, this circumstance must be noted on the delivery note or consignment note and upon subsequent examination a possible, identifiable shortage is to be reprimanded within 5 working days from takeover by means of a registered letter stating the type and extent of the defect at other exclusion of all claims. Hidden defects must be reprimanded immediately after their discovery. If a complaint is not made or not timely made, the goods shall be deemed approved. The assertion of claims due to defects is excluded in such cases. The contracting party has to provide a proof in deviation of § 824 ABGB that the defect was already present at the handover of the service provided.

8.3     The warranty shall expire immediately if the contracting party or a not expressly authorized third party makes changes to the delivered goods without the written consent of Candol itself.

8.4     A possible warranty obligation of Candol limits to the choice of Candol to the improvement or replacement of the defective parts, or to the price reduction.  Yet, Installation or other costs will not be replaced.

8.5       According to § 933b ABGB, the right of recourse lapses after 2 years as of the supply of a service or a delivery.

9. Compensation for damages

9.1     The liability of Candol for simply gross negligence is excluded. A possible liability of Candol is in any case limited to damage caused to the object of delivery itself. Therefore, Candol is not liable to compensate for damage, particularly for damage to goods that are not subject of the delivery, and for damages whatsoever and lost profits.  

9.2   Requirements for claims for damages against Candol are the entire and timely reprimand after detecting such damages in accordance with section 8.2.

9.3     The contracting party may initially only demand improvement or exchange as compensation and only if both are impossible and connected with a disproportionate effort for Candol, the contracting party may immediately ask for token money.

9.4     The contracting party has to prove cause, illegality and fault.

9.5     Claims for compensation expire within six months after knowledge of the damage and the damaging party, at least in 2 years after the passage of risk.

10. Product liability

10.1   All recourse claims made against Candol by contractual partners or third parties based on the item product liability are excluded.

The contracting party shall guarantee to include this liability limitation in all agreements with entrepreneurs and to commit them to further binding, as well as to release Candol altogether from all such liabilities towards companies.

10.2   Any claims for compensation expire within 5 years after the date on which they were introduced. The contracting party has to impose this period legally effective to its customers.

10.3   Moreover, a possible liability of Candol according to PHG is excluded for those damages that have arisen due to the non-compliance of supply and / or processing instructions - also in view of the compulsory inspections - or violation of legal and other standards or instructions.

11. Place of jurisdiction and applicable law

11.1   The place of jurisdiction is solely the competent court for Mödling, Austria, unless another place of jurisdiction is either legally mandatory or necessary for effective enforcement against the contracting party. Candol is entitled to sue the contractual partner at a competent court at the place of business or residence of the contractual partner.

11.2     It is agreed that solely the Austrian law is applicable - under exclusion of international conflict of laws - . The contract language is German.

12. Miscellaneous

12.1     Unless these general sale and delivery terms and conditions provide otherwise and are agreed in writing with the contractor otherwise, the place of performance is the head office of Candol in Mödling.

12.2   The data of the contracting party are automatically processed to fulfil the contract and if necessary forwarded to third parties that have a business relationship with Candol. The contractual partner hereby agrees to do so. Candol will treat the data according to the Data Protection Act.

12.3   Should any provisions of these terms and conditions be or become invalid in whole or in part, the remaining provisions shall remain unaffected hereby. Instead of an ineffective provision, it is agreed which is in a legally allowed manner economically closest to the ineffective provision.

12.4     All agreements, subsequent modifications, additions, additional agreements etc. are only valid if made in writing. This also applies to any waiver of this written form requirement.

 Fassung vom August 2012