General Terms and Conditions

of GÜSSINGER Beverages & Mineralwater GmbH

1. Scope of Application
These General Terms and Conditions shall apply to all deliveries and services rendered by GÜSSINGER Beverages & Mineralwater GmbH (hereinafter referred to as “GÜSSINGER“) to its customers.

2. Scope of Performance and Date of Performance
2.1. GÜSSINGER shall deliver to the customer the merchandise indicated in a delivery contract to be concluded separately (hereinafter referred to as the “merchandise”, or, where the singular is applicable, referred to as “the item”).
2.2. Unless otherwise agreed, all prices quoted for the merchandise offered by GÜSSINGER shall only relate to merchandise. The price does not include any costs in relation with the delivery, customs, fees, taxes and levies etc.
2.3. In the event of a temporary shortage of supply, GÜSSINGER shall be entitled to carry out partial deliveries in accordance with the available stock and existing orders, whilst excluding any assumption of liability by GÜSSINGER for any potential loss of profit in the customer’s business transactions.
2.4. If, for reasons not attributable to GÜSSINGER and which are beyond our control, a product is not available for delivery within 30 days, we reserve the right to rescind the contract. The customer hereby waives any claims for damages as of this date with a view to any non-availability that might occur as herein afore mentioned.
2.5. Any dates of performance shall only be deemed to be binding, if they have been explicitly agreed with binding effect between GÜSSINGER and the customer in writing. Otherwise any quoted dates and times of delivery and performance shall constitute merely approximation dates.
2.6. Should the customer refuse acceptance of the delivered merchandise contrary to agreement despite an effectively concluded and valid contract, or if the customer delays or impedes the fulfilment of the delivery contract in another manner, as of this date the contracting parties agree upon a contractual penalty amounting to 12% of the order value irrespective of the fault and the extent of the actual incurring damage.
2.7. Where the dispatch of the merchandise has been agreed upon between the contracting parties, GÜSSINGER will, at its discretion, assign the shipment of the ordered items to a transport company (hereinafter referred to as the “transport company”). The customer hereby agrees to the dispatch of the merchandise through the transport company. The customer shall bear the costs incurring in relation with the transport.

3. Modification of Performance and Services
3.1. Any modifications that may arise after the order has been placed with a view to the quantity and/or quality of the ordered merchandise which are desired by the customer shall require the written agreement of the contracting parties.
3.2. Should the customer order any additional merchandise, GÜSSINGER shall be entitled to a reasonable extension of the delivery periods. In the event of a failure to reach an agreement on the duration of the reasonable extension of the delivery periods and should the customer insist on the additional delivery of merchandise, then any agreement on a contractual penalty entered into before between the contracting parties shall become void.
3.3. In the event of any cancellation or reduction of the quantities of supply, GÜSSINGER shall be entitled to invoice at least 70% of the originally agreed order value. Any rights to invoice manipulation costs that may be claimed in addition by GÜSSINGER shall remain unaffected.
3.4. Any reduction or cancellation of the delivery shall not be possible anymore where GÜSSINGER has forwarded and handed over the merchandise already to the transport company.

4. WARRANTY
4.1. Any defects attributable to GÜSSINGER in the course of the delivery shall, at the discretion of GÜSSINGER, be either remedied by means of rectification or replacement delivery; the warranty remedies rescission or reduction in price shall, in this case, be excluded explicitly between the contracting parties. After the performance of the delivery order has been initiated by GÜSSINGER, a rescission of the contract by the customer shall be excluded in any case.
4.2. In the event of transactions free of charge, GÜSSINGER shall not be obligated to fulfil any warranty obligations.
4.3. The warranty period applicable to any warranty claims to be asserted by judicial process shall be one year and shall commence upon handing over of the merchandise to the transport company (please refer to 3.6).
4.4. The customer must notify GÜSSINGER immediately, but at the latest within 14 days, in writing of any defect that might have occurred; failure to adhere to the aforementioned notification procedure shall lead to a loss of any warranty or claims for damages. The customer shall further allow GÜSSINGER a reasonable period of time to remedy the defects. The same period shall, under no circumstances, cover less than 20 days from date of receipt of the notification on the damage with GÜSSINGER.

5. Liability
5.1. Any liability by GÜSSINGER towards the customer due to claims for damages, product liability or claims asserted on any other legal ground shall be limited to a maximum amount of € 100.000,-- . The limitation of liability furthermore does not apply to damages based on a premeditated or grossly negligent breach of obligation on the part of GÜSSINGER, their legal representatives or vicarious agents.
5.2. GÜSSINGER shall not assume any liability towards the customer for mere financial losses and loss of profit.
5.3. The use and risk of the goods shall pass onto the customer from point of time of handing over of the merchandise to the shipping agent (please refer to 3.6) by GÜSSINGER.
5.4. In the event of a claim asserted by a third party towards the customer which might cause a recourse claim against GÜSSINGER, the customer shall be obligated to notify GÜSSINGER immediately – but at the latest within two weeks – of such claims which must be supported by any documents in relation with the same. Failure to adhere to the aforementioned notification procedure shall lead to a loss of the customer’s recourse claim against GÜSSINGER.

6. Prices
6.1. All prices quoted for the merchandise offered by GÜSSINGER shall only relate to the merchandise. The price does not include any costs in relation with the delivery, customs, fees, taxes and levies etc.
6.2. Unless stated otherwise, all prices indicated by us are given in Euro currency as a general rule, exclusive of VAT. Should any additional levies, taxes or charges become applicable in relation with the delivery of goods, such costs must be borne by the customer.

7. Billing and Maturity
7.1. Any invoiced amounts shall upon billing immediately become due and payable without any deductions. In the event of default payment, 12% interest in arrears per annum shall become due and payable.
7.2. Bills of exchange and cheques are only accepted for payment purposes. The customer shall bear any additional costs.
7.3. Any set-off of claims made by the customer against claims made by GÜSSINGER shall be excluded unless the counterclaim asserted by GÜSSINGER and its obligations and liabilities from the order relate to a legal context and have been determined by a court or acknowledged by GÜSSINGER.
7.4. GÜSSINGER shall be entitled to credit incoming payments for the time being against outstanding dunning charges, interest in arrears payable and thereafter against capital amounts; the customer's older debts shall be taken into account first.
7.5. The customer shall be obligated to compensate GÜSSINGER in the event of any default payment for any judicial and extra-judicial fees and expenses (collecting agencies and lawyers).

8. Retention of Title
8.1. The ordered goods shall remain property of GÜSSINGER until full payment has been made. Any refillable containers (empty trusses) shall remain at any point of time and irrespective of the payment of a pawn the property of GÜSSINGER unless they are non-refillable containers contained in the delivery price.
8.2. Before full payment has not been made the customer shall not be entitled to pawn the merchandise or transfer the goods by way of security or assign any rights to third parties in the property of GÜSSINGER.
8.3. The customer shall be obligated to notify GÜSSINGER immediately in writing of any measures of execution and other interventions on or access to gained by third parties to the conditional commodity that might affect the legal position of GÜSSINGER. The customer must immediately object to such measures by pointing to the retention of title right of GÜSSINGER.

9. Euro Pallets
9.1. In the event of a one-time delivery of goods to the customer, the aforementioned contracting party shall be obligated to exchange the Euro pallets submitted along with the delivery or must return them at the customer’s expenses to GÜSSINGER and their agents.
9.2. Should the customer fail to meet his obligations as set forth in sub-clause 9.1 of these General Terms and Conditions, then GÜSSINGER shall be entitled to charge the pallets or may arrange for the collection of the pallets at the customer’s premises at the aforementioned contracting party’s expenses (also failed attempts to collect the pallets at the customer’s premises shall be charged and must be borne by the aforementioned contracting party) and may charge a contractual penalty amounting to € 2.000,--- irrespective of the fault and the extent of the actual incurring damage. GÜSSINGER’s right to assert a claim for damages going beyond the aforementioned contractual penalty shall remain unaffected.

10. Data Protection
GÜSSINGER .undertakes to process, utilize and collect personal data of the customer where required in accordance with the regulations and provisions contained in the applicable Austrian Data Protection Act. Upon conclusion of the contract, the customer agrees that GÜSSINGER as well as its affiliates and agents shall be entitled to collect, process, store and use the personal data (name, company headquarters, address, date of birth, email address, telephone number etc.) and order data for purposes of demand-oriented development of offers, evaluation for billing purposes, protection of one's own rights as well as that of third parties within the framework of the applicable legislation. In order to fulfil its rights and obligations arising out of the concluded contract GÜSSINGER shall be entitled to forward the data to third parties involved in the performance of the contractual fulfilment. Any liability of GÜSSINGER for the forwarding to or misuse of the data by third parties involved in in the performance of the contractual fulfilment shall be excluded.

11. Salvatorian Clause
Should any provision of this Contract including these General Terms and Conditions applicable hereof concluded between GÜSSINGER and the customer be or become entirely or partially ineffective, this shall not affect the effectiveness or enforceability of the remaining provisions or parts thereof. The ineffective provisions shall be replaced by the respective statutory provisions, the content, meaning and economic purpose of which conform as far as possible to those of the replaceable ineffective provision. The fact that GÜSSINGER does not exercise a single or all of the rights to which it is entitled, does not constitute a waiver of these rights.

12. Legal Venue/Applicable Law
The exclusive legal venue for any disputes arising out of or in connection with this contractual relationship agreed upon mutually by the contracting parties shall be Eisenstadt. All existing legal relationships entered into by and between GÜSSINGER and the customer shall be governed exclusively by Austrian law excluding the United Nations Convention on Contracts for the International Sale of Goods (UNCISG). The working language to be used for business and contractual purposes as well as in relation with any complaints that might arise in connection with the contractual relationship shall be German. The place of performance shall be in Eisenstadt.

13. Consumers
As for legal transactions entered into by and between GÜSSINGER and consumers, these General Terms and Conditions shall apply insofar as they do not contravene mandatory provisions of the Austrian Consumer Protection Act.