General Terms and Conditions of the Organoid Technologies GmbH
1. Scope of Application and Definitions
To all business relations, especially those in distance selling, between
Organoid Technologies GmbH
Nesselgarten 422, Top 5
Tel. +43 5449 200 01
Companies’ Register number FN 378195w
VAT-ID number ATU67253688
(in the following referred to in short as “Organoid” or “Entrepreneur”)
and their customers, these General Terms and Conditions in the respective version current at the time of conclusion of the contract shall apply.
Business relations in distance selling are those which are concluded under exclusive use of one or more suitable means of distance communication or which are concluded outside the business premises of Organoid. The term means of distance communication includes, among others, the internet and electronic mail (email).
Customer in the sense of these Terms and Conditions are both the entrepreneur and the consumer in the sense of sec. 1 of the Austrian Consumer Protection Act (“KSchG”, Konsumentenschutzgesetz). An entrepreneur is any natural or legal person who runs a permanent organisation of independent economic activity and for whom the legal transaction is part of the operation of its business. A consumer is any person to whom this does not apply.
Any terms and conditions of the Customer that deviate from or contradict these General Terms and Conditions of Business shall not be recognized, unless Organoid has expressly agreed to their validity. Organoid’s actions in the performance of the contract shall under no circumstances be deemed to constitute consent to provisions deviating from these Terms and Conditions.
The General Terms and Conditions of Business shall henceforth also apply to all additional and follow-up orders as well as further transactions between Organoid and the Customer.
2. Conclusion of contract, Attribution of declarations of agents, Cost estimates, Characteristics of the delivery item
The offers of Organoid are subject to change and non-binding. The right to make technical as well as other changes within the scope of reasonableness is reserved. Changes to the agreed performance or, respectively, deviations are reasonable for the Customer if they are minor and objectively justified. Objectively justified are in particular material-related changes, e.g. in dimensions, colours, structure etc.
It is deemed to be agreed that the delivery item only offers that level of safety and properties which can be expected on the basis of Austrian standards (Ö-Normen), operating instructions, regulations on the treatment of the delivery item (e.g. instructions for use or care) and necessary handling and other instructions given. The FAQs (frequently asked questions) on natural surfaces of Organoid, which are attached to the order confirmation, are part of the contract.
The sending of price lists or catalogues does not constitute an offer and does not obligate the Customer to supply the goods at the prices and conditions stated therein. Organoid reserves the right to refuse orders completely. Binding agreements can only be made with Organoid’s management. The contract is only concluded upon acceptance by Organoid in the form of an order confirmation in accordance with the specifications stated therein.
Quotations, estimates and price indications by Organoid are non-binding and provisional; no guarantee can be given for their correctness and completeness. Cost estimates are subject to payment. Consumers will be informed separately of the obligation to pay and the costs incurred before the cost estimate is prepared.
Price lists are subject to change and non-binding. Price lists are only internal guidelines and do not contain any offers. All prices are net, excluding Austrian value added tax (20%).
All goods are only available in the specified versions. Information on dimensions, weights, strength, colour, etc. are approximate values. Samples or illustrations are only relevant to the contract if they are expressly defined as contractual specifications in individual cases. The right to make production-related changes and adjustments is reserved.
3. Delivery, Dispatch
Unless otherwise agreed, delivery shall only be made after receipt of payment, ex works.
The standard delivery time is 20 working days, for goods specifications based on Customer requests 30 working days. Fixed delivery dates (“Fixtermine”) are only valid after explicit written confirmation by Organoid. Organoid reserves the right to fulfil the contract in partial deliveries.
The risk of loss, damage or destruction or even default passes to the Customer upon handover to the parcel deliverer or, respectively, carrier. In case of delays in delivery Organoid will inform the Customer immediately, if possible, about the reason and expected duration.
Delays that are within the sphere of the transporter are not Organoid’s responsibility. If delivery to the Customer is not possible for reasons beyond Organoid’s control (e.g. absence of the Customer despite prior arrangement of a date), the Customer shall bear the additional costs caused thereby plus a flat-rate handling fee of EUR 20.00. If, on the other hand, the reason is an unforeseeable delivery failure on the part of Organoid’s suppliers, Organoid reserves the right to withdraw (“Rücktrittsrecht”) from the contract – with simultaneous reimbursement of payments already made by the Customer. If Organoid is in default for other reasons, Organoid must be granted a period of grace of at least 8 weeks before the Customer may declare its withdrawal from the contract; the Customer is not entitled to compensation for late delivery.
Free delivery is understood to be without unloading.
In case of unforeseeable delays in delivery Organoid is unilaterally entitled to dissolve the contract. This also applies in the event of force majeure, unforeseen strikes, lockouts or in all cases where delays are not due to Organoid’s fault.
Furthermore, Organoid is not responsible for delays in delivery caused by governmental restrictions on imports, such as foreign exchange controls etc. In all these cases, any claims of the Customer for performance or damages for non-performance are expressly excluded.
The delivery by us is fulfilled when the goods have been handed over ex works to the carrier, forwarding agent or other person or company appointed to carry out the transport or have been accepted by the Customer itself.
The dispatch is always at the risk and expense of the Customer. Organoid accepts no liability for the timely arrival of the shipment. If the Customer collects the goods, the risk of accidental loss or damage shall pass to the Customer from the time the goods are made available.
In the case of an order of 10 plates/decks or more, shipment is free domicile.
For individual orders, the natural surfaces will be shipped rolled if possible in a cardboard box and, if necessary, on a suitable one-time pallet. Orders of several natural surfaces on HPL are shipped flat on a 3150 x 1400 mm pallet.
In principle, unless otherwise agreed, 100% advance payment applies to orders.
For orders over € 5,000.00 net order value: Payment of € 5.000,00 immediately after receipt of invoice, rest within 14 days less 2% discount, or 30 days net. Orders under € 5,000.00 are due for payment within 14 days less 2% discount, or 30 days net.
The deadlines begin with the date of the invoice. A cash discount deduction can only be accepted if all older, due invoices have been settled. All bank transfers are made at the risk of the Customer and are to be made in such a way that the payment is credited to the bank account of Organoid stated in the invoice by the due date at the latest.
If payments are not made on time, interests are payable on the outstanding amount starting from the expiry of the payment deadline, unless otherwise agreed; such interests are payable in the case of entrepreneurial business interest at the rate of 9.2 percentage points per annum above the base interest rate (§ 456 UGB), in the scope of application of the Austrian Consumer Protection Act interest at the rate of 4 percentage points per annum, unless higher interest rates can be proven.
The payments can be made with debt-discharging effect exclusively by bank transfer to the bank account stated in the invoice. Payments by bill of exchange, cheque or the like are not accepted.
In the event of default of payment, the Customer undertakes to reimburse the contractor for the reminder and collection expenses incurred by the contractor; these include in particular the costs of an engaged collection agency or lawyer as well as, in the case of a self-operated reminder system, EUR 6.00 gross per reminder. In addition, any further damage resulting from non-payment shall be compensated regardless of whether the default in payment was caused by fault.
The set-off of the Customer’s claims against those of Organoid is excluded, unless the Customer’s claims have been recognized by Organoid or have been determined to be legally valid and enforceable.
If, after conclusion of the contract, Organoid becomes aware of circumstances relating to the Customer’s lack of solvency or its poor economic situation, Organoid is entitled to invoice all orders immediately, to make them due and payable and to make further fulfilment dependent on the Customer’s granting of securities. This also applies in the event that insolvency proceedings are opened over the Customer’s assets or an application for the opening of insolvency proceedings is filed.
5. Acceptance of delivered goods, Warranty
Complaints can only be processed if an invoice for the goods under complaint is presented.
5a The Customer is an entrepreneur
If the purchase is a business-related transaction for both parties, the Customer must notify the seller within a reasonable period of time of any defects in the goods which it has discovered or should have discovered by inspection in the normal course of business after delivery . Goods delivered by Organoid must therefore be examined immediately after delivery.
Any defects discovered in the process must be notified to Organoid in writing without delay, but at the latest within 3 working days of delivery, stating the nature and extent of the defect. Defects which are not recognisable despite careful examination must be notified in writing immediately after their discovery, but at the latest within 3 working days of their discovery. The Customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defects (“Mängelrüge”). If a notice of defect is not made at all or not made in time, the goods shall be deemed approved. The assertion of warranty claims or claims for damages as well as the right to contest errors due to defects is excluded in these cases. Should a defect be present despite all the care taken, Organoid’s liability shall be limited to replacing the goods to be returned by the Customer within a reasonable delivery time with goods free of defects.
The Customer is not entitled to remedy the defect itself or have it remedied by third parties, but must first give Organoid the opportunity to improve or replace the goods within a reasonable period of time. Prior to any return of the goods, Organoid’s prior consent must be obtained. Justified complaints do not entitle the Customer to withhold the entire invoice amount, but only an appropriate or, respectively, aliquot part of the invoice amount.
The warranty period is 6 months after receipt of the goods. The warranty claim shall become time-barred if it is not asserted in court within this period. In the event of an assertion of a warranty claim, neither the warranty period shall be interrupted nor shall the course of a new warranty period be triggered. If the Customer wrongfully complains for reasons for which Organoid is not responsible, Organoid is entitled to charge the Customer for the costs incurred by Organoid.
5b. The Customer is a consumer.
Organoid will be liable for defects that are present at the time of delivery of the goods within the framework of the legal provisions. For contracts with Consumers the warranty period is 2 years from delivery of the goods. During this warranty period, the Customer is initially entitled to free repair or replacement of the goods. If a defect is not rectified within a reasonable period of time, it is also entitled to choose between redhibition (recission of the purchase) or reduction (lowering of the purchase price).
5c. General Information
In order to inspect or remedy the defects, the Customer must allow Organoid access to the object of warranty on the agreed dates.
Remediations of a defect claimed by the Customer or the replacement of the defective goods do not constitute an acknowledgement of the defect claimed by the Customer, but are made in case of doubt as a gesture of goodwill in the interest of Customer satisfaction and without acknowledgement of a legal obligation.
The contractor is to be granted at least 2 attempts to remedy the defect by the Customer who is an entrepreneur.
The Customer accepts minor differences in colour shades etc. which do not reduce the value of the delivery item.
5d. Notification of transport damages
The Customer has to support Organoid to the best of its ability in case of transport damages, as far as claims are asserted against the respective transport company or, respectively, transport insurance company. In particular, the Customer must inspect the delivered goods upon receipt and, in the case of externally visible transport damage, if the delivery is nevertheless accepted, the Customer must note the damage on the respective shipping documents and have it acknowledged by the deliverer; the packaging must be kept by the Customer. If the (partial) loss or damage is not externally recognisable, the Customer must notify Organoid of this within five days of delivery or within seven days of delivery to the transport company in order to ensure that any claims against the transport company can be asserted in good time.
6. Compensation and liability
Contractual and pre-contractual claims for damages in cases of slight negligence, the compensation of consequential damages and financial losses, of savings not achieved, of loss of interest and for damages from claims of third parties against the Customer are completely excluded in entrepreneurial business.
If Organoid is grossly liable of having caused damage to the Customer in breach of its contractual obligations, the compensation for damages in entrepreneurial business will be capped at a maximum of EUR 12,500.00 for an order amount of up to EUR 250,000.00, and at 5% of the order amount for an order amount exceeding this; but in all business cases, the compensation for damages will be capped at a maximum of the amount of the insured sum of EUR 3,000,000.00 covered by the business liability insurance.
Claims for damages by entrepreneurial Customers must be asserted in court within 6 months otherwise they will expire.
7. Retention of title and Security
All goods delivered remain the exclusive property of Organoid until the agreed remuneration for work, including interest, reminder and other collection costs, have been paid in full.
The Customer is obliged to treat the goods with care during the existence of the reservation of title. If maintenance and inspection work is necessary, the Customer must carry this out regularly at its own expense.
The Customer must immediately inform Organoid in writing of any access to the goods by third parties, in particular of any enforcement measures as well as of any damage to or destruction of the goods. The Customer must notify Organoid immediately of any change of ownership of the goods as well as of any change of address. The Customer shall compensate Organoid for all damages and costs arising from a breach of these obligations or from necessary intervention measures against access to the goods by third parties.
Irrespective of whether the goods delivered by Organoid become a dependent part of real estate through assembly and a separation can only be carried out with uneconomical expenditure and minor damage to the substance, Organoid is in any case entitled in the case of a qualified (setting of a grace period of 14 days in writing) and culpable default in payment by the Customer to dismantle the installed materials without the Customer having any claims whatsoever arising from this. Further claims of Organoid remain unaffected by this.
In the case of Consumers it is a prerequisite that the performance of the Consumer is due for at least 6 weeks and that the contractor has unsuccessfully sent a reminder letter to the Consumer, threatening therein with this legal consequence and by setting a grace period of at least 2 weeks.
In addition, the Customer assigns in advance to Organoid all its claims against its Customers up to the amount of the sums specified in more detail in the contractual agreement, with the proviso that the present assignment is initially kept as a “silent assignment” (“stille Zession”).
In the event that the Customer should fail to meet the obligations arising from a contract with Organoid despite a reminder letter and a grace period of 3 days, Organoid is entitled to notify the Customer’s debtor of the present assignment so that the latter is obliged to make payments from the contractual relationship between the Customer and the Customer’s customers with debt-discharging effect exclusively to a paying agent to be named by Organoid.
The Customer hereby declares that its claims against the Customer’s customers have not already been assigned or pledged by way of contractual pledges, assignments or legal acts of any kind whatsoever.
Organoid hereby declares to accept the present assignment.
8. Product liability
The products supplied by Organoid offer those properties and guarantees which can be expected on the basis of legal regulations or regulations on operating, maintenance, installation or care instructions, in particular with regard to prescribed inspections of products. The Customer is therefore obliged to comply with the instructions for operation, maintenance, installation and care and any claim for damages is excluded in the event of violation of these obligations. Organoid is only liable within the framework of the Product Liability Act (Produkthaftungsgesetz) for personal injury and damage to property suffered by a Consumer.
The contractor is not liable for property damage suffered by the Customer within the scope of its business. The Customer undertakes to transfer the aforementioned limitations of liability to its possible customers in accordance with sec. 9 of the Product Liability Act (Produkthaftunsggesetz) with the obligation of further transfer such obligation; should the Customer fail to comply with this obligation, it undertakes to indemnify and hold Organoid harmless and to compensate all costs incurred by Organoid in connection with the liability claim. Likewise, the Customer declares to waive all recourse claims against Organoid in the event that it itself is held liable under the Product Liability Act (Produkthaftungsgesetz).
If the Customer is a consumer and a contract within the meaning of sec. 1 of the Austrian Act on Distance selling and off-premises contracts (Fern- und Auswärtsgeschäfte-Gesetz; FAGG) exists, Organoid will separately instruct the Customer on the rights to which the Customer is entitled according to the FAGG and inform the Customer within the meaning of sec 4 of the FAGG.
10. Other contractual provisions
Contract language and Place of performance
Contract, order and business language is German. The place of performance for all services under the contract is Organoid’s registered office in A-6500 Fließ, Nesselgarten 422.
Written form requirement
Oral promises have no validity in business transactions. All agreements, subsequent amendments, supplements, side agreements etc. must be in writing to be valid. This also applies to the agreement with which the written form is to be waived.
However, this written form requirement does not apply to the Consumer. Circumstances for which, however, written form is required under these General Terms and Conditions of Business or, respectively, circumstances according to which the non-existence of certain facts is assumed in the absence of a written declaration, must be claimed and proven by the Consumer (reversal of the burden of proof).
The contracting parties agree that the following forms of communication fulfil the written form requirement:
The contracting parties agree to the application of Austrian law, as far as there are no mandatory legal provisions to the contrary. The UN Convention on Contracts for the International Sale of Goods as well as all provisions referring to the UN Convention on Contracts for the International Sale of Goods are expressly excluded.
Place of jurisdiction
For the resolution of all disputes arising from this contract or regarding these General Terms and Conditions, the court having jurisdiction ratione materiae will be the court competent at the registered office of Organoid. Irrespective of this agreement on the place of jurisdiction, Organoid is entitled, at its discretion, to assert its claims against the Customer at any place and before any court which can be made competent according to the statutory provisions, in particular the court at the Customer’s registered office or, respectively, domicile. For Consumers the statutory place of jurisdiction applies.
If the Consumer has its domicile or habitual residence in Austria or is employed in Austria, only the jurisdiction of the court in whose district the domicile, habitual residence or place of employment is located can be established for a claim against it. Organoid recognizes the consumer jurisdiction.
Should individual provisions of these General Terms and Conditions be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. An invalid provision shall be deemed to be replaced by a provision which comes closest to the economic purpose of the invalid provision.
The Customer undertakes to strictly observe all care and processing guidelines (FAQs) and safety regulations handed over to it.
The Customer undertakes to impose the same conditions, requirements and exclusions of liability on the further purchaser in the event of any resale, failing which Customer is subject to compensation for damages. The Customer shall be liable for all claims arising from the breach of the obligation to pass on the same conditions, requirements and exclusions of liability, or, respectively, for any disadvantages associated with this. The Customer declares to indemnify and hold Organoid completely harmless in this respect.
The Customer acknowledges that according to the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschafts- und Abfallgesetz), residues are classified as “other hardened plastic waste”.
Fließ, on December 2018