General Terms & Conditions of Sale and Delivery
1. Scope and Validity
These “General Terms and Conditions of Sale and Delivery” apply to all deliveries and services of glass-inspiration GmbH DESIGN + ENGINEERING (hereinafter referred to as the “Seller”) equally to the extent that the parties to the agreement have not agreed other terms and conditions expressly and in writing. Terms and conditions used by the contract partner (hereinafter referred to as the “Buyer”) are only applicable insofar as they do not contradict the “General Terms & Conditions of Sale and Delivery” of the Seller and if they are acknowledged by the Seller expressly and in writing before orders are placed; in particular, no contract actions taken by the Seller shall be interpreted as an agreement to changes, amendments and/or supplements to this “General Terms and Conditions of Sale and Delivery”.
Any other terms and conditions of purchase on the part of the buyer are expressly rejected and refused, regardless of the stage in the offer and order process at which these are indicated and referred by the buyer.
2. Offers and Orders of the Buyer
All offers, technical data and marketing devices of the Seller, especially all drawings, plans, or other disclosures, including any reference to material, weight, dimensions, price estimates, surface quality, possible no. of inclusions etc., are in each part non-binding, unless otherwise expressly stated in writing. The agreement or the acceptance of any order of a Buyer requires a written order confirmation or at least an email confirming the order on the Seller’s part and shall not be binding otherwise, except if the Seller dispatches the Buyer’s requested good. After receiving the order from the Buyer, the down payment invoice will be sent to him. Unless otherwise agreed, this is due immediately. The delivery date will only be confirmed by the Seller after the full amount of the deposit invoice has been received.
3. Minimum Order Quantity
Rectangular elements will get calculated according to actual dimensions. Basis for special shapes is always the circumscribed rectangle. Minimum order quantity in any case is 0.50 m². In case of smaller elements are required, the minimum pricing will be for 0.50 m², depending on shape of elements.
All prices are to be regarded acc. Incoterms 2020 EXW 4531 Neuhofen/Kr. – Austria in Euro and do not include packaging and transport. Costs for (special) packaging, loading, stuffing, transportation and insurance shall be borne by the Buyer if not differently agreed in writing. The Seller is entitled to adjust the price in case the period of time between contract conclusion and delivery date agreed is longer than three (3) months, and relevant cost elements (especially prices of raw materials, electricity and transportation) have changed to a reasonable degree. If the increase is more than five (5) % of the agreed price, the Seller has the right to notify the Buyer of this and to invoice it. These costs are to be paid to the Seller immediately. If this does not take place in a suitable time, the production process will be interrupted, and the agreed delivery date will be adjusted accordingly. The Seller is entitled also to adjust and amend the price in case the Buyer has, after conclusion of the contract, demanded adjustments in delivery date, quantity, or quality of the goods.
Unless otherwise agreed, the agreed price shall be paid in Euros in two installments. The Buyer shall make a down payment in the amount of seventy (70) % of the agreed price at contract conclusion (payment of the down payment is a condition precedent to the effectiveness of any order). The second payment in the amount of the remaining thirty (30) % of the agreed price shall be due for payment with written shipping notice but before shipment without any delay upon presentation of an invoice by the Seller. The Seller is entitled to postpone any agreed or envisaged shipment until the total amount has been transferred into and is available on the Seller’s bank account. The parties agree on default interest at the rate of eight (8) % p.a. Associated fees and charges of any kind are payable by the Buyer.
All claims of the Seller are due immediately if the payment dates and deadlines are culpably not met or the Seller becomes aware of a significant deterioration in the Buyer’s financial situation. However, the Buyer can provide a security deposit in the amount of the endangered payment claim.
Moreover, in the case of delayed payments, or the opening of bankruptcy or insolvency proceedings for the Buyer’s assets, the Seller shall, at his own discretion, be entitled to retain all deliveries and services, to withdraw from all unfulfilled parts of the Buyer or to supply any outstanding services only with payment in advance or with security without having to grant a period of grace before. All other rights of the Seller remain unaffected thereof.
6. Wage work/contract manufacturing
Glass and / or interlayers for wage work is to be sent free of charge by the Buyer. The lamination of glasses provided by the Buyer takes place without any liability for faulty bonding, breakage or damage. Only EVA laminating foils are used for the laminating process under vacuum. The glass must already be processed, cleaned and in a condition suitable for a film composite. No liability is assumed for material provided by the Buyer (glass and / or interlayers). Damage caused during transportation must be borne by the Buyer.
lnterlayers do come in different colours, designs and patterns. Specimens and samples shall be regarded as being of average quality as to the dimensions and their calculations, weights, utility values, and tolerances. Especially natural materials such as stone, wood veneer cannot get ordered to a certain RAL or Pantone colour as it is a natural material. Therefore, reasonable differences must be expected, within a disclosed range based on Hadamar Guidelines. If confirmed, the Buyer can choose natural materials such as stone, veneer, etc. by him or herself to be used for further manufacturing process.
The following table indicates the dimensional tolerances in general unless otherwise agreed:
1) for glass thicknesses of 8 mm or more, the minimum tolerance is ± 2 mm
8. Delivery, Fulfillment, Distribution of Risk
Unless otherwise agreed, all deliveries are EXW 4531 Neuhofen/Kr. – Austria as per Incoterms 2020. The Seller shall be entitled to carry out part or advance deliveries and to present partial invoices for such partial and advance deliveries. Unless explicitly agreed otherwise in writing, delivery dates and deadlines are always considered to be only approximate; exceeding or falling short of these dates by up to thirty (30) working days is, however, deemed to be on time. Solely after the expiry of this period the Buyer shall be entitled to withdraw from the contract after setting an appropriate period of grace of at least fourteen (14) working days.
9. Reservation of Title
The Seller retains all rights of ownership of the goods supplied until complete payment of the purchase price. Resale of retained goods shall only be possible with the Seller’s written consent.
If the reserved goods are combined with other goods by the Buyer, the Seller is entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods and the processing value. If the Seller’s ownership expires due to combination, mixing or processing, the Buyer transfers to the Seller the property rights to which he is entitled to the new item at the time of the conclusion of the contract in the amount of the invoice value of the reserved goods and stores them for the Seller free of charge.
The Buyer must inform the Seller immediately of any access by third parties to the reserved goods. The Buyer shall, however, assign all claims arising out of such access/resale of the goods to the Seller.
Assertion of the reservation of ownership by the Seller does not imply any withdrawal from the contract, except if otherwise expressively stated.
The Buyer is obliged to treat goods owned by the Seller with care; in particular, he is obliged to adequately insure them against fire, water and theft damage at his own expense.
The seller is entitled to resell the goods that have been returned to him (goods and ownership) without having to inform the Seller or ask for his consent.
10. Statutory Warranty, Obligation to examine and give notice
The Seller undertakes to correct defects affecting the usability of the goods to the extent that these defects are the result of defective materials or manufacturing. Obvious defects must be reported to the Seller in writing within 2 working days after receipt of the goods and hidden defects within 7 days after discovery. Such report has to include a detailed description of the defects including meaningful pictures of goods and packaging and/or deficiencies claimed by the Buyer. The burden of proof concerning the existence of any defect, its existence before the transfer of the risk and its relevance under the warranty is on the Buyer. The Buyer shall reimburse the Seller for all costs incurred as a result of an unjustified claim.
Unless inconsistent with mandatory legal provisions, warranty claims are limited at Seller’s option to correction of the deficiency defect or replacement of the goods within a reasonable period or the reduction of the purchase price. If not differently agreed in writing, the warranty period shall be 6 months commencing on the date of delivery of the goods (transfer of risk). Any works or deliveries by the Seller due to warranty claims do not extend the original warranty period. Warranty will cease immediately, if the goods are modified, reworked, changed or adapted by the Buyer or third parties without written consent of the Seller. Special items sold at discount prices shall not be subject to any warranty. Further, this warranty applies only to goods / materials that have been fully paid. Buyer must make sure, when using silicone or other materials adhered to Buyers laminating foils (EVA) or the interlayer, that those will not react with them in a negative way! The Buyer is solely responsible, using the right adhesives!
11. Visual Inspection / Approval / Final Inspection
During transport and when off-loading materials, Buyer must ensure, handling and storing will be done in dry and save conditions.
Upon arrival and prior to installation, Buyer shall visually inspect the elements and component parts for obvious physical defects (e.g. broken glass) and then photograph, timely report and reject any allegedly defective goods / materials. Buyer must follow “unpacking guidelines” provided on glass-inspiration´s crates (e.g. “do not bend crate prior to opening”).
Goods / materials (laminated safety glass elements) must be inspected from a distance of min. (two) 2 meters during diffuse lighting conditions and not for longer than one (1) minute. Natural materials used as interlayers (e.g. real wood veneer, real grass, real stone) come in different colours, shades and patterns. The translucency can differ too. This must get accepted. Every element is unique. Elements may include up to five (5) small bubbles per m² in the front and the same at the back with a maximum of approx. ten (10) mm. Up to twenty (20) small bubbles up to three (3) mm diameter per m² must also get accepted.
Final inspection and acceptance shall be at Seller’s premises or at such other location designated by Seller. Upon delivery, Buyer shall have fourteen (14) working days within which to inspect the goods materials before accepting them. Seller will photograph all elements prior to packing those. In the event of any damages caused during shipping, Buyer will be responsible for claiming insurance within forty-eight (48) hours, after goods have been delivered.
Buyer shall promptly furnish at its own expense to Seller all lists, drawings, cuts, schedules, etc. required in connection with Buyer’s work in the form (including approvals and professional stamps and signatures) and at the time required by Seller. The Buyer is solely responsible for complete and error-free signed and approved drawings (drawings marked with stamp and signature through a designated employee of Buyer). Seller agrees that Buyer’s approved drawings will get checked in regard to obvious mistakes. In case of any errors found by the Seller, Seller will report such mistakes in writing and will interrupt production of related elements. If drawings must get changed through Buyer, lead times will get adjusted accordingly. Buyer shall at times retain title to all drawings and specifications furnished by Buyer to Seller relating to this Agreement. Seller shall use such drawings and specifications only in connection with this Agreement and shall not disclose them to any person, firm or corporation other than Buyer’s or Seller´s employees or Sub-Sellers. Seller shall upon Buyer’s request or completion of this Agreement promptly return all drawings and specifications to Buyer.
As far as legally permissible, all claims for compensation against Seller are excluded, unless such claim relates to an act of intent or gross negligence. The burden of proof, in particular concerning the occurrence of any damage, its amount and causal link is on the Buyer. As far as legally permissible, the liability of the Seller is limited to damages which arise to the object of delivery itself. The Seller assumes no liability for indirect or consequential damages. The Seller is in no account liable for loss of profits or revenue or any increased or abortively or additionally retained (production) costs (e.g., resulting from production breakdown or production standstill). Further, any liability of the Seller shall generally be limited to the amount of the typical and foreseeable damage and to the pertaining purchase price of the respective good(s). Damages claims expire after six months from knowledge of the damages and damaging party, but in any case after one year from passing of risk.
If an order is carried out according to the Buyer’s design specifications, drawings or models, the Seller’s liability does not extend to the correctness of design and only to the conformity of the design to the buyer’s specifications. The Buyer must indemnify and hold harmless the Seller if any claims are asserted by third parties against the Seller due to an infringement of protective rights of third parties.
The parties expressly agree that Seller assumes no liability whatsoever associated with any material which has been provided by Buyer or by any third party on Buyer’s behalf. Any condition of or circumstance involving the goods (in particular, quality, design, condition etc.) related to the material provided by Buyer or by any third party on its behalf, may not be subject to any claim for warranty or damages against the Seller.
14. Product Liability
Any and all recourse claims by the buyer or third parties against the seller based on product liability within the meaning of the Austrian Product Liability Act (PHG) are expressly excluded, unless the buyer proves that a defect was caused by gross negligence on the part of the seller.
Buyer shall have the right to cancel or suspend, by written notice, in whole or in part, the order either without cause and for Buyer’s convenience, or with cause. In the event of a cancellation, allowance fee will be made for normal and reasonable expenses and costs incurred by Seller prior to its receipt of the cancellation notice. The allowance fee is immediately due.
16. Governing Law and Jurisdiction
This contract shall be governed by and construed in accordance with Austrian law, with the exception of (a) the UN Sales Convention (“CISG”) and (b) the conflict of law rules of Austrian private international law. If the Buyer has its statutory seat within the European Union or an EFTA Country the designated court competent for the seat of the Seller shall have exclusive jurisdiction. If the Buyer has its statutory seat outside of the European Union or an EFTA Country, all disputes arising out of or in connection with contract concluded between the Seller and the Buyer shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce of the WKO in Vienna (Wien) by one (1) or three (3) arbitrators appointed in accordance with the said rules. The place of arbitration shall be Vienna and the language used English. However, the Seller shall be entitled, at its own discretion, to alternatively bring an action against the Buyer at the Buyer’s venue.
The Buyer may only offset against undisputed or legally confirmed receivables or in case the Seller has acknowledged expressly. The Buyer is entitled to retain only a reasonable part of the payments due even in case of legally justified reclamations.
The seller is entitled to store, communicate, process and delete personal data relating to the Buyer in the context of business dealings. The seller is also entitled to use photos of the products he has taken by himself for own marketing purposes. He is also entitled to use photos received from the Buyer for own marketing activities gratuitously if not otherwise agreed in writing.
Should any provision of these “General Terms and Conditions of Sale and Delivery” or any provision of an agreement individually concluded between the parties be invalid, the validity of the remaining provisions of these “General Terms and Conditions of Sale and Delivery” or of the individual agreement shall not be affected. The same shall apply accordingly to gaps in these “General Terms and Conditions of Sale and Delivery” or any individual agreements, if any.
We expressly reserve the right to request further financial assurance at any time before or after the sale has taken place and to refuse the delivery until such a security has been provided. Such a request does not cause the seller to be in default, but is entitled to do so, if the buyer delays the acceptance of the goods, the payment or the provision of the assurance, notifies him of default and otherwise proceeds in accordance with the statutory provisions.
20. Force Majeure
- The Parties shall be released from effecting performance in accordance with contractually covenanted timelines and any liability for damages if they are hindered from doing so by occurrences of force majeure. Occurrences of force majeure are constituted by events that are unforeseeable by the Parties and which the Parties cannot avoid, particularly fire, (civil-)war, revolt, riots in general, general mobilization or similarly scoped unforeseeable military mobilization, requisition, confiscation, currency crisis, riots and civil unrest, acts of terrorism, sabotage and piracy, epidemics, explosion, destruction of equipment, prolonged failure of means of transport, telecommunications, information systems or energy, natural disasters, currency or trade restrictions, embargoes, sanctions, official warnings and legal decisions by local, regional, national and international authorities as well as pandemic crises. An event particularly considered as an occurrence of force majeure is the existence of a travel warning of the security level 5 and 6 (classification of the Austrian Federal Ministry for Europe, Integration and Foreign Affairs). If a travel warning of the security level 4, after prior existence of a travel warning of the security level 5 or 6, shall not persist for a period of at least four 4 weeks, this event will also be considered an occurrence of force majeure. All additional costs which arise in connection with travel warnings (classification of the Austrian Federal Ministry for Europe, Integration and Foreign Affairs) must be borne by the Buyer.
- If the Seller does not fulfill one or more of his contractual obligations due to a failure of a third party whom the Seller has commissioned with the fulfillment of the entire contract or part of the contract, the Seller can invoke force majeure if the third party is affected by a force majeure event.
- The Party impaired by an occurrence of force majeure shall be required to inform the other Party, within a period of fourteen (14) working days of the beginning and likely conclusion of the impairment, the cause thereof, the anticipated ramifications and the duration of the delay.
- Deadlines, timelines or pricing that cannot be observed on grounds of force majeure shall be extended by the duration of the ramifications of the occurrence of force majeure.
- If an instance of force majeure spans a period in more than six (6) weeks, the Buyer and the Seller shall endeavor to regulate the processing-specific and technical ramifications. In case the contracting parties do not come to an amicable settlement within a period of further four (4) weeks from the start of negotiations according to 4, the Seller may withdraw from the contractual agreement in whole or in part.
- If the performance of a contract is temporarily impossible or significantly more difficult in whole or in part due to extraordinary circumstances that are not at Seller´s responsibility (“impediment to performance”), bottlenecks in material availability and transport bottlenecks or interruptions in supply chains, the agreed performance period is extended by the duration of the impediment to performance. The same applies to a deadline set by the Buyer for the performance, also for grace periods. Before the extended performance period has expired, the Buyer is not entitled to withdraw from the contract, to demand compensation or to retain a payment security (e.g., drawing an advance payment guarantee). If the impediment to performance lasts for longer than four weeks, the Buyer and Seller shall endeavor to regulate the processing-related effects. The Seller will endeavor to inform the Buyer as quickly and completely as possible about the occurrence of impediment to performance and its expected duration.
Adlwang, May 2023