General Terms and Conditions of Business (B2B)

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1. Introduction, validity

1.1. The following General Terms and Conditions of Business ("GTC") of Gierlinger Holding GmbH, FN 197807v, Weingartenstraße 14, 4100 Ottensheim, Austria, apply to all legal business transactions, deliveries, services and offers involving Gierlinger Holding GmbH and its subsidiaries (in the following "GIERLINGER") on the one hand and natural or legal persons (hereinafter collectively referred to as the “customers” and individually as a “customer”) who qualify as entrepreneurs within the meaning of the Austrian Corporate Code (UGB) and the Austrian Consumer Protection Act (KSchG), on the other hand, unless and to the extent that deviating terms have been expressly agreed in writing. These GTC also apply in situations in which GIERLINGER is acting in the name of and/or for the account of a represented natural or legal person.
1.2. GIERLINGER is willing to enter into contracts with traders and to provide these with their services (including ancillary and supplementary services) only in accordance with the conditions specified in these GTC. Alternative order, business, supply, contractual and payment conditions of customers will not apply, even if GIERLINGER has not expressly objected to these, or will apply only to that extent that has been explicitly acknowledged and accepted in writing by GIERLINGER. Concluded transactions or silence on the part of GIERLINGER do not imply that GIERLINGER has accepted the conditions of customers.
1.3. These GTC are available online at https://www.gierlinger-holding.com/de/agb ("website"), where they can be viewed, printed, downloaded and stored on a storage medium.

2. Offers, contract conclusion

2.1. Any offers posted by GIERLINGER, irrespective of their form, are subject to alteration and non-binding and represent merely an invitation to customers to submit an offer to purchase from GIERLINGER. Only when a customer submits an order will this represent a legally binding offer to GIERLINGER to conclude a contract on the basis of these GTC.
2.2. In the case of online orders, a customer enters into an obligation to purchase when they click on the button "Zahlungspflichtig bestellen" (order with obligation to pay) at the end of the order process, whereby the offer to purchase is sent to GIERLINGER. The separate, automated confirmation sent by email to the customer that GIERLINGER has received the order documents is merely a technical process triggered on receipt of the offer of the customer and does not represent acceptance of an offer to purchase by GIERLINGER.
2.3. Transactions (contracts) come into being only when the order/offer to purchase of the customer is accepted by GIERLINGER. Acceptance can take the form of a specific declaration (e.g. an order confirmation) or take the conclusive form of the actual provision of the service or goods.

3. Prices, payment

3.1. Prices are quoted net in Euro (EUR) and do not include the corresponding valid and separately calculated value added tax and any additional charges for packaging, delivery, transport, insurance and handling.
3.2. Unless fixed prices have been explicitly agreed between GIERLINGER and the customer, the prices specified in the offer or order confirmation will be binding for GIERLINGER for a maximum of four weeks from date of issuance. Any fixed price agreement will be valid for a maximum of three months. Outside the validity periods of the binding four-week period or the fixed price agreement, GIERLINGER reserves the right to adjust any offered or already agreed prices in accordance with the market situation. In the case of long-term business relationships, GIERLINGER will inform the corresponding customers of any price increases at least 30 days in advance.
3.3. GIERLINGER takes out insurance with a credit insurer to cover the payments due from its customers. Should, for whatever reason, the insurance company reject a customer, all services and goods will only be supplied on prepayment. Irrespective of this, GIERLINGER reserves the right to demand prepayment or the provision of securities (e.g. bank guarantees) at any time.
3.4. The net amount of invoices of GIERLINGER is to be paid in full within 30 days of date of invoice. GIERLINGER has the right to generate and transmit invoices in electronic form. Any cost of payment transactions (e.g. bank fees for transfers abroad) is to be borne by customers. GIERLINGER will accept forms of payment orders not as payment but only in lieu of payment.
3.5. In cases of delays in payment, the legal interest rates specified in Art. 456 UGB will be charged. In addition and irrespective of liability, in cases of overdue payment, customers will also be required to pay the following administrative charges for payment reminders: first reminder: EUR 15.00, second reminder: EUR 20.00, third reminder: EUR 25.00, plus the corresponding VAT and all pre-litigation costs without limitation to those necessary for the corresponding legal action.
3.6. Should a payment be more than 14 days overdue, GIERLINGER also reserves the right to withdraw from the contract or make use of its retained title to any goods (see section 5).
3.7. When there are overdue invoices, GIERLINGER will not be obligated to continue to supply the customer, even if the business relationship is maintained, until full payment (including interest, reminder charges and pre-litigation costs) has been received.

4. Delivery

4.1. Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, goods will be shipped in accordance with the 2010 Incoterms. GIERLINGER will have met its delivery obligations when the goods have been Delivered at Place (DAP) ready for unloading.
4.2. If Ex Works (EXW) delivery is agreed, the material and price risks pass to the customer when the goods are made available at our premises. In the case of DAP, the material and price risks pass to the customer when the goods have been delivered to the named destination. If there is no specific written agreement with regard to delivery, it will be assumed that EXW has been agreed. If the delivery of the goods is impossible for GIERLINGER for reasons beyond our control or a customer decides temporarily that they do not wish to receive the consignment although it is ready for delivery , the goods will be stored at the customer’s expense at the premises of GIERLINGER, assuming sufficient capacity is available. On storage of the consignment, GIERLINGER will have met its contractual obligations and all risk will be transferred to the customer.
4.3. Unless otherwise expressly agreed in writing between GIERLINGER and a customer, the place of performance for services of any kind shall be the registered office of GIERLINGER.
4.4. Shipments of goods shall only be made using customary commercial carriers. Transport insurance shall only be taken out upon the customer’s express request and at the customer’s expense.
4.5. If the goods ordered by a customer are temporarily unavailable, GIERLINGER will notify the customer without delay. If there is a delay in delivery on the part of GIERLINGER for whatever reason, customers are to grant GIERLINGER an appropriate period of grace in writing of at least 21 days. All consequences of any such delay will come into force only on expiry of the period of grace.
4.6. Any agreed delivery deadline will be valid only after definitive and complete agreement on all the principle and ancillary services to be provided by GIERLINGER. If contractual performance is prevented for reasons outside the control of GIERLINGER, particularly in cases of force majeure that may take the form of natural phenomena, epidemics/pandemics, terrorist attacks, strikes, government actions, deficient or delayed delivery by sub-suppliers, bottlenecks in transport capacity, disruption of energy supply or communication systems or similar, the deadline will be extended for the period of the delay. If the delay lasts more than three weeks, both GIERLINGER and the customer have the right to withdraw from the contract on expiry of the extension period; in this case, there will be no right to claim for damages.
4.7. On delivery of chilled or deep-frozen goods, the customer is obligated to maintain the cooling or freezing chain from place of delivery to final destination. Refreezing of thawed goods is not permitted. Following its delivery of goods and a disruption in the cooling or freezing chain, GIERLINGER will provide no statutory warranty in this connection and assumes no liability for any defects and damage, if only partial, arising from this disruption. This exclusion of liability also applies to all consequential outcomes, including any loss of earnings.

5. Retention of title

5.1. Until full payment of the purchase price and all costs and charges and the fulfilment of all contractual duties (also those relating to other transactions with GIERLINGER) by customers, goods remain the property of GIERLINGER.
5.2. Customers do not have the right to pawn goods of which title has been retained, to consign these as a form of security or to assign rights in these to third parties. If third parties intend to take possession of retained goods, customers are obligated to notify them that these remain the property of GIERLINGER and to notify GIERLINGER without delay. If goods of which title has been retained are processed, are combined or mixed with other items, the appropriate title in the processed, combined or mixed goods is to be assigned to GIERLINGER, which title is to be assigned to GIERLINGER by the customer on completion of the transaction between them and assuming this title is accepted by GIERLINGER.
5.3. In any case of (payment) delay, GIERLINGER reserves the right to claim its entitlement arising from retention of title. If GIERLINGER exercises its enforcement of retention of title rights, this does not represent a withdrawal from the contract unless such withdrawal is explicitly declared.
5.4. If GIERLINGER exercises its rights with regard to retained title, the customer is obligated to assume the costs of transport, to release the goods immediately and to provide the carrier commissioned with transport of the goods appropriate access to their premises and warehouses.

6. Statutory Warranties, claims for damages

6.1. GIERLINGER assumes responsibility and is liable only for its own contractual responsibilities (including those of its corresponding agents). GIERLINGER provides no statutory warranties and assumes no liability or responsibility for or in connection with transactions that involve subcontractors or other third parties only, and specifically not for the selection, authorisation, legal capacity or creditworthiness of such persons nor for the conclusion or contents of contracts (including marketing and performance aspects, such as profitability, non- or poor performance) with these nor for the enforceability of claims. GIERLINGER does not evaluate subcontractors and third parties and assumes no obligations on behalf of customers to do so. If third parties file claims directly against GIERLINGER, customers are to hold GIERLINGER fully harmless from all liability on first demand, and bear all the costs of any legal defence (irrespective of the necessary extent of legal action).
6.2. Customers are to store goods in accordance with the contractual agreement and the storage conditions specified by GIERLINGER. GIERLINGER assumes no responsibility or liability if goods are not stored in accordance with these requirements. GIERLINGER assumes no responsibility or liability for defects and damage (even if only partial) that are the result of inappropriate or negligent storage, of disruption of the cooling chain after delivery, of inappropriate or negligent unloading of goods, of inappropriate or negligent onward transport or of inappropriate or negligent handling (irrespective of the form of this) on the part of customers or third parties. This exclusion of liability also extends to all consequential outcomes.
6.3. Delivered goods are to be examined immediately and stored appropriately. Defects in terms of type, quantity, packaging and external appearance of goods must be reported immediately on receipt of goods and noted on the delivery note or shipping documents. Complaints relating to defects made following consignment acceptance will all be treated as overdue complaints.
6.4. Other defects, particularly defects relating to quality and shelf-life, must be reported in writing within 48 hours of delivery, stating the corresponding delivery note number. In addition, customers are to send GIERLINGER samples of goods that are the subject of a complaint free of charge and without delay. If this is not possible because of the nature of the goods, customers must keep the samples available for inspection and, for this purpose, store them in accordance with the product-specific requirements (e.g. in the case of chilled or deep-frozen products). Concealed defects are to be reported accordingly within 48 hours of discovery.
6.5. If customers do not comply with complaint requirements, submit complaints late or inappropriately, all entitlements (particularly claims under statutory warranty and for damages and the right to recourse per Art. 933b of the Austrian General Civil Code (ABGB)) will be considered null and void.
6.6. It is the responsibility of customers to provide evidence that a complaint is justified and that it has been submitted in good time. Any presumption of deficiency per Art. 924 ABGB is excluded.
6.7. If a justified complaint is submitted in good time, GIERLINGER will, at own discretion, supply either missing products or exchange defective products within four weeks of receiving the written complaint. If neither is possible, or this would involve disproportionate effort on the part of GIERLINGER, customers will be entitled to a price reduction. No conversion of statutory warranty remedy is permissible.
6.8. GIERLINGER will only accept goods returned by a customer if a justified complaint has already been submitted and GIERLINGER has authorised the return of goods.
6.9. GIERLINGER will not assume liability for the consequences of minor and gross negligence on its part and will be liable only for claims relating to personal injury and claims arising in connection with product liability legislation. GIERLINGER is thus liable – with the exception of claims relating to personal injury and claims arising in connection with product liability legislation – only for claims relating to deliberate actions or extremely gross negligence on its part.
6.10. GIERLINGER assumes liability only in cases of breach of major obligations on its part. The extent of liability is limited to the foreseeable and typical losses. GIERLINGER assumes no liability for what are exclusively financial losses, immaterial losses, consequential losses, claims of third parties lodged against a customer and loss of earnings.
6.11. In situations in which GIERLINGER is not liable, this also applies to its owners, organisations and their members, personnel, representatives and other agents. GIERLINGER will assume liability only for losses caused by persons for whom GIERLINGER is legally obligated to assume responsibility. It is the responsibility of customers to provide proof of culpability on the part of GIERLINGER or its agents for which it is obligated to assume responsibility.
6.12. If GIERLINGER is required to pay damages , this damages – notwithstanding further limitations of liability – will be limited to the actual amount of the liability sum insured by GIERLINGER.
6.13. In cases of suspected product defects or damage, customers are obligated to inform GIERLINGER without delay, to supply all information relating to the product defects or damage (e.g. complaints submitted by their customers) and to cooperate in full and free of charge with GIERLINGER if a product recall becomes necessary.
6.14. In the case of consignments with a European Global Trade Item Number (GTIN) and/or an EAN barcode, GIERLINGER will be responsible for the correct sequence of the GTIN code only. GIERLINGER will be liable for the legibility of any EAN barcode only to that extent that, in the consignment supplied, the usual average error rate per the recognised rules of technology has been exceeded during the production process. The average error rate is to be calculated using the rules published by GS1 Austria GmbH, Brahmsplatz 3, 1040 Vienna.
6.15. Goods may only be exported by customers or their buyers with the prior written authorisation of GIERLINGER. GIERLINGER assumes no liability for damage or drawbacks, irrespective of their nature, that arise in connection with the export of goods.

7. Special regulations that apply to continuing obligation contracts

7.1. A continuing obligation contract can be concluded for a limited or an unlimited period of time. The actual contract duration will be negotiated with each individual customer. If the duration is limited, the contract will terminate automatically with the expiry of the agreed duration without the need for intervention. In this case, a subsequent extension of the contract duration is excluded; a new written contract must be concluded.
7.2. Unless otherwise explicitly agreed in writing between GIERLINGER and the corresponding customer, all continuing obligation contracts can be terminated by GIERLINGER if notice of the intention to terminate is provided three months prior to the end of the month in question (ordinary termination); no reasons need be provided for termination; the notice of termination must be submitted in text form (e.g. as a registered letter or email with receipt or read confirmation).

8. Premature termination of contracts for good cause

All contracts between GIERLINGER and customers – irrespective of whether these are continuing obligation contracts with a fixed or indefinite term or one-off contracts – can be terminated immediately by GIERLINGER if certain circumstances apply ("termination for good cause" or "extraordinary termination") by means of submission of a written notice of termination (e.g. as a registered letter or email with receipt or read confirmation).

Causes that justify immediate contract termination by GIERLINGER include:

– Failure to pay despite reminders and granting of a period of grace

– Evidence of the possibility of the opening of insolvency proceedings or the dismissal of a corresponding application on the part of a customer; such evidence can take the form of interruptions in payment, requests for payment deferral and out-of-court settlements

– Serious infringements on the part of a customer of laws, valid standards, of the generally accepted rules of practice or of the provisions of a contract concluded with GIERLINGER (including these GTC), that undermine trust in the customer, even if there is no unacceptable behaviour that would otherwise justify termination of the contract

On termination of a contract for good cause by GIERLINGER, GIERLINGER will remain entitled to full payment for all services provided to the date of the notice of termination and to exercise other possible legal rights.

9. Intellectual property and copyright

Unless otherwise explicitly agreed in writing between GIERLINGER and the corresponding customer – e.g. certain usage rights are granted under licence – all rights to intellectual property and commercial copyrights are owned by GIERLINGER. Without a prior written agreement, customers will acquire from GIERLINGER no ownership, copyright, usage, intellectual or commercial rights, irrespective of their nature.

10. Use of corporate-related data

On entering into a contractual relationship with GIERLINGER, customers explicitly consent to the use of their corporate-related data for the purpose of contact by GIERLINGER for non-essential purposes and for purposes of sales, marketing and advertising that are in the interest of GIERLINGER. Customers have the right to withdraw their consent in writing at any time, with effect for the future, to any such non-essential processing of their data.

11. Confidentiality

11.1. Particularly if they are in contact with competitors of GIERLINGER, customers are obligated, for the whole duration of contracts and also after expiry of the duration of contracts, to maintain strict confidentiality towards others, to keep secret and not to disclose to third parties information on the conclusion and content of contracts (including order data) with GIERLINGER, on all operational-, business-, market- and competition-relevant circumstances that are disclosed to them or of which they obtain knowledge by whatever means (particularly on all operating and business secrets of GIERLINGER, even if these have not been specifically identified as confidential, such as contractual conditions, prices, quantities, recipes, product information, bases of calculation and all activities, communications and discussions conducted in connection with the contractual relationship – "confidential information"). Operational-, business- and contract-relevant data and information may not be used directly or indirectly for other purposes than performance of the corresponding contract. Customers are obligated to require all persons with access to confidential information (such as their personnel, members of corporate bodies, shareholders, agents, subcontractors and business partners) to observe the need for confidentiality.
11.2. The requirements outlined above do not apply if:

i. GIERLINGER provides written authorisation for disclosure of the information

ii. It is necessary to disclose the information for legal reasons, particularly because of legal requirements or on the basis of court or administrative orders

iii. The information is disclosed to persons who are obligated by law to maintain confidentiality

iv. It is necessary to disclose the information in order to exercise rights arising from or associated with a contractual relationship between GIERLINGER and a customer
11.3. On any violation of the confidentiality requirements specified in section 11.1 by customers or persons for whom they are responsible, customers will be obligated to pay a contractual penalty, regardless of fault, of EUR 30,000 (thirty thousand Euros) to GIERLINGER per violation without the need to further examine the fulfilment of other conditions. GIERLINGER reserves the right to claim further damages and exercise other rights (e.g. for failure to meet obligations). In such cases, customers are also obligated, on first demand, to hold GIERLINGER fully harmless from all claims of third parties (including those of supervisory bodies, e.g. when fines are imposed because of the formation of a cartel) and to pay all costs of any associated legal defence (without limitation to those necessary for the corresponding legal action). Payment of the contractual penalty to GIERLINGER does not release customers from their obligation to (continue) to provide their services.
11.4. The obligation to maintain confidentiality stipulated here is of unlimited duration and will remain effective in full after termination (for whatever reason) of the corresponding contract.

12. Other provisions

12.1. Concluding provision

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, the legal relationship between the contracting parties is sufficiently defined on conclusion of a contract based on these GTC.
12.2. Waiver of right to appeal

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, the customer waives the right (assuming this right is provided under applicable law) to launch or implement an appeal against any contract drawn up on the basis of these GTC for the purposes of modification or annulment (because of error, lack or cessation of the commercial basis and laesio enormis), to claim that the contract has not been correctly concluded or is null and void, and acknowledges that the associated performance and counterperformance are reasonable and standard for the location and that they would have concluded the contract even if the circumstances specified in Art. 934 ABGB had been present.
12.3. Applicable law, place of jurisdiction

12.3.1. Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, all contractual and non-contractual obligations to be observed by GIERLINGER and a customer – including the aspects of the validity, use and applicability of these GTC, their prior and subsequent effects – will be exclusively subject to Austrian substantive law; the relevant provisions on Conflict of Laws and the UN Sales Convention (CISG) will not apply.

12.3.2. Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, the place of jurisdiction shall be that with ratione loci and ratione materiae for GIERLINGER. However, GIERLINGER reserves the right to freely select any other relevant place of jurisdiction. Any disputes, irrespective of their nature, and the exercise of rights by GIERLINGER do not release customers from the requirement to (continue) to observe their contractual obligations.
12.4. Exclusion of rights of offset/retention

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, and despite statutory laws or standards (particularly Arts. 471, 1052 ABGB and per Arts. 369 ff UGB), customers do not have the right of offset or retention while an offsetting of claims of GIERLINGER in the form of counterclaims of whatever nature is always prohibited if these counterclaims are not legally established or have not been explicitly acknowledged in writing by GIERLINGER.
12.5. Requirements for form

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, there are no oral ancillary agreements and any alterations and addenda to a contract subject to these GTC (and also to any annexes, ancillary and additional agreements and these GTC) must be made in writing per Art. 886 ABGB or will otherwise be considered invalid, unless the contract or law has stricter requirements with regard to form. Any cancellation of this requirement for written form must be made in writing. The terms "written” or “in writing" as used in these GTC are to be understood as defined in Art. 886 ABGB. Any actions or omissions (e.g. with regard to payment) on the part of GIERLINGER represent no waiving of rights or recognition of obligations. Any recognition of obligations or waiving of rights must also be made in writing per Art. 886 ABGB.
12.6. Discounts, promotional offers

Any discounts or promotions offered by GIERLINGER shall only be valid until revoked at any time and without limitation. Such discounts or promotional offers are not redeemable for cash.
12.7. Notifications

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, any notifications and declarations with legal effect for customers will be sent to the address specified in the contract, an alternative definitively specified address or other address or email address known to GIERLINGER. Notifications and declarations will be considered to be punctually supplied when they are sent on the last date of the deadline.
12.8. Plurality of persons

12.8.1. In cases in which GIERLINGER is to provide services to other persons (e.g. individuals or subsidiaries) under a contract with a single customer (e.g. a holding group), the customer concluding the contract remains the sole contractual partner of GIERLINGER and is thus exclusively responsible for compliance with the contract subject to these GTC and the corresponding obligations under applicable law. In this case, the contract artificially benefits the other persons (e.g. subsidiaries). The customer is thus obligated, in response to the first demand by GIERLINGER, to transfer the contract to the artificially benefited affiliated company and to ensure that this company accepts assignment of the contract without delay.

12.8.2. However, it may also be the case that the customer is made up of several persons (e.g. in the case of a "GesbR" partnership) who together assume responsibility for compliance with the contract subject to these GTC and the applicable laws, and together assume responsibility for the performance and compliance with the corresponding services, obligations and liabilities.
12.9. Legal successors, assignment

Unless otherwise explicitly agreed in writing between a customer and GIERLINGER, customers are obligated to assign all rights and obligations arising from a contract subject to these GTC in full and unrestricted form to any single or universal legal successors and to require of these to do the same in due course. The assignment of a contract subject to these GTC (i.e. the contract in full) and of any individual rights and obligations therein by the customer to a single or universal legal successor require the prior written authorisation of GIERLINGER. GIERLINGER reserves the right to assign the contract (i.e. the contract in full) and any individual rights and obligations therein in whole or part to another third party. On conclusion of a contract, customers acknowledge the rights of GIERLINGER with regard to assignment to single or universal successors.
12.10. Severability clause

Should any of the provisions of a contract subject to these GTC or of these GTC be ineffective or unenforceable in whole or part, this will have no effect on the validity of the remaining provisions. In such cases, the contracting parties undertake to immediately replace the non-legally conform or unenforceable provision with a written provision that, to the extent that is legally possible, comes closest to reproducing what the contracting parties had originally intended with the ineffective or unenforceable provision and that also comes as close as possible to reproducing the original commercial intention of the ineffective or unenforceable provision. The same applies in the case of any loopholes.
12.11. Textual deviations

If these GTC are made available, in whole or in part, in languages other than German, GIERLINGER assumes no statutory warranty or liability for any (third-party) translation of these GTC into such languages. In the event of any linguistic discrepancies, inconsistencies or deviations between the German version and any other language version of these GTC, the German version shall prevail.
12.12. Authorisation to sign

The person(s) signing a contract subject to these GTC with GIERLINGER herewith confirm(s) with their signature, and assuming all related personal liability, that they are authorised to legally sign the contract on behalf of the customer and to conclude the contract with GIERLINGER.