TERMS OF SERVICE
1. General: The following General Terms and Conditions (GTC) apply to direct customers for all contracts, deliveries, services, offers of Softdrinks Handels & Service GmbH, hereinafter referred to as soft drinks. All agreements, subsequent changes, additions, ancillary agreements, etc. require the written form to be valid, as well as the departure from the written form. Conflicting terms and conditions of the CUSTOMER will not become part of the contract even without express opposition by soft drinks. With regard to distribution partners, the respectively valid "Terms and Conditions of Distribution Partners" apply. For recurring business relationships, the CUSTOMER recognizes the current GTC as binding, which can be accessed online at any time, under the link: https://softdrinks.at/agb/. A current written edition can also be obtained from SOFTDRINKS.
2. Orders, offer, prices: Provided offers of SOFTDRINKS are, unless expressly designated as binding, without obligation and subject to change. Subject to prior sale. Orders are accepted by SOFTDRINKS only in writing by the management. The order acceptance can be tied to seizures or advance payments. All prices are non-binding and are exclusive of the statutory value added tax from Vienna (excluding any prescribed costs for packaging disposal) and are considered daily prices or will be charged at the respective daily prices.
3. Acceptance delay / withdrawal: If the CUSTOMER delays acceptance of the ordered goods, SOFTDRINKS shall be entitled, after setting a reasonable period of grace, to assert its claims for performance in addition to any penalties or to withdraw from the contract and to claim damages for non-performance. Cancellation or withdrawal from an order or an order by the customer is only possible within 3 days from the order date / order placement, whereby a cancellation fee of 25% of the order value plus any additional costs incurred must be paid. The CUSTOMER has no right to cancel or cancel custom orders. SOFTDRINKS reserves the right to withdraw from all continuing obligations (delivery contract, lending, rent, payment transactions ...) as soon as bankruptcy or judicial settlement proceedings are opened over the assets of the business partner or if an application for bankruptcy is dismissed for lack of cost recovery.
4. Terms of payment: Unless otherwise agreed, payment at takeover applies. If a term of payment is stated on the invoice, this shall apply as of receipt of the invoice (service) net without deductions. Specified payment terms are deemed to be due on soft drinks. Non-agreed deductions or offsets of unrecognized or non-due counterclaims are inadmissible. For current account settlements, a payment is deemed to have been made for the longest debt due. Proper and timely payment is an integral part of any separate agreement. All legal claims regarding warranty, warranty, deliveries and services on the part of SOFTDRINKS depend on the punctual payment of the goods.
5. Arrears: In case of late payment default interest of 8% p.a. billed and all liabilities of the customer immediately due. The CUSTOMER undertakes to replace all reminder fees in the event of default. The CUSTOMER must register in writing within 10 days after receipt of a balance list.
6. Retention of title: The delivered goods remain the property of SOFTDRINKS until full payment. If the CUSTOMER disposes of delivered goods on its own authority, or if these are resold or made available to third parties, the retention of title also extends to any purchase or usage fees of the CUSTOMER towards third parties and the CUSTOMER must notify third parties thereof and if so To ask for consent. The claims of the CUSTOMER shall be deemed to have been irrevocably assigned to SOFTDRINKS immediately upon their creation. The CUSTOMER undertakes to inform SOFTDRINKS at any time upon request to its customers and, without prejudice to our additional powers, at the first request to notify its customers of the assignment to SOFTDRINKS without delay. In the case of seizure or other use of goods under retention of title, the CUSTOMER is obliged to point out the retention of title and to inform SOFTDRINKS immediately by registered letter within 24 hours. As long as a product is in SOFTDRINKS ownership, the CUSTOMER must keep it with due commercial care for SOFTDRINKS and adequately insure it at its own expense against fire, water, theft and other risks of damage. The CUSTOMER relinquishes its corresponding claims under the insurance contracts to SOFTDRINKS.
7. Warranty: Warranty claims must be asserted in writing. You must include a detailed description of the claimed defect. Warranty claims are excluded if the CUSTOMER does not comply with his obligation to complain.
A) for technology or for goods other than food: All goods sold by SOFTDRINKS are warranted to be functional for a period of 12 months from the date of delivery. This warranty applies only to the replacement of materials. Working hours, travel time and travel costs are not reimbursed. In any case, the CUSTOMER must provide a guarantee / proof of warranty. Condition for warranty / guarantee claims is the proven, professional installation of equipment by authorized professionals or companies. SOFTDRINKS reserves the right to make a claim for equity. Warranty for wearing parts, glass breakage, lighting fixtures, minor surface defects on the equipment and parts that are subject to wear and tear, and the like is excluded. The assumption of repair and replacement costs of third parties is expressly rejected. The Buyer shall indemnify and hold SOFTDRINKS harmless against all claims of third parties, in particular those caused by consequential or operational failures. The replacement of consequential damages is excluded.
B) For food: Warranty claims for food are subject to the following conditions: 1) Proper storage and transport, 2) Use of appropriate technical aids for beverage preparation, 3) Proper cleaning and maintenance of the dispensing system 4) best before date must not be exceeded 5) immediate information to SOFTDRINKS with indication of Batch number and description of the suspected defect. Should the claim be justified, SOFTDRINKS exchanges the objected goods for faultless goods or issues a credit note of its own choice. Other and / or further claims (such as compensation for indirect damage or pure financial loss) are excluded. Minor variations in quality due to the nature of the products do not entitle the customer to refuse acceptance or to warranty and / or claims for damages.
8. Returned goods: Returns of goods will only be accepted if a written agreement has been made about the return.
9. Delivery time: The passage of a "binding" guaranteed delivery period begins on the day on which the order becomes legally binding, but not earlier than all information required for the proper fulfillment has been provided by the CUSTOMER. In case of default by SOFTDRINKS, the CUSTOMER must set a period of grace of at least 2 weeks in writing by means of a registered letter and can only withdraw from the contract in the event of the fruitless expiry of the grace period. Order changes lead to the cancellation of agreed dates and deadlines. Compliance with the delivery period is subject to unforeseen obstacles such as Cases of force majeure.
10. Packaging and shipping: Reusable packaging must be returned to SOFTDRINKS cleansed. SOFTDRINKS reserves the nature of the shipment. If the goods are also sent by SOFTDRINKS, the transport costs will be charged to the customer. Transport insurances are only concluded on prior written request of the customer and its costs.
11. Liability / product liability: Liability of SOFTDRINKS for damages of the CUSTOMER for any legal reason is excluded, unless the damage was caused by gross negligence or intent. SOFTDRINKS is under no circumstances liable for atypical and unforeseeable consequential damages. SOFTDRINKS shall also not be liable for any damage in so far as the CUSTOMER could have prevented its occurrence by means of reasonable measures. Recourse claims within the meaning of § 12 PHG are excluded, unless the error in the sphere of SOFTDRINKS caused and was at least caused by gross negligence.
12. Intellectual property: Plans, sketches, technical documentation, logos, brochures, catalogs, samples, web design and the like remain the intellectual property of SOFTDRINKS or other authors. Any use, in particular duplication, distribution and making available on the Internet requires the express prior written consent of SOFTDRINKS. The CUSTOMER is obliged in this case to use the current version and to eliminate outdated versions.
13. Provision of services by third parties: SOFTDRINKS reserves the right to use suitable third parties (SOFTDRINKS partner companies) to provide the agreed service if necessary.
14. Customer information: All SOFTDRINKS customers are obliged to always designate the SOFTDRINKS or SOFTDRINKS GRAPOS and other branded products correctly according to the specifications of GRAPOS or SOFTDRINKS or other manufacturers, and also to cover this obligation in case of a possible resale. SOFTDRINKS is in no way liable for the consequences of incorrect information provided by an end customer. Testing the marketability of SOFTDRINKS GRAPOS products in sales territories outside of Austria is the responsibility of the CUSTOMER. Should there be specific product labeling regulations for individual countries, SOFTDRINKS will endeavor to meet these special requirements, but only warrants product labeling that complies with Austrian and general European food law.
15. Scheme arrangements - purchase, rental, inventory for SOFTDRINKS and Grapos direct-clients: Purchase obligation: As an equivalent consideration to the advantageous SOFTDRINKS GRAPOS conditions, only SOFTDRINKS or GRAPOS products are served over the plant for 5 years and no SOFTDRINKS or GRAPOS competing products (including bottles) are distributed to the products according to the key assignment / assembly list and / or advertised. The transfer of ownership of dispensing equipment 5 years ago does not affect the purchasing obligation. In the event of non-achievement of purchase commitments, the purchase commitment shall be extended regardless of the agreed time until the agreed total purchase quantity has been reached. Alternatively, SOFTDRINKS or GRAPOS may withdraw from the contract and reclaim the difference between the value of the investment and the purchase price in addition to a penalty. If minimum purchase quantities have been agreed and the CUSTOMER does not reach them in the annual period, SOFTDRINKS or GRAPOS shall have the right to withdraw from the contract (any penalties and / or difference), or a compensatory amount per missing unit (container or bag in box) of 50% Net asking price.
Before the agreed assembly fee is paid, the installation of the system is not started. Prices and terms of payment are agreed separately. The latest GRAPOS varieties / brand list apply. The agreement passes on both sides to legal successors. Each contractual partner is obligated to transfer the rights and obligations of the contract to legal successors, otherwise a contractual penalty in the amount of 50% of the value of the dispensing system plus VAT (according to the order confirmation) shall be paid to SOFTDRINKS or GRAPOS and, in addition, the Right to disassembly (rent / loan) as well as the fulfillment claim and claim for damages exists.
Disassembly and collection of a dispensing system may only be carried out by SOFTDRINKS or GRAPOS. Wall breakthroughs, water and electrical connections in connection with the installation of a dispensing system must be carried out on site by the customer and without exception at the customer's responsibility. Excluded from the full warranty are water filter inserts, wear parts and third-party fault, as well as improper intervention by the CUSTOMER and work assignments that are required by operating errors.
The CUSTOMER must keep the system with due commercial care for SOFTDRINKS or GRAPOS until the complete transfer of title and sufficiently insure it against fire, water, theft and other damage risks at its own expense. The CUSTOMER relinquishes its corresponding claims under the insurance contracts to GRAPOS.
Purchase of a SOFTDRINKS or GRAPOS dispensing system: In the event of any breach of the purchasing obligation, the CUSTOMER must pay a no-fault penalty of no more than 50% of the value of the system (as in the order confirmation) plus VAT. In addition, Fa. SOFTDRINKS or GRAPOS covet the guard and claim further damages next to the penalty. As long as the investment is not fully paid, SOFTDRINKS further reserves the right, in the event of late payment over 2 weeks despite written reminder or other breach of contract of its own choice either in addition to the judicial not to be mitigated penalty the entire outstanding purchase price plus 8% interest due or to withdraw from the contract, dismantle the installation / or shut down the installation electronically and / or calculate a monthly usage fee for the use of the installation (= value of the installation divided by 60).
Rent of a SOFTDRINKS or GRAPOS dispensing system / rental inventory (= 0 rent): In the event of any breach of the obligation to pay, default of payment despite a written reminder and premature termination of the tenancy by the customer, a no-fault, non-penalized penalty of 50% the value of the dispensing system + VAT. (as in the order confirmation), in addition Fa. SOFTDRINKS can either covert and assert further claims, or withdraw from the contract and disassemble the assets / property owned by SOFTDRINKS or GRAPOS immediately / / the system electronically shut down, and assert further claims for damages.
17. Penalty: n the event of any breach of any item of the present GTC or obligations, SOFTDRINKS shall be entitled to demand a penalty in the amount of 50% of the order value, or of the expected turnover, or the loss of sales. The expected sales are calculated from the average sales since the beginning of the contract until the end of the contract period. Any further damage and / or other claims must also be replaced.
18. Severability clause: Should individual provisions of these GTC or of the contract be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining conditions.
19. Jurisdiction / choice of law / place of performance: Place of jurisdiction is Vienna. Only Austrian law with the exception of referral provisions in foreign law applies to this contract. The application of the UN Sales Convention is excluded. The place of performance is the registered office of SOFTDRINKS Handels & Service GmbH.