Silhouette International Schmied AG
1. Scope; objection to third-party GTCs
1.1. Silhouette International Schmied AG (hereinafter "Silhouette") delivers goods and provides services exclusively on the basis of these General Terms and Conditions of Business and Delivery (hereinafter referred to as the "GTCs"), irrespective of whether the individual case involves a purchase contract, a contract for works and services or for work and materials or another form of contractual relationship. The foregoing also applies to future transactions.
1.2. Silhouette only consents to the application of the customer's general terms and conditions if it expressly confirms this in writing in advance. The foregoing also applies in the event that Silhouette unconditionally renders the contractual services with knowledge of conflicting or deviating terms and conditions of the customer.
1.3. In the event of several contracts being concluded at different times, the version of the GTCs in force and as published by Silhouette at the time of the customer's submission of its declaration of contract shall be incorporated as an integral part of the parties' contract. Multiple contracts concluded with a particular customer shall, in the absence of an express written agreement to such effect, not constitute a long-term obligation or any other entitlement to another conclusion of a contract.
1.4. Sales by the customer on the Internet may only be made after a separate agreement to that effect has been concluded.
2.1. If Silhouette sends display cases, stands or other objects by which our goods may be presented, the customer may only use these for the purposes intended by Silhouette.
Silhouette shall retain ownership and all IP rights to such items. The customer must immediately return them to Silhouette upon request, insured and free-of-charge.
2.2. Unless otherwise agreed in writing, such items shall remain the property of Silhouette even if the customer bears the costs thereof.
3. Formation of contract
3.1. Silhouette's offers are subject to confirmation and are non-binding.
3.2. Orders placed by the customer which do not contain a deadline for acceptance will be binding on the customer for at least 30 days.
3.3. Orders are not binding on Silhouette until confirmed by Silhouette in writing. Such written confirmation may also be replaced by an invoice or delivery note.
3.4. The customer must verify the content of confirmations and, where necessary, object without delay; otherwise, the contents set out in the respective notice of confirmation shall apply. The customer shall have no right of objection with regard to the applicability and validity of these GTCs.
3.5. If Silhouette submits an offer and no order is placed, Silhouette reserves the right to invoice the customer for work and costs for preparing the offer, the cost estimate and/or accompanying documents.
3.6. Catalogue details, illustrations, product descriptions etc. shall be regarded as approximations. Silhouette reserves the right to make insignificant and/or customary deviations which do not impair utility and are deemed reasonable for the customer.
3.7. Silhouette is entitled at any time after acceptance of the order to refuse to render the agreed service or delivery or to premise it on the furnishing of a security deposit or advance payment if the customer is in default of payment or if Silhouette becomes aware of facts relating to the financial circumstances of the customer as a result of which, in Silhouette's free discretion, satisfaction of Silhouette's claims does not appear to be secured or no longer appears to be sufficiently secured.
4. Prices and terms of payment
4.1. Unless we have agreed in advance and in writing that our remuneration or prices are fixed, our prices or remuneration rates valid on the date of the order shall be applicable. Price lists serve only as non-binding information.
4.2. In the case of follow-up orders, Silhouette shall not be bound by its price agreement for previous orders.
4.3. All prices are quoted ex-works and exclusive of statutory VAT, packaging, insurance and transport services.
4.4. Silhouette is entitled to issue electronic invoices for its goods and services.
4.5. Invoices are payable within 30 days.
4.6. In the event of default, our claims for remuneration shall bear interest at 9.2% over the base interest rate. Our claims for compensation for further losses shall remain unaffected thereby.
4.7. The customer undertakes to reimburse Silhouette for all dunning and collection expenses actually incurred and necessary for the appropriate prosecution of its legal rights, in particular the costs of any collection agencies engaged and attorneys' fees.
4.8. Silhouette accepts bills of exchange and cheques only on account of payment; the customer shall bear the costs of discounting and collection.
4.9. Payments shall only be deemed to have been effectively made when Silhouette is able to finally dispose over the funds. The customer may only offset claims arising out of this contract against claims that have been expressly acknowledged in writing or have been adjudicated by a res judicata court judgment. The customer is not entitled to withhold payments due to incomplete delivery, guarantee or warranty claims or other complaints.
4.10. If the customer is more than seven days in arrears with a payment, all of Silhouette's claims shall immediately fall due. If instalment payments have been agreed between the parties, then the entire outstanding amount shall fall due immediately in the event of non-payment of even a single instalment.
5. Right of retention, place of performance and partial performance
5.1. Silhouette is entitled to withhold performance for so long as the customer fails to fulfil its obligations under this or another contract or for any other legal reason.
5.2. The customer may only retain what is owed to Silhouette if Silhouette by its intentional act or gross negligence breaches its obligations under the contract.
5.3. The parties agree that the place of performance is Linz, Austria.
5.4. Silhouette shall be entitled to render partial performance.
6. Passage of risk, despatch and acceptance
6.1. The risk passes to the customer no later than at the time of despatch of the goods; the foregoing also applies if it is intended that Silhouette should bear the costs of shipment.
6.2. Silhouette shall have no obligation to insure goods against transport damage. Silhouette will insure the goods against theft, transport damage and other insurable risks only upon the express request of the customer and at the customer's expense.
6.3. The customer is obliged to insure the return of goods, where this Agreement provides for such, with a value of more than EUR 150 for theft, transport damage and other insurable risks at the customer's own expense.
6.4. The customer shall accept delivered items without prejudice to the customer's rights, even if they have defects.
6.5. If, in the context of an order placed by the customer, the customer requests that the relevant delivery or portions thereof should be delivered to and invoiced to third parties (e.g. subsidiaries of the customer, distribution associates etc.), the customer shall nevertheless remain liable as a party in addition to such third party, on a joint and several basis. Silhouette shall also be entitled to invoice separately for any additional costs incurred as a result, e.g. for packaging and transport.
7. Transport damage
7.1. The customer must promptly notify Silhouette in writing of any damage or loss resulting from transport. The foregoing shall also apply if transport damage only becomes apparent when the goods are unpacked or subsequent to this.
8. Warranty and notice of defects
8.1. The warranty period is 2 years from the date of delivery of the goods.
8.2. The existence of a defect which is subject to warranty must always be proven by the customer. The parties hereby exclude the presumption of defectiveness of the delivery or services during the first six months after handover (sec. 924 Austrian Civil Code [German acronym: ABGB]).
8.3. The customer must notify Silhouette in writing of all defects within 14 days of receipt of the goods. In the case of partial and successive deliveries, the customer must raise a separate objection with respect to the defects of each individual delivery.
8.4. The customer must ensure that Silhouette actually receives the notice of defects it has sent and shall also bear the burden of proof for this. The mere return of goods shall not constitute a notice of defect.
8.5. In the event that a notice of defects is not submitted in good time, the customer shall have no right to assert claims for warranty, damages due to the defect itself and due to mistake regarding the defect-free nature of the goods, or claims for other compensation, rescission or termination of the contract.
8.6. Silhouette hereby disclaims warranty claims in the event of the customer's sale or modification of the goods with knowledge of the defect.
8.7. The customer's right of recourse against Silhouette is excluded to the extent that the customer itself was required to furnish a warranty (sec. 933b Austrian Civil Code [German acronym: ABGB]).
9. Compensation for damages
9.1. Silhouette shall only be liable in the event of wilful acts or omissions or gross negligence. The burden of proof as to the existence of wilful acts or omissions or gross negligence shall lie with the customer.
9.2. The customer's claims for damages shall become time-barred within 12 months from the time of its knowledge of the loss and of the party causing the loss.
9.3. To the extent that Silhouette is required to pay damages in lieu of specific performance, Silhouette shall compensate the customer for the loss incurred as a result of the ordinary course of events, up to half of the amount of its remuneration. However, this shall not apply if Silhouette causes the loss through its intentional act or omission or gross negligence.
9.4. Silhouette disclaims liability for claims for compensation for lost profits, costs of effecting contractual cover, determination of defects (including additional inspections, material costs and costs for incoming goods inspection exceeding the usual scope thereof) and additional handling expenses (including transport, special transport and travel costs) as well as for compensation for other financial or economic losses and for indirect and consequential damages.
The foregoing limitations of liability shall not apply to the extent that Silhouette has a legal duty to accept liability under the Austrian Product Liability Act, or is liable for wilful acts or omissions and for injury to life, limb or health.
10. Retention of title, reservation of active sales to dealers, assignment of receivables
10.1. Silhouette shall retain title to the goods sold by it to the customer until payment has been made in full; the foregoing shall also apply even if no express reference is made to this in individual deliveries.
10.2. Silhouette shall also retain title to the goods sold until full payment of all of its current and future claims arising from any other business relationships between the parties.
10.3. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify Silhouette immediately in writing if and to the extent that third parties interfere with the goods belonging to Silhouette.
10.4. The customer hereby assigns to Silhouette any receivables arising from the resale of the retention-of-title goods in the amount of the value of the retention-of-title goods, including all ancillary rights therein. If the retention-of-title goods are (co-)owned by Silhouette, then the receivables are assigned up to an amount corresponding to the value of Silhouette's share of the total value. This advance assignment shall also extend to any current account claim for balances owing. The customer undertakes to indicate the assignment of its receivables to Silhouette by book entry or third-party debtor notification.
11. Intellectual property
11.1. Silhouette reserves all intellectual property rights in or in connection with the goods, their manufacturing processes, descriptions, drawings, manuals, offers, cost estimates and other technical documents, as well as samples, prototypes, catalogues, brochures, illustrations and the like. The foregoing shall apply in particular to patent, trade mark, design, copyright and other design rights and/or rights to proprietary information and commercial, technical and procedural information. All rights shall be vested solely in Silhouette.
With the exception of the simple grant of a right of use to the customer to use the goods as intended – in their specific composition and design as acquired from Silhouette – no rights, in particular no licence or rights of use, are hereby conferred to the customer.
11.2. If any claims are asserted against the customer by third parties based on infringement of IP rights due to services/goods supplied by Silhouette, Silhouette shall only be liable if the customer has promptly notified Silhouette in writing of a claim and has provided Silhouette with all necessary information and documents.
12. Right of rescission by Silhouette
12.1. Silhouette is entitled to rescind the contract for cause by setting a 14-day grace period.
Good cause shall be deemed to exist in particular if (i) the customer is in default of the performance of material contractual obligations, in particular its obligation to pay the purchase price or to perform acts of cooperation required for Silhouette's performance of the contract or (ii) if insolvency proceedings are not initiated over the customer's assets due to a lack of assets in the estate covering costs.
If, following conclusion of the contract, it becomes apparent that Silhouette's claim to payment is jeopardised by the company's inability to pay, in particular due to poor financial circumstances, Silhouette may refuse performance and set the customer a reasonable deadline within which it must pay concurrently against delivery or furnish security. In the event of refusal by the customer or in the event that the deadline expires to no avail, Silhouette shall be entitled to rescind the contract and to claim damages.
Silhouette is entitled to rescind the contract if performance of the contract is prohibited due to provisions of domestic or international law (e.g. embargos, US (re-)export control provisions, other sanctions). The foregoing shall also apply to legal provisions that only come into force after formation of the contract.
13. Force majeure
13.1. The occurrence of any event which materially affects the ability of a party to perform its obligations or tasks under this contract, and which is beyond the reasonable control of the affected party or any of its affiliates or subcontractors, suppliers or other third parties engaged by the party, and which could not have been prevented even by reasonable efforts ("Force Majeure Event"), including, but not limited to, war, rebellion, civil or military disturbances, acts of terrorism, sabotage, earthquake, fire, flood, explosion, epidemic, pandemic (such as Covid-19), accident, strike, riot, labour disturbance or dispute, acts of God, inability to procure raw materials, power failure, computer failure, delay or failure of carriers or changes in the law shall not relieve the affected party from performance of its obligations under the contract but shall suspend performance during the Force Majeure Event. However, excluded herefrom are payment obligations.
The party affected by a Force Majeure Event shall notify the other party of the occurrence thereof.
The affected party shall make diligent efforts to avoid or eliminate causes of non-performance as soon as reasonably practicable. However, in no event shall a party be obliged to prevent or settle any strike, riot or labour disturbance or dispute. Upon cessation of the Force Majeure Event, performance of any suspended obligation or duty shall resume.
The party affected by the Force Majeure Event shall not be liable to the other party for any direct or indirect damages, losses or other detriments arising out of or in connection with the suspension or termination of any contractual obligation due to the occurrence of a Force Majeure Event.
Notwithstanding the foregoing, if the Force Majeure Event suffered by either party continues for more than six months, the other party may terminate this contract by giving written notice to the non-performing party, the effect of such termination notice being that the contract shall expire (and termination notice is deemed not to have been given) on the date of receipt of such written notice.
14. Choice of law and jurisdiction
14.1. This Agreement shall be governed exclusively by Austrian law, to the exclusion of its conflict-of-law rules and of the UN Convention on Contracts for the International Sale of Goods.
14.2. Exclusive jurisdiction and venue for any disputes arising out of or in connection with this Agreement shall be vested in the competent courts of Linz, Austria. However, Silhouette is also entitled, at its own discretion, to assert claims against the customer before the court with subject-matter jurisdiction for the customer's headquarters.
15.1. The customer hereby agrees that Silhouette may assign the contractual relationship in its entirety to another company affiliated with it (irrespective of its level of equity interest). Upon written notification, the affiliated company named by Silhouette shall thus assume all obligations and claims arising from this legal relationship and shall be the successor-in-interest to all rights to modify the legal relationship and other rights.
15.2. If any term or partial term of this contract is or becomes invalid, this shall not affect the validity of the remainder hereof. The invalid term shall automatically be replaced by a term coming as close as possible to it in terms of commercial outcome. The same shall apply to any gaps in the contract.
15.3. There are no oral ancillary agreements to the present contract. Any amendment or addenda to this Agreement, including any departure from the requirement of written form, as well as any unilateral legally relevant notification, must be made or given in writing, with such amendment or addenda otherwise to be invalid.
15.4. The German language version of these GTCs shall be deemed the authoritative version. Other language versions are non-binding and provided for convenience only.
Version: April 2021