ALPINA COFFEE SYSTEMS GmbH

1 General, scope of application

a) The following General Terms and Conditions of ALPINA COFFEE SYSTEMS GmbH (hereinafter referred to as "ALPINA") shall apply to all transactions carried out by ALPINA. They shall apply exclusively; ALPINA shall not recognize any terms and conditions of the customer that conflict with or deviate from these terms and conditions, unless ALPINA has expressly agreed to their validity in writing. These terms and conditions shall also apply if ALPINA, being aware of terms and conditions of the customer that are contrary to or deviate from these terms and conditions, carries out the delivery to the customer without reservation.

b) For resale in non-EU countries, the reseller acts as producer and assumes all liabilities. The producer shall pay special attention to the product liability directive, common law, chain of recourse for product liability, product liability law, assertion of claims for compensation, strict liability and risk liability.

c) Agreements or ancillary agreements deviating from these terms and conditions shall only be effective if ALPINA confirms them in writing.

2. Offer, offer documents, order confirmation

a) ALPINA's offers are subject to change and non-binding.

b) ALPINA reserves ownership rights and copyrights to drafts, drawings, calculations, offers and other documents. This shall also apply to such written documents that are designated as "confidential". Prior to their disclosure, the Purchaser shall require the express written consent of ALPINA.

c) The information in drafts, drawings, calculations, catalogues and other documents is non-binding. ALPINA accepts no responsibility for suggestions.

d) A delivery contract shall only be concluded upon written order confirmation by ALPINA, at the latest upon delivery. Transmission by remote data transmission shall satisfy the written form requirement. If ALPINA can prove by producing the transmission report that it has sent a declaration by fax or remote data transmission, it shall be presumed that the customer has received the declaration.

3 Prices, terms of payment

a) All prices are "ex works/warehouse", plus the statutory value added tax applicable at the time of invoicing. Prices shall be calculated at the prices applicable on the date of delivery according to ALPINA's price list.

b) Unless other payment deadlines have been agreed, payments shall be made as follows: Within 14 working days of the invoice date without any deductions. The invoice date and receipt of payment on the business account of ALPINA COFFEE SYSTEMS GmbH shall be decisive for the payment deadline. Payment dedications on bank transfers shall have no legal significance. Cheques and bills of exchange shall generally not be accepted as means of payment. For new business partners, payment before delivery is agreed for the first five orders.

c) In the event of the Buyer exceeding the payment deadline, ALPINA shall be entitled to charge interest on arrears in the amount of 8 percentage points above the applicable base rate of the Austrian National Bank from the due date of payment.

d) ALPINA reserves the right to use payments to settle the oldest invoice items plus the default interest and costs accrued thereon in the following order: costs, interest, principal claim.

e) If the customer is in default of payment, ALPINA shall be entitled, without waiving its claims, to repossess the delivery item until payment is made in full or to withdraw from the contract. In addition, ALPINA shall be entitled to retain all deliveries or services.

f) The Purchaser may only set off counterclaims that are undisputed, recognized by ALPINA or have been established by a court of law.

g) The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

h) If, after the conclusion of the contract, ALPINA becomes aware of circumstances which call into question the creditworthiness of the customer, or if a considerable risk to its claim to payment arises due to a deterioration in the assets of the customer, or if the customer defaults on payment of the purchase price, ALPINA shall be entitled to demand advance payment or security within a reasonable period of time and to refuse performance until the demand has been met.

i) In the event of refusal by the customer or fruitless expiry of the deadline, ALPINA shall be entitled to withdraw from the contract in whole or in part and to claim damages.

j) We are entitled of our own accord, as well as obliged at the request of the customer, to adjust the contractually agreed fees if changes of at least 5% have occurred since the conclusion of the contract with regard to (a) wage costs by law, ordinance, collective agreement, company agreements or (b) other cost factors necessary for the provision of services such as material costs due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. The adjustment shall be made to the extent that the actual production costs at the time of the conclusion of the contract have changed compared to those at the time of the actual provision of services, provided that we are not in default. The adjustment shall be made to the extent that the actual manufacturing costs at the time of conclusion of the contract change compared to those at the time of the actual performance of the service, provided that we are not in default.

4. Retention of title

a) ALPINA shall retain title to the delivery items until receipt of all payments arising from the business relationship with the customer.

b) In the event of conduct by the Purchaser in breach of the contract, in particular in the event of default in payment, ALPINA shall be entitled to demand surrender without setting a further deadline. A prior withdrawal from the contract shall not be required for the demand for surrender.

c) The assertion of the retention of title and the seizure of the delivery items by ALPINA shall not be deemed a withdrawal from the contract.

d) The customer shall be entitled to resell the delivery items in the ordinary course of business; however, the customer hereby assigns to ALPINA all claims in the amount of the purchase price agreed between ALPINA and the customer (including VAT) accruing to the customer from the resale, irrespective of whether the delivery items are resold without or after processing. The customer shall be authorized to collect these claims after their assignment. ALPINA's authority to collect the claims itself shall remain unaffected; however, ALPINA undertakes not to collect the claims as long as the customer duly meets its payment obligations and is not in default of payment. However, if this is the case, ALPINA may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

e) The processing or transformation of the goods/delivery items by the customer shall always be carried out for ALPINA. If the delivery items are processed with other items not belonging to ALPINA, ALPINA shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other processed items at the time of processing.

f) If the delivery items are inseparably mixed with other items not belonging to ALPINA, ALPINA shall acquire co-ownership of the new item in proportion to the value of the delivery items to the other mixed items. The customer shall keep the co-ownership for ALPINA.

g) The customer may neither pledge the delivery items nor assign them as security. In the event of seizure or confiscation or other dispositions by third parties, the customer shall notify ALPINA thereof without delay and provide ALPINA with all information and documents required to protect its rights. Enforcement officers or third parties shall be informed of ALPINA's ownership.

h) ALPINA undertakes to release the securities to which it is entitled at the request of the customer to the extent that the value of the securities exceeds the amount of the claims to be secured by it, insofar as these have not yet been settled, by more than 20%. ALPINA shall be responsible for selecting the securities to be released.

5. Deliveries, delivery time

a) Delivery periods are non-binding unless otherwise expressly agreed. Partial deliveries are permissible. If a fixed delivery date has been agreed, the buyer shall, in the event of a delay on the part of ALPINA, set a reasonable period of grace of at least eight weeks. If delivery is not made even by the expiry of the period of grace, the buyer shall be entitled to withdraw from the contract.

b) The delivery period shall commence on the date of dispatch of the order confirmation by ALPINA and shall be deemed to have been complied with if, by the end of the delivery period, the goods have left the factory/warehouse or, in the case of impossibility of dispatch, notification has been given that the goods are ready for dispatch.

c) Compliance with agreed deadlines for deliveries shall be subject to the timely receipt of all documents to be provided by the Buyer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other contractual obligations by the Buyer. If these preconditions are not fulfilled in time, the deadlines shall be extended appropriately; this shall not apply if ALPINA is responsible for the delay.

d) Call-off orders shall - unless special agreements are made - be accepted within six months after ALPINA has given notice of its readiness to deliver. After expiry of this period, ALPINA shall be entitled to demand acceptance.

e) If non-compliance with the deadlines is due to force majeure - irrespective of whether it occurred at ALPINA's works or at its upstream suppliers - this includes in particular official intervention, operational disruptions, industrial disputes, delays in the delivery of essential raw and auxiliary materials or similar events, e.g. strike or lockout, epidemics, the deadlines shall be extended accordingly. If delivery or performance becomes impossible as a result of the aforementioned events, ALPINA shall be released from its delivery obligation without the Buyer being entitled to claim damages. If the performance is no longer of interest to the buyer due to the delay, the buyer may withdraw from the contract after setting a reasonable period of grace. If the aforementioned impediments occur at the buyer's, the same legal consequences shall also apply to the buyer's acceptance obligation if the buyer informs ALPINA in writing in good time before the order is processed. The contracting parties shall be obliged to inform the other party without delay of any obstacles of the aforementioned kind.


f) If the buyer does not accept the goods, ALPINA shall be entitled, after setting a reasonable grace period, to withdraw from the contract or to demand damages instead of performance. In the latter case ALPINA shall be entitled to demand either compensation for the damage actually incurred or, without proof of damage, 50% of the purchase price. The buyer expressly reserves the right to prove that ALPINA has incurred lower damages or no damages at all.

g) The purchaser will receive printed operating instructions and safety instructions for each machine, which must be observed for the operation of the machines. The laying of the lines up to the stopcock for the water supply and for electricity up to the machine or up to the main switch, with which the machine can be disconnected from the mains at all poles, as well as the drain, are the responsibility of the purchaser. Any costs resulting from this shall be borne by him. ALPINA customer service technicians are only authorized to make the connection between the machine and the connection points leading up to it. ALPINA accepts no liability for compliance with general and local regulations for on-site installation work.

h) If the customer is in default of acceptance or breaches other duties to cooperate, ALPINA shall be entitled to give priority to other orders from third parties and to extend the delivery period appropriately. Notwithstanding any further claims, ALPINA shall be entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses.

6. Delay in delivery

a) ALPINA shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which it is responsible. Insofar as the delay in delivery is not due to an intentional breach of contract for which ALPINA is responsible, the liability for damages shall be limited to the foreseeable, typically occurring damage.

b) ALPINA shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which it is responsible is due to the culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.

c) In determining the amount of damages, due consideration shall be given in good faith to the economic circumstances, type, scope and duration of the business relationship and, if applicable, also the value of the supplier part in favor of ALPINA.

7 Shipping, transfer of risk

a) Unless otherwise stated in the order confirmation, delivery "ex works/warehouse" is agreed. Shipment shall be at the risk and for the account of the customer. This shall also apply to returns.

b) Transport and other disposable packaging shall not be taken back. The customer is obliged to dispose of the packaging at his own expense.

c) Even in the case of "carriage paid" delivery, the risk shall pass to the buyer as follows. For deliveries without installation or assembly, when the goods have been handed over to the shipping agent. Shipment is "ex works/warehouse" at the risk of the buyer. ALPINA shall not be liable for damage or loss during transport. Unless otherwise agreed, ALPINA shall choose dispatch and packaging at its due discretion. ALPINA shall not assume any insurance obligation. However, at the written request of the buyer, the goods shall be insured against damage in transit and other damage. In the case of deliveries with installation or assembly on the day of handover. This shall also apply in the case of self-collection and factory transport.

 

8. Warranty claims

ALPINA shall be liable for justified material defects as follows:

a) All those products or services that exhibit a material defect within the limitation period shall, at ALPINA's discretion, be repaired or provided again free of charge, provided that the cause of the material defect already existed at the time of the transfer of risk.

b) Claims for material defects shall become statute-barred after twelve months, in the case of demonstration units after six months. The period begins with the transfer of risk. The above periods shall not apply if longer periods are prescribed by law. The warranty period shall commence on the day on which the goods leave the ALPINA factory/warehouse.

c) If the commissioning of the machine is delayed for more than four weeks due to reasons for which ALPINA is not responsible, the warranty period shall begin four weeks after delivery of the machine to the customer.

d) The buyer shall immediately notify ALPINA in writing of any material defects. Replaced parts shall become the property of ALPINA.

e) In the event of notices of defects, payments by the buyer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The buyer may only withhold payments if a notice of defect is asserted about the justification of which there can be no doubt. If the notice of defect is unjustified, ALPINA shall be entitled to demand reimbursement of the expenses incurred by it from the buyer.

f) First of all, ALPINA shall always be given the opportunity by way of subsequent performance in accordance with section 8. a) within a reasonable period. The buyer shall provide ALPINA with the rejected item or samples thereof.

g) ALPINA does not provide any warranty:

  • For all parts that are subject to natural wear. These include, among others, seals, hoses, valves, heating elements, pistons, dosing units, etc.;
  • For defects caused by the effects of weather, scale build-up, chemical, physical, electrochemical or electrical influences, insofar as they are not the fault of ALPINA;
  • If a water filter is not used although the water conditions on site require the use of a water filter and defects occur as a result. The customer will be informed in the order confirmation when the use of a water filter is required;

  • For defects caused by failure to comply with the regulations on the handling, maintenance and care of the machine (e.g. ALPINA operating and maintenance instructions in accordance with the operating instructions of the respective machine type);
  • For defects caused by unsuitable or improper use, by the non-use of ALPINA original spare parts and cleaning agents or faulty assembly by the purchaser or third parties or by faulty or negligent handling, as well as not for consequences of improper modifications or repair work carried out by the purchaser or third parties without our consent;

h) Returns shall require the prior, express consent of ALPINA; mere silence shall not constitute consent.

i) Claims for damages shall be limited to the amount of the net purchase price.

 

9. Impossibility, contract adjustment

a) To the extent that delivery is impossible, the Purchaser shall be entitled to claim damages, unless ALPINA is not responsible for the impossibility. However, the buyer's claim for damages shall be limited to 10% of the net value of the goods.

This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the buyer. The buyer's right to withdraw from the contract remains unaffected.

b) Insofar as unforeseeable events within the meaning of section 5. e) significantly change the economic significance or the content of the delivery or have a significant effect on ALPINA's operations, the contract shall be adjusted appropriately, taking into account the principles of good faith. Insofar as this is not economically justifiable, ALPINA shall be entitled to withdraw from the contract. If ALPINA wishes to make use of this right of withdrawal, it shall notify the buyer of this without delay after becoming aware of the implications of the event, even if an extension of the delivery period was initially agreed with the buyer.

10. Material defect

a) Defects in the delivery shall be notified to ALPINA by the Purchaser in writing without delay as soon as they are discovered in the ordinary course of business.

b) In the event of delivery of defective parts, the Purchaser may demand subsequent performance as a matter of priority. ALPINA shall have the right to choose whether to rectify the defect or to make a new delivery.

c) In the event of rectification of defects, ALPINA shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs. This shall only apply insofar as the costs are not increased by the fact that the delivery item was taken to a place other than the place of performance.

d) Upon request, the defective parts shall be made available to ALPINA by the customer without delay.


e) If the supplementary performance fails or if the supplementary performance is disproportionate, the customer may withdraw from the contract or reduce the purchase price.

f) Claims of the purchaser due to material defects do not arise if the defect is due to: violation of operating, maintenance and installation instructions, unsuitable or improper processing or use, overloading (e.g. through changes to increase performance), incorrect or negligent handling and natural wear and tear as well as interventions in the delivery item carried out by the purchaser or third parties.

g) The Purchaser's claims for material defects shall become statute-barred in accordance with the statutory provisions upon expiry of twelve months after the passing of risk.

 

11 Compensation and liability

a) ALPINA shall not be liable for damage caused by slight negligence. This exclusion shall not apply if the injured party is a consumer or in the event of personal injury. The contractual partner shall bear the burden of proof for the existence of conduct that is not merely slightly negligent. The contractual partner must also prove fault for the occurrence of the damage.
b) In the event of a business transaction (B2B), claims for damages shall become statute-barred in any case within six months of knowledge of the damage and the damaging party.
c) ALPINA shall also be liable in accordance with the statutory provisions insofar as it culpably breaches a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage. d) Any further claims for damages by the buyer, irrespective of the legal grounds, in particular for breach of obligations arising from the contractual obligation and from tort, shall be excluded. This limitation shall also apply insofar as the buyer demands compensation for useless expenditure instead of a claim for compensation for damage in lieu of performance. e) The claim for damages of the contracting partner acting in an entrepreneurial capacity shall be limited in amount (with the exception of personal injury as well as cases of gross negligence and in the case of intent) to the amount of the agreed remuneration/purchase price.
f) ALPINA shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, consequential and pecuniary damage, damage arising from third-party claims or for the loss of data and programs and their restoration in the case of corporate transactions.
g) Insofar as ALPINA's liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of its employees, representatives and vicarious agents. Liability is generally excluded for indirect, immaterial damage, consequential damage and financial loss.

h) Liability is further excluded in the event of non-compliance with the assembly, installation and maintenance instructions and operating conditions, as well as breach of the duty to warn under the contract for work and services in accordance with §1168a ABGB. Liability is further excluded for loss of profits, loss of interest, damage due to business interruptions, damage due to loss during data transmission and damage due to claims by third parties.

12. Non-assignment clause

Any assignment of claims against ALPINA arising from contracts concluded between ALPINA and the buyer shall be excluded without the express written consent of ALPINA.

13 Place of performance, place of jurisdiction, applicable law

a) Unless expressly agreed otherwise, ALPINA's place of business shall be the place of performance.

b) If the customer is a merchant, the place of jurisdiction shall be the court responsible for ALPINA's place of business. ALPINA shall, however, also be entitled to sue the customer at its general place of jurisdiction. The same shall apply if the customer does not have a general place of jurisdiction in Germany, has moved its place of residence or habitual abode out of Germany after conclusion of the contract or its place of residence or habitual abode is not known at the time of the action.

c) Austrian law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG "Vienna Sales Convention") is excluded.

 

14 Industrial property rights and copyright

a) If machine-relevant parts are remanufactured by the Buyer on the basis of design data, drawings, models or other specifications, the Buyer shall notify ALPINA of this in writing. In the event of infringements of industrial property rights or copyrights, ALPINA reserves the right to sue for damages.

b) Design documents such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and the like, shall always remain the intellectual property of ALPINA COFFEE SYSTEMS GmbH and shall be subject to the relevant statutory provisions regarding reproduction.

15 Severability clause

Any invalidity of individual provisions shall not affect the validity of the remaining provisions. An invalid provision shall be replaced by a valid provision that comes as close as possible to the invalid provision.

16. Binding version

In the event of ambiguities with regard to the translation, questions of interpretation or in other cases of doubt, the Austrian version of the General Terms and Conditions shall be solely authoritative.


Valid from 13.12.2022 - V20.6
ALPINA COFFEE SYSTEMS GmbH
Tiroler Strasse 32
A-6322 Kirchbichl
AUSTRIA

office@ALPINA.cc
www.ALPINA.cc