General Terms and Conditions

1 General information

1. These General Terms and Conditions apply to all business relationships and deliveries and services provided by FRUCTOMAT GmbH, FN645625z, Steyrer Straße 80, 4470 Enns (hereinafter referred to as ‘FRUCTOMAT’), unless otherwise agreed in writing. In the event of contradictions, these terms and conditions shall take precedence over the respective order or other order bases. Any terms and conditions of the client or business partner (hereinafter referred to as ‘customer’) that conflict with or deviate from these terms and conditions shall not apply unless FRUCTOMAT has expressly agreed to their validity in writing. Contractual performance by FRUCTOMAT shall not be deemed to constitute acceptance of the customer’s terms and conditions, in particular any contractual terms and conditions of the customer that deviate from these terms and conditions.
2. With regard to corporate customers, these terms and conditions shall also apply to all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.

2 Terms of payment

1. Cost estimates are provided by FRUCTOMAT without guarantee, which is expressly pointed out. Offers from the company are provided exclusively in writing. FRUCTOMAT is bound to its offer for four weeks from the date of the offer.
2. The purchase price does not include packaging, shipping or installation costs. Unless otherwise agreed, the purchase price is payable without deduction within 14 days of receipt of the invoice. FRUCTOMAT does not grant discounts. Discount deductions therefore require a separate written agreement. In the event of late payment, any discount agreements shall cease to be valid; this also applies to all discount deductions made up to that point in the context of any partial invoices. Payments made by the customer shall only be deemed to have been made in full discharge of the debt once they have been irrevocably credited to FRUCTOMAT’s business account and are freely available to FRUCTOMAT. If the payment deadline for even a single (partial) payment is exceeded, all discounts granted (rebates, reductions, etc.) shall lapse and shall be paid or paid retrospectively by the customer in full. In the event of late payment, the customer shall be charged default interest at a rate of 9.2% above the base interest rate (§ 456 UGB). In the event of late payment, FRUCTOMAT shall be entitled to withdraw from the contract after issuing a reminder (email, fax, etc.) and granting a grace period of at least eight days. In the event of withdrawal by FRUCTOMAT, the customer is obliged to return the goods purchased and to pay FRUCTOMAT lump-sum damages amounting to 30% of the gross invoice amount. In addition, FRUCTOMAT shall be entitled to claim further damages from the customer. If, upon withdrawal by FRUCTOMAT, the customer does not return the goods at its own expense, FRUCTOMAT shall be entitled to dismantle the goods at the installation site or have them dismantled by third parties and collected at the customer’s expense. The right of access pursuant to Section 11 (Retention of Title) shall apply in this case. Several customers shall be jointly and severally liable to FRUCTOMAT for a jointly placed order. In the case of partial deliveries, FRUCTOMAT shall be entitled to issue partial invoices for goods already delivered (parts of the order) at any time. In the event of default in payment, the customer shall reimburse FRUCTOMAT for the reasonable and appropriate costs of a lawyer’s reminder in the amount of €300.00 plus VAT. Offsetting against any claims that the customer may have against FRUCTOMAT is excluded.
3. In the event of an agreement on instalment payments, default on a single instalment shall be deemed to constitute a breach of contract if the customer fails to pay an instalment of the purchase price on time or in full.
4. CANCELLATION FEE: In the event of cancellation of an order after it has been placed by the customer, FRUCTOMAT shall be entitled to demand a contractual penalty amounting to 30% of the gross order value from the customer. This shall not affect or limit the right to claim further damages (of whatever nature, such as financial losses, etc.).
5. Payments must be made exclusively to the following FRUCTOMAT business account:
FRUCTOMAT GmbH
Sparkasse Neuhofen
IBAN: AT11 2032 6000 0002 9058
BIC: SPNKAT21XXX

Only payments made to this account shall be deemed valid and discharge the debt.

3 Third-party financing

1. The buyer must notify FRUCTOMAT of the financing third party (lender or lessor; hereinafter referred to as the ‘financier’) within seven working days of receiving the order confirmation and submit a draft of the terms and conditions of the transaction, including a financing commitment from the financier. FRUCTOMAT reserves the right to reject the financier without giving reasons.
2. In the case of third-party financing, the terms and conditions agreed with the buyer and these General Terms and Conditions shall apply.
3. If the financier enters into the contract, the same rights and obligations apply to them as to the buyer, unless otherwise specified.
4. Delivery shall be made directly to the buyer, who shall take possession of the delivery item on behalf of the financier. Risk and benefit shall pass upon handover.
5. Upon full payment, ownership shall pass to the financier. Clause 11 (Retention of title) remains unaffected.
6. Insofar as software is the subject matter of the contract, the financier shall receive a non-exclusive right to use the software within the scope of the relevant terms of use upon payment of the total purchase price. This right is limited to the hardware supplied.
7. The buyer shall fulfil any obligations arising from the contract that go beyond the payment of the purchase price. This shall not restrict the legal position of FRUCTOMAT.
8. The purchaser may assert claims arising from or in connection with the contract on behalf of the financier; certain rights (e.g. rescission, transfer of ownership, refund of the purchase price) are exclusively reserved for the financier.
9. Ancillary agreements or amendments are only permissible with the consent of the purchaser and financier in written or text form (in particular by e-mail or electronic signature).
10. The financing agreement between the buyer and the financier has no legal effect on FRUCTOMAT.
11. Any terms and conditions of the financier that contradict these General Terms and Conditions or FRUCTOMAT’s contractual terms and conditions shall be invalid, even if FRUCTOMAT signs the financier’s documents.

4 Delivery and installation

1. FRUCTOMAT is entitled to deliver the goods underlying an order in partial deliveries at its own discretion. In addition to the agreed purchase price, the respective domestic and foreign packaging, shipping, transport and installation costs will be charged for deliveries. The customer is aware that these costs are not fixed in advance and therefore cannot be calculated definitively in advance; the customer undertakes to pay FRUCTOMAT the actual packaging, shipping, transport and installation costs incurred in each case after invoicing.
2. Delivery times shall only be deemed to have been agreed as legally binding if they have been confirmed by FRUCTOMAT in writing or in text form (e.g. by email).
3. The customer shall ensure at their own expense that, at the time of delivery of the equipment, any electrical and sanitary connections have been made and all other necessary preparations for installation have been made and carried out properly and professionally, in particular in accordance with FRUCTOMAT’s specifications. FRUCTOMAT shall have no obligation to check the arrangements made (connections, cables, etc.) for proper installation, so that FRUCTOMAT may rely on the proper and professional installation. The customer has taken note of the specified dimensions, weights and installation instructions. The customer shall compensate FRUCTOMAT for any damage caused by failure to take precautions or by inadequate precautions during delivery and installation of the equipment (in particular damage resulting from delays or additional costs incurred as a result).
4. FRUCTOMAT shall not be liable for delays in delivery or failure to perform due to force majeure, unforeseeable events or official measures. In such cases, agreed delivery periods shall be extended accordingly.

5 Ordering and delivery of filling products

1. Filling products are ordered in accordance with the currently valid price list. Delivery is made carriage forward from the nearest FRUCTOMAT warehouse. FRUCTOMAT is responsible for choosing the shipping method. Any costs for necessary packaging shall be borne by the customer.

6 Transfer of risk

1. Unless otherwise agreed, the goods shall be deemed to have been sold ‘ex works’ (EXW in accordance with INCOTERMS® in their currently valid version). The shipping risk shall therefore be borne by the customer. The risk of performance shall pass to the customer upon handover of the goods to the forwarding agent/carrier. In the case of collection by the customer, the risk is transferred when the notification of readiness for collection is sent to the customer. If the goods are delivered by FRUCTOMAT itself, the risk is transferred upon delivery.
2. In all other respects, the INCOTERMS® of the International Chamber of Commerce (ICC) in their current version valid at the time of conclusion of the contract shall apply.

7 Training of operating personnel

1. The customer undertakes to comply with the operating instructions for the delivered devices and to comply with other product information, maintenance instructions, other notes, etc. provided by FRUCTOMAT, as well as to train their staff. FRUCTOMAT shall not be liable for any costs or damage incurred as a result of non-compliance with these instructions, information, guidelines, etc., and these shall be borne in full by the customer. The customer acknowledges that the purchase price does not include training by FRUCTOMAT. If the customer requests or commissions training measures by FRUCTOMAT, the customer shall pay FRUCTOMAT separately for these services.

8 Software, data usage and updates

1. The software installed on the delivered devices remains the property of FRUCTOMAT or the respective rights holders. The customer receives a non-exclusive, non-transferable right of use for the intended operation of the delivered products. Modifications, reproductions or transfers of the software are not permitted without the express consent of FRUCTOMAT, with the exception of a permissible backup copy.
2. FRUCTOMAT is entitled to access, read and evaluate system, operating and performance data from the devices to the extent necessary for fault diagnosis, maintenance, quality assurance, product safety or further development of the devices. No personal data will be processed in this process unless this is necessary for the fulfilment of the contract or due to a legal obligation. In such cases, processing shall be carried out exclusively on the basis of the provisions of the GDPR and the Data Protection Act (DSG).
3. FRUCTOMAT may remotely provide or install software updates, security and functional updates (‘over-the-air updates’) if these serve to improve, secure or maintain functionality. The customer will be informed of this, provided this is technically and organisationally reasonable.
4. FRUCTOMAT reserves the right to further develop data usage and technical procedures within the framework of legal provisions in order to enable future digital functions, services and evaluation options. All data collected will be treated confidentially, stored securely and used exclusively for operational purposes in connection with the products supplied. Data will only be passed on to third parties if this is necessary for the fulfilment of the contract or required by law.

9 Notice of defects, warranty, guarantee

1. The delivered goods must be inspected immediately upon delivery in accordance with § 377 UGB (Austrian Commercial Code) and any discernible defects must be noted on the delivery note or consignment note and, in addition, reported to FRUCTOMAT in writing or in text form (e.g. by email) within seven days of delivery. If the customer fails to notify FRUCTOMAT within the specified period, they may no longer assert claims against FRUCTOMAT for warranty, compensation for the defect itself, consequential damage caused by the defect, or an error regarding the defect-free nature of the item.
2. Defects that are not immediately apparent despite exercising due care in accordance with Section 377 of the Austrian Commercial Code (UGB) must be reported to FRUCTOMAT in writing or in text form (e.g. by email) within seven days of their discovery at the latest. If the customer fails to notify FRUCTOMAT within the specified period, the goods shall be deemed to have been approved and the customer shall no longer be entitled to assert claims for warranty, compensation for the defect itself, consequential damage caused by the defect or an error regarding the defect-free nature of the goods.
3. FRUCTOMAT provides a statutory warranty for the delivered goods within twelve months of delivery. FRUCTOMAT does not guarantee any specific properties of the goods; an implied extension of the warranty period is excluded. The warranty is limited without exception to the free provision of replacement parts for defective device components. The burden of proof for the existence of a defect upon handover lies with the customer.
4. FRUCTOMAT grants a voluntary warranty of up to 24 months from delivery of the goods, provided that an annual service has been carried out properly by technicians trained by FRUCTOMAT after the first year. The customer is responsible for providing proof that the annual service has been carried out properly and on time. The warranty covers the provision of spare parts only. Packaging, transport, shipping and installation costs shall be borne by the customer.
5. The warranty does not cover defects resulting from improper operation, use or maintenance by unauthorised personnel, or normal wear and tear. Repairs agreed upon in special agreements shall be carried out without exception at the FRUCTOMAT business premises by FRUCTOMAT technicians, with the transport of the devices to FRUCTOMAT being at the risk and expense of the customer. Any parts that are replaced (i.e. removed and replaced) shall remain with FRUCTOMAT and shall become the property of FRUCTOMAT without replacement.
6. If the maintenance prescribed by FRUCTOMAT is not carried out or if spare parts or filling products not supplied or recommended by FRUCTOMAT are used and this results in a problem or damage to the device, FRUCTOMAT shall not be liable and no warranty claims shall be accepted. The same applies if repairs or modifications to the device are not carried out by authorised FRUCTOMAT personnel. Persons who can prove that they have completed technical training at FRUCTOMAT GmbH are considered equivalent to this personnel.
7. The customer’s warranty claim is non-transferable and expires upon resale or other transfer/pass on of the devices.
8. All work shall be carried out during FRUCTOMAT’s business hours. FRUCTOMAT shall not be liable for any damage caused by a possible interruption of operations or delays in the maintenance and repair of equipment. Consumables used by the customer shall not be replaced by FRUCTOMAT.

10 Liability

1. FRUCTOMAT’s liability is excluded in all cases of slight negligence, with the exception of personal injury and claims arising from product liability. In cases of gross negligence, FRUCTOMAT’s liability is limited to a maximum of EUR 10,000.00. Compensation for damages exceeding this amount is excluded. Compensation for lost profits or any other consequential damages (business interruption, etc.) is also excluded. If there are several customers, the maximum amount stated shall be distributed among them on a pro rata basis. Claims against FRUCTOMAT for damages shall become time barred within six months of knowledge of the damage and the party responsible for it, unless a shorter limitation or preclusion period applies by law.
2. Furthermore, any liability towards the customer for damages to third parties arising directly or indirectly in connection with the purchase, use of goods, or the performance of service and repair work is excluded.

11 Retention of title

1. The delivered goods remain the property of FRUCTOMAT until the purchase price and all ancillary claims have been paid in full. For this purpose, the customer grants FRUCTOMAT (or third parties commissioned by FRUCTOMAT) the right to enter the premises where the goods subject to retention of title are located, after prior written notification and appointment, in order to dismantle and collect them. Prior appointment is not necessary if there is imminent danger or if the customer fails to comply with their obligation to surrender the goods despite being requested to do so.
2. The customer is entitled to resell the goods subject to retention of title. In return, however, the customer hereby assigns all claims against third parties arising from the resale to FRUCTOMAT and undertakes to inform the third-party debtor immediately and to enter the assignment for security purposes in its business records.
3. As long as FRUCTOMAT remains the owner of the goods purchased, the customer undertakes to disclose FRUCTOMAT’s ownership rights to third parties, particularly in the following cases, and to notify FRUCTOMAT immediately:
a. if third parties assert rights to the goods through seizure, attachment, etc.
b. if compensation or bankruptcy proceedings are applied for or initiated against the customer’s assets, or if an out-of-court settlement is sought.

12 Final provisions

1. Changes or additions to completed orders or to these terms and conditions must be made in writing to be valid. This also applies to the waiver of the written form requirement. The written form within the meaning of these terms and conditions also includes text form, in particular e-mail or electronic signature.
2. The contractual relationship between FRUCTOMAT and the customer is subject to Austrian substantive law. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The place of performance is Enns. For legal disputes arising from or in connection with an order or these terms and conditions, the exclusive jurisdiction of the court with jurisdiction for 4470 Enns is agreed.
3. Should any provision (or parts thereof) of a concluded contract or these terms and conditions be wholly or partially invalid, or become invalid due to statutory provisions, the remaining provisions or the remaining parts of the provision shall remain valid. The parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision.