W&H Headquarters - EN
General Terms and Conditions of Sale and Delivery
Last update: 05.06.2025
1. General
1.1. The following general terms and conditions shall apply to the entire business relationship between W&H Dentalwerk Bürmoos GmbH, Austria and its customer, hereinafter Partner. Deviating, contrary or supplementary general terms and conditions or purchase conditions applied by Partner shall not become part, even if they are known.
1.2. If terms are agreed in an individual contract with the Partner in writing which deviate from these general terms and conditions, the regulations of the individual contract shall prevail.
2. Orders and acceptance
2.1. Partner orders shall be submitted in writing and must include the catalogue number of the ordered goods, and the quantity required. Orders are only considered binding upon written order confirmation by W&H.
2.2. W&H is entitled to carry out technical or other changes to the ordered goods between order confirmation and delivery, where this is a reasonable deviation from the agreed scope of service (e.g. product improvements, additional product features).
3. Prices
3.1. The current prices published by W&H shall be FCA Bürmoos (in the currently valid version Incoterms 2020) including packaging but exclusive of shipping expenses, transport costs, insurance costs, (where applicable) export and import duties and statutory VAT to be billed to the Partner.
3.2. The prices specified by W&H in the order confirmation shall apply. If no price is specified there, the prices published in the price list applicable on the day of the order shall apply. Price lists will be sent to the Partner once a year and, in the event of a price increase during the year, after this change.
3.3. It should be noted that W&H applies different selling prices depending on whether the products are intended to be sold exclusively online or by a Partner with a physical point of sale and storage facilities, a preferential price being applied for physical points of sale due to the specific investments they involve (rent, salaries, taxes, etc.), without however restricting the possibility for the Partner to sell the products online.
3.4. Each year, W&H prices are subject to revision with effect from 1st January, of which the Partner will be informed at the latest during the preceding month of October. The Partner has 30 (thirty) calendar days from the date of this notification to reject the new annual rates which must be made in writing. E-mail fulfils the written form requirement for the purpose of this entire agreement unless otherwise stated, not however communication through social media or using Apps. The notification must be received by W&H by the deadline. In case of timely objection, W&H is entitled to terminate the contractual relationship according to Art 15.
3.5. However, the Partner may not object if the increase is justified by an increase of 10% or less in the price of raw materials or energy. It is on W&H to prove the respective price increase of raw materials or energy. A price increase during the year may also occur for all or parts of the Products in the event of an exceptional occurrence as set out in Art. 14 below. The same acceptance or refusal process as described shall apply in such a case.
4. Delivery and transfer of risk
4.1. Unless otherwise expressly agreed in writing, delivery shall be FCA Bürmoos (Incoterms 2020) from the respective premises of W&H. Risk shall be transferred in compliance with the agreed Incoterms.
4.2. If delivery is delayed for reasons not attributable to W&H, particularly default in acceptance by the Partner, the risk shall be transferred to the Partner upon notification of readiness for shipment. In this case, W&H is entitled to store the goods at the expense of the Partner. The storage costs charged by W&H reflect the rates customarily charged by commercial warehouses and therefore are reasonable. The burden of proof is on the Partner to prove that the expenses are not reasonable.
4.3. W&H is entitled to carry out partial deliveries and services, particularly if the delivery/service due from W&H has become partially impossible, as long as this partial impossibility is not attributable to gross negligence or deliberate intent by W&H.
4.4. Unless otherwise agreed in writing, W&H shall choose the shipping route, the means of transport and the transport company at its discretion. W&H is not obliged to choose the cheapest or fastest means of transport.
4.5. Prior to issuing any delivery order, W&H shall inform the Partner in writing of the expected costs of the means of transport. Partner shall have five (5) calendar days from receipt of such notice to raise any written objection to the proposed transportation costs. If Partner does not object in writing within this period, Partner shall be deemed to accept. In the event of a timely objection, the Partner is obliged to organize the means of transport at its own expense and W&H shall not issue the delivery order. If delivery then does not take place within 30 (thirty) calendar days from the moment of receipt of written objection for reasons that are within the Partner’s sphere, W&H is entitled to terminate the contractual relationship according to Art 15 below, and any resulting delay in delivery shall be attributed solely to Partner.
4.6. If the Partner provides the means of transport, he shall be liable for timely provision. W&H must be notified promptly of any delay. The resulting additional costs shall be borne by the Partner.
4.7. Delivery times and unloading periods stated are always non-binding unless otherwise expressly agreed in writing. Partner can cancel an order in writing in the event of delivery delays if the delivery delay was caused by the gross negligence or deliberate intent of W&H and Partner has sent a prior written reminder to W&H and granted it a reasonable grace period of four (4) weeks; compensation claims by the Partner are excluded.
4.8. Complaints about externally visible transport damage must be made immediately upon receipt of the goods and the type and extent of such damage must be reported by the Partner to the transport company in writing without delay or noted in detail on the delivery or freight note on the spot and countersigned by the transport company to confirm the complaint.
5. Notice of defects and warranty
The legal warranty period is 24 months after the date of receipt.
5.2. Partner is obliged to check the products after receipt and give written notice to W&H of incomplete or incorrect shipment as well as of any defects of the products after shipment.
5.3. Obvious defects shall be reported to W&H within 7 (seven) working days after its discovery. Hidden defects shall be reported to W&H immediately after they are detected. The existence of defects must be proven to W&H by Partner in writing immediately upon identification of the same, or within six (6) months after receipt of the goods/services at the latest. The Partner shall bear the burden of proof regarding the existence and origin of any defect. In particular, the Partner must prove that the goods were already defective at the time the risk passed to the Partner. The (alleged) defects shall be exactly described and the (alleged) defective parts shall be immediately sent to W&H – if so requested by W&H – for examination, whereby the return of the (alleged) defective parts shall be at the expense and risk of the Partner.
5.4. If and insofar as Clause 5.2. is violated, all rights and/or claims of the Partner, irrespective of their legal nature, if and insofar as they are in connection with an (alleged) defect, shall be excluded; this shall apply in particular, but not exclusively, to all rights and/or claims for rescission of the contract, culpa in contrahendo, defect and consequential damage caused by a defect.
5.5. Place of performance for the legal warranty is the premises of the relevant supplier, hence
one of the following three as stated in the offer to these General Terms & Conditions
• for W&H Dentalwerk Bürmoos GmbH, Ignaz-Glaser-Straße 53, 5111 Bürmoos, Austria
• for W&H Sterilization S.r.l., Via Bolgara, 2, 24060 Brusaporto (BG), Italy
• for Osstell AB, Stampgatan 14, 411 01 Göteborg, Sweden
5.6. In the event of defects, the legal warranty is limited to reparation, replacement or supplementation of the missing (primary guarantee remedies) at the discretion of W&H. Several reparations and replacement deliveries are permitted. W&H shall send the product which shall replace the defective Product or the repaired Product to Partner within 30 (thirty) calendar days of receipt of the defective Product. If and to the extent that the afore mentioned warranty remedies are impossible or involve disproportionate effort for W&H, W&H shall – at its sole discretion – grant a price reduction.
5.7. In the event of unfounded defects, the Partner shall reimburse W&H for the adequate and/or necessary costs incurred in checking the defects, up to a maximum of 10% of the quoted repair costs.
5.8. Legal warranty is furthermore excluded if, inter alia,
a) there are externally recognizable influences, such as the use of unsuitable operating materials or cleaning agents,
b) there is a misuse of the products by Partner or his customers
c) Partner cannot prove that the maintenance was carried out in accordance with the maintenance instructions and specifications of W&H
d) changes have been made to the products by Partner or his customer
e) Partner or his customer has carried out self-repairs
f) Partner or his customer uses W&H products in a manner that does not correspond to the use of the product as specified or recommended by W&H in the instructions for use
g) Partner or his customer uses spare parts or accessories that are not compatible with W&H products or whose compatibility has not been proven.
5.9. Fulfilment of a warranty obligation does not extend the original warranty period and does not trigger a new warranty period for repaired or replaced parts. If W&H provided a manufacturer’s warranty, the fulfilment of a warranty obligation also does not extend the guarantee period.
6. Return of goods, return of transport packaging and outer packaging
6.1. Delivered, defect-free goods may only be sent back with W&H’s prior written consent. The goods must be returned to W&H in the unopened, undamaged and unchanged original packaging at the Partner’s costs.
6.2. W&H reserves the right to charge a handling fee for the additional costs incurred in connection with the returned shipment and, when crediting the purchase price, to deduct an amount that corresponds to age and condition of the goods.
6.3. If the Partner returns the goods without W&H’s prior written consent, W&H is entitled to refuse the returned shipment and W&H shall be reimbursed for the costs and additional expenses incurred as a result of the unauthorized return. The purchase price will not be credited. The Partner may not deduce any claims or other legal consequences from acceptance of returned goods. Notwithstanding the physical custody of the goods by W&H, the risk of loss, damage or destruction of the goods shall remain with Partner until all amounts owed to W&H have been paid by Partner. W&H shall store the goods on behalf of Partner during this period and shall take reasonable care of the goods but shall not assume any risk in relation to their accidental loss or deterioration. W&H shall be entitled to charge custody or storage fees for each day of non-payment by Partner, such fees corresponding to the rates typically charged by commercial warehouses, which shall be deemed reasonable. The burden of proof is on the Partner to show that the expenses are not reasonable.
6.4. The return of goods manufactured according to particular Partner specifications (custom-made products, special orders) is excluded in all cases.
6.5. To the extent that W&H is obliged by law to take back transport packaging and outer packaging, the Partner shall bear the costs of transporting the used packaging back, such fees corresponding to the rates typically charged by transport companies, which shall be deemed reasonable.
7. Liability and exclusion of liability
7.1. In the event of slightly negligent breaches of duty by W&H or its agents, any liability shall be excluded. Furthermore, W&H shall not be liable for loss of profit or for any consequential or indirect damages, including, but not limited to, loss of production, business interruption costs, or other incidental or indirect losses.The above limitations of liability shall not apply in cases of personal injury, mandatory product liability, or where the damage arises from risks that do not typically result from the nature of the contractual relationship and could not reasonably have been foreseen under the specific circumstances. These limitations shall also not apply where different provisions have been expressly agreed in warranty agreements.
7.2. The Partner shall bear the burden of proof for proving that W&H is at fault and the extent to which W&H is at fault.
7.3. Claims for damages shall be asserted in the relevant state courts or according to the arbitration clause, both as set out in Art 18 of this agreement, within six (6) months at the latest. Such claims become time-barred six (6) months after the injured party becomes or should reasonably have become aware of the damage and the identity of the liable party.
8. Payment and arrears
8.1. Invoices are due for payment upon delivery to the Partner, unless otherwise agreed in writing. W&H is entitled to bill an advance payment of up to 100% of the purchase price. Advance payments are due for payment upon delivery of the advance invoice. If the W&H does not receive the advance payment on time, there shall be no goods delivery or only partial goods delivery. W&H is entitled to store the goods at the Partner’s costs and risk and to bill the Partner for any other additional costs and expenses.
8.2. Payment shall be made without any deductions to the bank account specified by W&H. At the request of W&H the mode of payment may be changed to direct debit or cash on delivery. W&H shall notify the Partner in writing of this in advance.
8.3. If the Partner falls into arrears with payment, W&H shall send a reminder and set a reasonable grace period. If this grace period expires without a response, W&H shall send a second reminder, put all or partial deliveries on hold and set a second grace period. If the second grace period also expires without a response, W&H is entitled to withdraw from the contractual relationship or/and to take legal action.
8.4. In the event of delay of payment, default interest of 8% above the respective base interest rate set by the European Central Bank in force at the time of default shall be agreed.
8.5. If the Partner is at fault for any delay in payment, it shall pay collection costs of 15% of the outstanding amount to W&H, as well as any further costs required for appropriate legal action.
8.6. If the Partner ceases business operations, if enforcement measures are taken against him, if payments are slow or discontinued after two reminders have been sent or if the Partner’s creditworthiness appears doubtful and the Partner does not make an advance payment upon request by W&H or does not provide reasonable security, such as a bank guarantee issued by a reputable financial institution, before delivery, W&H shall be entitled to call for immediate payment of all claims under the business relationship, even if payment by instalments has been agreed before.
8.7. The Partner may only offset its claims against claims that have been recognized by W&H in writing or ascertained in a non-appealable manner.
8.8. Assignment to third parties of accounts receivable by the Partner from W&H as well as transfer of rights and duties under a purchase contract concluded shall not be permitted without prior written approval by the W&H.
8.9. In its capacity as an independent trader, the Partner is free to determine the prices at which the Products are resold to professional end users.
9. Retention of title
9.1. The delivered goods shall remain ownership of W&H until the Partner has completely fulfilled his obligation, in particular payment of the purchase price in full plus ancillary costs and interest, charges, expenses, etc.
9.2. If the goods are resold, the Partner shall assign the purchase price receivable for the goods which are subject to retention of title to W&H. The Partner shall be obliged to mark such assignment in his books by making booking references and to disclose the names of those who owe the purchase price, if demanded by W&H, and to state the exact figures of the assigned accounts receivable. The assignment shall be accepted by W&H. Charges and/or taxes, if any, payable in connection with the assignment shall be borne by the Partner and he shall indemnify and hold W&H harmless in this respect. W&H shall be entitled at any time to disclose the assignment made and collect the assigned accounts receivable themselves.
9.3. The Partner shall be obliged to have the goods that are subject to retention of title sufficiently insured at his own costs against the usual risks, such as acts of God, burglary, theft and cybersecurity incidents, and to provide W&H with proof of insurance if so required. The Partner hereby assigns his insurance claims, if any, to W&H.
9.4. Furthermore, the Partner shall be obliged to store the goods according to the instructions of W&H and to the state of the art. The Partner shall be obliged to handle the goods with care whilst they are subject to retention of title. If maintenance work or inspection work should be necessary, the Partner shall have such work carried out regularly at his own costs.
10. Medical devices
10.1. The Partner confirms that according to applicable national and/or European and/or international regulations he is authorized to trade in, store and purchase medical devices. If this proves to be wrong, W&H is entitled to terminate the contractual relationship with immediate effect according to Art 15 of these General Terms & Conditions.
10.2. Because the products constitute medical devices and to ensure the accurate and efficient performance of field safety corrective actions, traceability of individual products from W&H to customer/user or end-user must be ensured according to the laws in the relevant territory, such as MDR (EU) 2017/745 and the MDD 93/42/EWG for the EU-market. W&H shall be entitled to make use of the transition provisions of Article 120 3c of MDR. Partner therefore undertakes inter alia to keep records of all W&H medical devices placed on their market, for the entire life cycle of the products, and make them available to W&H upon request at any time. These records must state the exact data of the customers (name, address etc.) as well as of the products delivered to them (described by product reference number, LOT number or serial number). Partner further undertakes to inform its customers about the transfer of their personal data for traceability purposes and to obtain their consent to the processing of personal data in accordance with the international and national data protection regulations. If the customer is not a user or end user, Partner shall analogous to this clause oblige its customer to keep corresponding records.
10.3. Partner shall be liable for completeness of the records and shall be obliged to promptly, but latest within 3 (three) calendar days send a copy of the said records to W&H at its own expenses during the term of this Agreement upon request or after termination of this Agreement without being so requested.
10.4. If the Partner is of the opinion or has reason to believe that a medical device does not comply with the applicable laws, he may only make the medical device available on the market once it has been brought into compliance with the legal requirements and he shall notify W&H of the defect, and the corrective measures required according to the applicable laws. If the Partner is of the opinion or has reason to believe that the medical device poses a serious risk or is a counterfeit medical device, he must inform the W&H about this before making the product available on the market.
10.5. If the medical device has already been made available on the market and the Partner is of the opinion or has reason to believe that the medical device does not comply with the applicable laws and/or the relevant safety, the Partner must notify W&H immediately and work with W&H and the relevant authorities to ensure that the necessary corrective measures are taken to bring the medical device into compliance with the legal requirements and to withdraw or recall them as the case may be. If the Partner is of the opinion or has reason to believe that the medical device poses a serious risk, he must also immediately notify the relevant authorities in which he has made the medical devices available, providing details about the non-compliance and the corrective measures taken and he shall inform W&H of this immediately afterwards and in writing.
10.6. The Partner shall ensure that the storage and transport conditions correspond to the storage and transport conditions as set out in the Instruction for Use and/or Safety Data Sheet (SDS).
10.7. The Partner is obliged to pass on complaints or reports from medical experts, patients or users about suspected incidents relating to the medical device to W&H. The Partner is obliged to keep a register of complaints, non-compliant medical devices, recalls and returns and to provide W&H with this information.
10.8. The Partner is obliged to provide the relevant authorities with all required information and documents available to him upon request to do so. The Partner shall notify W&H before providing the authorities with such information or documents.
10.9. The Partner is obliged to keep all documents relating to the distribution of medical devices purchased from W&H for a period of at least 15 (fifteen) years from the date that the medical device was made available on the market. In the case of implantable devices according to Art 2 (5) of the Regulation EU-2017/745 (MDR), the period shall be at least 15 (fifteen) years after the last device has been placed on the market. These stated periods apply even if W&H or Partner has ceased to manufacture or import the device.
10.10. After reasonable prior notice in writing, W&H is entitled to perform audits of the Partner’s documents and premises related to the medical devices purchased from W&H, to check continued compliance with quality requirements. The audit is the subject of joint action by the parties.
11. Recall
11.1. The Partner undertakes to take an active part in any product recall campaign, to provide all useful information in order to carry it out successfully and in particular, the necessary contacts with the competent authorities, the identity of the professional end users concerned, the date of sale and the precise identification of the products likely to be concerned. W&H and Partner undertake to comply with the national and international regulations of the respective country. Should the respective country-specific regulations contradict article 11, the country-specific regulations shall take precedence.
11.2. In the absence of a mandatory product recall order issued by the competent public authorities, W&H shall have the exclusive right to assess and decide, at its own discretion, whether a product recall is warranted and to determine the timing and scope of such recall. In this latter case, W&H shall handle all contact with the relevant authorities, unless otherwise specified in the respective applicable laws. The Partner is obliged to support W&H in all areas, provide all relevant information and notify the resellers to whom the products were delivered and/or provide written proof to W&H that the Partner has notified the professional end-users of the product recall himself.
11.3. Both parties undertake to cooperate fully with one another in the event of a recall.
11.4. If a risk assessment determines that the level of risk to human health posed by the relevant product necessitates the implementation of corrective measures to ensure effective compliance — including, but not limited to, a product withdrawal or product recall, whether voluntary or legally mandated by the competent authorities — and the Partner refuses or objects to the implementation of such measures, the Partner shall be liable, without limitation as to time or amount, for any and all damages resulting from the failure to take such measures. The Partner shall fully indemnify and hold the Supplier harmless from and against any losses, claims, liabilities, or costs arising therefrom.
11.5. The Partner undertakes to comply with the storage conditions as set out in 10.6.
12. Trademarks - Distinctive Signs & Intellectual property
12.1. Project descriptions as well as drawings, dimension diagrams, descriptions, data, marketing materials and other information are the intellectual property of W&H and shall only be used within the scope specified by W&H and shall not be reproduced or made available to and amended or processed by third parties without the prior written consent of W&H.
12.2. Trademarks for the scope of this agreement shall mean any signs, whether registered and/or protected under applicable trademark laws or unregistered, that are capable of distinguishing the goods or services of W&H, including but not limited to words, names, logos, designs, symbols, slogans, trade dress, or combinations thereof. This includes all applications, registrations, renewals, rights to apply for registration, associated goodwill, and all rights arising from use in commerce, as well as any rights granted or recognized by the relevant intellectual property authorities.
12.3. The Partner undertakes not to appropriate the Trademarks and Distinctive Signs for any purpose whatsoever and undertakes not to create any confusion in the minds of anyone, and in particular customers, as to its status as an independent trader.
12.4. The Partner undertakes to inform the Supplier without delay of any act of imitation, counterfeiting or unfair competition or, more generally, of any fact or act likely to prejudice the Supplier's rights and interests in the Trademarks and Distinctive Signs.
13. Export control
13.1. The Partner acknowledges that the goods under this agreement may be subject to national, European Union, and/or international export control laws and regulations, including but not limited to those of Austria, the European Union, and the United States of America.
13.2. A re-export exists if a W&H product previously exported to a country outside the EU, in which the Partner is operating, is exported again by the Partner to any other country.
13.3. All such re-exports require the prior written consent of W&H. In the event of the sale, export or re-export of W&H products to a third party outside the EU, including companies affiliated with the Partner, the Partner is obliged to ensure compliance with all applicable customs, import and export control laws and regulations, as well as the relevant sanctions lists and embargoes (hereinafter “sanctions”).
13.4. Furthermore, the Partner shall not, directly or indirectly, export, re-export, transfer, or disclose any goods from the supplier to any country, person, or entity, including companies affiliated if such activity requires a government authorization without first obtaining such authorization.
13.5. The Partner shall provide the supplier, upon request, with all necessary information and documents required for export control assessments, end-use declarations, or export license applications.
13.6. If the Partner violates one of the obligations in this article or sanctions by states are imposed against him or an affiliate, he must notify W&H of this immediately. If corresponding authorization/approval is not granted, W&H is entitled to withdraw from the contractual relationship according to Art 15 below. Furthermore, the Partner undertakes to indemnify and hold W&H harmless against any damages resulting from the violation of this article or the sanctioning of the Partner.
13.7. Furthermore, the Partner undertakes to indemnify and hold W&H harmless against any damages resulting from the violation of this article or the sanctioning of the Partner.
13.8. W&H shall not be obligated to perform any obligation under this agreement if such performance is restricted or prohibited by any applicable export control laws or requires an export license or governmental approval that cannot be obtained or would involve unreasonable effort or expense. In such circumstances, agreed delivery deadlines and dates shall be suspended or postponed for the period during which the delivery is delayed.
13.9. If any export control restrictions prevent, delay, or make the fulfilment of a contractual relationship impossible or commercially unreasonable, W&H shall be entitled to terminate the contractual relationship without any liability due to Art 15 of this agreement.
13.10. For this agreement, affiliated company shall mean any legal entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Party. Control means the direct or indirect ownership of more than 50% of the voting rights or other means of exercising a dominant influence over the management or policies of an entity. In the context of any approval procedure pursuant to Regulation (EU) 2021/821 of the European Parliament and of the Council (Dual-use items, see below), the Partner undertakes to provide W&H, upon request, with complete and accurate information regarding the intended use, destination, and end user of the goods delivered or to be delivered. In the event of any change or deviation from the information previously provided during contract performance, the Customer shall be obliged to notify W&H without undue delay.
“Dual-Use Items” shall mean goods, software and technology, including but not limited to those listed in Annex I of Regulation (EU) 2021/821, which can be used for both civil and military purposes. This includes items which can be used for non-explosive purposes as well as in any manner for the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices.
13.11. Should the Partner fail to provide any information as stated within a reasonable period after being requested to do so, W&H shall be entitled to withdraw from the contractual relationship according to Art 15.
14. Force majeure
14.1. The Parties may not be held liable if the non-performance or delay in the performance of any of their obligations, as described herein, is due to force majeure, or to exceptional health or climatic events beyond the control of the Parties. Force majeure means any event beyond the control of one of the Parties, which could not reasonably have been foreseen when a contract was concluded and the effects of which cannot be avoided by appropriate measures, which prevents the performance of its obligation.
14.2. Events of force majeure shall include but not be limited to: all impacts of the elements, such as earthquake, lightning, frost, storm, floods; war and terrorist attacks, laws, acts of authorities, seizure, transport interruption, export bans, import bans and prohibition of transit, international payment restrictions, failure of supply of raw materials or energy failure, epidemics and pandemics; business interruptions, such as explosion, fire, strikes, sabotage and any other events that could only be prevented with unreasonable costs and commercially unreasonable means.
14.3. Force majeure shall explicitly also include any delay in delivery attributable to circumstances within the sphere of the Supplier’s distributors respectively the Supplier’s upstream contractors.
14.4. The Party noting the event must immediately inform the other Party of its inability to perform its service and justify this to the latter. The suspension of obligations shall under no circumstances be a cause of liability for non-performance of the obligation in question, nor lead to the payment of damages or late penalties.
14.5. Performance of the obligation is suspended for the duration of the force majeure if it is temporary and does not exceed 60 (sixty) calendar days. Consequently, as soon as the cause of the suspension of their mutual obligations disappears, the Parties will make every effort to resume normal performance of their contractual obligations as soon as possible. To this end, the Party prevented shall notify the other Party of the resumption of its obligation by any written means of communication which ensures its proper receipt. If the impediment is definitive or exceeds 60 (sixty) calendar days, contracts that refer to the General Terms and Conditions will be automatically terminated.
14.6. During this suspension, the Parties agree that the costs generated by the situation will be borne by the prevented Party.
15. Cancellation of orders, withdrawal from contract
15.1. Partner can cancel an order in writing in the event of delivery delays if the delivery delay was caused by the gross negligence or deliberate intent of W&H and Partner has sent a prior written reminder to W&H and granted it a reasonable grace period of four (4) weeks.
15.2. W&H is entitled to withdraw from a contract in writing with immediate effect without complying with notice periods and deadlines in the following cases, whereby W&H shall be under no further performance obligations and the Partner shall be obliged to make payment for services already performed by W&H:
i. If the Partner or a company affiliated with the Partner as stated in Art 13.10, whose conduct is attributable to the Partner violates 10.1, 13.2 or 17 of these General Terms and Conditions;
ii. If the Partner does not provide delivery in time according to Art 4 of these General Terms and Conditions.
iii. If delivery is impossible for reasons that are the responsibility of the Partner or a company affiliated with the Partner, whose conduct is attributable to the Partner;
iv. If the Partner ceases business operations;
v. If the Partner continues to default on payments after having been sent a second reminder by W&H;
vi. If the Partner’s creditworthiness appears doubtful and he does not make an advance payment upon request by the Supplier or does not provide reasonable security, such as a bank guarantee issued by a reputable financial institution, before delivery;
vii. If the Partner applies for composition proceedings in or out of court or if bankruptcy proceedings are opened over his assets or if a request for such proceedings is dismissed for lack of assets to cover the costs, where permitted under applicable law.
viii. in the event of disparagement of W&H or its Products by the Partner;
ix. in the event of resale of the Products to an unauthorised third party.
15.3. E-mail fulfils the written form requirement for this purpose unless otherwise stated, not however communication through social media or using Apps.
16. Data protection
The parties shall comply with the data protection provisions applicable in their country, even if these are not legally applicable to them or legally binding. Supplier/W&H is entitled to process the personal data provided by the Partner to the extent permitted by law and shall ensure compliance with the applicable legal regulations in this regard. Further information about data protection can be found at https://www.wh.com/en_global/legal-information.
17. Confidentiality
17.1. Confidential information provided by W&H to the Partner, particularly prices, payment terms, information about product technical data, production technology and product development, remains the property of W&H.
17.2. The Partner undertakes to:
i. only use any shared/disclosed confidential information in compliance with this agreement and not to use or exploit such information for other purposes for himself or a third party;
ii. treat the confidential information as strictly confidential and secret and not to disclose it or make it available to third parties either entirely or in part;
iii. ensure that the confidential information is saved properly and securely in such a way that prevents unauthorized access. Confidential information should be protected and secured with the same due care that the Partner applies to the protection of his own confidential information, although at least with reasonable care;
iv. the Partner confirms that all employees entrusted with tasks relating to this agreement are subject to a confidentiality obligation. The Partner shall only make confidential information available to his employees where necessary within the framework of this agreement and shall keep the number of involved employees as low as possible;
v. the disclosure of confidential information to any other person and/or company organs and advisors (such as auditors, lawyers, management or financial advisors) is permissible provided that the Partner ensures that confidentiality is also secured by explicit written confidentiality agreements with these persons.
17.3. The confidentiality obligations do not apply if
i. W&H has expressly given its written consent to the transfer or disclosure of information;
ii. The Partner is obliged by law to disclose the confidential information pursuant to an order by a relevant court or authority. In such cases, the Partner shall notify W&H immediately of this disclosure obligation and shall take all necessary steps to minimize the extent of this disclosure.
17.4. The confidentiality obligations remain in place even after the end of the contractual relationship with W&H.
17.5. Once cooperation ends or upon request by W&H, the Partner undertakes to return or destroy (at the discretion of W&H) all documents and data carriers that constitute or contain confidential information, to delete all electronically saved data and not to keep any copies, excerpts or other representations of the confidential information. The Partner undertakes to confirm the return or destruction and deletion in writing. The obligation to return or destroy information does not include copies of the received information that the Partner is obliged by law to retain. Similarly, the obligation to return or destroy information does not include electronic back-up copies or back-up files that contain confidential information and that were solely created by the Partner's automated or default back-up process according to his internal regulations, as long as they are treated with due care as confidential and secret and are not used for any purposes other than security.
18. Place of performance, place of jurisdiction and choice of law
18.1. The place of performance for deliveries and payment is the registered office of W&H.
18.2. Within the European Union except Denmark:
All disputes arising out of or in connection with these terms and conditions and any agreements resulting therefrom, whether relating to their validity, interpretation, performance, resolution, or consequences, shall be governed by the law of Austria with the exception of the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.
The venue for all disputes arising directly or indirectly from a contract shall be the court of Salzburg (town) in Austria, having jurisdiction over the subject-matter.
18.3. Legal Seat outside the application of EU-Regulation 1215/2012, hence outside the EU or in the territory of Denmark (Arbitration Clause):
i. all disputes or claims arising out of or in connection with this General Terms and Conditions, including disputes relating to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber by one or three arbitrators appointed in accordance with the said Rules.
ii. furthermore, the parties agree to jointly consider, after due initiation of the arbitration, to conduct proceedings in accordance with the Mediation Rules of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber (Vienna Mediation Rules). Settlements that are generated in such proceedings shall be referred to the arbitral tribunal appointed in the arbitration. The arbitral tribunal may render an award on agreed terms reflecting the content of the settlement (Article 37 paragraph 1 Vienna Rules).
iii. The place of arbitration shall be the town of Salzburg, Austria. The language of the arbitration proceedings shall be English.
19. Final provisions
19.1. If individual provisions of a contract or of these terms and conditions should be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The provision that is ineffective in whole or in part shall be replaced by a provision, the economic result of which comes as close as possible to that of the ineffective provision.
19.2. All amendments to and modifications of contracts concluded between W&H and the Partner shall be made in writing. This shall also apply to a waiver of this requirement of written form. E-mails satisfy the written form requirement. No verbal ancillary agreements have been made.
19.3. W&H reserves the right to amend the General Terms and Conditions at any time. Any such amendments will be communicated to the Partner by any appropriate means, including but not limited to electronic transmission. The amended terms shall automatically apply to all future orders. If the Partner does not object to the amended terms within eight (8) calendar days of their communication, they shall be deemed accepted. In the event of an objection, W&H reserves the right to terminate contracts that refer to the GTCs. Any orders already in progress at the time of such termination shall nonetheless be fulfilled under the originally agreed terms and conditions.
