General Terms and Conditions for Sale
The following General Terms and Conditions are applicable to all legal transactions between the Purchaser and us. They are also applicable for all business relations in the future, even if they are not explicitly agreed upon once again. Our contractual partner agrees that in the event of doubt when using the General Terms and Conditions, our terms and conditions shall prevail, even if the terms and conditions of our contractual partner are not contradicted. Negotiations regarding the fulfilment of the contract agreement as such do not constitute our acceptance of any terms and conditions deviating from these General Terms and Conditions. However, should there still be doubts regarding the interpretation, these must be clarified in such a manner that their contents are valid and considered as mutually agreed, which would otherwise be the case under comparable circumstances.
All provisions that are accepted in the contract agreements between the Purchaser and us for the execution of the purchase agreements are recorded in writing.
When referring to these General Terms and Conditions, “in writing” means: with the help of a document, which has been endorsed by both parties and contains a secure electronic signature.
Our offers are addressed to business establishments.
2. Product Information
The product specifications and product information contained in the general product documentation and price lists – available in electronic or other form – which include for example, colours, technical variants etc. are binding only to the extent that they have been explicitly referred to in the contract agreement.
3. Offer and Conclusion of Contract Agreement
The contract agreement is considered to have been concluded when we submit a written confirmation after receipt of the order.
Our offers are non-binding and subject to change without notice, unless we have explicitly stated that they are binding.
The prices quoted in our offer, unless otherwise mentioned, are valid for a period of 2 months from the date of the offer.
We reserve all rights to ownership, copyright and other industrial property for all pictures, calculations and drawings as well as other documentation. The purchaser may furnish them to third parties only after obtaining our written approval for this purpose, regardless of whether we have marked these as confidential or not.
4. Prices and Payment Terms
In the absence of any special agreement, the respective prices applicable as per the price list shall be billed at the time of delivery.
Our prices are ex-works including packaging, without loading, if nothing to the contrary has been stated in the order confirmation.
All prices quoted by us are exclusive of Sales Tax unless it has been specifically mentioned otherwise.
Our invoices are due in full on receipt provided that no other condition in this respect has been specified in the order confirmation or has been agreed to.
If no justifiable objection is raised in writing to our invoice within 2 weeks, it is considered as being approved and accepted.
Part deliveries can be invoiced separately and individually at the time of delivery.
Irrespective of the method of payment used, the payment is considered as having been received only when the full invoice amount has been credited irrevocably to our account..
In the case of payments made via cheque and draft, the final encashment is considered as completion of payment. The costs pertaining to collection, bank interest charges and fees must be borne by the purchaser.
If the purchaser is in default of payments, we can charge interest for delayed payments with effect from the payment due date at 8.0 % above the respective basic interest rate of the European Central Bank and reminder fee of EUR 4,- for each instance of reminder.
In the event of delayed payment by the purchaser, we can defer the fulfilment of our own obligations under the purchase agreement until receipt of the payment after intimating this in writing to the purchaser.
If the payments due from our contractual partner are endangered by unfavourable position of capital assets, which were known to us or had been known to us at the time of concluding the purchase agreement , we are authorised as the beneficiary of advance payments to decline provision of our services until such time that the payments from the purchaser can be assured. If our contractual partner delays on payments due, we are authorised to withdraw from this purchase agreement after granting a suitable period for payment of 14 days and after simultaneous declaration of cancellation of the purchase agreement. The right to the receipt of goods delivered under right of ownership remains unaffected. In case of delayed payments on the part of the Purchaser, he is also obliged to furnish securities on demand by us for all pending claims by assignment of open and profitable claims or by granting lien to other assets. If payment in instalments was agreed to, non-payment is considered only for one instalment. In the event of assured payment of instalments, interest, in any case is payable at the bank interest rate.
The purchaser is authorised to set-offs that have been asserted against defects liability or counter claims only when the counter claims have been admitted legally, approved and accepted by us or are indisputable. The purchaser is entitled to exercise his right of retention of goods only if his counter claim refers to the same purchase agreement.
5. Time Period for Delivery and Services
Delivery times and periods are intimated by us in a binding manner exclusively in order confirmations issued by us in writing, if all technical issues have been clarified and the order is clear and unambiguous. Compliance with these delivery schedules assumes that the purchaser also fulfils all his above-mentioned obligations in an orderly and timely manner. Any specifications and information prior to the issue of order confirmation, especially if they have been intimated verbally, are non-binding in nature.
Claims for compensation owing to delay, regardless of the legal grounds, are not valid until intent or gross negligence have been established on the part of the seller.
We are authorised to make part deliveries and receive part payments provided that this is reasonable for the clients.
If the purchaser delays acceptance of goods, we are entitled to claim compensation for the losses incurred and any other incidental costs. The same is applicable if the purchaser culpably defaults in his obligations to cooperate. The risk of incidental deterioration and destruction of goods delivered is transferred to the purchaser with the onset of delay in acceptance of the goods or default in their payment.
6. Risk Transfer, Dispatch and Packing
If there is no agreement to the contrary, the goods are considered as being sold EXW (ex-works). (Readiness for delivery)
In all other respects, the provisions of the version of Incoterms valid on the day of concluding the contract shall be applicable.
If the goods are dispatched on instructions by the purchaser, the risk is transferred when the goods are handed over to the representative of the transport agency, latest when the goods leave the factory.
Insurance of the goods is not covered. If desired by the purchaser, we will insure the delivery against transit damage at his cost.
If the dispatch of goods is delayed as desired by the purchaser or on account of default of payment on his part, the goods are stored in our warehouse at the risk of the purchaser. In this case, intimation regarding the readiness of gods for dispatch is considered the same as dispatch. Our warehouse charges are EUR 0.50 per day per Euro-sized pallet.
7. Act of God (Force Majeure)
Both the purchaser and the seller are authorised to discontinue the fulfilment of their contractual obligations provided that this is rendered impossible or unreasonably difficult by the following circumstances: Conflicts at the workplace and all other circumstances not attributable to the wilful intent of the parties such as fire, war, general mobilization, insurgency, requisition, confiscation, embargo, restrictions on energy consumption as well as defective or delayed deliveries by the sub-contractor resulting from circumstances enumerated in this clause. Any situation arising before or after concluding the purchase agreement in accordance with this clause justifying discontinuation of the fulfilment of the contractual obligations since the impact of their fulfilment could not be foreseen at the time of concluding the purchase agreement.
The party invoking this Act of God clause must promptly inform the other party in writing about the onset and termination of such circumstances. If the Act of God hinders the purchaser from fulfilling his contractual obligations, he must compensate the seller for costs incurred by the latter for safeguarding and protecting the items of delivery.
Regardless of all consequences specified in these General Terms and Conditions for Sale each party is entitled to withdraw from the agreement by giving written intimation to the other party, if the fulfilment of contractual obligations in accordance with clause 7.1 lasts more than six months.
8. Foreseeable Non-fulfilment
Regardless of any provisions to the contrary contained in these General Terms and Conditions, each party is entitled to discontinue the fulfilment of its obligations, when it is absolutely clear from the given circumstances that the other party is not in a position to fulfil its contractual obligations. The party that terminates the fulfilment of its contractual obligations must inform the same to the other party promptly in writing.
9. Consequential Damages
Subject to provisions deviating from these General Terms and Conditions we bear the liability for production shutdown, lost profits, downtime, contractual penalties or any other consequential or indirect damage or loss only if the party claiming the same can prove gross negligence on our part. Claims for compensation expire 6 months after intimation regarding the loss or damage by the affected party; however, they expire 5 years after the delivery is made or service has been provided.
10. Right of Return
The purchaser may return goods that have been purchased only if this has been agreed in writing. The pre-requisite is that the goods are returned to us in their original packing and proper condition. The cost of returning the goods is to be borne by the purchaser. There is no right of return for special items or those of mass manufacture. If the purchaser is entitled to the right of return, he must pay 15 % of the gross price towards compensation for costs incurred by us as a result of returning the goods.
11. Guarantee and Compensation for Damage
We are not liable for defects pertaining to materials provided by the purchaser or any construction prescribed or specified by him.
The guarantee period is aligned with legal provisions.
Barring such cases, where the law provides entitlement to redhibitory action, we reserve the right to fulfil the guarantee claim either by rework, replacement or by giving a price reduction.
The goods must be inspected promptly after they have been delivered. Defects noticed during the course of this inspection must be intimated to the seller in writing promptly, but latest within 3 working days after the delivery specifying the type and scope of the defect.
Concealed defects must be notified promptly as soon as they are discovered. If a defect is not notified within 3 working days, the goods are deemed to have been approved.
We do not provide any guarantee for material-related colour discrepancies pertaining to sanitary products made of ceramic, enamelled steel and plastic.
The sealant used for the shower screens is a maintenance joint and is therefore not subject to warranty.
12. Right of Ownership
The goods remain in our ownership until their payment has been made in full. Till such time that all claims are fulfilled, including all balance payment requests from the current account, which we are entitled to from the purchaser at present or in future, the goods delivered (reserved goods) remain in our ownership. In the event of non-compliance of the contractual conditions on the part of the purchaser, e.g. payment default, we are authorised, after specifying a reasonable period of time, to retrieve the reserved goods. If the goods are taken back by us, it represents our withdrawal from the purchase agreement. We are authorised to recycle or reuse the reserved goods after we take them back. After deduction of a reasonable amount for the costs of recycling or reuse, the income from the recycling or reuse would be adjusted against payments due from the purchaser.
The purchaser must handle the reserved goods with diligence and care and insure them against incidences of damage caused by fire, water and theft for a value equivalent to their new price. The work relating to maintenance and inspection, which become necessary, must be carried out by the purchaser at his own cost.
The purchaser is authorised to dispose of the reserved goods in the normal course of business in an orderly manner and / or to use them, provided that he has not defaulted on his payments. Hypothecation or transfer by way of security is not permitted. The claims relating to the reserved goods (including all balance payment requests from the current account) arising from resale or any other legal ground (insurance, prohibited handling), are assigned by the purchaser in their full scope to us at this point of time itself, to be on the safe side; we herewith accept the assignment. We empower the purchaser in a revocable manner to rescind the claims assigned to us in his own name for his invoice. This entitlement for cancellation of the assignment of claims can be revoked at any time if the purchaser does not comply with his payment obligations in an orderly manner. The purchaser is also not authorised to assign this claim by cancelling it for the sake of issuing an invoice to a third party, unless the obligation of the third party at the same time justifies this, since payments by the third party are made directly to us for the amounts that we are entitled to claim from the purchaser.
Processing or alteration of the reserved goods by the purchaser is carried out by the purchaser in any case on our behalf. As long as the reserved goods are not processed with items belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the value of the other processed items at the time of processing. The same applies to the item created as a result of the processing as that applicable to the reserved goods. In the event of inseparable mixing or blending of the reserved goods with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the value of the other mixed or blended items at the time of mixing or blending. If the item of the purchaser is perceived as the main item as a consequence of the mixing or blending, the purchaser and we agree that the former transfers proportional co-ownership of this item to us; we herewith accept the transfer. The purchaser safeguards the sole or co-ownership of an item for us.
In the event of access by third parties to the reserved goods, especially in case of distress or attachments, the purchaser would draw their attention to our ownership and inform us promptly, so that we can enforce our ownership rights. The purchaser shall be liable to reimburse the costs of legal or out-of-court settlement to us if the third party is not in a position to do so.
We are obliged to release the securities or collaterals issued in our favour if their value exceeds 20 % of the claims that we need to secure; however, it is incumbent on us to select the securities that need to be released.
13. Formal Regulations
All agreements, subsequent amendments, supplements, subsidiary agreements etc. must be in writing for them to become effective and applicable, and, with it, the original endorsement or the secure electronic signature.
14. Place of Performance, Legal Venue and Applicable Law
The place of performance and legal venue (jurisdiction) for deliveries and payments (including disputes relating to cheques and drafts) as well as all disputes arising between us and the purchaser in connection with the purchase agreements concluded is the location of the registered office of our company. However, we are authorised to file a suit also at the residential / business premises of the purchaser.
The contract agreement is subject exclusively to Austrian law.
The UN CISG (Convention on Contracts for the International Sale of Goods) and international private (or civil) law are not applicable.
15. Severability Clause
If any of the provisions in the contract agreement should become ineffective or inapplicable, the effectiveness or applicability of the remaining provisions and the contract agreement as a whole would remain unaffected as a result of the same.