1. Validity
The deliveries, services and offers of this company are made exclusively in accordance with these General Terms and Conditions of Business; any conditions imposed by the customer that conflict with or diverge from these General Terms and Conditions of Business shall not be recognised by us other than where they have been expressly agreed between the two parties. In this connection, steps taken by us to fulfil the contract are not to be interpreted as an agreement to contractual stipulations that depart from our normal conditions. These General Terms and Conditions of Business also form a framework agreement for all further legal transactions between the contracting parties.
2. Conclusion of Contract
Customers’ tenders to contract require order confirmation. Despatch of the goods ordered by customers also entails conclusion of contract. Where tenders to contract are directed to us, we, as supplier, are to be allowed a reasonable period in which to confirm, in any case no less than 8 days from receipt of order.
3. Price
Insofar as no express indication is made to the contrary, all prices quoted by us are to be understood as exclusive of turnover tax. Should wage costs for the sector increase as a result of collective or internal agreements, or changes affecting the calculation of prices occur in other cost centres or in the cost of materials, energy, transport, outside services, finance etcetera, we shall be entitled to increase or decrease prices accordingly. Point 3 does not apply to consumer transactions.
Size supplements:
Men, size 58 or XL and above, 5% supplement per size increase
Women, size 52 or XL and above, 5% supplement per size increase
Slim sizes, wide fits or other special fits: price supplements in accordance with price list in effect at any given time.
4. Payment Conditions, Interest on Arrears
In the absence of any agreement to the contrary, accounts are payable upon transfer of goods.
If we sell on account, cash on delivery or creditcard will held on order confirmation. No discounts may be deducted without a separate agreement. In the event of payment delays, also in the case of part-payments, all discount agreements cease to apply. Payments are only deemed to have been made once funds have been credited to our bank account.
In the event of payment delays, we shall be entitled either to seek compensation for the actual loss or – other than in the case of credit transactions involving consumers – to calculate interest on arrears of 4% above the base rate of the Austrian National Bank.
5. Revocation of Contract
In the event of default in acceptance (Point 7) or for some other major reason, in particular the customer’s bankruptcy or refusal of bankruptcy due to insufficient assets, as well as in the event of payment delays on the part of the customer, we shall be entitled to withdraw from the contract providing the contract has not yet been fully performed by the two parties. In the event of revocation, we may, where the customer owes monies, seek damages in the form of a lump-sum of 15% of gross invoice value or compensation to the exact level of the loss suffered. In the event of payment delays on the part of the customer, we shall be automatically discharged from all further service and delivery obligations and shall be entitled to withhold any outstanding deliveries or services, to demand prepayments or guarantees or to withdraw from the contract following granting of a reasonable extension. If the customer withdraws from the contract without justification, or seeks its revocation, we shall have the choice of insisting on performance of the contract or agreeing to its revocation. In the latter case, the customer shall be obliged to pay compensation in the form of a lump-sum of 15% of the gross invoice amount or to the exact level of the loss incurred.
In the case of mail-order contracts (§§ 5a ff Konsumentenschutzgesetz, Austrian Consumer Protection Act), the consumer can withdraw from the contract within 7 working days, whereby Saturday does not count as a working day. This period begins with the arrival of the goods at the consumer’s address or in the case of services with the day on which the contract is concluded. It suffices for a notice of withdrawal to be despatched within the deadline. Any consumers who withdraw from the contract under this provision must bear the cost of returning the goods themselves; where credit has been agreed under the contract, they must also pay the cost of the necessary witnessing of signatures and the fees for the granting of credit. Withdrawal from contract is not possible in the case of services whose performance has begun, in accordance with the contract, within 7 working days of the conclusion of contract.
6. Reminder and Collection Costs
In the event of payment delays, the partner to the contract (customer) undertakes to reimburse the creditor for all reminder and collection costs the creditor has incurred in the course of legitimately pursuing its legal rights, whereby the customer shall not be required to pay more that the highest agency rates laid down in the decree of the BMwA (Austrian Federal Ministry for Economic Affairs). In cases where the creditor operates its own reminder and collection system, the debtor undertakes to pay Eur12 for each reminder issued as well as an administration charge of Eur5 per half year to cover the cost of monitoring the debt.
7. Delivery, Transport, Default in Acceptance
Our selling prices do not include a charge for delivery, assembly or installation. If so desired, however, these services can be provided/organised by us against payment of a separate charge. In such cases we will invoice the customer for the actual costs incurred for transport/delivery plus an appropriate administrative charge, but at the very least, the usual freight and delivery charges, or those in force on the day of delivery, for the chosen mode of transport.
Where the customer has not accepted delivery of the goods as agreed (default in acceptance), we shall be entitled, following expiry of a final deadline, to store the goods either on our own premises, for which we will charge a warehousing fee of 0.1% of gross invoice value per calendar day commenced, or else with an authorised tradesman at the customer’s expense and risk. We shall at the same time be entitled either to insist on fulfilment of contract or, following the setting of an appropriate deadline of at least two further weeks, to withdraw from the contract and realise the value of the goods by some other means.
8. Delivery Date
We shall only be bound to perform the contracted services once all the customer’s obligations have been fulfilled, in particular all technical and contractual details, preliminary work and preparatory measures necessary to the performance of the service.
We shall be entitled to exceed the agreed deadlines and delivery dates by up to a week. Only after the end of this period may the customer, after granting a reasonable extended deadline, withdraw from the contract.
9. Place of Performance
The place of performance shall be the headquarters of this company.
10. Minor changes to the service to be provided
In cases other than consumer transactions, minor or other changes to our service or delivery obligations that our customers can reasonably be expected to accept are deemed to have been approved in advance. This applies in particular to divergences caused by materials
11. Warranty, Duty to Inspect and Requirement to Give Notice of Defects
In all cases, we shall choose whether to satisfy warranty claims through replacement, repair within an appropriate timeframe or price reduction. Redhibition (cancellation of contract) may only be sought by the customer if the defect is fundamental, is not remediable through exchange or repair and if the customer could not reasonably be expected to accept a reduction in price. Claims for restitution via removal of the defect through correction or exchange can only be enforced by the customer if we have fallen behind with the processing of warranty claims.
In the event of a defect being claimed by a customer, the resulting claims, in particular claims against warranty or compensation claims, can only be enforced if the customer can prove that the defect was present in the goods at the time they were delivered. This also applies to goods during their first six months after delivery.
Under §§ 377 f HGB (Austrian Commercial Code), customers are also required to inspect the goods immediately, and in any case no more than 6 working days after delivery. We are to be notified in writing of any defects detected in the course of this inspection immediately, and in any case no more than 3 working days after discovery. This notification is to include details of the nature and extent of the defect. Hidden defects are to be reported to us in writing immediately, but no more than 3 working days after discovery. If no notification of defect is received, or not received in time, the goods will be deemed to have been approved.
Our obligations with respect to the warranty lapse in any case with the expiry of the warranty period. No special redress shall be available beyond this period for customers claiming to have fulfilled warranty obligations themselves under § 933b ABGB (Austrian Civil Code).
None of the stipulations listed under Point XI apply to consumer transactions.
12. Damages
Damage claims shall be excluded in the case of slight or ordinary negligence. This shall not apply to personal damage or in the case of consumer transactions for damage caused by materials supplied for further processing. Insofar as it does not relate to a consumer transaction, the existence of ordinary or gross negligence must be proved by the aggrieved party. Insofar as it does not relate to a consumer transaction, the period of limitation for damage claims is three years from transfer of risk. The stipulations concerning damages contained in these General Terms and Conditions of Business or otherwise agreed also apply where a claim for damages is made in addition to or instead of a warranty claim.
Prior to the connection or transportation of computer products and/or the installation of computer programmes, the customer is required to adequately check the data already stored on the computer equipment, otherwise the customer shall be held responsible for any lost data and concomitant loss.
13. Product Liability
Claims for recourse under § 12 Produkthaftungsgesetz (Austrian Product Liability Act) shall be excluded other than where the claimant can prove that the defect was caused on our premises and is attributable to gross negligence at the very least.
14. Retention of Title and Enforcement thereof
All goods delivered by us remain our property until paid for in full. In enforcing retention of title, withdrawal from the contract shall only be possible where this is expressly declared. In reclaiming goods, we shall be entitled to charge a fee to cover all relevant transport and handling charges. In the event of seizure of the reserved goods by third parties – in particular due to distraint - the customer shall undertake to identify our property as such and inform us immediately. If the customer is a consumer or otherwise not a businessman to whose regular commercial pursuits trade with the goods acquired from us belongs, until full settlement of our purchase-money claim, the customer may not dispose of, in particular not sell, mortgage, give away or lend, the reserved goods. The customer bears the full risk for the reserved goods, in particular in relation to any danger of destruction, loss or deterioration.
15. Assignment of Accounts Receivable
Upon delivery of goods subject to retention of title, the customer shall immediately assign to us all third-party accounts receivable that result from the sale or processing of our goods on account of payment prior to receipt of final payment. Upon demand customers shall provide us with the name of their purchasers and notify them of the assignment in good time. The assignment is to be recorded in the customer’s books, in particular in the schedule of unpaid items and is to be made clear to the purchaser on delivery notes, invoices etc. If the customer falls into arrears with payments to us, incoming sales receipts are to be separated out and held by the customer on our behalf. Any claims on an insurance company are also to be immediately assigned to us within the limits of § 15 Versicherungsvertragsgesetz (Austrian Insurance Contract Act).
Accounts receivable from us may not be assigned to third parties without our express agreement.
16. Retention of payment
In cases other than consumer transactions, and excluding reverse transactions, in the event of a justifiable complaint, the customer shall be entitled to withhold not the whole, but an appropriate part of the gross invoice amount.
17. Applicable Law, Place of Jurisdiction
Austrian law shall apply. The UN Sales Convention shall not apply. The applicable contract language is German. The parties to the contract agree domestic, Austrian jurisdiction. Other than in consumer transactions, the court with jurisdiction over the locality in which our company headquarters are situated fall shall be exclusively responsible for settling any disputes arising from this contract.
18. Data Protection, Change of Address and Copyright
The customer consents to all personal data included in the sales contract drawn up as part of the implementation of this contract being stored and processed by us in a machine-assisted manner.
The customer undertakes to notify us of any changes to the customer’s residential/business address for as long as the transaction forming the object of this contract remains unfulfilled by both parties. If such notification is not given, communications will be deemed to have been received if they have been sent to the customer’s last known address.
Plans, sketches and other technical documents as well as models, catalogues, brochures, illustrations and similar remain copyright protected at all times; the customer is not granted utilisation or exploitation rights of any kind.
19. Bank Details:
Volksbank Alpenvorland Amstetten:Sort-code 43530, account no. 3002888.0000,
IBAN AT38 4353 0300 2888 0000,
BIC: VBOEATWWAMS
HypoVereinsbank München:Sort-code 70020270, account no. 15292006,
IBAN DE48 7002 0270 0015 2920 06,
BIC: HYVEDEMM
Company registration number: 84502v — HANDELSGERICHT ST. PÖLTEN