Date: 10.02.2012
http://www.biohort.at/en/the-company/general-terms-and-conditions-of-sale.html
General terms and conditions (GT&C) of sale of BIOHORT Garden Equipment Limited
1. Validity
The delivery, services and quotation conditions of our business are based exclusively on these general terms and conditions; requirements or conditions of the customer that are contrary to, vary or deviate from these general terms and conditions will not be recognised by us, unless that is, we have expressly approved of any such agreement. Proceedings carried out on our part leading to an agreement of contract do not in any respect, apply as an agreement to any contractual terms which in any way differ to, or contradict these general terms and conditions of BIOHORT Garden Equipment Limited. These terms and conditions are to be considered as the general agreement for all further legal transactions which occur between parties to the contract.
2. Conclusion of contract
A contractual agreement with a customer requires a confirmation of the order. The dispatch of goods ordered by the customer is also considered as a binding conclusion of a contractual agreement.
3. Price
All aforementioned prices are, unless expressly stated otherwise, to be considered as excluding purchase tax. Should labour expenses due to alterations in the collective contract regulations relevant to this industrial sector or to company internal agreement, or should other for cost accounting relevant calculations regarding production such as raw materials, energy, transport, third-party labour, funding etc. alter in any way, we are fully entitled to increase- or decrease our prices accordingly to take account of these factors.
4. Terms of payment, interest for default
Cash discounts require an agreement by means of a separate document. In the case of a default of payment, even when paying by instalments, all such possible cash discount agreements become invalid. Payments from our customers are only considered to have been made as of the moment they are registered on our business accounts.
An obligation to accept exchanges or cheques does not exist.
In the case of delay of payment by the customer we are entitled to choose between either seeking replacement to the actual losses incurred, or – so long as it is not an issue of losses incurred in a consumer credit transaction – demanding interest for default of payment to the sum of 4% above the secondary Federal market annual rate of return calculated in accordance with the statistical monthly publication of the Austrian National Bank.
5. Cancellation of contract
By default of acceptance (see point 7.) or due to other important factors, particularly the bankruptcy or the declaration of insolvency on grounds of insufficient funds, including default of payment on the part of the customer we are entitled to cancel the contract with said customer, so long as this is deemed to have not been fulfilled on the part of both parties. In the case of cancellation due to insolvency of the customer, we reserve the right to choose between demanding a fixed sum settlement equivalent to 15% of the gross invoice sum or the replacement of the actual financial losses incurred. Following default of payment by the customer we are absolved of all further duties and service commitments and entitled to withhold all outstanding deliveries or services and demand payment in advance and sureties or following an acceptable period of grace to withdraw from the contract entirely. Should the customer decide - without justification - to cancel the contract or desire its annulment, we reserve the right to choose between demanding the completion of the contract or to agree to the repeal of the contract; in this last case the customer is required to pay either a settlement in the form of a fixed sum to the value of 15% the gross invoice sum, or our full financial losses incurred.
6. Reminders- and Collection expenses
In the case of default of payment the customer will be charged a fix sum of € 15,- per reminder and for each following reminder sent to cover our expenses in addition a further half-yearly charge of € 5,- will be levied to cover legal costs incurred by dunning process (recording evidence of the default). Following an unsuccessful second reminder Biohort is entitled to employ a debt-collection service to effect repossession, liability for the reimbursement of these costs is once more the duty of the customer.
7. Delivery, Transport, Default of acceptance
Our sales prices do not include – unless stated otherwise – charges for delivery, assembly or erection.
Should the customer not accept the goods as agreed (default of acceptance), we are entitled after allowing an unsuccessful period of grace, to either store the goods on our premises, whereby a storage surcharge of 0,1% of the gross invoice sum per calendar day begun will be levied, or to store said goods by a competent tradesman at cost and risk of the customer. Simultaneously we are entitled to demand either fulfilment of contract, or after setting a grace period of a minimum of at least 2 weeks to consider the contract null and void and to dispose of the goods as we see fit.
8. Terms of delivery
We are only compelled to fulfil our service duties as of the moment the customer has fulfilled all the obligations required by us to complete delivery, in particularly when all technical and contractual details, preparations and arrangements are complete. We are entitled to exceed the agreed appointments and terms of delivery by up to one week. Only following the expiry of this period is the customer, after setting an acceptable extension period, entitled to cancel the contract.
9. Place of execution of contract
The place of execution of contract is deemed to be the offices of the company.
10. Minimal alterations to service
So long as it does not apply to a consumer transaction, minimal or similar alterations to our services- respectively, delivery duties are considered in advance to be just and therefore acceptable to our customers and are allowed. This applies in particular to conditional aberrations (i.e. dimensions, colours, materials etc.). We reserve the right to make construction alterations to our products.
11. Warranty, Guarantee, Examination and Notice of Non-Conformity
We will fulfil warranty claims of the customer where repairable defects are shown to exist at our discretion by either replacement, repair within an agreed period of time or an agreed reduction in the price.
Claims for damages on part of the customer, that are designed to remedy proven defects, can only be asserted when we have been shown to be in default regarding completion of warranty claims.
The settlement of eventual guarantee claims will take place in compliance with the Biohort warranty conditions.
Under the terms of paragraph 377 from the German commercial code (HGB=Handelsgesetzbuch) the goods are to be inspected immediately, or at the latest within a period of 6 working days following completion of delivery. Flaws, shortcomings or damages discovered must be immediately, or at the latest within a period of 3 working days following their discovery, reported in writing with a description of the form and magnitude of the problem. Hidden flaws, shortcomings or damages must be immediately, or at the latest within a period of 3 working days following their discovery, reported in writing. Should shortcomings not be registered within the set period or overlooked completely, then the goods are deemed to have met the customers approval.
12. Compensation for damages
Complete compensation for damages occurring in cases of slight negligence is excluded. This does not apply in cases of injury to persons. The proof of existence of minor respectively, gross negligence is deemed to be the responsibility of the claimant, so long as it does not apply to consumer transactions. Should it not concern a consumer transaction, the period of limitation amounts to three years following transfer of goods. The provisions laid down in these terms and conditions or clauses otherwise agreed upon remain valid even when, the compensation demands are asserted alongside or instead of a warranty claim.
13. Product liability
Recourse due under product liability law is excluded, unless that is the claimant can prove beyond doubt that the cause lay within our sphere of influence and that a clear case of gross negligence exists.
14. Conditional rights of ownership and enforcement thereof.
We retain the conditional right of ownership on all goods delivered and until outright payment has been completed these remain our property. The enforcement aforesaid rights of ownership can only be considered to be annulled when this has been expressly declared in writing. In cases leading to recovery of goods, we are entitled to charge for costs accumulated during handling and transport. By access of third parties to these conditionally reserved goods especially where they are to be impounded – the customer is duty bound to declare our rights of ownership immediately and without delay.
Should the customer be a consumer or, not a contractor, to whom the orderly business operation includes the retail of the goods acquired from us, the sale, mortgage, pledging, giving away or loaning of said goods is expressly forbidden! The customer is not free to dispose of these goods until such time as all outstanding accounts concerning these are settled in full. The customer has complete liability for these conditionally reserved goods, especially for the destruction, loss or degradation of aforementioned goods.
15. Offsetting charges, Claim assignment
The customer waives the possibility for the offsetting of charges.
By delivery under conditional right of ownership the customer accepts responsibility on our behalf in respect to third parties, regarding transferral, disposal or processing of our goods, and until the definitive conclusion of payment is liable for payments incurred by transferee. The customer is required upon our demand to name the transferee and to inform same of cession of goods. This cession must be clearly indicated in the account books, delivery notes, invoices etc. of the transferee. Should the customer be in default with regards of his payments to us, all sales revenue accrued by him is to be sequestered and understood to be held by him only in our name. Possible claims against an underwriter are as of this moment, under paragraph 15 VersVG (Insurance law) already assigned to us.
Outstanding bills against third parties will not be waived unless with our express written agreement.
16. Retention of costs incurred.
Apart from rulings concerning consumer rights, the customer is entitled in the case of valid reclamation, except in the case of restitution, to a return of not the full but only an appropriate amount of the gross invoice sum.
17. Application of law, Court of Jurisdiction
This contract is governed solely by Austrian law. The application of the United Nations Convention on Contracts for the international sale of goods is hereby expressly excluded. The valid contract language is German. Upon close of contract, both partners have agreed to accept Austrian inland jurisdiction. Apart from rulings concerning consumer rights, all arbitration on legal decisions arising from disagreements that deal directly with this contract will be dealt with by the local regional court of justice.
18. Data protection, Change of address and Copyright
By providing us with personal information to complete the sales contract, the customer is understood to have granted us permission to automatically record, process and retain said information.
The customer is duty bound to inform us of any changes regarding personal and/or business address, for as long as all contractual requirements have not been fulfilled on the part of both parties. Should this notification be neglected by the customer, all further communications and statements on our part are considered to have been fulfilled, even when they have been sent to the last recorded address.
Plans, sketches or other technical documents, likewise specimens, models, catalogues, pamphlets, illustrations and the equivalent remain our intellectual property; the customer obtains no permission to licence or exploit this material in any way which contravenes copyright law.
An obligation to accept exchanges or cheques does not exist.
In the case of delay of payment by the customer we are entitled to choose between either seeking replacement to the actual losses incurred, or – so long as it is not an issue of losses incurred in a consumer credit transaction – demanding interest for default of payment to the sum of 4% above the secondary Federal market annual rate of return calculated in accordance with the statistical monthly publication of the Austrian National Bank.
Should the customer not accept the goods as agreed (default of acceptance), we are entitled after allowing an unsuccessful period of grace, to either store the goods on our premises, whereby a storage surcharge of 0,1% of the gross invoice sum per calendar day begun will be levied, or to store said goods by a competent tradesman at cost and risk of the customer. Simultaneously we are entitled to demand either fulfilment of contract, or after setting a grace period of a minimum of at least 2 weeks to consider the contract null and void and to dispose of the goods as we see fit.
Claims for damages on part of the customer, that are designed to remedy proven defects, can only be asserted when we have been shown to be in default regarding completion of warranty claims.
The settlement of eventual guarantee claims will take place in compliance with the Biohort warranty conditions.
Under the terms of paragraph 377 from the German commercial code (HGB=Handelsgesetzbuch) the goods are to be inspected immediately, or at the latest within a period of 6 working days following completion of delivery. Flaws, shortcomings or damages discovered must be immediately, or at the latest within a period of 3 working days following their discovery, reported in writing with a description of the form and magnitude of the problem. Hidden flaws, shortcomings or damages must be immediately, or at the latest within a period of 3 working days following their discovery, reported in writing. Should shortcomings not be registered within the set period or overlooked completely, then the goods are deemed to have met the customers approval.
Should the customer be a consumer or, not a contractor, to whom the orderly business operation includes the retail of the goods acquired from us, the sale, mortgage, pledging, giving away or loaning of said goods is expressly forbidden! The customer is not free to dispose of these goods until such time as all outstanding accounts concerning these are settled in full. The customer has complete liability for these conditionally reserved goods, especially for the destruction, loss or degradation of aforementioned goods.
By delivery under conditional right of ownership the customer accepts responsibility on our behalf in respect to third parties, regarding transferral, disposal or processing of our goods, and until the definitive conclusion of payment is liable for payments incurred by transferee. The customer is required upon our demand to name the transferee and to inform same of cession of goods. This cession must be clearly indicated in the account books, delivery notes, invoices etc. of the transferee. Should the customer be in default with regards of his payments to us, all sales revenue accrued by him is to be sequestered and understood to be held by him only in our name. Possible claims against an underwriter are as of this moment, under paragraph 15 VersVG (Insurance law) already assigned to us.
Outstanding bills against third parties will not be waived unless with our express written agreement.
The customer is duty bound to inform us of any changes regarding personal and/or business address, for as long as all contractual requirements have not been fulfilled on the part of both parties. Should this notification be neglected by the customer, all further communications and statements on our part are considered to have been fulfilled, even when they have been sent to the last recorded address.
Plans, sketches or other technical documents, likewise specimens, models, catalogues, pamphlets, illustrations and the equivalent remain our intellectual property; the customer obtains no permission to licence or exploit this material in any way which contravenes copyright law.
