General Conditions of Sale and Delivery for
NAPORO Klima Dämmstoff GmbH (as of 11/2011)
§ 1 General - Scope
- The following general conditions of sale apply to all business relations between us and the customer. Customers are business operators. The contract shall be governed by the version of these conditions in effect at the time the contract was agreed.
- Business operators are natural or legal persons or partnerships having legal personality for whom the relevant contract forms part of the operation of their business. Companies are any permanent organisations of independent economic activity, which may not necessarily be devoted to profit.
- By placing the order, the customer expressly acknowledges the following written conditions of sale, delivery and payment and undertakes to comply with them. The following conditions of sale apply to all deliveries and services provided by the company, unless in individual cases a separate written agreement has been made between the contracting parties. This also applies to all future legal transactions. No other contradictory or supplementary general conditions of sale of the customer shall form part of the contract, even in the event that they are known to us, unless their applicability has been expressly consented to in writing. They likewise do not form part of the contract by virtue of not having been objected to.
§2 Formation of the contract
- Our offers are non-binding and subject to confirmation, unless it has been expressly stated in writing that they are binding. We reserve the right to make technical and other changes, within reason.
- By placing an order the customer is providing a binding statement of contractual offer. A contract of sale for the goods in question only becomes legally effective if the order is accepted by us. The order shall be deemed accepted if we have not expressly stated within 60 days that we are not accepting the order.
- We are entitled to refuse to accept the order – possibly upon review of the customer’s credit rating.
- The contract is agreed subject to the proviso that in the event that we ourselves are not supplied properly or in full, the contract will not be performed or only partially performed. In the event of unavailability or only partial availability of the service, the customer will be informed immediately. The consideration will be reimbursed immediately.
§ 3 Retention of title
1. The goods delivered remain our sole and exclusive property until the purchase price and all incidental services have been paid for in full and may only be disposed of to third parties with our express written consent. In the event of a breach and transfer on in contravention of this agreement, the vendor is entitled to claim for all resulting damage and to bring charges for misappropriation.
Payments effected against a bill of exchange issued by us shall only be deemed payments when the bill of exchange has been honoured by the drawee.
2. The customer is obliged to treat the goods with care while title is retained. The goods must be stored separately from other goods and secured against fire, theft and spoilage.
The customer must inform us immediately in writing of any access by third parties to the goods, in particular enforcement measures, as well as any damage or destruction of the goods, otherwise compensation for damages will be claimed. The customer is also subject to this obligation if insolvency proceedings are instituted over its assets or such proceedings are refused due to a lack of assets to cover the costs of the proceedings. In the event of insolvency proceedings, we are entitled to immediately withdraw from the contract, to enforce our retention of title and to claim in the insolvency proceedings for any damage suffered. The customer is also obliged to refer to our retention of title in any enforcement proceedings or in the event of access by third parties.
3. The customer is also obliged to inform us on request as to whether execution proceedings are pending against it before the court. Should there be changes to the customer’s economic circumstances following the signing of the contract, in particular to its credit rating, we are entitled at any time to exercise our retention of title and to do so by lodging a plea of uncertainty, if demands for payment of the outstanding purchase price in full are not met despite the setting of an additional grace period of eight days.
In the event that we exercise our retention of title, the customer is obliged to return the goods and equipment under contract to us at its own expense and without unnecessary delay and to hold us completely harmless and release us from any liability and to reimburse us for any costs which may be incurred in collecting and returning the goods, for lost profits, for the costs of any repairs which may be necessitated and/or for the costs of holding time and depreciation caused by use by the customer.
- As a commercial reseller, the customer is entitled to further dispose of the goods and equipment the subject of this contract within the course of its business operations. The customer assigns to us as of now all receivables up to the value of the invoice which it receives on foot of sales to third parties and undertakes to make a corresponding note in its accounts or invoices. We accept the assignment. Under the assignment, the operator of the business is authorised to collect the receivable. We reserve the right to collect the receivable ourselves once the business operator is not meeting its payments obligations and is in default of payment.
- The processing and conversion of the goods by the business operator is always done in our name and on our behalf. If the goods are processed, we acquire the new item as co-owners in proportion to the value of the goods supplied by us. The same applies when the goods are combined or processed together with other articles which do not belong to us.
- The customer must reimburse us for all damage and costs incurred as a result of a breach of these obligations or which arise as a result of intervention taken to protect against access by third parties to the goods.
§ 4 Due date
Payment of the purchase price is due once the contract has been signed.
§ 5 Payment
- Prices and pricing
Unless otherwise expressly agreed, our prices are unpacked ex warehouse, plus the statutory VAT. The agreed prices are calculated on the basis of the purchase price that applies at the time the contract is signed. If there are changes in price, freight, customs or currency rate (e.g. due to an increase in VAT, transport tax, customs duty, export duty, overseas freight charges or similar items) these must be borne by the customer and/or credited to the customer if need be. The customer is not entitled to treat such price adjustments as grounds to withdraw. The prices applicable are those in effect on the day of delivery. If packaging is necessary in order to secure the goods sent and/or supplied, the customer is obliged to reimburse the costs of such packaging.
- Payment terms
Payments are only considered to discharge the customer’s debt if they have been provided to us in cash or have arrived in one of the accounts nominated by us on time. All payments must be made within 8 days with a 2% discount or net within 30 days of the date of the invoice, unless otherwise agreed in writing. The terms begin to run on the date of receipt of the relevant invoice. A discount can only be allowed when all other previously due invoices have been settled. All transfers are made at the customer’s risk and should be made so as to ensure that we are credited no later than the due date.
Cheques and bills of exchange will only be accepted by prior agreement and only as an undertaking to pay, not in fulfilment of the payment obligation itself. Payment by bill of exchange or cheque shall only be deemed to have been made on time once the sum has been properly encashed in our account. All costs in this regard shall be borne by the customer.
If the time for payment is exceeded and/or there is a delay in acceptance by the customer, we are entitled to charge interest for default. Arrears will attract interest at a rate of 8% above the base rate. We expressly reserve the right to provide evidence of higher default interest damages and to claim for same.
The customer further undertakes to assume sole responsibility for payment of all costs and expenses of any kind which we incur in the event of a delay in payment or acceptance. This includes in particular all court and out-of-court expenses as well as any costs and reminder fees incurred in bringing an appropriate action by a lawyer.
The customer is only entitled to a set-off where the counterclaim is the subject of a binding legal order or has been acknowledged by us.
The customer is not entitled to withhold payments.
Circumstances of which we become aware after the contract has been signed which cast doubt on the creditworthiness of the customer shall cause all outstanding debts to become immediately due. If such payment remains outstanding despite demand for payment within a reasonable period, we are entitled to withdraw from the contract and to take back the goods delivered by us. We may demand prepayment for any existing but as yet unfulfilled supply contracts and/or withdraw from the contract without the possibility of any claims for damages being made against us.
- Supply obligations, delivery time
Our delivery times are always non-binding. They are based on normal conditions and normal circumstances. They should be viewed as approximate only, particularly for direct deliveries from Asia or overseas and deliveries from drop-shipped imports.
We are entitled to unilaterally cancel the contract in the event of unforeseeable delivery delays by the manufacturing company.
This also applies in the event of force majeure, unforeseen strikes, lockouts or any situation in which the delays are not attributable to us. We are also not responsible for delivery delays caused by state restrictions on imports such as foreign exchange controls etc. In all such cases, any claims by the customer for fulfilment or damages for non-performance are expressly excluded.
Unless otherwise expressly agreed, goods will be shipped at the customer’s expense from the respective distribution centre and at the customer’s risk. Transport insurance must be arranged separately and at the customer’s expense. The purchaser will be invoiced for the necessary packaging at cost price.
Delivery by us is fulfilled once the goods have been handed over to the carrier, freight forwarder or other person or institution nominated to transport the goods or taken by the customer itself from the distribution centre.
§6 Transfer of risk
- The risk of accidental destruction and accidental deterioration of the goods is transferred to the customer on handover; for shipped purchases it is upon handover of the goods to the freight forwarder, the carrier or other person or institution nominated to ship the goods.
- For downloads and data sent via the internet, the risk of destruction and modification of the data is transferred to the customer once the network interface is crossed.
- Handover will still be considered to have taken place if the customer delays in accepting.
§ 7 Warranty
- The customer’s warranty rights are in accordance with general statutory regulations, unless otherwise set out below.
- The delivered goods must be examined for defects within a reasonable period and we must be notified within a period of one week of receipt; otherwise no claims under warranty may be exercised.
Hidden defects must be notified to us in writing within a period of one week of their discovery.
- We will choose at our discretion to provide either repair or replacement for goods which exhibit defects.
The deadline shall have been met once notice is sent on time.
The customer bears the full burden of proof in relation to all qualifying conditions, particularly in respect of the defect itself, the time that the defect was established and the timeliness of the notification of the defect.
4. The warranty period for the customer is one year from delivery of the goods.
For used goods, the warranty period is one year from delivery of the goods.
5. We do not provide our customers with any guarantees in the legal sense. This does not affect manufacturer guarantees.
§ 8 Limitation of liability and exemption from liability
- Beyond the applicability of product liability law, our liability is limited to deliberate acts and gross negligence.
Liability for minor negligence, compensation for damages and pecuniary loss, savings not achieved, lost interest and damage under third party claims against the customer is excluded.
- The foregoing limitations of liability do not apply in the event of personal injury or damage to health or in the event of the loss of the customer’s life attributable to us.
- We are only liable for our own content on the website of our online shop. Where we provide access to other websites by means of links, we are not responsible for the third-party content contained therein. We do not appropriate third-party content as our own. Where we are notified of illegal content on external websites, we will immediately block access to these sites.
§ 9 Product liability
The customer undertakes to closely observe all operating instructions and safety regulations it is provided with. The customer is aware that failure to observe or breach of any safety regulations extinguishes our liability under the Product Liability Act.
Protective consequences for third parties are excluded. The customer undertakes to bind subsequent purchasers to these same conditions, requirements and exclusions of liability for any compensation for damages. The customer is liable for all claims and associated losses arising from breach of this obligation to bind subsequent purchasers. The customer declares that we will be held entirely harmless and released from liability in this regard.
§ 10 Final provisions
- In the event of legal disputes arising out of this contract or its initiation, it is expressly agreed that Austrian law shall apply. This also applies to all claims for damages by us against the customer.
The provisions of the UN Convention on the Law Applicable to International Sale of Goods do not apply.
- The exclusive place of fulfilment for this contract, including payments, is A-5280 Braunau am Inn.
- Under Article 17 of the Brussels Convention, the legal venue for any possible legal disputes arising out of this contract, including the formation of a contract or secondary contractual obligations, is exclusively agreed to be the court having jurisdiction in A-5280 Braunau am Inn or A-4910 Ried im Innkreis.
This also applies in the event that the purchaser is based outside of the jurisdiction of the Brussels Convention.
§ 11 Severability clause, supplementary agreements
7. If, contrary to expectations, individual provisions of the terms hereby agreed
are invalid in whole or in part or become invalid due to a change in the law, this does not affect the validity of the remaining provisions. The invalid or ineffective parts of this agreement shall be replaced by ones which most closely reflect the aims of the contracting parties.
Verbal supplementary agreements have not been made, additional services or obligations have not been agreed.
Changes to the contract must be in writing. Any agreements which have not been confirmed in writing are invalid.