Phönix Objekta
Neubaugasse 64
1070 Wien
| Tel: | +43 1 52 30 806 |
| Fax: | +43 1 52 67 908 |
sales@phoenix-objekta.at
www.phoenix-objekta.at
Service-Hotline
+43 664 16 33 900
General Terms and Conditions of Sale and Delivery of Phönix Objekta Handelsges.m.b.H.
Scope
All deliveries and services rendered to the purchaser shall be provided exclusively on the basis of the General Terms and Conditions stated hereafter which apply to all our delivery transactions.
Terms and Conditions of the purchaser are explicitly excluded for the present legal transaction and the entire business relationship and shall not be binding for us even if we do not expressly reject them. In the event of a copy of our General Terms and Conditions not having been sent to the purchaser along with our offer or not having been given to him on some other occasion, they will nevertheless apply if they were already known to him – or should have been known to him – from earlier business dealings with us.
Offers and Conclusion of Contract
Our offers are subject to change without notice and are non-binding with regard to prices and delivery dates. Technical drawings, sketches, dimensions, weights, or other performance data are (with the exception of prices and delivery dates) only binding if this is expressly agreed in writing.
An order placed by the purchaser has the status of an offer which is binding for the purchaser. We shall be entitled to accept this offer at our discretion within 14 days of receipt by sending written confirmation thereof. The conclusion of contract shall only be effected with the written confirmation of the order; this also applies in cases where the order was placed with one of our representatives.
Prices
All prices are quoted ex works and exclusive of packaging, freight, customs and import duties, fiscal charges and the value-added tax prescribed by law. If the prices have not been agreed beforehand, our delivery day prices shall be applicable.
Unless special payment terms to the contrary have been agreed, the total sum invoiced is due as from the date of invoice. All payments to us are to be rendered exclusively in EURO.
Bills of exchange are not accepted in place of payment. Bills of exchange and cheques are only accepted as undertaking to pay and the debt shall only be deemed paid after we have received payment in full. We decline all responsibility whatsoever for the correct and timely presentation and protest. Discount charges (2 % more than the lending rate offered by our bank, however, at least Euro 10.00) and all costs accruing with the payment of the bill of exchange and cheque amount shall be borne by the purchaser. All our payment claims shall become immediately payable if the payment terms and conditions are not adhered to or we become aware of circumstances which are suitable for reducing the creditworthiness of our purchaser irrespective of the term of any accepted and credited drafts.
If, after the closing of the sales contract, circumstances arise which give us reason to doubt either the solvency or the creditworthiness of the purchaser, alternatively, if the purchaser’s solvency or creditworthiness were in doubt at the time of the closing of the sales contract, but we only became aware of this later, we shall be entitled to demand advance payment or a suitable security for future deliveries or withdraw from the contract and demand from the purchaser compensation for all expenses incurred, as well as revoke any deferred payment terms already allowed, and assert all outstanding claims due immediately
Sample material
Samples shall be invoiced at cost price. Collections and samples provided to the purchaser free of charge and on a rental basis remain our property. In consideration of production or material related divergences, sample material shall be non-binding for production.
Delivery
The delivery of goods shall be effected at the purchaser’s expense.
Whilst we make every effort to comply with foreseen delivery deadlines, these deadlines will be appropriately extended in the event of unforeseen circumstances, in particular, but not exclusively, in the event of operational breakdowns, strikes, fire, natural catastrophes and/or other events of a force majeure. If our suppliers are unable to meet their delivery obligations by events beyond our control, we and the purchaser shall be entitled to withdraw from the contract and committed to interest free payback of possibly received pre-payments. The purchaser shall not be entitled to any further claims for damages exceeding this scope.
In the event of our failing to meet a delivery deadline even after 30 days have elapsed since that delivery deadline, the purchaser shall be entitled to set a further time limit of 90 days in writing within which delivery must be effected. In the event of our failure to comply with this time limit, the purchaser shall be entitled to cancel the order.
In the case of make-and-hold orders, the purchaser undertakes to accept delivery no later than 14 days after being notified of readiness. If the purchaser delays in accepting a delivery, we shall be entitled to compensation for all losses we may incur as a result; following refusal to accept delivery the risk of possible deterioration or destruction of the goods is transferred to the purchaser.
Transport damage complaints must be reported to the transport enterprise and our company in writing immediately on receipt of the goods, however, within 8 days at the latest.
We shall be entitled to make partial deliveries and performances of the contract at any time and we retain the freedom to choose the type of shipment and the means of transport.
Transfer of risks and place of performance
In every instance the transfer of risk to the purchaser takes place immediately after the shipment is handed over to the carrier or as soon as it has left our storage depot for the purpose of dispatch.
If the dispatch of the goods becomes impossible without fault on our side, the transfer of risk to the purchaser is effected as soon as the latter has received notification that the goods are ready for dispatch.
The purchaser is under obligation to accept delivery of the goods at the confirmed delivery date. Otherwise the purchaser shall be required to pay storage costs and our delivery commitment will be considered as having been fulfilled. The agreed payment terms will remain unaffected by this arrangement.
Place of performance for all obligations arising out of this delivery transaction shall be Vienna.
Payment
Billing will, as far as possible, occur immediately after delivery.
If nothing else has been agreed otherwise, we must receive all payment without deduction within 14 days after billing. Consignments abroad are dispatched cash on delivery or prior payment. In the case of commissions involving a number of units we are entitled to bill each unit separately upon delivery.
Despite different provisions by the purchaser, we are entitled to offset payments first against compound interests, interests and additional expenses, pre-legal-action costs, costs of engaged lawyers and debt collecting agencies, then the out-responsible capital, beginning with the oldest debt.
Default interest at the statutory rate will be charged on delayed payments. The amount of interest shall be 8 % p.a. above the base interest rate, in the case of consumers 4 % p.a. If in the case of partial payment the purchaser is in default with two installments we shall be entitled to demand immediate payment of all installments and acceptances including pre-legal action costs, such as reminder costs and lawyer fees. In addition we are entitled to cancel outstanding orders immediately.
Reservation of property rights
All goods delivered by us remain our property until all amounts due under business done with the purchaser including interest and other costs have been paid in full.
Any acquisition of ownership by the purchaser or a third party in the event of goods, which we have sold subject to reservation being processed or incorporated into a new object, is ruled out. The processing or incorporation is carried out exclusively on our behalf. The thus produced object serves – in full value – to secure our claims as per the previous paragraph. If our goods are jointly processed by a further contractor, we shall at least acquire co-ownership in the new product to an extent, which is in proportion to the value of the other processed objects for which that contractor invoices.
The purchaser undertakes to assign to us all his claims resulting from resale of the goods in order to secure outstanding purchase prices und shall make a note to this effect in his accounts or on his invoices. In case of seizure or other claims on his property the purchaser shall be under obligation to draw attention to our right of ownership and to inform us without delay. Only in cases where one of our suppliers also legally claims extended retention of title, the claims relating to the delivery are to be assigned to us to the extent of our ownership interest in the merchandise sold.
In the case of the purchaser including claims arising from the resale of reserved goods or products we have acquired co-ownership into an existing open account relationship with his purchasers, he undertakes to assign these claims to us.
In the event of the purchaser defaulting on payments or suspending payment altogether, similarly if he should become the subject of insolvency proceedings, or if the satisfaction of our claims is jeopardized in any other way, the purchaser shall be obliged to place a notice upon – or mark in some other distinctive way – the goods which we have sold to him subject to reservation in order that the attention of all third parties is drawn to the fact that the goods are our property. The purchaser will also be required to provide us with a detailed list of all goods sold to him by us subject to reservation that are still in his possession, whereby this list must also show the extent to which these goods have already been processed or incorporated, similarly he must provide us with a list of assigned claims as per the preceding paragraph, including also the names of third-party debtors. Apart from this, our authorized agents are entitled at any time to call upon the purchaser with the object of assessing the situation regarding the protection of our interests and to be given access to all necessary documents on such occasions – whereby at our request the goods sold subject to reservation are to be returned to us freight prepaid and free of all charges, and, on the basis of the irrevocable permission which the purchaser will be required to give, we shall be entitled to remove the goods and will subsequently also be entitled – but not obliged – to sell the goods either by auction or on the open market, whichever we choose, and to offset the proceeds against the net purchase price.
If the purchaser fails to properly fulfill these contractual obligations, we are entitled to retrieve our property at any time at the purchaser’s expenses.
Notice of defects and liability guarantee
The guarantee period is 6 months except in cases where special warranty periods have been agreed to for individual delivery items. This applies also in the case of goods and services that are permanently fixed to a building or to the floor or ground. The guarantee period commences with the transfer of risk. Any obvious defects as well as any other effects which become apparent following a proper inspection of the goods are to be reported to us in writing by the purchaser immediately upon receipt of the goods, however, within 14 days at the latest.
Before starting with the processing of delivered goods, the purchaser is required to check their suitability for his application purposes, even in cases where test samples have been delivered in advance.
Any defects of a type not apparent even after an orderly inspection of the goods must be reported to us within 7 days following their discovery. The same applies with regard to complaints of incorrect deliveries and shortfalls in delivered quantities. Failure to comply with this reporting procedure will result in the lapsing of the guarantee or other claims.
In the event of defects in goods delivered by us our defects liability guarantee is restricted to either replacing the delivery or reducing the purchase price, whichever we consider the most expedient. Other claims on the part of the
purchaser – in particular claims for compensation – on the grounds of defects in the delivery are ruled out. Claims under warranty are not transferable and will only be accepted from purchasers who have bought directly from us.
Insignificant deviations, for example in the dimensions or finishes or minor technically unavoidable discrepancies in the goods quality, color, measurements, weight, equipment, design or pile deformation (shading in carpet velour) do not entitle the purchaser to any claims on the grounds of defects.
Our defects liability guarantee automatically lapses if the delivered goods have meanwhile been modified, processed, or incorrectly handled. We can only be required to perform our obligations under the warranty if the purchaser has
fulfilled all his contractual obligations to us, and in particular that he has complied with the agreed terms of payment. Goods may not be returned to us without our prior agreement.
Claims on the grounds of defective deliveries can only be upheld if the value of these claims amounts to more than 4% of the invoiced value of the delivery.
It is agreed upon, that the contractual partner must pursue its right to warranty claims with mobile and immovable things by judicial process in the sense of the §933 ABGB within six months. This regulation does not apply to consumer business according KSchG (Konsumentenschutzgesetz).
The above paragraphs conclusively regulate the defects liability guarantee for products and services supplied by us and exclude entirely all other warranty/guarantee or other liability claims of any nature whatever
Liability limitations
We can only be held liable for damages outside the scope of the Product Liability Law in cases where criminal or gross negligence on our part can be proven within the context of the legal regulations. Liability for minor negligence, compensation for consequential damages and pecuniary losses, non-realized savings, loss of interest earnings, and damages relating to third-party claims against the purchaser is ruled out in every case.
Product liability
According to § 12 of the Product Liability Law, demands for recourse are excluded, unless the beneficiaries of the recourse can prove that the fault is caused in our sphere and that gross negligence has been caused.
Withdrawal from the contract
If acceptance is delayed, or for other substantial reasons such as, in particular, bankruptcy of the purchaser or rejection of a petition in bankruptcy on grounds of insufficient assets, or delayed payment, we are entitled to withdraw from the contract providing it has not been fully fulfilled by either party. In the event of a withdrawal where the purchaser is at fault, we may at their discretion demand a fixed rate of damages of 15% of the gross invoice amount or compensation for the loss actually incurred.
Prohibition of set-off
Even in the event of the purchaser having raised a complaint or having forwarded counterclaims, he will only be entitled to offset, withhold or reduce payment if his counterclaims were legally ascertained and agreed by us explicitly in writing. By contrast, we, or companies associated with us, are entitled to offset all our claims.
Legal venue
The legal venue for all disputes arising in connection with the contractual relationship, its origins and its effectiveness, and also with regard to the processing of bills and cheques is the competent court in 1030 Wien.
The legal venue for all disputes arising in connection with this contract against a consumer having his place of residence, normal domicile or place of employment within the country shall be one of the courts of the district where the consumer has his place of residence, normal domicile or place of employment.
Applicable law
Austrian law shall govern all contracts with the exclusion of relegation norms. The application of the standard UN CISG procedure concerning the closing of international contracts of sale involving the sale of moveable goods is ruled out.
The above provisions shall apply to sale to consumers as defined in the Austrian Consumer Protection Act only to the extent that no different compulsory provisions are provided by the Austrian Consumer Protection Act.
Final provisions
Should any one of the provisions in this agreement are or become invalid, the remaining part of the agreement will keep its validity.
No ancillary verbal understandings regarding our Terms and Conditions of Sale and Delivery have been reached. Any amendment shall require written form. This shall also apply to any amendment of the requirement of written form itself.