General sales terms and delivery conditions of the AXUM HANDELS-GES.M.B.H.
1. General information:
1.1 These sales terms and delivery conditions apply to all offers and contracts concerning the delivery of goods of the Seller.
2. Offers and delivery times
2.1
Sales offers of the Seller are generally subject to change. Goods are offered subject to being unsold.
2.2
Scope and conditions of the order only apply to the conformation of the order by the Seller.
2.3
Delivery times shall be subject to correct and punctual supply by our company, except in the case that the Seller has explicitly agreed, and in written form, to binding delivery times.
2.4
Binding delivery times generally start on the day of the confirmation of the order. They are, however, subject to change until all details of the order have been clarified, the Buyer has provided all documents, permissions and approvals and an agreed advance payment has taken place.
2.5
If the Seller cannot deliver because of force majeure, unforeseen events beyond the Seller’s control or incorrect or unpunctual supply by a subcontractor, the delivery will be suspended accordingly. The Seller shall be entitled to make partial delivery. The Seller can issue partial invoices for each partial delivery. For each partial delivery the payment terms shall be applied separately.
2.6
Samples and prototypes provided to the Buyer are almost non-binding for the quality.
3. Prices
3.1
Prices are quoted in net costs. For national deliveries the legal VAT will be charged separately corresponding to the valid VAT rate. The Seller reserves the right to change prices.
3.2
Confirmed prices are only valid if the Buyer buys the confirmed amount of goods. Different terms of payment are subject to an individual and written agreement.
3.3
The Seller reserves the right to adjust prices after the conclusion of the contract due to increases in prices and costs for freights, tolls, taxes, duties etc.
4. Terms of delivery
4.1
Every delivery, even if free of charge, is solely at the risk of the Buyer. The risk shall pass to the Buyer as soon as the goods are handed over to the carrier or transport company, but in any case not later than by leaving our stock.
4.2
The Seller accurately determines the delivery route and means of transportation, unless the Buyer explicitly opts, and in written form, for another stipulation.
4.3
Additional expenditures for freight, transport, insurance and packaging requested by the Buyer, as well as costs for collection by the Buyer occur at the expense of the Buyer.
4.4
The Seller completes its part of the delivery by informing the Buyer of the readiness for shipment. Delayed shipment due to the reasons specified above is the responsibility of the Buyer. In this case the risk passes on to the Buyer beginning with the day of notice of the readiness for shipment.
4.5
Unforeseen events, such as acts of God, business disruptions, strikes and lock-outs at the Seller or one of its subcontractors release him of the obligation of delivery as long as the impediment or its after-effects take place. The same applies when the Seller is unable to deliver the merchandise on time according to circumstances beyond its reasonable control. Furthermore, the Seller has the right to cancel the sales agreement under these special circumstances, not giving rise to a claim of damage or other claims of compensation on behalf of the Buyer.
4.6
Claims of damage due to default or impossibility of performance are excluded from agreements with merchants. For agreements with private individuals it is limited to the proven damage of the particular case, but not more than 20% of the invoice amount of the goods of which the Seller is in default or of which delivery has become impossible by the Seller.
5. Notifications of defect and liability claims
5.1
Notifications of defect due to obvious and identifiable defects, deficiencies and wrong deliveries need to be made immediately in written form by the Buyer, within 10 working days after the reception of the goods. Defects that even after careful examination were not detected in this period of time need to be claimed in written form immediately upon their detection.
5.2
Minor commonly occurring or technically unavoidable imperfections in quality, colour and design of a sample or an illustration cannot be rejected. The Seller reserves the right of over- or under deliveries that are customary in trade.
5.3
In the case of delivery or service defects, the Buyer has not the right to cancel the sales agreement. The Seller has the right to choose between
a. rectification of defects,
b. compensation delivery free of charge, as far as this must take place in the usual and relevant scope for his business,
c. compensation of the reduced market value for the Buyer
5.4
As a matter of principle return deliveries are not allowed. If a return delivery is justified (e.g. wrong delivery) the Buyer needs our prior agreement for it. Furthermore, the return delivery can only be accepted, if it is due to market order and sent to the address of our storage facilities. The return of custom-manufactured parts or of goods that were purchased on the special behalf of the Buyer without an appropriate legal obligation is not possible.
6. Compensation for defects
6.1
Claims for damages of any kind are excluded from agreements with merchants if the Seller cannot be blamed for either intentional or gross negligence. In the case of gross negligence pertaining to a merchant agreement, liability is always limited to the predictable damage at the moment when the contract was concluded.
6.2
Claims for damages due to default in performance of contract, default at the conclusion of contract (consultation et al.) and tort are excluded, except that the Seller, his legal representatives or assistants can be blamed for either intentional or gross negligence.
6.3
No responsibility is taken for damages due to improper or inappropriate handling or application, wear and tear, overuse or inappropriate maintenance and treatment.
6.4
Claims from the Austrian “Produkthaftungsgesetz” (Product Liability Act) remain unaffected by this.
7. Payment
7.
If no other agreements were explicitly made in written form, the full amount of the purchase price has to be paid.
7.2
Payments are always used to settle the longest outstanding accounts due plus related default interests.
7.3
Discounts are only possible if the Buyer’s account does not indicate any outstanding invoices. Discounts are calculated from merchandise value and do not include transportation costs and services.
7.4
Payments can be settled by depositing the outstanding amount of money on the accounts of the Seller at the specified financial institutions referring to the relevant order.
7.5
Until cheques, promissory notes or assigned payments have been cashed, the Seller’s debt and its due date remain unaffected.
7.6
Representatives of the Seller are not authorised to accept payments.
7.7
The retention of goods is excluded from agreements with merchants as well as from agreements with private persons, when they are based on the same contractual relationship. Offset payments against counterclaims are excluded, unless the offset payment pertains to a debt that has been accepted by the Seller or has been legally declared.
8. Retention of title
8.1
Goods delivered under retention of title remain property of the Seller until all debts, on whatever legal grounds including future or limited debts, are settled and until promissory notes or cheques are honoured according to the irrevocableness of debits. In the case of unpaid invoices the retention of title will serve as collateral for any balance claim by the Seller.
8.2
Payments, including payments by cheque made by sending a promissory note issued by the Seller and accepted by the Buyer, are not considered as payment until the promissory note is honoured by the drawee and the Seller is hence liberated from the endorser's liability, so that the retention of title remains until the promissory note is honoured in favour of the Seller.
9. Place of performance and jurisdiction
9.1
The sole place of performance for both parties is Innsbruck/Austria.
9.2
The court of jurisdiction for all legal disputes between the both parties is the regional court (acting as commercial court) of Innsbruck/Austria. This also applies to cases referring to promissory notes and cheques.
9.3
The law of the Republic of Austria excluding the Hague Conventions relating to a Uniform Law on the International Sale of Goods shall apply solely for all contractual relationships between the Buyer and the Seller.
10. Additional:
10.1
If individual provisions in this contract prove to be legally invalid, the remaining provisions will remain legally binding.
In cases of dispute, the German version of these General Terms and Conditions (AGB) shall apply and take precedence over any translation provided for convenience.