General Business Terms and Conditions
General Business Terms and Conditions
sense product GmbH, A-1030 Vienna Landstraßer Hauptstraße 34/3/8
1. Scope of the General Business Terms and Conditions
All our deliveries, services and offers are based on these General Business Terms and Conditions. Terms and conditions of the Contract Partner which oppose or deviate from our Business Terms and Conditions shall not be recognized by us unless we have expressly agreed to their validity in writing. This being the case, any actions in fulfilment of this Contract on our part shall not be construed as consent to business terms which deviate from our Business Terms and Conditions.
These Business Terms and Conditions also apply to any further legal transactions between the Contracting Parties.
Any agreements which deviate from or complement these Business Terms and Conditions must be made in writing.
If any provision of these business terms should be invalid, this does not affect the binding nature of the remaining provisions or that of any contracts concluded on the basis of them. The invalid provision shall be replaced by a valid provision which is as close as possible to the meaning and purpose of the invalid provision.
2. Conclusion of the contract and prices
Shipment of the goods ordered by the Contract Partner effectively concludes the contract.
A contract offer by a Contract Partner requires a confirmation of order. If offers are submitted to us, the offerer shall be bound thereto for a reasonable period, but in any case for a period of no less than 8 days from receipt of the offer.
All the prices which we quote are before VAT unless otherwise expressly stated.
3. Terms of payment
In the absence of any agreement to the contrary, amounts due are payable in cash on receipt of the goods as and when they are delivered. Discounts require a separate agreement. In the event of payment default, even in the case of instalments, any discount agreement shall be invalidated. Payments by the Contract Partner shall be deemed to have taken place only when they are credited to our business account.
Should the Contract Partner be in default of payment, we are entitled to claim, at our discretion, compensation for the actual damage incurred or statutory interest on default. In the event of payment default by the Contract Partner, we are entitled to demand compound interest from the day on which the goods were received.
4. Withdrawal from the Contract
We are entitled to withdraw from the Contract in the event of delayed acceptance of the goods or of other important reasons, such as, notably, bankruptcy of the Contract Partner or the filing of an application for insolvency proceedings against the assets of the Contract Partner, or if the Contract Partner is in default of payment. In the event of withdrawal from the Contract, if the Contract Partner is at fault we may, at our discretion, demand a fixed rate of damages of 15% of the gross invoice amount, or compensation for the loss actually incurred. If the Contract Partner is in default of payment, we are released from any further service and delivery obligations and are entitled to withhold outstanding deliveries or services and to demand advance payment or guarantees or, after setting a reasonable extension period, to withdraw from the Contract. Should the Contract Partner, without justification, withdraw from the Contract or wish it to be rescinded, we have the choice of insisting that the Contract be fulfilled or agreeing to its rescission; in the latter case, the Contract Partner is bound to pay us, at our discretion, either a fixed rate of damages of 15% of the gross invoice amount or compensation for the loss actually incurred.
In the case of distance selling contracts (sections 5a ff Consumer Protection Act), the consumer may withdraw from the contract within 7 workdays, whereby Saturday does not count as a workday. The reflection period begins on the day the goods are delivered to the consumer or, in the case of services, on the day the contract is concluded. It suffices to give notice of withdrawal within this period. If the consumer withdraws from the contract, he or she shall bear the costs of returning the goods; if credit was arranged for the contract, the consumer must also bear the costs of any requisite attestation of signatures and of the charges (fees) for the granting of the credit. This does not affect our entitlement to claim damages. In the case of services which, by agreement, began within 7 workdays after conclusion of the Contract, no withdrawal is possible.
5. Reminder and collection fees
The Contract Partner (customer) undertakes, in the case of default, to reimburse the reminder and collection expenses incurred by the creditor insofar as these are necessary for appropriate prosecution, whereby the Contract Partner undertakes, in particular, to reimburse at a maximum the fee charged by the collection agency, which fee is based on the BMWA (Austrian economics ministry) regulations on the maximum rates chargeable by the collection agencies. If the creditor itself operates the reminder system, the debtor undertakes to pay the sum of €4 per reminder issued and the sum of €15 per half year for maintaining the record of the debt in the reminder system.
6. Delivery, transport, default of acceptance
Our selling prices do not include the costs of delivery, assembly, erection, start-up or training. However, if so desired, we can provide or arrange for these services to be provided in return for separate payment. In this case, transport or delivery shall be charged at cost plus a reasonable surcharge for overheads, which shall, however, be no less than the normal freight and carriage charges for the chosen means of transport, or those applying on the day of delivery.
Should the Contract Partner not have accepted the goods as agreed (delayed acceptance), we are entitled, after an extension period, either to store the goods on our premises, for which we charge a storage fee of 0.5% of the gross invoice amount per whole or part calendar day, or to have the goods stored by an authorised professional at the cost and risk of the customer. At the same time we are entitled either to insist on fulfilment of the contract or, after setting a reasonable extension period of at least 2 weeks, to withdraw from the contract and commercialise the goods elsewhere.
7. Term of delivery
We are only bound to execute the contract when the Contract Partner has fulfilled all the obligations required of it for execution, notably all the technical and contractual details, preliminary work and preparatory actions.
We are entitled to exceed the agreed dates and delivery terms by up to three weeks. Only once this period has expired may the Contract Partner withdraw from the contract after setting a reasonable extension period.
8. Place of performance
The place of performance is the registered office of our company in 1030 Vienna, Austria.
9. Minor Changes to Services
If the transaction is not a consumer transaction, minor changes or any other changes to our service and/or delivery obligation that the Contract Partner may be reasonably expected to accept are deemed to be accepted a priori. This applies in particular to deviations due to the nature of the object itself (e.g. dimensions, colours, grain and texture of wood, etc).
10. Warranty
We shall meet all warranty claims by the Contract Partner either, at our discretion, by replacement, repair/remediation within a reasonable period, or price reduction. The Contract Partner may only demand cancellation of sale (cancellation of the contract) in the case of a major defect which cannot be made good through replacement or repair/remediation, and the Contract Partner cannot reasonably be expected to accept a price reduction.
If the Contract Partner claims that a defect exists, claims resulting therefrom, notably warranty claims or claims for damages, may only be brought if the Contract Party proves that the defect already existed at the time of delivery of the goods; this shall also apply within the first six months after delivery of the goods.
Within the meaning of the Austrian Commercial Code (UGB), the Contract Partner is, moreover, bound to inspect the goods promptly upon delivery, but at the latest within 6 workdays. Any defects discovered must be notified to us in writing promptly, but at the latest within 10 workdays of delivery, stating the nature and extent of the defect. Notification of hidden defects must be made in writing promptly, but at the latest within 4 workdays of their being discovered. If a complaint about a defect is not made, or is not made within the specified deadline, the goods are considered to be accepted. If the Contract Partner neglects to give timely notification of a defect, it may no longer assert any warranty claims or claims for damages on account either of the defect itself or of any misapprehension as to whether the object was free of defects.
The term for legal assertion of warranty claims is no longer than one year.
Our warranty obligations shall expire in any case after expiry of the warranty period; any special recourse extending beyond this pursuant to section 933b of the ABGB (General Civil Code) because of obligations fulfilled by the Contract Partner under warranty is excluded.
None of the provisions of Article 10 shall apply to consumer transactions.
11. Compensation for damages
We accept no claims for compensation for damages in cases of minor negligence. This shall not apply in the case of personal injury or, in the case of consumer transactions, to damage to objects accepted for processing. Insofar as the matter does not involve a consumer transaction, the existence of minor or gross negligence must be proven by the injured party.
If the matter does not involve a consumer transaction, the limitations period for bringing claims for damages shall be two years from the passage of risk. The provisions pertaining to compensation for damages as stated in these Business Terms and Conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to, or instead of, a claim under warranty
Before connecting or transporting electronic data processing products and before installing computer programmes, the Contract Partner shall adequately backup all data already existing on the computer facility, or be held responsible for lost data and all losses associated therewith. No claims for damages may be made against us.
12. Product liability
No claims for redress as provided for in section 12 of the Produkthaftungsgesetz (Product Liability Act) may be brought unless the party claiming redress proves that the defect originated in our sphere of responsibility and was the result of at least gross negligence.
13. Reservation of title
All goods delivered by us are delivered under reservation of title and remain our property until payment has been made in full. The assertion of reservation of title shall only be deemed to constitute withdrawal from the contract if expressly stated. In the event of redemption of the goods, we are entitled to charge for any expenses incurred for transport and handling. In the event of seizure by a third party of goods to which we have title – notably by attachment of property – the Contract Partner shall undertake to inform the third party of our title and to notify us immediately. If the Contract Partner is a consumer or a firm whose normal business activities do not include trading with the goods acquired from us, it shall not dispose of the goods to which we have title until the outstanding purchase price has been settled in full and, notably, may neither sell, pawn, give away or loan said goods.
The Contract Partner shall bear full liability for the goods under reservation of title, in particular for the risk of destruction, loss or deterioration.
14. Assignment of accounts receivable
In the case of delivery under reservation of title, the Contract Partner is deemed a priori to have assigned its accounts receivable from third parties to us by way of payment, insofar as said receivables arise through the sale or processing of our goods, until final settlement of our accounts receivable. The Contract Partner shall, at our request, give us the names of its buyers and notify them in due time of the assignment. The assignment shall be entered in the business accounts, notably in the list of open items, and must be clearly visible to the buyer on delivery notes, invoices, etc. If the Contract Partner is in default of payment with us, any sales proceeds it receives shall be kept separate and the Contract Partner shall possess these solely on our behalf. Any claims against an insurer shall be deemed a priori to have been assigned to us within the limits laid down in section 15 of the Versicherungsvertragsgesetz (Insurance Contracts Act).
Accounts payable by us may not be assigned without our explicit consent.
15. Retention and compensation
If the matter is not a consumer transaction, the Contract Partner shall not be entitled, in the case of a justified complaint, to retain the total amount of the gross invoice amount but only a reasonable amount thereof, except in the case of a rescinded transaction.
Any counterclaims by the Contract Partner for any legal reason whatsoever may not be offset against our claims. The only exceptions are counterclaims which we have expressly acknowledged in writing, or which have been established by a binding court ruling.
16. Applicable law and jurisdiction
Solely Austrian law shall apply. The UN Convention on the International Sale of Goods and conflict of laws principles (in particular private international law) are expressly stated to be non-applicable.
The competent court for our registered office in 1030 Vienna has sole jurisdiction to deal with any disputes arising from this contract.
17. Data protection and change of address
The Contract Partner agrees that we may store and process even the personal data included in the purchase agreement using EDP-supported means in the course of fulfilment of the contract.
The Contract Partner is bound to inform us of changes to its residential and/or business address until such time as the contractual legal transaction has been completely fulfilled by both parties. Should notification not be given, declarations shall be deemed to have been delivered if they are sent to the last notified address.
