GENERAL TERMS AND CONDITIONS (GTC)

Transcription

1 GENERAL TERMS AND CONDITIONS (GTC) OF SANNY-SOLUTIONS HANDELS GMBH (SANNY- SOLUTIONS) 1 SCOPE OF APPLICATION 1.1 The present General Terms and Conditions (GTC) shall apply to any sales transaction between SANNY-SOLUTIONS and their customers. SANNY-SOLUTIONS does not accept any contradictory terms or terms deviating from the present GTC provided by a customer unless SANNY-SOLUTIONS explicitly agrees to the respective terms in written form. Any terms deviating from the present GTC shall be agreed on in written form only. 1.2 Unless SANNY-SOLUTIONS issues new GTC, the present GTC shall be valid also for future business transactions even if such transactions become effective without any reference to the GTC. 2 ORDER, DELIVERY, TRANSFER OF RISK 2.1 All offers of SANNY-SOLUTIONS are non-binding. Contracts on orders made by a customer shall become effective only with the dispatch of a written order confirma- tion or after the delivery of goods by SANNY-SOLUTIONS. The customer shall be bound to orders for ten days starting with the receipt of order on the part of SANNY-SOLUTIONS. SANNY- SOLUTIONS reserves prior sales. Any dimensions, weights, images, descriptions or similar indicated on the internet as well as in catalogues, brochures or other documents provided by SANNY-SOLUTIONS shall be considered approximate information; any information is given without guarantee. During the period of delivery, SANNY-SOLUTIONS reserves the right to modify any goods ordered by a customer if the modification is based on technical improvement or legal requirements (in particular by the law or by jurisdiction), provided that these modifications are reasonable for the customer. Beyond the written order confirmation, SANNY-SOLUTIONS is not obliged to inform the customer about modifications voluntarily. 2.2 If the customer is a business customer and the order confirmation deviates from the customer s order, the customer is obliged to contradict in written form immediately, however, within seven calendar days from the receipt of the order confirmation at the latest. Otherwise, the contract shall become effective under the conditions as stated in the order confirmation.

2 2.3 Unless explicitly agreed otherwise, the goods shall be considered sold ex works (EXW). SANNY-SOLUTIONS makes the goods available either at their headquarters in A Mäder or at related companies or delivers the goods from the mentioned places. Place of delivery and fulfilment is the headquarters of SANNY-SOLUTIONS in A-6841 Mäder. 2.4 The customer shall pay any delivery costs. Dispatch shall always be made at the customer s risk. This shall also be valid for the transfer of risk if SANNY-SOLUTIONS pays delivery costs as an exception. Unless agreed otherwise, SANNY-SOLUTIONS shall determine both means of transport and transport route. Part-deliveries by SANNY- SOLUTIONS shall be permitted. 2.5 When the goods are dispatched, the risk shall transfer to the customer as soon as the shipment is consigned to the person carrying out the transport. If the customer wishes for a delay in the shipment, the risk shall transfer to the customer with the notification of the readiness for dispatch. If it was agreed that the customer collects the goods, the risk shall transfer to the customer with the actual consignment of the goods or with the expiration of the agreed collection period or with the collection date. 2.6 The delivery period for goods is about 14 days. Delivery periods indicated by SANNY-SOLUTIONS shall be non-binding and are met according to possibility. If compliance with a binding delivery period, agreed as an exception, is not possible as a result of circumstances which are not under the responsibility of SANNY-SOLUTIONS, as for instance higher force, natural disasters, war, riots, government orders, energy deficiency or industrial actions at SANNY-SOLUTIONS or at sub-suppliers, the delivery period shall be interrupted for the length of the respective circumstances and the duration of time required for the elimination of the resulting operational effects. If the circumstances last for more than three months, either contractual party shall be entitled to withdrawal due to the unfulfilled part of the contract, and no claim for damages shall arise. 2.7 If a binding delivery period was agreed as an exception for a delivery by SANNY- SOLUTIONS, delay shall come into effect in case of failure to meet the deadline only after the reception of a reminder and the ineffective expiration of a grace period of at least two weeks. The customer shall be entitled to withdraw from the contract or to claim compensation only after the delay set in and after the ineffective expiration of a further, appropriate grace period set for SANNY-SOLUTIONS. 2.8 Unless explicitly agreed otherwise in written form, the delivery period shall start with the latest of the following dates: a) Date of order confirmation; b) Date of all technical, entrepreneurial and financial requirements to be met by the customer, in particular the payment of the goods. 2.9 SANNY-SOLUTIONS also offers individual design for some of their goods such as individual imprint of logos and other advertising material. Such services are charged additionally. Logos and other advertising material to be imprinted shall be provided to SANNY-SOLUTIONS in the format and the required resolution indicated on their website. SANNY-SOLUTIONS shall be entitled to reject any order for individual design after receiving the logo or other advertising material without giving reason.

3 3 PRICES 3.1 Prices to be paid by the customer result from the respectively valid price list of SANNY-SOLUTIONS and can be viewed at their website. All prices are indicated without the value-added tax. All prices shall be non-binding until the day of the conclusion of a contract according to 2.1. and shall be valid as net prices from the place of delivery or place of dispatch as indicated by SANNY-SOLUTIONS in the order confirmation. Delivery costs and value added tax are indicated separately. 3.2 SANNY-SOLUTIONS reserves the right to link the acceptance of orders, in particular in permanent business relations, with minimum order values or to charge small quantity surcharges. 3.3 Any agreed special services such as, for instance, imprinting logos or other advertising material on the goods or special packaging, will be charged additionally. 4 PAYMENT 4.1 In the absence of another agreement in written form, the entire purchase price for goods ordered shall be paid immediately after concluding the contract. SANNY-SOLUTIONS charges the full purchase price or, as an exception, in instalments, and shall be entitled to demand down payment. Invoices shall be paid without deduction immediately upon receipt within 14 days. For the start of the delivery period see 2.8. Payment shall be considered timely when paid in cash to SANNY-SOLUTIONS or irrevocably credited to their account on due date or on the last day of the period. 4.2 When the payment period expires, the customer shall default in payment automatically and without further reminder. If the customer defaults in payment with one invoice only, SANNY-SOLUTIONS shall be entitled to a) charge reminder fees in the net amount of EUR for each (individual) reminder, b) charge any occurring cost for steps taken by third parties (lawyer s fees or collection agency fees) according to legal regulation, c) take payments into account for covering accrued costs first, then for covering accrued default interest and then for covering the earliest debt (any payment reference made by the customer shall thus be considered irrelevant),

4 d) demand legally due default interests, irrespective of the right to claim further damage caused by delay (the interest rate shall be higher if SANNY-SOLUTIONS proves their own costs with a higher interest rate), e) make use of an appropriate extension of the delivery period, with the period of the default in payment being an appropriate period of extension at least (this regulation shall apply to cases in which the delivery period, based on a corresponding agreement, would have started already before full payment; for the general start of the delivery period see 2.8), f) withhold further deliveries, g) declare due the entire outstanding purchase price amount for exceptionally agreed instalments (immediate maturity), h) withdraw from the contract in case of non-compliance with an appropriate period of grace, and to demand possible compensation claims. 4.3 SANNY-SOLUTIONS shall be entitled to burden the customer with all outlaid costs linked to the open payables. 4.4 Offsetting and retaining payments due to potential counterclaims shall be permissible only if the customer s counterclaims are recognised by SANNY-SOLUTIONS or determined legally as well as in the case of insolvency on the part of SANNY-SOLUTIONS. 5 WARRANTY 5.1 Legal warranty rights of customers who are consumers according to the Austrian Consumer Protection Act (KSchG) shall remain unaffected. Consumers shall notify SANNY- SOLUTIONS of defects in written form. 5.2 Customers who are business customers shall be obliged to examine the goods immediately after receipt and notify SANNY-SOLUTIONS of apparent defects immediately within three days after receipt. Defects which cannot be discovered despite careful examination or which become visible later only shall be reported to SANNY-SOLUTIONS immediately after their discovery. The customer shall bear the risk of receipt of the defect complaint. If the customer does not comply with examination and notification obligations according to this paragraph in a timely manner, the goods shall be considered approved and the customer shall not be able to assert a claim as a result of the respective defect (in particular not from warranty, compensation or error). 377 Paragraph 5 of the Austrian Commercial Code (UGB) shall remain unaffected. 5.3 If the customer is a business customer, the warranty period shall be twelve months from delivery.

5 5.4 If a defect exists, SANNY-SOLUTION shall be entitled, at their option, to remedial action or delivery of a defect-free thing (replacement delivery) for rectification unless SANNY-SOLUTIONS is entitled to refusal (compare e.g. 932 Paragraph 4 of the Austrian Civil Code (ABGB). 5.5 The customer shall be entitled to terminate the contract (rescission) unless the defect is minor or demand a reduction of the purchase price if the replacement delivery fails or is impossible in particular, and if SANNY-SOLUTIONS is not able to make the replacement delivery within reasonable time or refuses replacement delivery or culpably delays it. The customer shall give SANNY-SOLUTIONS both required time and opportunity to carry out rectification or replacement delivery. 5.6 Defects affecting parts of the delivery shall not entitle customers to claim for compensation of the remaining delivery. 5.7 SANNY-SOLUTIONS shall be entitled, at their option, to demand that the customer sends the defect part/the goods to an address given by SANNY-SOLUTIONS at the expense of SANNY-SOLUTIONS or has the part/goods ready for remedy of defects or replacement by SANNY-SOLUTIONS or a third party contracted by SANNY-SOLUTIONS directly at the customer s address. 5.8 Normal wear or customary abrasion of the goods shall not justify warranty claim. We hereby refer explicitly to the instruction manual which is attached to the goods. SANNY- SOLUTIONS shall assume no liability for damages resulting from divergent use. 5.9 If, as an exception, the delivery of goods before full payment was agreed, SANNY- SOLUTIONS shall be entitled to refuse rectification or replacement delivery as long as the customer does not meet their payment obligations to the extent corresponding to the defectfree part of the delivery made (e.g. in case of independent functioning). 6 LIABILITY, COMPENSATION 6.1 Unless stipulated otherwise in the present GTC, Sanny-Solutions shall be liable according to legal regulations. 6.2 Actions for warranty due to defect goods shall lapse after 2 years from their delivery to the buyer, even if the buyer discovers the defect later only, unless the seller has assumed liability for a longer period of time. This limitation shall apply to all claims for material defect, also for rescission, reduction and compensation as well as for claims for rectification which were agreed contractually. Claim for damages in cases of minor negligence shall be excluded by mutual agreement; this shall not apply to personal damage. Liability for consequential damage and lost profits, in particular in case of delayed or defected delivery or non-delivery, shall be excluded.

6 6.3 Insofar as liability by Sanny-Solutions is excluded or limited, this shall also apply to employees, representatives, assistants and agents of Sanny-Solutions. 7 RIGHT OF WITHDRAWAL FOR CONSUMERS 7.1 If the customer is consumer, they shall be entitled to withdraw from the contract provided that the amount to be paid by the customer exceeds CHF and provided that the products of Sanny-Solutions are considered for the customer s personal and family needs. The customer can withdraw from their application for conclusion or a contract or their declaration of acceptance if they were made the offer: a) at their work place, in housing spaces or their immediate vicinity; b) in public means of transport or on public streets and places; c) at a promotional event linked to an excursion or a similar event; d) on the phone or through comparable means of simultaneous oral telecommunications. Contract brought to the customer in writing (or analogously) shall not be submitted to the right to withdrawal from contracts. 7.2 Withdrawal shall not be bound to any format. Proof of withdrawal at due date shall be incumbent upon the customer. The withdrawal period is 14 days and starts as soon as the customer a) applies for or accepts the contract; b) has received information on the existence of the right to withdrawal and the seller s address. The deadline shall be considered met if the customer informs the seller about their withdrawal or if the customer consigns their declaration of withdrawal to the post service company on the last day of the withdrawal period. 7.3 As soon as the customer withdraws from the contract, the parties shall return all services received immediately. If the customer has already used the goods, they shall owe the seller an appropriate rent. The customer shall bear the cost of return delivery.

7 8 RETENTION OF TITLE 8.1 The goods shall remain the property of SANNY-SOLUTIONS until full payment is made. The retention of title shall also remain valid towards the carrier company which receives the goods upon the customer s request or at the instance of SANNY-SOLUTIONS. 8.2 If, as an exception, the delivery of goods before full payment was agreed, the customer shall be entitled to resell the goods before full payment is made exclusively after obtaining and according to written confirmation by SANNY-SOLUTIONS. Permission for reselling shall be omitted automatically if the customer defaults in payment or has stopped payments. 8.3 SANNY-SOLUTIONS shall be entitled to demand immediate restitution of all delivered but not yet fully paid goods if the customer defaults in payment with regard to either time or scope or if insolvency proceedings are filed or initiated involving the customer s assets as well as in case of insolvency proceedings for lack of assets or if the customer stops payments or if the customer approaches their creditors for the conclusion of an out-of-court settlement. If SANNY-SOLUTIONS takes back the goods, this shall not be considered a withdrawal from the contract unless agreed otherwise in written form. SANNY-SOLUTIONS shall also be entitled to the right to claim for damages as a result of non-performance also if goods sold under reservation of proprietary rights are taken back. 9 INTELLECTUAL PROPERTY, PROHIBITION OF IMITATION 9.1 The customer shall commit to sell goods of SANNY-SOLUTIONS exclusively under the name and trademark given by SANNY-SOLUTIONS. 9.2 The offered goods are the intellectual property of SANNY-SOLUTIONS. SANNY- SOLUTIONS has an Industrial Design particularly for glass holders which is registered under the registration number D with the World Intellectual Property Organisation (WIPO). The customer shall commit to refrain from imitating (reproducing) goods sold by SANNY- SOLUTIONS as a whole or in parts and/or make imitations accessible to third parties either in identical or in modified form. This obligation, or this prohibition of imitation, shall be valid always for any goods of SANNY-SOLUTIONS even if no industrial property rights exist for single goods. 9.3 The customer shall not be entitled to modify the goods in any way without explicit approval of SANNY-SOLUTIONS. SANNY-SOLUTIONS shall be entitled in particular to make also copyright claims as a result to modifications which are contrary to contract or unauthorised and/or reverse the contract and reclaim the goods. SANNY-SOLUTIONS also reserves the right to additional claims.

8 9.4 The customer shall commit neither to reproduce texts, outlines, sketches, images, photos or other content originating from and/or used by SANNY-SOLUTIONS or to pass them on to third parties, unless SANNY-SOLUTIONS clearly intends the concerned material for general distribution (e.g. advertising catalogue). 10 DATA PROTECTION Within the framework of the conclusion of the contract, Sanny-Solutions stores and processes both first and last name of the customer or their company, their title, address (postal address, address, telephone number), the goods ordered and the purchase price as well as, if the customer is a business customer, the value added tax number (collectively and briefly called «data» hereafter). This data will be processes only for the purpose of contractual handling and the delivery or ordered goods unless the customer explicitly agrees to further processing. This data is thus legally collected according to Article 13 Paragraph 2 of the Federal Act on Data Protection (FADP) since the data is required to fulfil the contract between Sanny- Solutions and the customer. The collected data will be deleted after the order was carried out and the warranty period expired unless no other legal reason for further use (in particular the customer s explicit agreement, legal storage periods) exists. The customer s data is passed on exclusively to a payment service provider selected by the customer or a delivery company, however, only to the extent which is absolutely required for contractual performance. The concrete contract is stored for the purpose of the order execution. 11 PLACE OF JURISDICTION AND FINAL PROVISIONS 11.1 Any amendment, addition and collateral agreement to this GTC as well as warranties of any kind shall require written form to become effective. This shall also apply to the agreement to a change in this formal requirement The law of the Republic of Austria shall apply to the contractual relationship between SANNY-SOLUTIONS and the customer, under exclusion of all bilateral and/or multilateral agreements on the sale of movable goods, in particular under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as of the conflict-of-law rules of the Private International Law (PIL) and the Rome I Regulation.

9 11.3 All disputes from the contractual relationship shall fall within the exclusive jurisdiction of the court responsible for A-6841 Mäder, Vorarlberg, Austria, if the customer is a business customer, a legal entity under public law or a special fund under public law, or if the customer has their place of residence or their business headquarters outside of Austria. SANNY-SOLUTIONS shall be entitled, however, to select any other legally entitled court The competence in case of disputes within the framework of consumer contracts shall lie with: a) the court responsible for the place of residence or business headquarters of one of the parties in case of actions by the consumer; b) the court responsible for the place of residence of the defendant party in case of actions by the seller. Consumer contracts are contracts on services of usual consumption intended for the consumer s personal and family needs and offered by the other party within the framework of their professional or commercial activity (Article 32 of the Swiss Civil Procedure Code; CPC) If single provisions in this GTC are invalid in part or as a whole, the remaining provisions shall remain unaffected in their validity. In this case, a new provision, which corresponds the economic purpose of the invalid provision or which comes closest, shall replace the invalid provision. SANNY-SOLUTIONS Handels GmbH Mähderle 4 A-6841 Mäder ÖSTERREICH E: info@sannysolutions.com ***