General Terms and Conditions of BiologoN GmbH
All deliveries, performances and offers made by Biologon GmbH shall only be made in line with these General Terms and Conditions, and this regardless of the type of the legal transaction. All our civil declarations of intention shall be understood on the basis of these General Terms and Conditions. We do not recognize provisions of the customer contrary to or deviating from our General Terms and Conditions unless we explicitly agreed to the validity of such provisions in writing. Insofar contractual fulfillment actions on our part shall not be considered an approval to contractual terms deviating from our General Terms and Conditions. Such business conditions shall also be valid in terms of a general agreement for all future transaction entered into between the contractual parties.
a) Our offers shall be understood non-binding and non-obligatory. All oral agreements deviating from our General Terms and Conditions or from any other of our written declarations of intent, subsidiary agreements or the like, especially such made by salespersons, deliverers etc. shall not be binding for us. The contents of the brochures, advertisements etc. distributed through our company shall not constitute a part of the contract, unless explicit reference has been made to such circumstance.
b) In order to successfully conclude a contract each order has to be accompanied by an order confirmation. Such concluding of a contract shall also be effected if the goods ordered by the customer is dispatched to or handed over to the customer. For all offers addressed to our company the person offering shall be bound to such offer for a reasonable period of time, at least 14 days from the receipt of the offer.
All prices quoted by our company shall be understood, unless not expressly provided otherwise, including VAT and ex factory / warehouse. We reserve the right to adapt the prices accordingly, should labor costs and deliveries increase or decrease due to changes of collective provisions of the industry or due to in-house transaction in the period between the conclusion of the contract and delivery, or should there be a change in other costs, necessary for calculation or for production of goods and services, i.e. costs for raw materials, energy, transport, financing etc. In such case, we reserve the right to increase or decrease the prices accordingly.
4. Terms of Payment, Default Interest
a) Unless agreed otherwise, the outstanding accounts shall be settled by means of pre-payment, i.e. transfer of the total amount (calculated from the purchase price stated plus the additional shipping and handling charges) to the account of BiologoN GmbH:
Uni Credit Bank Austria AG
Account number: 52736039943
Bank code: 12000
Purpose (please proceed in this manner): Order No. XXXXXXXXX
We also accept payments by PayPal, credit card or direct debiting. We reserve the right to accept or refuse a certain form of payment at our own discretion. Any deduction of a discount shall not be possible without a specific agreement. In case of delay of payment, also in case of delay of partial payment, possible discount agreements shall cease to be in force. Payments performed by the customer shall be regarded as paid at the time the amount is deposited in our business account.
b) In case of delay of payment we shall re serve the right to charge default interest to the amount of 4 % above the secondary market yield/bond pursuant to the Monthly Statistical Bulletin of the Austrian National Bank, calculated starting from the due date. Further claims, especially such as an entitlement to higher interest resulting from the title of a claim for damages will be reserved.
5. Resignation from the Contract
a) Besides the general legal provisions we shall also be entitled to resign from the contract in case of default of acceptance (see point 7) or in case of other important reasons in particular such as commencement of bankruptcy proceedings against the assets of one contractual party or in case of rejection of such proceedings due to the lack of funds. In case of such resignation we shall have the choice, by fault of the customer, to request liquidated damages of 15 % of the gross invoiced amount or to request compensation of incidental damages.
b) In case of delay of payment on the part of the customer we shall be released from all further obligations to deliver and perform and we shall be entitled to withhold outstanding deliveries or services and to request pre-payments resp. securities or – if necessary to resign from the contract - after setting an appropriate period of grace.
c) Should the customer resign from the contract - without being entitled to – or should he request its revocation without being entitled to, we shall have the choice to either insist on the fulfillment of the contract or to agree to the cancellation of the contract. In the latter case the customer shall be obliged to pay – upon our choice – either liquidated damages of 15 % of the gross invoiced amount or to request compensation of incidental damages.
6. Costs of Reminders and Collection
In case of delay of payment the customer shall have to compensate us for all charges accruing for late payment up to a lump sum of € 9.00 plus postage for every reminder as well as for keeping track of the obligation in reminders every six months at € 3.70.
In addition, he shall replace all costs necessary for reminders and collections arising in connection with the asserting of the respective legal rights, such as e.g. the costs for a debt collection institution, whereby the maximum of reimbursement shall be due as resulting from the regulations of the BMwA for maximum rates of debt collecting institutions. Paragraph VI, article 2 shall not apply to consumer transactions.
7. Delivery, Transport, Default of Acceptance
Our sales prices are quoted without costs for delivery, assembly and installation. Against separate payment such services will be provided resp. organized by us. In doing so, all actually indicated costs for transport and delivery plus reasonable direct costs will be charged, at least the charges for freight and carriage costs valid on the day of delivery for the mode of transportation selected.
In case the customer fails to accept delivery as agreed upon (default of acceptance), we shall be entitled to either store the goods on our premises, for which we will collect a storage charge of 0.1 % of the gross invoiced amount per calendar day or to store the goods at an authorized tradesman at the customer’s cost and risk. At the same time we shall be entitled to either insist on fulfillment of the contract or upon granting of an appropriate period of grace to withdraw from the contract and to further exploit the goods. If perishable goods are involved and in case of imminent danger we shall be entitled to sell the goods of the defaulting customer at an reasonable price without prior notice or warning at his account in case of default of acceptance.
8. Delivery Period
a) We shall only then be bound to accomplish services, as soon as the customer has met all of his obligations necessary for execution.
b) We shall be entitled to exceed appointments and delivery periods agreed up to one week. In case of unexpected, obvious shortages of raw materials we shall have the right to exceed this term until delivery shall again be possible. In such case the customer shall have the right to withdraw from the contract only upon expiration of this time limit and after setting of a reasonable period of grace.
9. Place of Performance
The place of performance shall be our company’s headquarters at A-6305 Itter.
10. Minor Changes of Services
Minor or other changes the customer may reasonably expect of our service resp. delivery obligations are deemed to be approved in advance. This applies in particular to limited deviations of the item in question (by growth, changes in size, color etc. of the product caused by weather).
11. Warranty, Obligation to Inspect and Notify of Defect
a) We will comply with warranty claims of the customer in case of a rectifiable defect at our discretion either by rendering exchange or by granting a price reduction.
Compensation claims by the customer aiming at the correction of a defect, shall only be accomplished in case we have defaulted in the fulfillment of the warranty claim.
a) Pursuant to § 377 f HGB, the goods must be inspected immediately upon delivery, but at the latest within 6 work days. All defects so detected must be reported to us immediately, but at the latest within three work days upon their discovery, by stating the nature and scope of the defect in writing. Hidden defects shall be reported immediately upon their discovery, but at the latest within three work days upon their discovery in writing. If defects are not specified within the period stipulated or are not specified at all, the goods shall be deemed to have been accepted.
a) All claims for damage directed against us shall be excluded in case of slight negligence. The injured party must render proof of the presence of slight resp. gross negligence.
b) The statute of limitation of claims for damages is three years starting from the point of transfer of the goods.
All provisions contained in these General Terms and Conditions and all other provisions agreed on concerning compensation shall also apply if a compensation claim is raised alongside or in addition to a warrant claim.
13. Product Liability
Recourse claims pursuant to § 12 of the Product Liability Act shall be excluded; unless the party entitled to assert recourse renders proof that the defect was within our control and was due to at least gross negligence.
14. Reservation of Title and its Enforcement
a) All our goods and services are solely delivered under reservation of title and shall remain in our ownership until complete payment is achieved.
b) In case of reclamation resp. retraction of goods under reservation of title by us a withdrawal from the contract shall only be the case if this has been stated explicitly.
We shall be entitled to charge any incurred transport and manipulation expenses for any products that are returned - irrespective of further claims.
c) To the extent the buyer machines or processes our goods delivered prior to the fulfillment of all of our claims, he shall not acquire property by doing so.
We shall acquire co-ownership in the so created new goods in the ratio of the vale of our goods delivered to the other processed goods at the moment of their machining or processing.
d) The buyer shall not have a right to pledge or to transfer as security the goods subject to reservation of title. Especially in case of a possible seizure or other utilization by a third party the buyer shall immediately enforce our property right and inform us of such incident without delay.
e) Only one contractor, who is entitled to deal with our goods in the course of ordinary business, shall be permitted to rule over the goods under reservation of title until all claims concerning purchase price have been settled.
f) The customer shall bear full risk for the goods under reservation of title, especially the risk of destruction, loss or of deterioration.
15. Assignment of a Claim
a) In the event of delivery of goods under reservation of proprietary rights the customer already now assigns to us all his claims against third parties, to the extent as they are created by selling or processing of our goods, until final settlement of our claims in lieu of payment. Should the customer default in his payment to us, his sales proceeds shall be separated and the customer shall have them only on our behalf. Possible claims against an insurer shall already now be considered assigned to us pursuant to the limits of § 15 VersVG
b) Any claims against us shall not be assigned without our express consent.
16. Right of Retention
In case of a justified warranty claim the customer shall not be entitled to retention of the entire gross invoice sum but only to an appropriate share thereof, with the exception of cases of retrospective settlement of transactions. Article 16 shall not apply for consumer transactions.
a) To the extent the customer may meet his payment obligations in partial amounts, it shall be considered agreed that in case of failure to pay only one installment by the due date all remaining installments shall fall due immediately without granting a further period of grace.
b) Article 17. a) shall apply for consumer transactions to the extent that we have properly rendered our services and that only one of the outstanding payments of the customer has fallen due at least 6 weeks ago and if we have reminded the customer by granting a period of grace of at least two weeks under the threat of default.
18. Applicable Law, Competent Court
Austrian law shall govern. Application of the UN-Purchase Law shall explicitly be excluded. The German language shall be the contractual language. The parties to the contract agree on Austrian domestic jurisdiction. The sole venue for settlement of all disputes arising from this contract shall be the locally competent court at the place of the company headquarters.
19. Privacy, Changes of Address and Copyright
a) The customer also agrees to an automated storage and procession of personal data in the execution of this contract as contained in the purchase agreement.
b) the customer shall be liable to provide us with all changes of residential and business address, as long as this legal transaction has not mutually been met. In case the customer fails to report such changes, declarations shall also be deemed received if sent to the last known address.
c) Samples, catalogs, leaflets, pictures and the like always remain our intellectual property. The customer shall not acquire any rights of using the work or exploitation rights.
If individual terms of these General Terms and Conditions are or become ineffective and/or void, either as a whole or in part, this fact shall have no effect on the validity of the remainder of the General Terms and Conditions.