General Terms and Conditions of Contract and Delivery

 

HYDROBALANCE Vertriebs GmbH (hereinafter referred to as „HYDROBALANCE“)

I. PREAMBLE:

1) These Terms and Conditions shall apply to all deliveries and services of HYDROBALANCE as well as any claims in connection therewith.

2) Any deviating provisions or subsequent amendments must be confirmed in writing by HYDROBALANCE in order to be valid.

II. ORDERS:

1) Orders placed by the Customer shall only become binding on HYDROBALANCE upon written confirmation by HYDROBALANCE or upon HYDROBALANCE providing the service.

2) Official authorisations and requirements regarding execution, delivery, transport, assembly, accident prevention and the like must be observed/obtained by the customer.

III. FULFILMENT AND TRANSFER OF RISK:

1) HYDROBALANCE's obligation to deliver has been fulfilled and the risk has passed to the Customer:

a) upon dispatch from the HYDROBALANCE production facility

 b) if collection is agreed, at the time HYDROBALANCE is notified that the goods are ready for collection.

2) Dispatch shall be at the risk of the Customer from HYDROBALANCE's production site.

3) Shipping is carriage forward and without insurance.

4) If carriage paid delivery has been agreed, the customer must take all measures to safeguard the rights of both parties to the contract vis-à-vis the forwarding agent, carrier and insurer, in particular complaints and reservations must be made in good time.

IV. PRICES, PACKAGING, FREIGHT

1) All prices include standard packaging, but do not include insurance, loading and other ancillary costs.

2) Packaging shall not be taken back or charged back. Any transport aids provided, such as pallets and the like, shall be invoiced separately to the Customer unless they are returned promptly and carriage paid to HYDROBALANCE in perfect condition.

V. PAYMENT

1) Unless otherwise agreed in writing, invoices issued by HYDROBALANCE shall be due for payment within eight days of invoicing with a 2% discount, or within 30 days without deduction.

2) If the Customer is in default of payment, HYDROBALANCE shall immediately be entitled to demand interest on arrears in the amount of 3% p.a. above the respective bank rate, but at least 1% per month, and to postpone the fulfilment of its own obligations to the Customer until all claims have been satisfied in full.

3) If the Customer is in default of payment, HYDROBALANCE shall be entitled to take back goods that have already been delivered, to take them into safekeeping and to make their release dependent on the prior fulfilment of all obligations of the Customer, including collection costs and storage fees, as well as to withdraw from the delivery contract after setting a grace period of at least 3 days.

4) The Buyer shall not be entitled to withhold payments from HYDROBALANCE for any reason whatsoever. Any offsetting of the Customer's claims against HYDROBALANCE's claims, including ancillary claims, is expressly excluded, unless such claims have been expressly recognised in writing or established by law.

5) HYDROBALANCE shall be entitled to prioritise payments by the customer to cover claims for reimbursement of costs and fees, irrespective of any payment dedication, followed by interest on arrears and only ultimately to the oldest principal claim.

VI. RETENTION OF TITLE:

1) HYDROBALANCE shall retain title to the delivered items until full fulfilment of all claims and ancillary claims of HYDROBALANCE arising from any business transactions.

2) In the event that HYDROBALANCE's goods subject to retention of title (co-ownership) are resold by the Customer, the assignment to HYDROBALANCE of the claims to which the Customer is entitled against its customer, including ancillary rights, shall be deemed agreed up to the amount of all claims and ancillary claims of HYDROBALANCE.

3) If third parties seek, establish or assert rights to the items to which HYDROBALANCE retains title, in particular by way of execution, the Buyer must notify HYDROBALANCE without delay, providing evidence of all circumstances and data. The Customer shall immediately reimburse HYDROBALANCE for all costs and fees incurred by HYDROBALANCE in all measures taken to protect its rights, including out-of-court measures.

VII. WARRANTY, DAMAGES, PRODUCT LIABILITY:

1) HYDROBALANCE warrants the products delivered from its production exclusively by replacing defective products that are unusable due to material defects with new, defect-free products.

2) The prerequisite for a warranty claim is proper and intended use in compliance with the permissible load values and the installation and application recommendations specified by HYDROBALANCE, as well as the immediate and verifiable notification of any defects to HYDROBALANCE.

3) The Customer waives all other claims, however described, against HYDROBALANCE, in particular with regard to consequential damages.

4) In cases of product liability, HYDROBALANCE shall be liable to pay compensation for material damage suffered by a non-consumer. Recourse against HYDROBALANCE under Section 12 of the Product Liability Act is excluded.

5) HYDROBALANCE shall in any case only be liable for damage caused intentionally or by gross negligence, provided that this limitation of liability does not conflict with mandatory statutory provisions and, moreover, only up to the amount invoiced for the defective product.

VIII. PROPERTY RIGHTS, CONSUMER PROTECTION, DATA PROTECTION:

1) The provisions of these General Terms and Conditions of Contract and Delivery shall only apply to a business partner who purchases goods or services from HYDROBALANCE as a consumer within the meaning of the Consumer Protection Act to the extent that they do not conflict with mandatory provisions of the Consumer Protection Act.

2) The Customer expressly agrees that HYDROBALANCE may store and transmit to third parties any data arising from the business relationship, provided that such data does not relate to the Customer's private or family life.

IX. PLACE OF FULFILMENT, PLACE OF JURISDICTION:

1) The place of contract and fulfilment shall be Vienna, even if HYDROBALANCE fulfils or has to fulfil its contractual obligations at a different location. Austrian law shall apply to all agreements between the Customer and HYDROBALANCE.

2) All disputes between the Customer and HYDROBALANCE shall be subject to the jurisdiction of the court in Vienna appointed to rule on commercial matters