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(1) All contracts concluded by the Company with its Customers are concluded solely in accordance with these Terms and Conditions of Business and Delivery. The Customer agrees that he will not modify these Terms and Conditions of Business and Delivery by sending his own Terms and Conditions. If such Terms and Conditions of the Customer are sent or have been sent the Customer accepts the inapplicability of any legal consequences arising therefrom. Terms and Conditions of the Company entered into by the Company and a Customer shall apply additionally to all future contracts concluded between these two parties. Cancellation of, additions to and modification of a contract shall be valid only if made in writing.
(2) Employees of the Company are not permitted to agree to any terms that result in the cancellation of, addition to or modification of these Terms and Conditions unless they have received written authorisation to do so from the Company. If employees agree to such cancellation, addition or modification and if these are binding for the Company under the terms of the Consumer Protection Act the Company is entitled to withdraw from the contract at any time.
(3) The Customer is not permitted to transfer his rights and obligations arising from a contract concluded with the Company to a third party unless written permission to do so has been given by the Company. All commercial and technical documents compiled and/or supplied by the Company are intended as sales support material only and remain property of the Company. Any distribution or exploitation of such documents requires the Company?s written permission. Use of sales support documents is restricted to the presentation and marketing of the Company?s products only. In particular, such documents must not be made available to third parties. The Company reserves the right to demand the return of such documents and sales information at any time and without giving any reasons.
(1) Any quotes that the Company receives from the Customer shall be accepted by the Company by written notice of acceptance or by actual fulfilment only; the Customer submitting the quote is bound by the terms of his quote for four weeks after his quote has been received by the Company.
(2) All quotes submitted by the Company as well as the contents of other business documentation (estimates, circulars, catalogues, price lists, brochures, advertisements, illustrations etc.) are without obligation and not binding and can be modified or revoked by the Company. The calculations in the quote apply only if the entire quantity of the merchandise quoted for is ordered.
(1) Unless expressly agreed otherwise in writing, all delivery periods and dates are without obligation and not binding. The delivery period begins when the contract governing the delivery has been concluded and becomes legally effective but not until all the details concerning planning and execution have been clarified in their entirety and not until payment of any deposit agreed upon has been effected. If the contract is subsequently modified the Company shall be entitled to revise the delivery period or delivery date unilaterally even if the Company has already agreed in writing to a binding delivery period or delivery date.
(2) In the absence of any other agreement delivery is agreed to be ex works (warehouse) of the Company and at the expense and risk of the Customer. This shall also apply to partial deliveries. If collection of the merchandise by the Customer is agreed, risk passes to the Customer as soon as the merchandise has been made ready for collection. If the Customer fails to take possession of the merchandise according to the terms of the contract, risk nevertheless passes to the Customer on the date agreed and he is obliged to defray all costs of storage whether this is on the premises of the Company or on those of a third party.
(3) If the Company undertakes to deliver the merchandise to a specific location under the terms of a separate agreement the delivery to that location shall not be carriage paid, unless expressly agreed. The choice of the means of transport is at the discretion of the Company. Risk passes to the forwarding contractor or carrier as soon as the merchandise is transferred to him, irrespective of whether the merchandise will subsequently be accepted by the Customer.
(4) If performance of the contract is hindered by force majeure (e.g. strikes, major malfunctions and any circumstances that seriously hamper delivery or make it impossible) and if this hindrance cannot be removed by the Company or can be removed only in a way that would incur unreasonable costs, the Company is released from its contractual obligations without the Customer being entitled to claim compensation. The Company is entitled to effect delivery or perform the service once the hindrance has been eliminated or to withdraw from that part of the contract governing the goods not yet delivered or services not yet performed. In this case the Customer can ask the Company by means of a registered letter to declare whether it withdraws from the contract or intends to fulfil the contract within a reasonable period. If the Company does not declare its intention within 14 days of receipt of the written request the Customer is entitled to withdraw from the contract and agrees to waive any claims to compensation.
(5) If the Customer is absent at the time of delivery or has failed to make the preparations necessary for (partial) delivery, the service or delivery shall be deemed to have been accepted notwithstanding. The risk and expense pass to the Customer at this time of delivery, unless they have already passed to him at an earlier date. If the Customer does not accept the merchandise governed by the terms of the contract at the agreed place or at the agreed time the Company can in every case demand acceptance or can withdraw from the contract after having granted an appropriate period of grace; in this case the Customer is liable for all losses thereby incurred.
(6) If the delay is the fault of the Company the Customer can either demand performance or declare his withdrawal from the contract having granted a period of grace of at least 14 days. The declaration of withdrawal must be submitted by the Customer in writing, without fail and definitively with the granting of the period of grace. The withdrawal from the contract takes effect only if the Company fails to fulfil the terms of the contract within the period of grace and by its own fault. Any additional claims, especially claims for compensation, are expressly excluded where such exclusion is permissible by law.
(7) The Company is entitled to make its compliance with delivery periods and delivery dates subject to the receipt of agreed deposits, punctual settlement of outstanding payments, the clarification of any queries arising subsequently, the fulfilment of all technical and space requirements and the fulfilment of all the other contractual obligations without incurring any penalty against the Company due to delay.
(8) In the absence of any other express written agreement the Company is entitled to perform partial and advance deliveries and to present partial invoices for such partial and advance deliveries.
IV. Returned goods
Purchased goods can be returned only if the Company has been expressly notified in writing in advance of the Customer?s wish to return the goods and if the Company has expressly given its consent in writing. Further, goods may only be returned within three months of the day of delivery or performance. If the Company gives its consent the Customer will be invoiced 5% of the value of the goods where these are products of in-house manufacture provided they have been stored in flawless conditions in keeping with the latest technical standards and in their original packaging. For products of in-house manufacture that have been stored in flawless conditions in keeping with the latest technical standards and are not in their original packaging the Customer will be invoiced 20% of the value of the goods. Standard trade goods and custom-made products, especially adapted piece goods and lamps with special coatings, must be accepted and cannot be returned unless expressly agreed otherwise in writing. All costs incurred by the transport of returned goods shall be borne in their entirety by the Customer in every case.
V. Custom-made products
If orders are placed for the manufacture of special products that are not included in the Company?s standard range, any modifications require written notification and mutual consent. Changes to the design or finish of the lights or the quantity ordered can only be requested in writing and shall be deemed to have been accepted only when the Company has expressly confirmed the changes in writing. In such cases the Company reserves the right to invoice for any costs that may already have arisen during production up to that time. The prices agreed for first orders cannot be taken as the basis of prices of reorders which are exclusively subject to the Company?s imputed capacity for production.
VI. Terms of delivery
Unless expressly agreed otherwise in writing delivery within the Republic of Austria is free addressee from a minimum order of EUR 350 net. For deliveries below this amount freight costs shall be borne by the Customer. The Company reserves the right to deliver cash on delivery. In addition the Company is entitled to charge the Customer a surcharge of 1% of the net value of the goods to cover all claims arising from hidden defects caused during shipping.
VII. Sample deliveries
At the express written request of the Customer the Company will supply him with products from its standard range as a sample for a period of four weeks or for any other period agreed upon. The Customer will be invoiced immediately for such a sample. The deadline for payment of this invoice shall be extended for 30 days or for the agreed duration of the period that the Customer has the sample. The Company will accept returned sample deliveries and refund effected payments only if the goods are returned in the quantity and condition in which they were originally delivered and if no technical assembly has been carried out on the goods and if they are free of any defects. This does not apply to lamps (bulbs) which cannot be returned under any circumstances.
VIII. Conditions of payment
(1) Unless expressly agreed otherwise in writing, prices (payment) of the sale of merchandise of the Company are ex works (warehouse) in euros net plus the legally applicable VAT, including packaging but excluding freight, insurance, customs and excise, fees and other auxiliary costs. Price increases occurring between conclusion of the contract and performance thereof due to an increase in production costs (especially material costs, wages, general costs etc.) shall be charged to the Customer and be borne by him. Orders placed without specification of prices shall be invoiced at the Company's usual prices applicable on the day the invoice is presented. The Customer shall accept any technical modifications and deviations from specifications at the usual price as long as these modifications and deviations are not incompatible with the purpose to which the Customer intends to put the merchandise.
(2) Unless agreed otherwise in writing, payment including all additional charges (VAT etc.) shall be effected within 10 days of the date of invoice less 2% discount and at the latest within 30 days of the date of invoice without deductions or discount.
(3) The Company is not obliged to accept bills of exchange or cheques. Payments made by bill of exchange or cheque shall be deemed to be conditional payments only. Any fees and bank commission incurred in connection with cash transfers shall be borne by the Customer. If payment is made by bank transfer or bill of exchange/cheque the day that the amount is credited to the Company's account or the day the bill of exchange/cheque is cashed shall be deemed the day of receipt of payment. In the event of default, interest on arrears at 3% above the relevant rate issued by the Austrian National Bank shall be agreed. Any higher loss of interest or loss on exchange shall be reimbursed by the Customer.
(4) If payment even of one single instalment or payment is overdue the Customer shall be deemed to be in default and all invoices and outstanding payments shall fall due immediately without the Company being obliged to issue express notification that immediate payment is required. This shall also apply in the event of a substantial deterioration of the Customer's liquidity. Also in this case the Company is entitled to withdraw from the contract after having granted an appropriate period of grace and to recover merchandise already supplied to the Customer, to demand the return of the goods or to suspend performance of outstanding deliveries or services also where these are the subject of separate orders.
(5) When withdrawal from the contract becomes effective the Customer is obliged to return the goods supplied to the Company promptly, without being expressly asked to do so and at his own expense. Further, the Customer shall provide compensation for any decrease in value and restitution for all expenses incurred to the Company in the course of performance and subsequent remedying of the contract.
(6) Unless mandatory legal requirements to the contrary subsist the Customer is not permitted to set off his claims against claims of the Company. Payments received by the Company can be used by the Company to cover the oldest outstanding delivery/service irrespective of what the Customer intends the payment to cover.
(7) Unless mandatory legal requirements to the contrary subsist the Customer has no right of retention or lien on goods of the Company.
IX. Retention of title
(1) The goods supplied remain exclusive property of the Company until all the Company's claims arising from a contract including interest, costs and fees have been settled in their entirety and unconditionally and until all other current and future financial obligations on the part of the Customer in connection with the relevant delivery/service and arising from any other deliveries or services provided by the Company have been fulfilled in their entirety. Further, ownership of goods supplied in future shall not pass to the Customer until all payments arising from earlier deliveries have been settled in full. The Customer shall, at his expense and on his initiative, take all the steps and make all the declarations rendered necessary by the prevailing situation to justify or assert the retention of title.
(2) The sale or pledging of the retention of title goods before all financial obligations have been fulfilled in their entirety requires the express written authorisation of the Company. Apart from this the Customer hereby irrevocably offers to assign any claims arising from a possible resale of these goods to the Company to its satisfaction as conditional payment. The Company can accept this offer to assign at any time and for an indefinite period. Any fees and costs incurred in connection with this assignment shall be borne in their entirety by the Customer.
(3) Further, until all financial obligations have been fulfilled in their entirety the Customer is not entitled to modify or process the goods supplied or to incorporate them with other products. If this is done the Company shall be entitled to sole ownership of the product resulting from the modification, processing or incorporation.
(4) If the goods supplied are impounded or if any other claims are made on them the Customer is obliged to notify the Company without delay and to take all necessary measures at his expense to assert the Company's right to ownership. If the retention of title goods are withdrawn by the Company, the Company can require them to be placed in storage at the expense and risk of the Customer. The Customer shall reimburse the Company for all costs arising from the assertion of the Company's right to ownership.
(5) In the event of non-payment of an amount due to the Company, or if payments are stopped or if insolvency proceedings are begun or retention of title goods are impounded the Customer shall return all retention of title goods to the Company.
X. Claims for compensation
(1) The Company accepts no liability for loss or damage caused to the Customer as a result of slight negligence. To the extent that it is legally permissible, the Company accepts no liability towards the Customer for loss of earnings, damage to or loss of goodwill, damage to or loss of business opportunities, consequential damage of all kinds, other commercial losses, pure pecuniary loss, loss of interest, loss or damage arising from claims on the Customer brought by a third party and/or other loss or damage arising from or in connection with individual supply contracts or these General Terms and Conditions. In the event that a more comprehensive exemption from liability is permissible in a particular case, this shall be deemed to be agreed upon.
(2) In the event of gross negligence the Company's liability for loss or damage shall be limited to ten times the net amount invoiced for the merchandise supplied that caused the damage.
(3) Compensation is excluded in the case of non-compliance with any of the Company's conditions with regard to assembly, commissioning and operation.
(4) Unless mandatory legal requirements to the contrary subsist liability for loss or damage as defined by the Austrian Produkthaftungsgesetz (product liability law) and other comparable norms irrespective of which legal system they originate from is excluded. The Customer is obliged to transfer this exemption from liability in favour of the Company to any third party receiving the merchandise. The Customer is obliged to inform its personnel continually and provably of all information and instructions supplied by the Company with its products and of legal requirements.
XI. Claims and warranty
(1) Unless separate written agreements have been entered into in a particular case or unless mandatory legal requirements - especially pertaining to the legal relationship towards consumers under the terms of the Konsumentenschutzgesetz (consumer protection law) of the Republic of Austria of 8th March 1979 valid at the time - are applied the Company is obliged to provide warranty in accordance with the provisions of the Paragraphs (2) to (8) below. If mandatory legal requirements are applicable, these shall apply; if any other of the provisions is inapplicable, Item XIII. Paragraph (4) of the General Terms and Conditions of Business and Delivery shall apply.
(2) The warranty period is six months from the date of the passing of the risk; the warranty period for replacement parts and improvements is three months. Warranty claims lapse within six months of the date of the complaint which must have been submitted within the stipulated time.
(3) Notice of visible defects or missing components shall be given promptly after the moment of delivery. If such notice is not given promptly, the warranty shall not apply. Notice of hidden defects shall reach the premises of the Company by registered letter within 8 days of their detection. Any modification or processing of the merchandise being carried out either by the Customer or by a third party shall cease as soon as the defect is detected. Costs of any kind incurred to the Customer in connection with claims shall be borne exclusively by the Customer if no express written agreement regarding the sum and reimbursement of such costs was entered into with the Company before these costs were incurred. If notice of a defect is not given within the stipulated time the merchandise shall be deemed to have been accepted unconditionally, in accordance with the terms of the contract and free of defects.
(4) If notice of a defect is given within the stipulated time the Company's liability is limited to rectification or replacement of the merchandise at its option. The Company shall be granted sufficient time, which shall be at least one month, to effect such rectification or replacement. If the rectification or replacement incurs unreasonable costs to the Company, the Company may satisfy a warranty claim by granting an appropriate price reduction. If the defect is not minor the Company can demand the cancellation (rescission) of the contract. In the event of price reductions and rescission the Company satisfies its obligations if it grants the Customer credit of a sum corresponding to the amount claimed by the Customer as a result of the defect. If the Customer is not present at the time and place agreed for rectification of the merchandise due to circumstances within the Customer's control or if the Customer hampers rectification or replacement or makes rectification or replacement impossible, the Customer shall be deemed to have waived his warranty claims.
(5) The costs incurred as a result of the above-mentioned measures shall, with the exception of shipping and handling of replacement parts and/or replacement products, be borne by the Customer (additional charge).
(6) The Company shall not be obliged to rectify the defect as long as the Customer has not settled all payments including a possible additional charge.
(7) If the Company is at fault, it shall be liable to provide compensation only in the case of gross negligence or intent but not in the case of slight negligence. In the event that compensation is provided, the above-mentioned provisions shall apply in accordance with Paragraph (4).
(8) The Company shall not provide warranty if the merchandise is used in a way that is not common practice, if the defect is caused by the Customer or a third party or if the Customer or a third party has manipulated or repaired the merchandise himself. The warranty does not apply to consumables or to wear and tear parts.
Documents (e.g. invoices, refusal of an order etc.) that are sent to the Customer at the address last given by him shall be deemed to have been received by him in every case unless the Customer has informed the Company of his new address in writing and in good time.
XIII. Applicable law, place of jurisdiction and severability clause
(1) A-6130 Schwaz is hereby agreed to be the sole and exclusive place of performance of all deliveries/services performed by either party and all payments made by either party.
(2) All contracts concluded between the Company and the Customer and all claims arising from the existence or non-existence of these contracts shall be governed by the laws of the Republic of Austria with the exception of the Austrian International Private Law and the UN Convention on International Contracts for the Sale of Goods.
(3) The sole and exclusive legal venue for all disputes in connection with this contract shall be the materially competent court for A-6130 Schwaz. However, the Company shall have the right to bring legal action against the Customer also at an alternative legal venue in Austria or abroad.
(4) If any of the foregoing individual provisions of these General Terms and Conditions of Business and Delivery is inapplicable or becomes inapplicable the parties to the contract hereby expressly undertake to agree to replace the invalid provision with an admissible provision that corresponds as closely as possible to the economic purpose of the invalid provision. The invalidity of individual provisions will not affect the validity of the other provisions.
(5) This English version is a translation. The original German version shall prevail.