General terms and conditions (GTC)
Heat4All Vertriebs GmbH (H4A)
H4A’s General Terms and Conditions (GTC), as amended from time to time, shall apply to any and all business relations between H4A and its customers including but not limited to offers, order confirmations, deliveries and other services. A customer’s deviating or conflicting terms and conditions are herewith expressly excluded unless H4A grants its expressed consent to their application in writing. H4A’s GTC shall also apply to all future business relationships, even if not expressly referred to. These GTC, and any changes to these, shall be published on the website www.heat4all.com and are on display on the business premises of H4A. A customer shall be deemed a consumer insofar as the purpose of goods and services ordered is not related to any commercial or self-employed activity. Entrepreneur, however, shall be any natural or legal person or incorporated partnership that, at the time of conclusion of the contract, is carrying out any commercial or self-employed activity.
2. Company address
The company address of Heat4All Vertriebs GmbH is Heat4All Vertriebs GmbH, Brühlerstrasse 73b/7/5, A-2340 Mödling email@example.com
3. Order confirmations, purchase orders
A contract shall be deemed concluded if an affirmative written order confirmation has been issued by H4A, or by delivery of the goods or provision of the service ordered, respectively. In case an order is not accepted, the customer shall be notified where necessary.
4. Delivery and terms of delivery
Unless otherwise agreed, deliveries shall be carried out by charging delivery costs to the delivery address specified by the customer. Delivery costs shall be shown separately in the offer, order confirmation or invoice, respectively. All sales prices are exclusive installation costs. However, upon request H4A will organise these services at an additional charge. In case of collection by the customer, the risk of destruction, loss or damage to the goods shall be transferred upon provision of said goods. H4A reserves the right to make partial deliveries. The customer is not entitled to reject partial deliveries. As far as H4A has indicated terms of delivery, these are non-binding unless explicitly described as binding. Furthermore, H4A is entitled to withhold deliveries and services until the other party has fulfilled all its contractual obligations, e.g. any advance payments, and other obligations. H4A also reserves the right to withdraw from the contract at all times or terminate said contract without notice if the contracting party violates any of its duties/obligations. In the event of H4A, by no fault of its own, being unable to deliver the ordered goods, due to the product being sold out or a supplier not fulfilling its contractual obligations toward H4A, H4A shall be entitled to withdraw from the contract. In this case, the customer shall be notified immediately that the ordered product is unavailable. The customer’s statutory rights shall remain unaffected thereby.
5. Force majeure
In the event that H4A, due to force majeure including operational disruption, is unable to perform, H4A shall notify the other party promptly and without undue delay thereof. In the event of force majeure, H4A is entitled to withdraw from the contract entirely or in part. In any event, any delivery and performance schedules H4A has committed itself to, shall be extended by the period of the duration of the effects of the force majeure.
6. Official permits and licences
Insofar as official approval is required for the execution of the contract, the contracting party shall provide said approval in a timely manner. The same is true for any licences pertaining to the printing of individual motifs. If the contracting party fails to do so, H4A - notwithstanding other claims – shall be entitled to withdraw from the contract. In the event of non-compliance with official and/or licensing regulations, the contracting party shall indemnify and hold H4A harmless.
7. Prices and payment
All of H4A prices are net ex works (excluding statutory duties and taxes), including packaging costs but without shipping costs and/or insurance. H4A shall retain ownership of the delivered goods until full and final payment has been received. All receivables of Heat4All Vertriebs GmbH are payable immediately upon receipt of the invoice without discount or any other deductions. H4A reserves the right to deliver goods or provide services, respectively, only against advance payment. The contracting party is not entitled to offset its own claims against claims by H4A unless said claims by the contracting party have been acknowledged in writing by H4A or have been judicially determined. H4A is entitled to charge default interest of 7% p. a. for late payments on the part of the contracting party. If payment by instalments has been agreed upon, falling behind on any such instalment shall automatically result in default, meaning the entire purchase price will be due immediately.
8. Retention of Title
Ownership of goods delivered shall not transfer to the contracting party until the full purchase price has been paid. H4A reserves the right to mark goods as its property. The contracting party must not remove this marking. The customer undertakes not to sell, pledge or assign as collateral any goods delivered subject to retention of title. The contracting party must notify H4A without delay of any changes in the factual or legal status of goods subject to retention of title, such as seizures or deterioration. In the event of enforcement of the retention of title, the contracting party shall be obliged to immediately surrender the goods subject to retention of title. The repossession of goods subject to retention of title shall be deemed a withdrawal from the contract only if the latter has been expressly declared in writing. For the duration of possession of the goods, the contracting party shall be obliged to compensate H4A for their decrease in value, however, reimbursement shall amount to no less than 30% of the value of the goods plus any additional costs (e.g. transport charges, dunning costs ...).
The statutory warranty periods shall apply. Remedies outside of the warranty period shall have no effect. The period shall begin with transfer or delivery of goods or rendering of services, respectively. Any liability or warranty for compatibility of products with other products, systems, installations or parts thereof, as well as for suitability for a specific use or in the event of improper handling shall be excluded. Any liability or warranty for modifications of the products not authorized by H4A shall be equally excluded. Warranty and any guarantee claims of the contracting party shall only be honoured if the product has been put into operation in accordance with H4A’s operating instructions. Any warranty for services carried out by third parties, e.g. installer and/or electrician, etc. shall be excluded. Furthermore, warranty and any guarantee shall be void if the contracting party fails to perform any necessary repairs or maintenance within the guarantee and warranty periods. The warranty period shall not recommence for products that have been repaired or replaced. The contracting party shall be obliged to issue a written complaint stating any defects immediately, at the latest within 21 days after delivery of the goods or rendering of the service, indicating the invoice number and the defect and submitting evidence as well as samples. In case of latent defects, the written complaint must be made no later than 12 months after delivery of the goods or else be excluded. H4A assumes liability only for characteristics expressly included in the warranty. Any warranty and guarantee are excluded for wear parts, in the event of force majeure, exposure to moisture, excessive pollution, fire, poor ventilation, voltage fluctuations of more than +/-10%, as well as electrical or electromagnetic influences, and other external influences. The guarantee pursuant to section 922 (1), second sentence, second half-sentence of the Austrian General Civil Code (ABGB) (description, test sample, trade sample), section 922 (2) of the ABGB and section 933 b (1) of the ABGB shall be excluded. In the event that a sample delivery has been agreed, any warranty and liability shall be excluded. In the event of partial delivery of goods and/or provision of services, the warranty period shall commence with execution and/or provision of the (partial) delivery and/or (partial) service, respectively. The assignment of claims to third parties shall be excluded.
H4A shall be liable for intent and gross negligence in accordance with statutory regulations. Liability for slight negligence shall be excluded. The company shall not be liable for lost profit, unrealised savings, damage resulting from third-party claims, and other indirect and consequential damages. The reversal of the burden of proof in accordance with section 1298 of the ABGB shall be excluded. Products only offer such a degree of safety as can be expected on the basis of applicable statutory (product) regulations, relevant provisions, etc. Improper treatment and interference, as well as non-compliance with the service and operating instructions or the execution of connection works or putting into operation using third-party products shall result in the exclusion of any liability in its entirety. This shall also apply to actions of assistants and vicarious agents of H4A. H4A shall not be liable for damages/consequential damages resulting from the customer - possessing neither the necessary technical knowledge nor the necessary installation skills or experience - installing spare parts supplied by H4A. In the event of liability, only monetary compensation may be claimed with liability limited to the net value of the goods, however exceeding no more than EUR 5,000.00. Should the contracting party intend to take recourse to H4A based on product liability claims, it must notify H4A without delay of such claims in writing (registered mail) thereby specifying the supporting facts within three weeks after these became known to the party; the same applies in the event of legal proceedings. In recourse proceedings, H4A shall only be liable for intent or gross negligence. Insofar as H4A has not expressly acknowledged the defect, all compensatory damages claims based on defects of the supplied goods or services provided shall lapse, unless they have been filed in court within 12 months of the defects having become objectively discernible or at the very latest within 3 years subsequent to the event giving rise to the claim. The contracting party shall indemnify and hold H4A harmless against any third-party claims arising from the conduct of the contracting party.
The company may gather, process, and utilise personal data, billing data, and usage data relating to the customer without the customer’s expressed consent, insofar as this is necessary for the execution of the contract. To the extent that H4A should use the services of third parties in order to provide the services offered, H4A reserves the right to disclose data relating to the contracting party to any such third party if so required for the purposes of the contract. The company shall be entitled to process or use such personal data and pass said date on to third parties for other purposes (such as consultancy, advertising, market research), insofar as the customer has given consent or if permitted by law. The contracting party expressly consents to allowing H4A to communicate information about its own products and services as well as advertising material by e-mail, text messages (SMS), telefax and mail. The company guarantees that it will use suitable technical and organisational means to prevent unauthorized third parties from either gaining insight or more extensive access to its internal data. Plans, blueprints, drawings or other technical documents as well as samples, catalogues, brochures, illustrations, and the likes shall remain intellectual property of H4A. The contracting party shall not be granted usage or exploitation rights of any kind whatsoever.
12. Right of withdrawal of the client (consumer) in accordance with section 3 of the Consumer Protection Act
The contracting party may withdraw from the contract within one week of conclusion of said contract if it has not been concluded on the premises of H4A or at one of its exhibition or information stands. This period shall commence with the conclusion of the contract. The withdrawal must be issued in writing and posted to H4A within the stated period (postmark). The right of withdrawal shall not apply if the contracting party has initiated the business itself or if the conclusion of the contract has not been preceded by any negotiations.
In the event of individual provisions of these general terms and conditions being or becoming wholly or partially void, the effectiveness of the remaining provisions shall not be affected hereby. Instead, those that come closest to the intended purpose shall replace the ineffective provisions. There are no side agreements. Supplements to the contract shall only become effective if they are confirmed in writing. The same is true for a waiver of the requirement of the written form. There are no verbal side agreements. E-mail and/or telefax shall satisfy the requirement of the written form. As long as transactions covered by this agreement have not been concluded to mutual satisfaction, the contracting party must notify H4A without delay of any changes in the company's full name, in the address of his paying agent, the legal form as well as of any change that is legally significant. Should the contracting party fail to disclose a change of address and hence fail to receive legally relevant declarations and invoices posted to its last known address by H4A, the statements and invoices shall be deemed received nonetheless. This contract is subject to Austrian law. The legal venue shall be the competent court having jurisdiction in the city of Vienna (Innere Stadt). Application of the UN Sales Convention is explicitly excluded.
Vienna, in April 2013.