General Terms and Conditions of Trade
1.1. The present general terms and conditions of trade (hereafter ‘‘GTCT’’) apply for all legal transactions (especially in connection with the import, export and trade of furniture and furnishing) and for all goods and services supplied by Elementry GmbH, company number 510497g, Ort 221, A-5552 Forstau, (hereafter ‘‘Elementry’’) even if no explicit reference is made to them. Differing GTCT of the contractual partner apply only with the explicit consent of Elementry.
1.2. The GTCT also apply if they are taken as the basis for an initial order and not explicitly taken as the basis of a subsequent order in a further business relationship or in the case of recurring services and call orders.
1.3. For consumer transactions in accordance with § 1 par. 1 KSchG (Austrian consumer protection act; hereafter ‘‘Consumer Transactions’’) these GTCT apply with the deviations agreed for Consumer Transactions. In respect of this customers who are consumers are asked to observe especially point 13 of the present GTCT.
1.4. The GTCT are available on the business premises of Elementry or its sales partners and provided at https://www.elementry.at/agb both for inspection and to download.
1.5. If reference is made to the price list in these GTCT then this means the current price list of Elementry on the delivery date.
2. Price quotations
2.1. Elementry provides no guarantee for the correctness of its price quotations.
2.2. In the case of Consumer Transactions a fee is charged for price quotations only in the case of separate agreement.
2.3. If the underlying price quotation is exceeded by more than 15% in the case of performance of a service contract then Elementry is obliged to inform the contractual partner of this.
2.4. In this case the contractual partner may withdraw from the contract in writing within three days of notification although the same must reimburse Elementry for the expenses already incurred and for the pro rata wage for the services provided to date. In the event that the contractual partner does not withdraw the excess is deemed to have been approved by the contractual partner. For Consumer Transactions this applies only if the consumer is informed of this separately on notification that the price quotation has been exceeded.
2.5. The price quotations and offers reimbursed by Elementry and the plans, sketches and drawings upon which these are based are neither to be made available to nor presented for inspection by third parties without explicit written consent from Elementry.
2.6. The structure specified for cost estimates and the values required for the calculation must be presented to Elementry with confirmation from the contractual partner before order placement. If such confirmation cannot be presented then the calculation shall take place on the basis of empirical and estimate values. Change requests after order placement must be communicated immediately in writing by the contractual partner.
3. Contract conclusion
3.1. A contract is created only on written order confirmation within four weeks or on delivery by Elementry.
3.2. The content of the order confirmation must be checked by the contractual partner. The contractual partner is obliged to give notice immediately and in writing of any deviations from the message sent by the same. Otherwise the legal transaction is created with the content confirmed by Elementry; this does not apply for consumers.
3.3. In the event that no specified delivery or performance deadline is agreed the contract is created even without the order confirmation as long as Elementry performs the delivery or service within a period of four weeks after order placement.
3.4. The contractual partner is explicitly informed that the representatives of Elementry are not authorised to form agreements that deviate from these GTCT. Such arrangements require written confirmation from a director of Elementry.
3.5. Specifications in catalogues, brochures, websites etc. are non-binding and are included in the contract only if explicit reference is made to them in the order confirmation.
3.6. In the case of Consumer Transactions Elementry must send the order confirmation to the contractual partner within a reasonable period and within no more than four weeks after placement of the order otherwise the contractual partner is no longer bound by the order or the offer.
4. Delivery, transfer of risk, default of acceptance
4.1. The goods are delivered by Elementry ‘‘ex works’’ (in accordance with INCOTERMS 2010) including loading to Freinbichler Logistik, Mattseer Landesstraße 8, A-5101 Bergheim; this does not apply for consumers.
4.2. The risk is transferred to the contractual partner as soon as the goods are delivered to the contractual partner or to the third party instructed by the same (e.g. freight carrier) or in the case of default of acceptance then from the time of readiness for dispatch. This also applies if partial deliveries are made or if Elementry itself provides the transport to the destination on behalf of the contractual partner.
4.3. The contractual partner or the third party instructed by the same (e.g. freight carrier) must itself arrange proper loading and/or anchoring of the goods. Elementry is liable neither for loading defects nor for anchoring defects.
4.4. Goods not received on the agreed delivery or performance date will be stored for a maximum duration of 4 weeks at the risk and expense of the contractual partner. The storage fees must be paid by the contractual partner. At the same time Elementry has the right to insist on contractual performance or after setting a reasonable period of grace to withdraw from the contract and to sell the goods elsewhere. In the case of sale a contractual penalty of 10% of the value of the goods (excl. VAT) is deemed to have been agreed.
4.5. In the case of Consumer Transactions — if Elementry ships the goods — the risk of loss or damage of the goods is transferred to the contractual partner only once the goods are delivered to the contractual partner or to a third party that is specified by the same and distinct from the carrier. However if the contractual partner itself concluded the contract of carriage without using an option suggested by Elementry then the risk is transferred already on surrender of the goods to the carrier. Nonetheless the contractual partner does not acquire ownership of the goods at the same time as the transfer of risk. Elementry retains ownership in accordance with point 9 (retention of ownership) of these GTCT until payment for the goods has been made in full.
5.1. In the event of a delay for which Elementry is responsible the contractual partner has the right to withdraw from the contract as long as the same sets a reasonable period of grace for delivery of the goods or performance of the service and specifically threatens withdrawal from the agreement after expiry of the period of grace. The period of grace is reasonable if it is no less than 50% of the original period of delivery or performance.
5.2. In the event of a delay for which Elementry is responsible and of legitimate withdrawal by the contractual partner the latter is entitled to compensation for damages only if the delay was caused through intent or gross negligence of Elementry or the agents of the same. In the case of gross negligence the liability of Elementry for damages as a result of delay is limited in amount to 1% of the value of the delayed delivery or service and to a maximum of 10% of the value of the respective part of the delivery or service not provided on time. A damage compensation claim above and beyond this is excluded. This limitation does not apply to Consumer Transactions and personal injury.
6.1. The agreed goods and services are provided in accordance with the offer and/or specifications of Elementry on which the order confirmation is based.
6.2. Minor deviations from a sample and/or brochure that do not impair the intended use and upon which the offer or order confirmation is based (e.g. reference to dimensions, weight, quality and colour especially due to natural wood grains and colour progressions) are insignificant defects and deemed to be accepted in advance.
6.3. Elementry explicitly reserves the right to make changes and improvements to the agreed goods and services on the basis of new experience and/or new scientific events.
6.4. The contractual partner must inspect goods and services from Elementry immediately on acceptance and give notice in writing of defects, shortages or incorrect deliveries immediately and no later than within one week after acceptance of the goods and services or within one week after discovery in the case of hidden defects. The complaint must be adequately substantiated and proven with evidence.
6.5. The guarantee period amounts to two years from acceptance. The existence of defects must be proven by the contractual partner. § 924 ABGB (Austrian civil code) and § 933b ABGB do not apply.
6.6. In the case of substantiated defects Elementry has the right to correct the defect, to deliver that which is missing or to replace the goods at the discretion of the same and within a reasonable period. Multiple corrections and replacement deliveries are permitted. Further claims such as cancellation of the contract (amendment) or price reduction are excluded in the case of timely correction, subsequent delivery of the missing quantity or replacement delivery.
6.7. The guarantee expires if the contractual partner or a third party not authorised by Elementry has undertaken modifications or repairs on the goods.
6.8. If a guarantee promise is included in the offer or in the order confirmation (in all cases this concerns only a guarantee contract with no demand entitlement) then this by no means includes wearing parts (e.g. such as seals etc.) or damage caused by inappropriate or improper use, by natural wear or by incorrect or negligent handling or storage. The guarantee promise is to be understood such that Elementry is responsible for defects (with the exception of the cases listed previously) that occur within the agreed guarantee period after delivery and that are claimed within this period.
6.9. In the case of Consumer Transactions the statutory guarantee provisions of §§ 922 et seq. ABGB and § 9 KSchG apply.
7.1. Unless this in violation of mandatory law and unless specified otherwise in these GTCT Elementry is liable only for compensation for damages that it has caused through gross negligence or intent. In the case of gross negligence the liability is limited in amount to the contractual value and to a maximum of the sum covered by the business liability insurance of Elementry. These liability limitations do not apply to compensation for personal injury.
7.2. Elementry is not liable for indirect damages, loss of profit, interest losses, savings not achieved, consequential and financial damages and damages from third-party claims as well as damages caused by inappropriate or improper use, by natural wear or by incorrect or negligent handling or storage.
8. Prices, terms of payment and default of payment
8.1. Unless explicitly agreed otherwise the agreed prices are exclusive of value added tax at the respective statutory rate and ‘‘ex works’’ (in accordance with INCOTERMS 2010) to Freinbichler Logistik, Mattseer Landesstraße 8, A-5101 Bergheim.
8.2. Invoices from Elementry are due for payment within 10 days with no fees.
8.3. Elementry has the right to demand payment of the order total. The deadline for payment amounts to 8 days from receipt of the order confirmation issued by Elementry. If the contractual partner fails to make the payment on time then no delivery or performance obligation applies to Elementry.
8.4. All claims of Elementry become due immediately if the contractual partner falls into default on fulfilment of a liability to Elementry. The same applies in the case of cessation of payment. In these cases Elementry has the right to withdraw from the contract immediately.
8.5. In case of default of payment Elementry has the right
- To charge default interest in accordance with § 456 UGB (Austrian commercial code) in the case of business transactions. Elementry remains at liberty to make a separate claim for damages above and beyond this.
- At its discretion to charge for compensation for the damage actually incurred and the statutory default interest amounting to 4% p.a. in the case of Consumer Transactions.
- To claim dunning, collection and solicitors’ costs if these are required for appropriate prosecution. In the case of business transactions this includes a flat rate of EUR 40 per invoice regardless of operating costs above and beyond this in accordance with § 1333 par. 2 ABGB. This also applies for repeated default on a standard legal relationship.
- To claim compound interest from the date of delivery of the goods in the case of default of payment by the contractual partner.
- To allocate incoming payments initially to dunning and collection costs as well as costs of collection through a solicitor or court and then to the accrued interest and finally to the outstanding capital.
8.6. In the case of default of payment Elementry has the right to make further deliveries or performance conditional upon advance payments or security deposits. Elementry has the right to demand damage compensation for non-performance in these cases or to withdraw from the contract regardless of any damage compensation claims. In this case accepted bills of exchange may be returned before expiry and immediate cash payment may be demanded.
8.7. Elementry has the right to allocate incoming cash receipts at its own discretion in the case of multiple outstanding liabilities of the contractual partner.
8.8. Even if they are collected on the basis of notices of defects the contractual partner does not have the right to offset asserted counterclaims against claims of Elementry or to refuse payment unless such claims have been established as final in court of law. The prohibition of offsetting and the exclusion of the right of retention do not apply in the case of Consumer Transactions.
8.9. Only goods in perfect condition will be taken back and refunded at 90% of the value of the goods. Collection costs will be charged separately. This does not apply to consumers.
9. Retention of ownership
9.1. The goods supplied by Elementry remain the property of the same until payment is made in full taking into account any ancillary costs and until the contractual partner has performed the services of the same arising from this contract in full.
9.2. The contractual partner must keep the goods supplied by Elementry safely until transfer of ownership to the same. The contractual partner shall bear the entire risk of the retained goods and specifically the risk of destruction, loss or deterioration.
9.3. In the case of resale of the retained goods the contractual partner now already assigns to Elementry the claims arising from resale to the buyer of the retained goods up to the total value of the goods supplied in order repay all claims together with secondary claims and with no requirement for a further declaration of assignment or communication. The same provision applies equally in the case of handling and processing, combination or mixing of the goods supplied. In this case Elementry acquires joint ownership of the items produced by the processing in the same proportion as the delivery value of its goods to that of the newly produced items.
9.4. If the goods delivered by Elementry or the items produced by handling and processing of the same become integral components of a property that belongs to a third party such that the same becomes the owner of the goods supplied by Elementry as a result of the inseparable connection with the property then the contractual partner now already assigns to Elementry all claims against the third party together with all ancillary rights to the total value of the goods supplied and installed by Elementry.
9.5. On demand by Elementry in the case of default the contractual partner must inform its debtors of the fact of the assignment, provide the information necessary in order to assert the assigned claim and issue the documents required for this.
9.6. The contractual partner does not have the right to pledge goods that are subject to retention of ownership by Elementry or to assign such goods as security. In the case of seizure or other use by third parties the contractual partner must assert the ownership right of Elementry, inform Elementry immediately and take all steps required to protect the interests of Elementry.
9.7. In the case of delivery of goods on account the retention of ownership serves as security for the outstanding balance.
10.1. Unless explicitly agreed otherwise all prices are ex works (Freinbichler Logistik, Mattseer Landesstraße 8, A-5101 Bergheim) including packaging and excluding installation. If the installation and if necessary activation are not included in the price as is the case in the absence of agreement to the contrary then appropriate installation personnel will be made available to the purchaser in return for a fee. If installation is included in the price then work during regular working hours is taken as the basis for this. Any additional consumption of materials and associated increased workload, waiting times as well as additional hours and overtime of the installer from the domain of the purchaser plus the implementation of special requests of the purchaser will also be charged separately in this case.
10.2. In the case of delivery and installation/assembly of the ordered goods by Elementry at the registered office of the purchaser the risk of accidental destruction, theft and all circumstances attributable to the sphere of risk of the purchaser is transferred to the purchaser at the time of our delivery to the agreed location. If shipping to the agreed location is delayed on grounds for which the purchaser is responsible then the time at which Elementry notifies the customer of readiness for dispatch is definitive.
10.3. In the event that installation forms part of the scope of supply the guarantee period begins on completion of the installation work regardless of any formal acceptance by the purchaser. This provision does not affect defect notification obligations. In the case of performance of repair work that necessitates sending of the goods to the registered office of Elementry the goods are to be sent carriage paid to Elementry or to a location to be specified by Elementry. Removed/replaced components are transferred to the ownership of Elementry.
10.4. The liability provisions of point 7 of the present GTCT apply to the same extent for the bodies, legal representatives, employees and other agents of Elementry.
11. Place of performance, place of jurisdiction, applicable law, partial invalidity
11.1. The place of performance for all services under this contract is the registered office of Elementry in A-5552 Forstau; this does not apply for consumers.
11.2. In accordance with § 104 JN (Austrian law on jurisdiction) the competence of the ordinary competent court of St Johann im Pongau is agreed for all disputes arising from this contract.
11.3. The application of Austrian law is agreed between the contractual partners to the exclusion of the conventions of international private law on conflicts of laws (PILA, Rome I Regulation) and UN sales law. The choice of law applies to consumers only as long as it is limited by no mandatory statutory provisions of the state in which the consumer is domiciled or ordinarily resident.
11.4. Should provisions of these GTCT be or become legally ineffective, invalid or void then this shall not affect the legal effectiveness and validity of the remaining provisions. In this case the provision that is or has become legally ineffective, invalid or void shall be replaced by such a provision as is legally effective and valid and that corresponds as far as possible to the economic effect of the replaced provision.
12.1. The data associated with the business relationships (specifically name, address, telephone and fax numbers, e-mail addresses, order, delivery and billing address, order date, products or services ordered and delivered, quantity, price, delivery dates, payment and dunning data etc.) are stored and processed by Elementry. The contractual partner consents to this. Our responsibility under data protection regulations is a top priority for Elementry. The personal data of the client are processed specifically in compliance with GDPR the 2018 Austrian data protection act and the Austrian telecommunications act. All information concerning our data processing and your rights can be viewed in the data privacy statement available at https://www.elementry.at/datenschutz or will be sent on request.
13. Limitations on application of the GTCT in the case of consumer transactions
13.1. If the contractual partner is a consumer in accordance with § 1 par. 1 KSchG then the following provisions of the present GTCT do not apply in relation to the contractual partner: point 1.1. final clause and point 3.4. final clause (written consent), points 6.3. to 6.7. (limitation of the guarantee), point 7.1. and point 7.2. (liability limitations), point 8.8. (prohibition of offsetting and exclusion of a right of retention), point 11.2. (place of jurisdiction clause) and point 11.4. (partial invalidity).
14. Arbitration bodies in the case of consumer transactions
14.1. Elementry is obliged to refer to the arbitration body ‘‘VERBRAUCHERSCHLICHTUNG’’ (consumer arbitration) Mariahilfer Straße 103/1/18, A-1060 Vienna, telephone: +43 1 8906311, email@example.com, www.verbraucherschlichtung.at as the extrajudicial arbitration body. Elementry reserves the right to decide on participation in such proceedings in the individual case.
14.2. The European Commission provides its own platform for (online) dispute resolution. This can be accessed directly by following the link http://ec.europa.eu/consumers/odr/ (external link).