General Terms and Conditions of Business
General Terms and Conditions of Business
of Promotiontube GmbH,
Rudolfsbahngürtel 80, 9020 Klagenfurt am Wörthersee
for the Distance Selling of Goods between Companies
Promotiontube GmbH (referred to hereinafter in brief as Promotiontube) sells the goods it offers on the following Terms and Conditions:
- The Terms and Conditions below form an integral part of every offer from Promotiontube GmbH (referred to hereinafter in brief as Promotiontube) and every agreement concluded with Promotiontube. In particular these Terms and Conditions of Business also apply to all subsequent business, even if when concluding this in future no reference is made to them on an individual case basis. The Customer’s general terms and conditions of business in whatever form are only binding upon Promotiontube when they are expressly acknowledged in writing; otherwise the Customer’s general terms and conditions of business shall be ineffective and are hereby expressly excluded, and this shall apply even if Promotiontube no longer expressly objects to a later contractual document in which the Customer makes reference to its own terms and conditions of business.
II. Offer and acceptance:
- Orders and purchase orders of whatever kind require a written order confirmation from Promotiontube in order to be effective. The sending of goods ordered by the Customer also brings about the conclusion of contract. Otherwise orders of whatever kind, even if they have been taken verbally or by telephone by employees and staff of Promotiontube, are only accepted subject to the application of these Terms and Conditions of Business.
- Unless express prior written agreement has been reached to the contrary, pre-contractual communications, in particular offers, descriptions, cost estimates etc. remain subject to change and non-binding. The scope of supply shall be determined by the written order confirmations by Promotiontube.
- Illustrations and information in catalogues, brochures, on the website etc. are not binding for the execution of an order unless the information contained therein is expressly confirmed by Promotiontube in writing in the order confirmation.
- The Customer is obliged to immediately inspect the order confirmation communicated to it by Promotiontube; any discrepancies from its order must immediately be notified in writing, otherwise the contractual content shall conform to the content of the order confirmation. When making supplies on the basis of verbal or telephone orders, Promotiontube shall not be responsible for any supplies that are incorrect as a result of mistakes in hearing or misunderstandings.
- Unless expressly stated otherwise, all the prices stated by Promotiontube are net and do not include VAT, packaging, loading, shipment, customs and other statutory charges.
- If Promotiontube incurs cost increases after the conclusion of contract, it is entitled to increase the prices accordingly.
IV. Shipment, packaging, delivery:
- Shipment takes place at the Customer’s expense and risk; in the absence of any particular shipment instructions this shall take place to the best judgement of Promotiontube. The risk passes to the Customer with the handover of the goods to the transporter, irrespective of whether the latter is instructed by the Customer or by Promotiontube.
- The Customer must dispose of the packaging at its own expense.
- Promotiontube is entitled to make partial deliveries provided nothing has expressly been agreed to the contrary.
- Adherence to the agreed delivery time requires all the documents or materials that are to be supplied by the Customer to have been received in good time and all technical and contractual details to have been clarified.
- Business interruptions of any kind, in particular delays in the delivery of raw materials, strikes, machine faults or instances of force majeure irrespective of whether Promotiontube, its suppliers and/or the transport companies which transport goods for Promotiontube are affected by these, and also non-adherence to payment terms shall entitle Promotiontube to extend the delivery period or to withdraw fully or in part from the agreement to supply.
- Promotiontube does not guarantee that all the products it offers can be delivered at any time. If one or more products should not be deliverable, Promotiontube shall inform the Customer immediately.
- Delivery periods are always non-binding unless a fixed date has been expressly agreed in writing. The Customer is only entitled to claims for compensation of any kind and a right of withdrawal (subject to setting an appropriate grace period of at least 4 weeks) on account of delayed delivery if the delay is due to intent or gross negligence on the part of Promotiontube. Liability by Promotiontube is limited in terms of the amount, such that in total at most 5 % of the net sum invoiced can be demanded in compensation insofar as the Customer can prove corresponding damage in this amount. Compensation over and above this or other claims by the Customer are excluded.
- If the Customer is in default of acceptance or refuses acceptance for reasons for which Promotiontube is not responsible, Promotiontube is entitled to choose between requesting fulfilment or to withdraw from the Agreement after setting a grace period of 14 days. In both cases Promotiontube shall be fully entitled to compensation.
V. Payment terms:
- Invoices are payable within 8 days of the invoice date without deductions.
- Promotiontube reserves the right only to undertake deliveries to new or unknown customers in return for cash on delivery or advance payment.
- Payments to Promotiontube must be made in full satisfaction of the debt exclusively to one of the accounts listed on the invoice in the currency stated on the invoice. Payments made by bank transfer take effect on the day on which the amount is credited to an account belonging to Promotiontube.
- Irrespective of their being allocated otherwise by the Customer, payments are always allotted firstly to costs, then to interest and lastly to capital, and if there are several claims to the claim that has been due for the longest.
- Promotiontube expressly reserves the right to accept bills of exchange. If bills of exchange are accepted, these are only accepted subject to final payment and shall only count as payment after they have been redeemed. Discount charges and other exchange costs shall be borne by the Customer.
- The assertion of a right of retention or any offsetting against other claims by the Customer is excluded.
- If the Customer is in arrears of payment, Promotiontube is entitled to choose between requesting the reimbursement of the damage actually incurred or interest on late payments in the statutory amount (9.2 % p.a. above base lending rate).
VI. Retention of title:
- The delivered goods shall remain the property of Promotiontube until full payment of the agreed price or until the redemption of the cheques or bills of exchange provided for these.
- The Customer hereby cedes to Promotiontube the claims to remuneration accruing to it in respect of its customer from any resale of the goods that are the property of Promotiontube, together with all ancillary rights, and Promotiontube accepts this cession. In the event of third party access to the goods that are subject to retention of title – in particular by way of pledging – the Customer undertakes to point out Promotiontube’s right of ownership and to inform Promotiontube immediately. The Customer shall bear the full risk for goods that are subject to retention of title, in particular for the risk of destruction, loss or deterioration.
- The assertion of the retention of title shall only include a withdrawal from the Agreement if this is expressly declared.
VII. Exclusion of warranty and liability:
- The Customer is obliged to inspect the delivered goods immediately, including partial deliveries; failure to do so will result in forfeiture of its rights. All defects, incorrect quantities or incorrect deliveries must immediately be notified to Promotiontube in writing by means of a registered letter or with other proof of delivery within 5 days; failure to do so will result in forfeiture of the Customer’s rights. The written complaint must contain the precise description of the defect that is the reason for the complaint. Defects that were not identifiable despite careful inspection must be notified in writing immediately they are discovered. Further obligations pursuant to Sections 377, 378 Austrian Business Enterprise Code [Unternehmensgesetzbuch] (UGB) remain unaffected.
- Minor alterations to the obligations of performance and supply that are reasonable for the Customer, in particular discrepancies in measurements, contents, weights and colours are permissible within the tolerances usually accepted in the sector and are deemed to have been authorised in advance.
- Parts subject to wear and tear do not come under the warranty.
- Promotiontube is entitled within the warranty period to choose with the exclusion of further claims between undertaking improvement (rectification or the provision of missing parts) or replacement delivery, insofar as the Customer demonstrates – also within the first 6 months after delivery – that the defect was already present at the time of delivery. For any improvement provided or a replacement delivery undertaken, warranty shall only be accepted to the same extent as for the original delivery or performance; no extension of the warranty period shall come about through the improvement or replacement delivery.
- Any liability by Promotiontube for damage to the Customer for any legal grounds, including delay, impossibility, defective performance, non-contractual liability, etc., is excluded insofar as this is legally permissible, unless the Customer demonstrates that such damage was caused intentionally or grossly negligently by Promotiontube. Liability for loss of profits and/or atypical or unforeseeable consequential damage is excluded through all degrees of fault.
- In the absence of any written agreement to the contrary, the liability of Promotiontube is limited to the net invoice amount for the ordered goods.
- Defects or damage that are ascribable to culpable or inappropriate handling or inappropriate installation or the use of unsuitable equipment or changes to the original parts by the Customer or by third parties not instructed by Promotiontube are excluded from the warranty and also from any liability otherwise.
VIII. Withdrawal from the Agreement:
- In the event of default of acceptance or other material reasons, in particular arrears of payment by the Customer, Promotiontube is entitled to withdraw from the Agreement insofar as the Agreement has not yet been entirely fulfilled by both sides.
- In the event of withdrawal where the Customer is at fault, Promotiontube shall have the choice between requesting flat-rate compensation in the amount of 15 % of the net invoice amount or the reimbursement of the damage actually incurred.
- If the Customer is in arrears of payment, Promotiontube shall be released from all further obligations of performance and supply and entitled to keep back the supplies or services that are still outstanding and to request advance payments or security as appropriate, or after setting an appropriate grace period to withdraw from the Agreement.
- If the Customer withdraws from the Agreement without being entitled to do so, or requests the cancellation of the Agreement, Promotiontube can choose between insisting on the fulfilment of the Agreement or consenting to the cancellation of the Agreement; in the latter case the Customer shall be obliged to pay flat rate compensation in the amount of 15 % of the net invoice value or the damage actually incurred, at the choice of Promotiontube.
- Consent to cancellation of the Agreement requires that the Customer will return the goods already delivered, in their original packaging and in perfect condition, at the Customer’s expense. Return shipments that have not been prepaid shall not be accepted by Promotiontube. Goods that have been provided with an advertising imprint are strictly excluded from being taken back.
IX. Place of performance, place of jurisdiction, applicable law:
- The place of performance is the registered office of Promotiontube.
- The sole place of jurisdiction for all disputes arising from this contractual relationship, including disputes about the formation of a contractual relationship, is the court with competence for the matter in A-9020 Klagenfurt.
- The contractual relationship is governed by Austrian law with the exclusion of the rules regarding the conflict of laws and the exclusion of the UN Convention on Contracts for the International Sale of Goods.
X. General provisions:
- If provisions of this Agreement should be legally ineffective, invalid and/or null and void, or become so during the term of the Agreement, this shall not affect the legal effectiveness and validity of the remaining provisions. In the event of this the contractual partners undertake to replace the legally ineffective, invalid and/or null and void provision with a provision that is legally effective and valid, and in its economic effect corresponds to the provision to be replaced insofar as is legally possible and legally permissible.
- The Customer issues its consent to the personal data contained in the purchase agreement being electronically stored and processed by Promotiontube in the fulfilment of this Agreement.
- Plans, sketches, graphics, layouts and other technical documents, and also samples, catalogues, brochures, illustrations etc. shall at all times remain the intellectual property of Promotiontube; the Customer shall not receive any rights whatsoever to the use of the work or patent utilisation rights to these.
XI. Consent pursuant to Section 107 Telecommunications Act [Telekommunikationsgesetz TKG:
- The Customer consents to receiving messages as defined in Section 107 Telecommunications Act (TKG) for advertising purposes sent by Promotiontube or by companies instructed to do so by Promotiontube. This consent can be revoked by the Customer at any time.