General terms and conditions for consumer transactions in distance selling
1. Scope of application
1.1 These General Terms and Conditions (hereinafter: GTC) of XeNTiS Composite Entwicklungs- und Produktions GmbH (hereinafter: XeNTiS) are an integral part of every business relationship, in particular every offer and every contract, if the contractual partner is a consumer (§ 1 Consumer Protection Act – KSchG). Unless expressly agreed otherwise in writing by the contracting parties, they shall also apply to all further orders, even if no reference is made to these GTC.
1.2 We are not bound by any purchasing conditions or contractual conditions of customers, even if they have been communicated to us by the customer and we have not objected to them. All orders received by us will only be accepted subject to full acceptance of these General Terms and Conditions. Special agreements with our representatives which deviate significantly from normal business practice or the General Terms and Conditions require the prior written approval of the management.
2.Offer & order confirmation
All orders only become legally binding through our written order confirmation or through unconditional and unrestricted delivery. Subsequent changes or cancellations of already confirmed orders require our express written consent. Until our rejection or execution of the delivery order, the customer shall remain bound by his contractual declaration.
3. Intellectual property
3.1 Our drawings, samples, models, plans, sketches and other technical documents shall remain our intellectual property even after conclusion of purchase and shall be protected by the relevant statutory provisions with regard to processing, reproduction, imitation and unfair competition. They may not be made accessible to third parties in the event of any other complete indemnification of our company.
3.2 Our trademarks or product and company marks are protected by trademark, copyright and/or trademark law, so that any unauthorized use or any kind of imitation, unauthorized use and/or duplication violates protection standards of unfair competition, trademark, copyright and/or other trademark law and gives rise to claims for damages. A criminal prosecution of violations in individual cases is expressly reserved.
The prices stated in the price lists and brochures are quoted ex works without packaging, assembly and transport costs. If the order must be carried out urgently at the customer’s subsequent request, so that we are forced to employ our staff even at weekends or in the evening hours, the customer must pay the additional costs incurred for the necessary overtime hours and therefore the price shown on the order quotation increases accordingly. In this case, the customer will be informed of the additional costs in advance.
5. Terms of payment
5.1 Unless otherwise agreed, the following payment methods shall apply: credit card payment, SEPA direct debit, Sofortüberweisung, PayPal. Invoices shall be deemed approved if they are not objected to in writing within 8 days of the invoice date.
5.2 Incoming payments shall initially be offset against interest and ancillary costs, even if this provision is opposed by payment dedications of the customer.
We are entitled at any time to demand immediate cash payment and security for open amounts if the customer’s creditworthiness deteriorates significantly or is no longer given, otherwise we can withdraw from the contract and demand the return of goods already delivered but not yet paid for.
5.3 In the event of even partial default in payment and default in acceptance, default interest of 4% per annum shall be charged. If the customer is in default, the risk of accidental loss or deterioration shall pass to the customer upon occurrence of the default.
In addition, we are entitled to demand immediate payment of all claims and to retain all outstanding deliveries until receipt of the invoice amounts in accordance with § 1052 ABGB (Austrian Civil Code). This shall also apply to one-off deliveries if we only become aware of the customer’s uncertain financial situation after conclusion of the contract.
5.4 Payments with debt-discharging effect can only be made to one of the accounts listed on the invoice forms or to a representative provided by us with a separate written power of attorney. Only cash payments and unconditional crediting to our accounts shall be deemed effective payment.
6.1 The delivery period shall commence on the day we confirm the order. Delays for which we are not responsible, in particular events of force majeure or difficulties at subcontractors, shall extend the delivery period by the duration of the event plus a reasonable start-up period, without the customer being able to derive a right of rescission from this. Force majeure is expressly deemed to be official intervention, energy supply and raw material difficulties, labour disputes, accidents, unforeseeable production difficulties and all other occurrences which make the delivery considerably more difficult or impossible, provided that we are not at fault for the occurrence of these events. The delivery date shall also be postponed if the customer is in default with the obligations incumbent upon him, e.g. handing over documents or other forms of cooperation. In the event of the agreed modification of the order, we shall be entitled to reassess the delivery date. In any case, claims for damages due to delayed delivery or non-delivery are excluded unless intent or gross negligence on our part can be proven.
6.2 The customer is obliged to accept goods delivered late.
6.3 Significant changes in the person of the customer occurring and becoming known after conclusion of the contract, in particular with regard to his financial situation, justify our immediate withdrawal from the contract.
6.4 In the event of default of acceptance, the customer shall suffer adverse consequences within the meaning of § 1419 ABGB (Austrian Civil Code). The ordered goods shall be stored at the customer’s expense and we shall be entitled to invoice these agreed goods as delivered, debiting all costs incurred. Claims for damages shall not be affected thereby. The customer shall not be entitled to withdraw from the contract with regard to partial deliveries already made if partial deliveries are still outstanding. Additional costs resulting from a delay for which the customer is responsible shall always be borne by the customer.
In the absence of special shipping instructions from the customer, we shall ship the goods in the best possible way at our own discretion, without responsibility for the cheapest freight or the choice of carrier.
8. Retention of title
8.1 All delivered goods shall remain our property until full payment of the purchase price and the incidental costs caused by any delay in payment has been made, even in the event of processing by the customer or by a professional commissioned by him. Any pledging or transfer by way of security or resale of the goods subject to retention of title without our express prior written consent is prohibited and invalid for the customer.
8.2 In the event of unlawful resale, the purchase price claim against the third party replacing the reserved title shall be deemed to have been assigned to us and the purchase price paid to the customer shall be passed on to us immediately or the customer shall notify his debtor in writing of the assignment. Proof of this notification shall be furnished to us upon first request.
8.3 The customer is obliged to keep the delivered goods in proper condition for the duration of the retention of title. The customer shall insure the goods subject to retention of title against theft and fire at his own expense to an appropriate amount and shall be liable to us for any loss of or damage to the same. We shall be entitled to the rights arising from this insurance contract or the insurance policies shall be subject to transfer restriction in our favour. The transfer restriction must be proven to us upon first request.
8.4 The customer must inform us immediately of any seizure, opening of bankruptcy proceedings or other legally relevant events which may affect our rights and indemnify and hold us harmless. Should a bailiff wish to seize the delivered goods, our ownership must be asserted against the bailiff, stating our company name and address.
8.5 In the event that bankruptcy proceedings are instituted, we shall be entitled to collect the goods subject to retention of title without delay and the customer shall waive any objections thereto, in particular any claims to disruption of possession.
9. Assignment of receivables
The customer may transfer rights arising from this contract to third parties only with our prior express written consent.
10. Guarantee and complaint
10.1 For the purchased goods, the article-specific warranty period shall apply from dispatch of the goods for properties expressly warranted by us in writing and for freedom from defects in accordance with the respective state of the art. In cases of extraordinary claims, this warranty period shall be reduced by half in each case. Disassembly and installation costs, travel time and travel costs shall be borne by the customer. There shall be no right to rescission or reduction unless we are unable to remedy the defect or supply a replacement.
10.2 The guarantee expires if the delivery item is modified by third parties or by the installation of parts of third party origin, if installation and treatment instructions are not followed or if the product is not used in accordance with its intended purpose. Natural wear and tear and damage due to improper handling are also excluded from the warranty. The repair extends the warranty period only in respect of replaced parts.
10.3 After the payment obligation has become due, warranty claims can only be asserted after full payment of the agreed purchase price. If a warranty claim is not made as a result of the rectification of the defect, our services shall be subject to payment.
10.4 In order to process any complaints within the warranty period, the customer must provide the following data to process the complaint: Article number, description, piece, reason for complaint, date of installation, date of manufacture and date of complaint.
10.5 The statutory warranty rights remain unaffected by this and are entitled to the customer in addition to the voluntarily granted warranty.
11.1 We perform our warranty obligations within the scope and in accordance with the applicable law (§§ 922 ff ABGB), whereby the customer as a consumer has unrestricted access to the legally provided legal remedies. In accordance with the statutory provisions, the warranty period is 2 years for movable items and 3 years for immovable items. Improvements outside the warranty period shall have no legal significance and shall only be carried out impartially and on a goodwill basis.
11.2 The warranty expressly does not apply to defects caused by improper handling, excessive strain or normal wear and tear (warranty only applies to rusting through, not rusting through). In the event of improper assembly or modification of the goods or their components, all warranty claims and claims for damages in connection with the affected parts shall lapse. In the event of defects, the customer shall be obliged, to the extent possible, to permit improvement by replacing or repairing the goods complained of free of charge and shall grant a reasonable period of grace in writing. Only if we do not comply with this improvement within the reasonable period of grace may the customer request a reasonable price reduction.
11.3 Defectiveness shall in any case not exist if custom-made products ordered by the customer, of whatever kind, do not meet the customer’s expectations at the time of delivery. Minor deviations from drawings, models and samples which do not lead to any change in the goods themselves shall not constitute defects.
We shall be liable for personal injury in the event of slight negligence. We are only liable for damage to property in the case of gross negligence and intent. In the case of damage to property, liability for slight negligence is therefore excluded.
13. Data protection
We are committed to compliance with all data protection regulations, in particular VO (EU) 2016/679 (data protection basic regulation / DSGVO) and refer to the current data protection notice.
The data provided to us by the customer in the “Product registration” form will only be used for warranty processing and will never be passed on to third parties.
14. General terms and conditions
14.1 Amendments to this contract must be expressly made in writing in order to be legally effective; this also applies to any waiver of this formal requirement. Verbal agreements are invalid.
14.2 Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions and the remainder of the contract shall remain legally valid. Any ineffective provisions shall be replaced by provisions that legally and permissibly regulate the contractual intent of the parties.
14.3 Place of performance for delivery and payment is the registered office of our company (8572 Bärnbach).
14.4 Unless otherwise agreed in writing, all contracts and disputes shall be governed exclusively by substantive Austrian law; the UN Convention on Contracts for the International Sale of Goods or the application of reference standards shall be excluded. However, the consumer shall be entitled to those rights of the country in which he has his habitual residence which may not be deviated from by agreement according to the law of this country.
14.5 The place of jurisdiction for disputes arising from all contracts concluded with the customer, including the question of their valid conclusion and their pre- and after-effects, is determined by the statutory provisions of the JN and the KSchG.
14.6 With regard to the consumer’s statutory right to withdraw from the contract in accordance with the Law on Distance and Foreign Trade (FAGG), reference is made to the separately provided instruction sheet.
Status: September 2019