Sales, delivery and payment terms
PEMATEX INTERNATIONAL GMBH
(Terms and Conditions (GTC)
Our following conditions of sale, delivery and payment (general terms and conditions, GTC) apply without exception to all sales contracts concluded by us as a seller of goods with our customers, as well as for our brokering activities. The terms and conditions of our customers, who deviate from our conditions, only with our express written consent. This also applies if we carry out the delivery without reservation in knowledge of deviating conditions of the customer.
II. Trademark Protection
The buyer acknowledges that the trademarks “PEMATEX”, “WEARMAX” and “Conceptfloor” are protected by law and their use is expressly prohibited, in any case the unauthorized use will be prosecuted.
III. Offer and contract content
1. Our offers are non-binding.
2. The contract content is determined by our written order confirmation. This also applies if our order confirmation with the invoice takes place on a form. If a written order confirmation is missing, the contents of the contract are determined according to the offer made by us and accepted by the buyer.
3. Mixing of floor coverings or other customizable material is at the expense of the buyer. In the case of fixed dimensions ordered by the buyer in length, we reserve the right to exceed the fixed size of up to 5%, for custom-made items (eg own samples) of up to 10% and to calculate the excess delivery.
4. Verbal side agreements, assurances of characteristics and subsequent contract changes are only valid if they are confirmed by us in writing.
IV. Sample material
1. samples will be charged at cost. The buyer on loan and free provided collections and samples remain our property.
2. Sample material is not binding with regard to production-technical or material-related deviations in the production.
1. Delivery periods are subject to timely and contractual self-delivery and are in principle not binding. If specified delivery times are not met by us, the buyer must set in writing a reasonable grace period of at least 3 weeks, which begins with the receipt of the deadline with us. After expiry of the reasonable period, the buyer is entitled to resign. Until receipt of the written declaration of withdrawal, we are entitled to delivery.
2. Cases of force majeure, such. B. permanent handicaps of goods and material procurement, breakdowns, staff shortages due to illness, strike, lockout, riots, war and government intervention, absolve us during the duration of the delivery and service obligation. This also applies if the events occurred at the subcontractor. For long-lasting obstacles – more than 4 weeks – both contracting parties are entitled to withdraw from the contract.
3. Partial deliveries are permitted.
4. In the event of default of acceptance by the buyer, we are entitled to invoice or, subject to setting a grace period of 5 days, withdraw from the contract and demand compensation for damages. The storage of goods not accepted by the buyer takes place at his risk and expense.
VI. Right of retention
We have a right of retention regarding further deliveries until all previous deliveries have been paid. If circumstances become apparent to us after the conclusion of the contract which significantly reduce the creditworthiness of the buyer, or if justified doubts arise about the buyer’s solvency, we are entitled to refuse delivery or to execute them only after prior payment or security. If the buyer does not pay or does not provide any securities, we are entitled to withdraw from the contract (§1052 sentence 2 ABGB).
1. Shipping is at the risk of the buyer. The choice of the shipping method and the choice of shipping route are up to us.
2. The shipping costs are borne by the buyer, except for offers including freight charges. The shipping costs for special order goods (no stock items) and for express and express are at the expense of the buyer.
3. The conclusion of a transport insurance is only at the express written request of the buyer and at his expense. Any transport damage must be reported to the carrier and us in writing without delay. If delivery is agreed to be free domicile, the buyer must immediately after delivery, the existence of damage to the transporter in writing to demonstrably notify as well as to make us a written evidence.
4. We bear the costs of packaging for transport to the buyer. The costs of any return of transport containers / loaned packaging shall be borne by the buyer.
5. Disposable packaging will not be taken back by us. We may at the request of the purchaser name a third party who will recycle the packaging in accordance with the Packaging Ordinance, but not at our expense. The goods supplied by us are delivered exclusively in packages that participate in the ARA system (ARA license No. 10532).
6. Returnable containers, which are not expressly included in the price and the invoice amount, will only be made available on loan. They remain our inalienable property and are kept on a special container account of the buyer.
VIII. Return of goods
The return of the goods is only permitted if we have expressly agreed to this and the goods are in their original packaging, with any freight costs borne by the customer.
1. Our prices are net prices without sales tax. In addition, we charge sales tax in the respective statutory amount. An intra-Community supply is only for entrepreneurial purposes to entrepreneurs with a VAT number, which are subject to the acquisition tax.
2. Our prices are based on the existing economic conditions at the time the contract was concluded, in particular our production costs, the purchase prices, the prices of raw materials and supplies and the wage and salary costs. Should we increase the price in the period between contract conclusion and delivery as a result of a change in economic conditions, the new price will apply to orders not yet executed. A price change must be communicated to the buyer immediately. If the latter objects to the price increase within one week after receiving the notification, we have the choice between withdrawal from the contract or delivery at the originally agreed price. We will announce our decision to the buyer as soon as possible. If we explain the withdrawal from the contract, claims of the buyer against us are excluded.
1. Our claims are due from the date of invoice within 7 days with 3% discount or within 14 days without deduction. The discount deduction is (also with cash or cash payment) only permitted, if the debtor is not in arrears with other payment obligations to us within the discount period.
2. If the buyer is in arrears with his payment obligation, we charge interest at the rate of 8% above the respective base interest rate. The assertion of further damages remains reserved.
3. As far as we accept bills of exchange as payment, this is done only on account of performance. The discounting ability is a minimum requirement for accepting the bill of exchange payment. Bank, discount and collection fees are charged to the buyer. With bill of exchange discount deductions are inadmissible.
4. The set-off by the buyer is in any case inadmissible.
5. The buyer is not entitled to withhold payment for warranty claims that we have not accepted.
1. The buyer must inspect the goods immediately after delivery. If material defects or defects in title, the lack of a warranted quality of the goods, too much, too little or wrong deliveries, the buyer must notify us in writing immediately, at the latest within 3 days after receipt of the goods.
2. The purchaser of finished preparations (cleaning agents, paints, etc.) shall – if necessary by trial processing – check whether the delivered goods are suitable for the intended use. This applies in particular if dilutions, hardeners or other components are mixed by the buyer, which were not obtained from us.
3. If defects or other complaints are not asserted within the periods of the preceding paragraph 1, any warranty claims against us are excluded and the delivered goods shall be deemed approved.
4. After cutting or otherwise begun processing of the goods, the complaint of defects is excluded.
1. The delivered goods are defective if they do not comply with the contractual agreement. Production-related fluctuations in the quantity and quality of individual batches, technically unavoidable deviations in quality, color, dimensions, (specific) weight, equipment, design and pile warping (shading in carpet backing) justify no shortage, as production or material-related deviations from the sample material.
2. If the goods are defective, we shall, within the statute of limitations (point XIV.), Remedy the defect by improvement or replacement, if the buyer proves that the defect already existed at the time of the transfer of risk ,
3. We are not obliged to improve or replace it if it requires disproportionate costs. The costs are disproportionate if they exceed 25% of the purchase price of the delivery item.
4. The buyer can demand the price reduction (reduction of the purchase price) or conversion (cancellation of the contract) only if the existing defect could not be eliminated despite two improvements or a single replacement delivery, if we refuse the improvement or replacement because of disproportionate costs, if we unjustifiably deny a required improvement, delay it improperly, or if an improvement is unreasonable for the buyer. The conversion is excluded for minor defects.
5. The buyer has to give us after consultation with him the necessary time and opportunity to make the improvement or replacement.
6. If the goods were subsequently moved to a place other than the customer’s branch office and thus increase the expenses, in particular transport, travel, labor and material costs for the improvement or replacement, these increased expenses are to be reimbursed by the buyer.
7. For third-party products, our warranty is limited to the assignment of claims we have against the supplier of the third-party product. In the event that the buyer can not enforce his warranty rights against the supplier of the third-party product, we provide warranty within our terms.
8. Recourse claims of the buyer against us (in particular according to § 933b ABGB) are excluded. The compensation for any recourse claims of the buyer was taken into account in the pricing accordingly. The compensation for minor warranty cases is made by a flat-rate discount.
1. The liability for slight negligence is excluded for damages of any kind. This applies in particular to damage caused to the purchaser by breach of contract or delayed delivery, including consequential damage, or by failure or faulty advice (instructions for operation and care, etc.) about the goods.
2. The exclusion of liability does not apply to claims arising from the Product Liability Act and for personal injury, insofar as the liability can not be excluded or limited.
3. The burden of proof for the existence of gross negligence or intent is the buyer.
XIV. Statute of limitations
1. Warranty claims must be asserted in court within twelve months from the delivery of the goods.
2. Claims for damages must be brought to court within six months after the injured party has become aware of the damage, but at the latest within three years after the event giving rise to the claim.
XV. Retention of title
1. Delivered goods remain our property until complete payment of all claims in connection with the object of purchase. If we have entered into contingent liabilities in the interests of the buyer, all deliveries remain our property until full release from such liabilities, in particular from bills of exchange. This also applies if the payments have been made for specially designated claims. The cessation of individual claims in a current account and the balance and their recognition do not affect the reservation of title.
2. If the reserved goods are processed by the buyer or combined with other things or blended, we become sole or co-owner in accordance with the statutory provisions. If the buyer becomes a sole or co-owner on the basis of the law, he is obliged to transfer his co-ownership to us upon request, by handing over the thing to us (as security transfer).
3. The buyer is entitled to sell reserved goods within the framework of proper business operations, if he already assigns to him the claims resulting from the resale of such goods with all ancillary rights to us (advance assignment). We accept this assignment. The buyer and reseller undertakes to set forth immediately in his books and the list of open items in case of a claim arising from the resale of reserved goods a book note about the assignment, from which it is apparent which claim has been assigned to us. The purchaser and reseller further undertakes to notify us on request of any outstanding claims arising from the sale of reserved goods with the pertaining debtors and to grant us access to the accounting books for the control of the book endorsements. We authorize the buyer and reseller, subject to the revocation, to collect the claims assigned to us. This collection authorization expires automatically with the opening of bankruptcy of the buyer’s property or deterioration of his economic situation.
4. If reserved goods are an integral part of a property, the purchaser hereby assigns to us the claim resulting therefrom in the amount of the invoice value of the reserved goods. We accept this assignment.
5. In case of breach of contract by the purchaser, in particular in case of default of payment, we are entitled to take back the delivery item after reminder and setting a deadline within 7 days. The assertion of the retention of title as well as the delivery item by us shall not be deemed a withdrawal from the contract.
6. The purchaser must notify us immediately of any foreclosure measures by third parties in the goods subject to retention of title or in the claims assigned to us and handing over the documents necessary for the opposition.
7. The object of delivery subject to retention of title shall be insured by the buyer at his expense, in particular against fire and theft. All claims against the respective insurer are assigned to us with regard to the items subject to retention of title. We accept this assignment.
Our customers (retailers) take advantage of the trendsetting internet shopping and market this concept together with us. We arrange internet orders for our customers (retailers) and deliver the goods ordered by the end users to the selected customers. The end user picks up the goods directly from the customer (retailer) and pays on the spot. The customer (dealer) is the contracting party of the end user. The customer (dealer) agrees to accept the sales prices quoted on our homepage and receives his usual purchase conditions. We commit ourselves to include the customers participating in the webshop (retailer) in the list of retailers on the homepage and to convey them the Internet orders.
XVII. Data protection
In accordance with the provisions of the Data Protection Act, we are entitled to store, process and transmit data relating to goods and payment transactions with the customer insofar as this is necessary for the usual care and / or orderly execution of the order. The buyer expressly and irrevocably gives his consent.
XVIII. Place of Performance / Jurisdiction / Applicable Law
1. Place of fulfillment for all claims arising from the contractual relationship is the registered office of our company.
2. For all current and future claims arising from the business relationship, including bills of exchange and check claims, the competent court shall be the place of jurisdiction in Linz.
3. Our terms and conditions and the entire legal relationship between us and the buyer are governed exclusively by Austrian law, excluding the rules of Austrian international private law. The application of the Vienna UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.