I. Validity
The deliveries, achievements and offers of our enterprise take place exclusively due to these conditions, independent from the kind of the legal transaction. All of our declarations of intention under private law have to be understood on basis of these conditions. The General conditions terefore may not be modified by contrary stipulations in any of the Purchaser's documents, irrespective of the furmulation thereof, without the Seller's express agreement in writing. Fulfillment of contract actions are not considered on our part to that extent as agreement too from our conditions deviating conditions as per contract. These trading conditions are considered as frame agreement also to all further legal transactions between the Contracting Parties.
II. Conclusion of a contract
a) Our offer is meant without obligation and not-binding. Deviating verbal promises, special agreements and such a thing, in particular such, which are delivered by salesmen, forwarders, and so on, differing from these General conditions or any other written declaration of intention, are not obligatory on us. Contents of the folders used by us, announcements of advertising etc. do not become part of contract, unless it was referred expressly.
b) Each order requires an order confirmation to the conclusion of a contract. Mailing or handing the ordered trading goods by the customer causes likewise the conclusion of a contract. If offers are addressed to us, then the offering is, bound appropriate, at least however eight-days period starting from the entrance of the offer. The point II. a) does not apply with consumer business.
III. Price
All prices specified by us are meant exclusive value added tax, if nothing different is expressly noted. If the labour costs between conclusion of a contract and supply should change, due to collective-contractual regulations in the industry or in-plant conclusions or should other, for which calculation relevant cost centres or for achievement production necessary costs, like those for materials, energy, transportation, foreign work, financing etc., change, then we are entitled to increase or reduce the prices accordingly. Point III. does not apply with consumer business.
IV. Terms of payment, interests
a) of lack of contrary agreement have to be paid our demands course around course against delivery of the trading good. Our invoices are due from invoice date for payment. Without special agreement the departure of a discount payment is not permissible. In the case of the delay of payment, also with partial payments, possible discount payment agreements cease to be valid. Payments of the customer apply only with the time of arriving on our trading account as performed out.
b) For the case of the delay of payment we are entitled starting from maturity, to charge interests at a value of 12 % p. A.
Further requirements, as in particular the requirement on higher interest, from the title of the compensation remain reserved.
Point IV. b) first sentence does not apply with loan business with consumers.
V. Contract resignation
a) Apart from the general legal regulations we are also entitled to cancel the contract, with default of acceptance (point VII) or other important reasons, like in particular opening of the bankruptcy proceedings over the fortune of a contracting party or rejection of a bankruptcy petition for lack of cost-covering a capital. In case of resignation by default of the customer we have the choice to desire a lump sum of 15 % of the gross invoice amount or substitution of the actually developed damage.
b) If the customer is in delay with payment we are relieved of all further achievements and delivery obligations. We are also entitled to hold back outstanding supplies or achievements and pre-payments and/or securings or withdraw - if necessary after setting an appropriate respite - from the contract.
c) If the customer regresses from the contract - without being entitled - or if he desires his abolition without authorization, then we have the choice to insist on the fulfillment of the contract or to agree with the abolishment of the contract; in the latter case the customer is obligated to pay according to our choice a lump sum at a value of 30% of the gross invoice amount or the actually developed damage.
VI. Expenses of dunning and collection
In case of payment delay, interests at a value of 12 % p.a. have to be paid. Beyond that all reminding and charges for collection necessary for the appropriate prosecution have to be replaced, to e.g. a collection agency, whereby maximally the remuneration is entitled, which results from the regulation of the BMwA over maximum sales that collection agencies being entitled remuneration. Point VI. 2nd sentence does not apply with consumer business.
VII. Supply, transport, default of acceptance
a) If the customer hasn't taken over the material as agreed (default of acceptance), we are entitled to store the trading goods at our store for which we charge a storage fee of 0,1 % of the gross invoice amount per begun calender date or at expense and danger of the customer with a stock holder authorized to it. At the same time we are entitled to insist either on fulfillment of a contract or withdraw after setting an appropriate respite from the contract and to use the trading goods otherwise. If it concerns a perishable trading good and if danger is in delay, we are entitled with default of acceptance to sell the material without previous menace on calculation of the delinquent customer at an appropriate price.
b) Higher force - cerapharm GmbH does not have to be made responsible for the default of contractual obligations, as far as the default is based on a cause of impediment lying outside of their sphere of influence (e.g. not-delivering with supplier components, natural catastrophes, sovereign measures) and agreed upon respite of achievement are considered as accordingly extended. If the cause of impediment persists longer than 2 months, each party is justified to quit the contract without adherence to a term of notice. Further claims are impossible.
VIII. Transfer of perils
Without prejudice to the legal regulations the danger of the coincidental fall or the coincidental degradation turns into anyhow with the delivery to the forwarder - also in the case of supply delivered free place of destination - on the buyer.
IX. Respite of delivery
a) For the achievement execution we are only obligated, if the customer followed all his obligations, which are necessary for the execution, in particular all technical and contractual details, pre-working and preparation measures fulfilled.
b) We are entitled to exceed the agreed dates and times for delivery up to one week.
Only at expiration of this term the customer can withdraw after setting an appropriate respite from the contract.
X. Place of fulfillment
Place of fulfillment is the seat of our enterprise.
XI. Slight changes of achievement
Slight ones or other for our customers reasonable changes of our achievement and/or delivery obligation are considered in front as authorized. This applies in particular to deviations due to the thing (e.g. with masses, colors, wood and veneer picture, grain and structure etc.). Point XI. does not apply with consumer business.
XII. Guarantee, investigation and obligation
We fulfill warranty claims of the customer when being a remediable lack is present, by our choice either by exchange within appropriate period or price reduction. Requirements for compensation of the customer, which aim at recovery of the lack, can only be made valid if we are in delay with the fulfilment of the warranty claims.
b) According to § 377 f HGB the commodity has to be examined immediately after the delivery, but latest however within six working-days. Determined lack has to be published immediate to us at the latest however within three working-days after their discovery under publication of kind and range of the lack in written form. Covered lack has to be published immediately, however at the latest written within three working-days after their discovery. If a notice of defect is not raised in time or not at all, then the commodity is considered as authorized. If ready status for reasons, which the CUSTOMER has to represent, cannot be caused within 30 days starting from supply, it is considered as given. The point XII. A) and b) does not apply with consumer business.
c) With consumer business we can free ourselves with an obligation in kind from the requirements of the customer on abolition of the contract or on appropriate pricereduction by the fact that we exchange the unsatisfactory thing in appropriate period against a faultless. We can free ourselves from the obligation to the grant of an appropriate pricereduction by the fact that we cause an improvement in appropriate period in a way reasonable for the consumer or enter afterwards the absence.
XIII. Compensation
a) All requirements for compensation against us are not possible in cases of easily negligence. The claimant has to bring evidences for easy or heavy negligence.
b) The period of limitation of requirements for compensation amounts to three years starting from transfer of perils.
The clauses contained in theses General Conditions or any other agreed appointments of compensation, apply, even if the requirement for compensation apart from or instead of a warranty claim is made valid.
c) Point XIII. a) 1st sentence does not apply with consumer business to personal injuries and to damage on for treatment taken over things. Point XIII. a) 2nd sentence, b) 1st sentence does not apply with consumer business.
XIV. Product liability
Demands for recourse according to § 12 product liability law is impossible, except the recourse-entitled proves the fact that the error was caused in our sphere and was caused roughly negligently.
XV. Retention of title and its asserting
a) all goods and things are supplied by us under retention of title and remain up to the complete payment our property.
b) When reclaiming and/or withdrawal of the good by us, standing under retention of title, a cancellation of the contract is only present, if this is expressly explained. With retraction of goods we are entitled to charge resulted transportation and manipulation expenses - without prejudice to further requirements.
c) If the customer processes or works on the goods or things, supplied by us, before fulfilment of all of our demands, he does not acquire thereby property to it. We acquire co-ownership at the new thing in the relationship of the value of the goods supplied by us to the other finished goods, resulted from it, at the time of the processing.
d) Goods, under retention of title, must not be put in pawn or assigned as a precaution. With any execution or other demand of third persons the buyer is restrained to make our vested title valid and inform us immediately.
e) Only an entrepreneur, whose proper business is the trade with the goods acquired by us, is allowed to possess over the goods until the open demand is completely balanced.
f) The customer carries the full risk for the reservation commodity, in particular for the danger of the fall, the loss or the degradation.
XVI. Assignments of a claim
a) In case of supply under retention of title the customer assigns its demands against third parties already now, as far as these result from sale or processing of our goods, up to the final payment of our demands. If the customer is in delay with payments to us, then sales revenue which are received by him, have to be kept seperately and can be hold by the customer only in our name. Possible requirements against an insurer limited to § 15 insurance VG have to be assigned to us already now.
b) Demands against us must not be assigned without our formally agreement.
XVII. Retention
In case of justifiable complaint, except in the cases of revertive transaction, the customer is not entitled to hold back the entire, but is entitled to hold back only an appropriate part of the gross invoice amount. Point XVII. does not apply with consumer business.
XVIII. Date loss
a) As far as the customer has to do its payment obligation in partial amounts, it is considered as agreed, that in case of not-in-time-payment, also if it is only one rate, all further part services become due without any additional respite.
b) Point XVIII. a) applies with consumer business as far as we have completely fulfilled our achievements, also only a residual part achievement of the customer is at least six weeks due, and if we reminded the customer under respite of at least two weeks under menace of the date loss.
XIX. Choice of right, court of jurisdiction
It applies Austrian right. The applicability of the UN Purchase Right is expressly excluded.
The contract language is German. The contracting parties agree upon Austrian, domestic jurisdiction. For the decision of all disputes developing from the present contract, the objective responsible court at the seat of our enterprise is exclusively locally responsible.
Point XIX. last sentence does not apply with consumer business.
XX. Data security, change of address and copyright
a) The customer agrees that the personal datas, contained in the sales contract, will be stored and processed by automatically support.
b) The customer is obligated to inform us about changes of its living and/or business adress as long as the legal transaction is not mutually completely fulfilled. If the information is omitted, then explanations are also considered as received, if they are sent to the last published address.
c) Plans, sketches or other technical information is always our mental property just like samples, catalogues, folders, illustrations and suchlike; the customer does not receive any rights of work use or rights of exploitation to it.
XXI. Salvatori clause
If single clauses in these General Conditions should become completely or partly ineffective or inpracticable, then this in all other respects does not affect the validity of the remaining clauses