Terms of Delivery and Payment Terms
of TOBBY Band u.-FlechtwarengmbH., Illekgasse 24, A-1150 Wien, AUSTRIA
- hereinafter referred to as "TOBBY" -
§1 Application of Terms and Conditions
1.1. The subjects of the following terms of delivery and payment terms are services and goods deliveries of TOBBY.
1.2. All deliveries, services and offerings of TOBBY are exclusively performed on the basis of these terms of delivery and payment terms, no matter whether the order and/or the contract were carried out in writing, by telephone or by e-mail.
1.3. When placing an order the customer accepts these terms and conditions. These conditions are also valid for all future business relations even if they are not expressly agreed again.
1.4. Divergent conditions on order forms of the customer are not accepted even by acceptance of the order and unconditional delivery, herewith rather it is expressly contradicted them.
1.5. Divergences of these terms of delivery and payment terms are only effective if TOBBY confirm these in writing.
§2 Offer, placing of order, completion of the contract
2.1. All offers of TOBBY are non-binding and offers without commitment.
2.2. With the order of a product the customer principally agrees to want to acquire the ordered product. All orders need to be in written, text (e.g. fax or e-mail) or telephone form to be valid. As far as it was not agreed differently, the customer is bound to orders for 30 days. The same is valid for supplements, changes or additional agreements.
2.3. The order of the customer is considered as accepted if TOBBY does not declare a refusal within a term of three weeks from date of the order.
2.4. A contract becomes valid only when confirmed by TOBBY in written, text (e.g. fax or e-mail) or telephone form or by delivery.
2.5. Prices, measures, weights, colours, delivery time data or other performance data are only obliging if this was confirmed by TOBBY expressly in written form.
2.6. All verbal, in particular also telephone additional agreements and supplement agreements need to be confirmed by TOBBY in written form to be valid.
2.7. The silence of TOBBY at additional change wishes and/or supplement wishes of the customer means refusal, provided that they are not considered automatically within the services by TOBBY.
2.8. TOBBY becomes only a contracting partner of a bill of sale if it is not expressly pointed out within the order process that no procurement of contracts to third-party enterprises is made. […] The customer is immediately informed about the non-availability of services and already-made payments are refunded immediatelly.
§3 Prices and payment terms
3.1 The prices are calculated ex stock, inlcuding normal packaging. Shipping charges are shown separately within the concrete offer.
3.2. All prices are not-binding and are not valid for subsequent deliveries. The gross prices which are stated in the confirmation of order by TOBBY are authoritative. Net prices plus the value added tax which was valid on the day of the delivery.
3.3. Prices subject to change. Already confirmed price agreements or arrangements of delivery can be stipulated anew due to mistakes or changes of the availability. Already signed contracts are excluded from price changes.
3.4. All preceding prices become invalid with publication of new prices.
§4 Delivery period, part delivery, transfer of risk
4.1. Terms and times of delivery begin with completion of the contract. They are basically non-binding, unless something else has been agreed in writing. Firm deals are not closed.
4.2. TOBBY can carry out part deliveries as well as full deliveries any time. Part deliveries show no lack and can be charged immediately.
4.3. Even if deadlines or dates have been bindingly agreed upon, TOBBY shall not be responsible for delivery and service delays due to acts of god or other unforeseeable or not-justifiable events which complicate the delivery/service for TOBBY (in particular strike, lockout, official orders etc. even if occurring to TOBBY or their suppliers). Hence, TOBBY is entitled to postpone the goods deliveries by the duration of the impediment (plus an adequate start-up time) or to withdraw completely or partly from the contract if parts of the contract were not fulfilled yet. The customer can not claim damages resulting from these issues mentioned above. TOBBY has to recompense any already executed considerations. TOBBY can only refer on the called circumstances if the customer is immediately informed.
4.4. The customer is entitled to withdraw from the contract after an adequate written extension settlement concerning the not yet fully completed part of the contract if the impediment lasts longer than 3 months. The customer can not claim damages resluting from delivery delays.
§5 Dispatch / Transfer of perils
5.1. The dispatch is ex stock of TOBBY to the address given by the customer. Incorrect or incomplete address data of the customer go at the expense of the customer.
5.2. TOBBY comes free of its liability as soon as the shipment has been handed over to the company or person performing the transport or as soon as it has left the warehouse for the purpose of shipping. The risk of accidental loss of, or accidental damage to the goods shall pass to the customer as soon as TOBBY has handed over the goods for transportation to a forwarder, to the carrier or to any other person or agency designated to execute the shipment.
5.3. TOBBY determines the carrier with exemption from liability for choosing the cheapest and fastest mode of shipment.
5.4. If the shipment becomes impossible with no fault of TOBBY, the risk shall be transferred to the customer upon notification of the readiness for shipment.
5.5. If the customer is in default of acceptance or if the delivery is delayed due to reasons they are responsible for, the risk is transferred to the customer on the day they receive the notification of delivery. In this case the purchase price matures at the date of the notification of the readiness for delivery. The customer bears the costs of the goods storage at TOBBY or at third party warehouse. This shall not prejudice any further claims for damages against the customer on the part of TOBBY.
§6 Shipping costs
6.1. Basically shipping costs have to be paid by the customer. They are dependent on the delivery extent. Remaining and subsequent deliveries are free of delivery charges. The type of packaging shall be the best of TOBBY’s judgement. For delivery abroad, the resulting duty, freight and dispatch expenses are billed to the customer.
6.2. Orders with a value of goods more than 500 € are free of shipping costs within the EU.
6.3. A transport insurance will only be completed upon explicit written instruction of the customer and will be charged to his expenses.
7.1. If not agreed particularily in the invoices, the customers has to pay by the purchase price by cash in advance without deduction within a term of 7 working days after order and appropriate confirmation of order.
7.2. Once this deadline has expired, the customer is in default of payment. TOBBY is entitled to withdraw from the order contract if the customer is not able to pay on-time or delayed the payment.
7.3. A hold-back payment is excluded regarding warranty issues. Payments must be performed free of charge and free from transaction fees to the bank account of TOBBY indicated on the invoice.
7.4. With given bank direct-debit authorisation, the debit occurs no later than 7 days after the invoice date without deductions.
7.5. A payment is not deemed to have been made until TOBBY can dispose of the amount.
7.6. In the case of cheques, payment shall be deemed effected at the time when the cheque is honoured. There shall be no obligation to timely presentation of cheques by TOBBY.
7.7. Cheques are only accepted by arrangement; collection and discounting charges are to be borne by the customer.
7.8. TOBBY shall be entitled, irrespective of any contrary terms and conditions of the customer, to assign any payments first of all to any older debts of the customer; TOBBY shall inform the customer of the assignment of the payment. In the event that costs and interest have already accrued, TOBBY shall be entitled to set off any payment first against the costs, then against any interest, and lastly against the actual invoice amount.
7.9. If the customer defaults payments , TOBBY is entitled to charge interest from the data in question at the rate of interest calculated by the commercial banks for outstanding revolving credits. This interest shall be lowered if the customer proves that charges are lower.
7.10. If TOBBY becomes aware of circumstances that raise doubts about the creditworthiness of the customer, in particular if a cheque is unable to be cashed, or if the customer ceases his payments, or if the customer defaults the payments for 30 days or longer or if TOBBY becomes aware of other circumstances that raise doubts about the creditworthiness of the customer, TOBBY is entitled to demand payment of the entire residual debt, even if he has accepted cheques. In this case TOBBY is entitled to hold back all deliveries or services and and/or demand prepayment or security and to apply the reservation of proprietary rights.
7.11. In addition, TOBBY is entitled, based on consumers refer to §13 BGB, to bill default interest in the amount of 5 % above the legal basic interest rate. The assertion of any further loss shall not be excluded hereby. In case of the assertion of a higher damage the customer is entitled to prove that no damage or considerably less damage has occurred to TOBBY.
7.12. In the case of legal transactions that do not involve a customer, TOBBY is entitled to require 8% as a delay interests on payments about the legal base interest rate. The assertion of any further loss shall not be excluded hereby. In case of the assertion of a higher damage the customer is entitled to prove that no damage or considerably less damage has occurred to TOBBY.
7.13. The customer shall not have the right to offset, withhold or reduce payments, even in the event of complaints of defects or counterclaims, unless the counterclaims are legally enforceable due to a final judgement or are indisputable. The customer is only entitled to withhold due to counterclaims from the same contractual relationship.
§8 Right of retention and reservation of title
8.1. Until all claims have been satisfied (including all current account balance claims) to which TOBBY is entitled vis-à-vis the customer on any legal basis, whatsoever, at present or in future, TOBBY will be provided the following security which TOBBY will release upon request at its discretion, provided that the value of such security exceeds the claims by more than 20% on a long-term basis:
- TOBBY reserves itself the right to stop the delivery completely or temporarily and to demand the return of the goods any time if the fulfilment of the payment claim is endangered or the contracting partner is against one of the important obligations.
- The customer shall be entitled to sell or process the conditional goods within the scope of the proper course of business as long as the customer is not in default.
8.2. If a third party seizes the goods subject to retention of title, the customer shall point out that they are the property of TOBBY and shall notify TOBBY immediately in writing. To the extent to which the third party shall not be able to reimburse judicial and extra-judicial costs of an action according to § 771 ZPO, the customer shall be liable for the loss occurred to TOBBY.
8.3. If the customer is in breach with contract (including but not limited to default of payment) TOBBY shall be entitled to repossess the reserved goods or request the customer to assign to TOBBY all claims for surrender of the reserved goods that the customer may have against third parties. The withdrawal of the goods and the seizure of the reserved goods by TOBBY shall not be regarded as a withdrawal of the contract by TOBBY.
8.4. If the customer is in breach with contract, TOBBY shall be entitled to retrieve the conditional goods and to enter the place where the conditional goods are kept for this purpose, even without explaining the withdrawal beforehand, or to exercise the rights from § 326 BGB. The customer shall waive the rights that would be entitled to from unlawful interference with possession and authorises TOBBY in such cases to enter those areas where the reserved ownership goods are located.
8.5. TOBBY reserves the right to hold back the delivery under any current contracts, until outstanding debts from former deliveries are redeemed.
§9 Place of performance, place of jurisdiction
9.1. The place of performance for all contractual relationships between the customer and TOBBY shall be the place of the head office of TOBBY in VIENNA.
9.2. In the event that the customer is a businessman in the sense of the Austrian Commercial Code, Venna becomes the exclusive place of jurisdiction.
§10 Applicable law, written form, effectiveness, other
10.1. Applicable law is the law of the Republic of Austria, the rules of the international trade law (CISG) do not apply.
10.2. Changes and supplements of the regulations contained in these conditions need the written form to become effective. This is also valid in particular for this regulation.
10.3. Should individual or several regulations of these conditions be or become invalid in whole or in part, the validity of the remaining regulations shall not be affected. In such a case, the invalid or unenforceable regulation shall be replaced with a valid and enforceable regulation that comes closest to the objective pursued by the invalid or unenforceable regulation.
State: 10th of November, 2006