for sales and delivery of goods and services by Home Story GmbH (Vienna, Austria)
1. Applicability of these conditions
1.1 These conditions apply to all offers, sales agreements and deliveries.
1.2 Deviation from these general conditions shall only be binding if, and insofar as accepted by us in writing.
2. Offers and acceptance
2.1 All offers submitted by us can be withdrawn until and inclusive of the fifth working day after receipt of the written statement of acceptance pertaining thereto.
2.2 Acceptance of orders given orally or in writing shall take place through our written order-confirmation only.
3.1 Indication of and reference to prices in our offers or otherwise is not binding. The price for the goods to be delivered by us shall be their price at the day of delivery.
3.2 In case of price adjustment other then because of increase in cost of freight and custom tariffs buyer shall be entitled within 14 days after having been advised thereof in writing to rescind or terminate the agreement to the extent in which it has not yet been executed.
4. Delivery and delivery terms
4.1 The date or term of delivery shall be stated in and can only be proven by our written order confirmation.
4.2 Confirmation of the day or term of delivery shall only serve as information and unless otherwise confirmed by us in writing, never as final term. We can be put into default by buyer in writing only. The term to be set therein for fulfillment shall always (be held to) be at least four weeks. Even thereafter we shall be entitled to delivery unless buyer should have terminated the agreement in writing.
4.3 All claims, under whichever name, in regards of delayed delivery with exception of the claim for fulfillment or dissolution of the agreement are herewith excluded.
4.4 In case delivery should have become definitely impossible we and our buyer are entitled to immediately rescind the agreement. In case of temporary impossibility this can only be done when we shall have been put into default and this impossibility will thereafter have continued for at least two months. As impossibility (force majeure) shall be understood all internal or external circumstances by which it has become impossible for us to fulfill our obligations (in due time), even when such circumstances would have been foreseeable.
4.5 All goods to be delivered by supplier shall be send at buyer’s risk. The delivery takes place at the moment of their being consigned. The way of consignment and its routing is at our discretion. Consignment shall take place by Home Story under the terms: Ex Works. In case delivery should be agreed upon under other common trade clauses these shall apply in their meaning in the most recent.
5.1 Title to the goods delivered by us shall not pass to the buyer until the amounts due for all goods sold and delivered by us, for services rendered and or for activities undertaken by us as well as all other amounts which we shall have claimed from buyer because of non-fulfillment by him of any such agreements will have been paid. This clause also applies in case of a current-account agreement with buyer.
5.2 The buyer is not entitled to encumber goods delivered by us or grant third parties any right thereto. He shall be entitled to use the goods delivered by us in the scope of the normal execution of his business and/or to deliver them to third parties under the condition however that a covenant like article 5.1 of these conditions be then agreed.
5.3 The buyer shall in respect of all goods to which title is retained by us take all care necessary to safeguard our interest thereto, to grant us access to these goods and to immediately inform us in writing of any action of third parties which may in a negative way affect our concern in these goods.
5.4 In case buyer should not in time fulfil his obligations, we shall, after buyer will be default, be entitled to immediately take back at the cost of buyer all goods delivered without any further notice of default being thereto required and irrespective of the fact that deliveries may have taken place after the buyer is in default in regards of fulfillment of any of his obligations.
5.5. In case because of mixing, processing or using of goods delivered, title thereto can no longer be retained, the buyer shall obtain title to the good created thereby as our representative in our behalf. We shall then be entitled thereto in relation of the value of the goods delivered by us to the value of the good thus created. The buyer shall at our first request grant us a lien on all goods thus created which goods need then not be put in our possession, and herewith grants us in case a co-proprietorship as meant hereinbefore should have not been realised, such lien on the goods then obtained.
5.6 Buyer herewith grants us in respect of every order for delivery of goods which he may deliver to third parties a lien as mentioned in article 5.5 on all debentures which will for him result from such delivery. In case of default of buyer we shall be entitled to notify his debtor of that lien. Buyer shall then assist us by all means in our efforts to collect the debentures under that lien and shall provide us with all information and documents, which we shall thereto deem necessary.
6.1 Buyer shall immediately after receipt of the goods delivered by us check whether these are in conformity with the agreement. Claims must be submitted in writing; differences in numbers, measure, weight and/or quality of the goods which can be utterly ascertained must be submitted within five working days, other differences and deficiencies which can be easily ascertained within fourteen days after receipt of the goods by the buyer, and for the remainder at the latest within fourteen days after they have become manifest to the buyer. All right to such claims expires five months after delivery.
6.2 Claims regard of number, measure or weight must be submitted together with copies of the invoices, the freight- and delivery documents. Other claims must be accompanied by the respective good or a sample.
6.3 In case claims have been accepted by us we shall at our choice deliver missing goods, replace or repair them, or reduce or upon return of the goods delivered only reimburse their purchase price.
6.4 Return of goods needs our prior written approval, and shall be for the risk of the buyer until the moment of receipt thereof by us. The cost connected thereto shall be borne by buyer.
6.5 In case of damage receiver must make, immediately upon delivery, a remark on the transport-document undersigned by the driver in question of which a copy must be submitted as evidence.
7.1 Indemnification irrespective of its cause, shall not exceed the purchase price of the good delivered. Payment for further damages, there under consequential damages, is herewith excluded.
7.2 Any and all liability for products the inner costs packaging of which has without our consent been changed and which are nevertheless traded by the buyer is herewith excluded.
7.3 Advice, in writing or otherwise regarding the application of any product in general as well as in regards of any rights of third parties will be given to the best of our knowledge for buyer’s orientation only. Advice given by us does not free buyer from his obligation to check the applicability of our products for other purposes, which he or his buyers may want to use them for. The way in which our products are actually applied and used shall be for the sole risk of the buyer. We shall not accept any liability therefore.
8.1 All payments must be made within 30 days after the date of invoice, if no other terms of payment have been agreed in writing. Payment shall be deemed to have taken place only when the amount due has been received by us or when our account has been credited therefore.
8.2 In regards of buyer’s payment obligations setting-off is herewith excluded unless in case of our prior consent or in case we should under a court ruling be held to any payment to buyer. In case claims in respect of goods delivered by us should be raised buyers‘ payment obligation shall neither partly nor in total be suspended.
8.3 Payments received shall be booked in favor of the oldest out-standing invoices and rights pertaining thereto in the following order: cost and interest, other claims, and principal.
8.4 In case of delayed payment buyer shall thereby be in default without any further notice of default being required. All cost pertaining to the collection of out-standing debts judicial as well as extra-judicial cost is herewith fixed at the amount equal to 15% of the invoice. In case of delayed payment buyer shall as of the day the invoice has matured pay an interest equal to the legally fixed delay interest rate or, in case this should be higher, equal to the legal Austrian interest rate augmented by 3%. Our right for further indemnification is thereby not affected.
8.5 In case buyer should be late with any payment or in case for other reasons doubts should arise in regards of his credit worthiness we are entitled to require advanced payment or an adequate guaranty to our sole discretion and, in case buyer should not provide these, to suspend the execution of any and all agreements and to cancel payment terms. In that case all outstanding debentures shall immediately mature.
8.6 Payment other than cash payment or payment into one of our accounts needs our prior approval and shall only be considered as payment after the amount to which we are entitled shall have been cashed by us or credited to our accounts. All cost and risk connected to such payment shall be for the risk and for the account of buyer.
9. Trademarks / trade name
9.1 In offering or delivering products similar to our products, in price lists and promotion material and in any promotional activity buyer shall refrain from any reference to our products, from the use of the word „loco“ or any equivalent thereof, and of any other reference to our products be it by using any trade mark of trade name belonging to Home Story.
9.2 When buyer processes raw materials delivered by us he shall refrain on the goods processed, in printed matter or advertisements etc. from the use of any denomination given to those raw materials by us. Every statement that buyers‘ product contains any raw material or component delivered by us is subject to our prior written consent.
10.1 Promises and information issued by us and/or obligations accepted by us can be proven only through written material issued by us to buyer.
10.2 In case in any offer reference is made to codified general rules, such reference shall always be made to those rules in their latest version.
10.3 In case one or more covenants in any agreement with buyer should in part or in total be not binding to other covenants shall remain binding in as far as possible.
10.4 In case general conditions should be amended in the course of their application they shall apply to the agreement in their amended form unless buyer should within fourteen days after amended conditions have been mailed to him issue a statement that their applicability on present agreements is rejected.
11. Applicable law/competent courts
11.1 All agreements to which these general conditions apply shall be subject to Dutch law.
11.2 In respect of all differences resulting from any agreement with buyer the competent court shall be the court of the seat at our company according to its by-laws or, at our choice, the court of buyers domicile.