General standard terms and conditions
I. General information
- These conditions form an integral part of all our offers, sales, services and deliveries. The General Terms and Conditions (GTC) of Profitool Produktions GmbH form the basis for all transactions between us and our contractual partners. Deviations from these conditions are only effective in individual cases if they are confirmed by us in writing. The General Terms and Conditions (GTC) of the contractual partner do not oblige us to
even if in these conditions the validity of the same is mentioned as an express condition
even if we do not expressly object to them. We shall only be bound by the contractual partner's GTC if these have been accepted by us in writing.
- Our offers are alwayd subject to change and non-binding. An order confirmation is not mandatory, but subject to confirmation.
- All agreements or collateral agreements made shall only become effective upon our written confirmation.
- Copyrights and other industrial property rights are not transferred by Profitool Produktions GmbH in connection with offers, sales or deliveries or made available for use.
II. Right of withdrawal and security
If an offer is accepted by Profitool Produktions GmbH and it turns out that the financial circumstances of the contractual partner are so bad that our claims are at risk or it becomes known that the credit worthiness of the customer is reduced, then these circumstances entitle us to refuse our services until the consideration is effected or security is provided for them. We can demand the resale of the goods delivered under retention of title as well as their surrender or the transfer of indirect possession at the expense of the contractual partner. In this case we may withdraw from the contract and claim damages for non-performance.
III. Delivery times
- Delivery dates announced by Profitool Produktions GmbH are subject to change without notice. The specification or agreement of delivery times does not constitute a firm deal. The non-binding delivery period specified by Profitool Produktions GmbHshall commence at the earliest upon acceptance of the order (order confirmation), but never before clarification of the technical details. The contractual partner shall been titled to withdraw from the contract by written declaration if the delivery date specified by Profitool Produktions GmbH has been exceeded by 3 weeks and the additional period of grace of 10 days granted by the contractual partner has also been exceeded. Any further claims in particular claims for damages are excluded. If the contractual partner makes use of the above agreement for a complete order, the declaration of the contractual partner shall only apply to that partial delivery in respect of which the delivery period has been exceeded. Events of force majeure entitle us to extend the deadlines or to cancel the delivery obligation to the exclusion of any claims for damages by the contractual partner.
- We are entitled to issue partial invoices for partial deliveries made by us.
- In the event of default in acceptance on the part of the contractual partner, we shall have the right either to demand performance or to withdraw from the contract after setting a grace period of 10 days. In this case we are entitled to demand either a cancellation fee of 25% of the list price or the actually suffered higher damage and lost profit without concrete proof of damage.
- If the contractual partner is in arrears with the payment of liabilities to Profitool Produktions GmbH, even if payment was delayed at the time of the new contract conclusion or if the new contract was concluded before the due date of the earlier contract, we shall be entitled to refrain from performing any legal transactions already concluded. In this case the contractual partner is not entitled to any kind of compensation or other claims.
- Transport is always ex works for the account and risk of the contractual partner. The goods shall only be insured at the express request of the contractual partner and at the latter's expense.
The prices quoted by us are calculated on the basis of the wages and material costs applicable at the conclusion of the contract. Should an increase in these costs have occurred between the preparation of the offer and delivery of the goods, these price increases shall be added to the agreed price. The prices offered by Profitool Produktions GmbH do not include value-added tax, shipping costs, insurance or other ancillary costs exworks.
V. Payment terms
- Unless otherwise agreed, deliveries and services are due for payment within 10 days from the date of invoice. In the event of default in payment, we shall be entitled to charge default interest at a rate of 10% p. a. at all events. In the event of default inpayment, all reminder, collection and court costs shall also be reimbursed.
- In the event of default in payment - including partial payment - by the contractual partner, all existing claims of Profitool Produktions GmbH shall fall due immediately and, in addition, Profitool Produktions GmbH shall be entitled to withdraw from all unfulfilled contracts without notice.
- Contractual partners may only offset counter claims if they have been established by court or acknowledged by Profitool Produktions GmbH. On the other hand the contractual partner is obliged to offset all outstanding claims of Profitool Produktions GmbH against his own delivery claims arising from existing business relationships at there quest of Profitool Produktions GmbH.
- Bills of exchange shall only be accepted by Profitool Produktions GmbH if expressly agreed. Discount and bill charges in this respect shall always be borne by the contractual partner. A bill of exchange will only be accepted if it is discounted by our banks. Such payments are only deemed to be guaranteed when the bill of exchange is honoured and are only accepted on account of payment.
- Payments shall first be offset against incidental expenses, then against interest and finally against capital.
VI. Reservation of ownership
- All goods of Profitool Produktions GmbH are delivered subject to retention of title. They remain the property of Profitool Produktions GmbH until full payment of all claims arising from the business relationship with the contractual partners, including future claims. In the case of current accounts, the reserved title shall be deemed security for the balance claim of Profitool Produktions GmbH.
- The conditional buyer (contractual partner) is entitled to process and sell the goods. In this case, in the case of a cash purchase, the resale price shall not become the property of the reselling conditional buyer up to the amount of the outstanding purchase price. Rather, the customer must keep the resale separately and transfer it to us immediately in the amount of the outstanding purchase price. In the event of a credit purchase, the contractual partner hereby assigns to us as security the claim against his customer (second buyer) to which he is entitled from the resale. The contractual partner is authorised to collect the assigned claim as long as he fulfils his payment obligation to us in accordance with the contract. Upon request, the contractual partner shall immediately disclose the name and address of the customer as well as the amount of his claim and follow through all documents for asserting the claims of Profitool Produktions GmbH. The contractual partner is also obliged to inform us immediately of any seizure or access by third parties to the goods. The contracting party is obliged to bear the costs of measures to eliminate third-party access to goods delivered under retention of title, in particular the costs of intervention processes, in so far as they cannot be collected by the other party.
- In the event of assertion of our retention of title, the conditional buyer (contractual partner) hereby authorizes us to withdraw possession of our goods without judicial assistance. Profitool Produktions GmbH shall also be entitled either to sell the object of purchase to the best of its ability and to credit the proceeds generated to the contractual partner on its existing obligations or to take the goods back at the invoice price and to charge the contractual partner for the time of his possession of the delivered products aren't at the usual rental price. This subject to the assertion of further claims for compensation.
VII. Liability for defects
- The guarantee for professional execution is based on the applicable Austrian standards. The contractual partner is obliged to examine each delivery upon receipt for completeness and freedom from defects. Notice of defects must be given by the contractual partner within 8 days after receipt of the delivery, but in any case before installation and assembly. However, notices of defects by the contractual partner do not entitle the contractualpartner to withhold the invoice amounts. Defects that can only be detected after use and are not attributable to defective assembly will only be considered if the notice of defect is asserted in writing immediately after discovery of the defect, but at the latest within 2 months after receipt of the delivery.
Profitool Produktions GmbH may, at its discretion
a.) carry out a repair with regard to a defective product,
b.) replace the defective goods or the defective parts there of or
c.) take back the goods against refund of the paid invoice amount and withdraw from the contract. Replaced parts shall become the property of Profitool Produktions GmbH.
- Only if Profitool Produktions GmbH rejects the rectification of defects in writing shall the customer be entitled to have them carried out by third parties.
- The warranty period is not extended by the rectification of defects.
- The contractual partner shall only be entitled to conversion or price reduction if Profitool Produktions GmbH does not provide any replacement or improvement in accordance with item 3.
- Profitool Produktions GmbH shall only be liable for claims for damages in the event of gross negligence, but not for consequential or other incidental damages, nor for other indirect damages.
VIII. Reversal fee
If an agreement between the contracting parties results in an exchange or cancellation of the ordered or delivered goods, the contracting party shall in all cases be obliged to pay a cancellation fee amounting to 20% of the list price.
IX. Liability according to the Product Liability Act (PLA)
- The contractual partner expressly waives the assertion of claims for compensation for material damage which he suffers within the scope of his company (§ 2 clause 1 PLA).
- In the event that the contractual partner resells the contractual goods to an other entrepreneur, he undertakes to transfer the above waiver to the other entrepreneur.
- In case that such a transfer does not take place, the contractual partner undertakes to indemnify and hold Profitool Produktions GmbH harmless and to reimburse all costs incurred by us in connection with liability regardless of fault.
- Should the contractual partner itself be held liable under the PHG, it expressly waives any right of recourse against Profitool Produktions GmbH.
X. For consumers
- If the contractual partner is a consumer within the meaning of the Consumer Protection Act and has not made his contractual declaration either in the rooms permanently used by the entrepreneur for his business purposes or at a stand used by him for this purpose at a trade fair or market, he may withdraw from his contractual application or from the contract. This withdrawal can be declared until the contract is concluded or within one week there after. Withdrawal must be in writing (§ 3) to become legally effective.
The consumer may also withdraw from his contract application or from the contract if, without his cause, circumstances relevant to his consent which the trader has presented asprobable in the course of the contract negotiations do not occur or only occur to aconsiderably lesser extent. Relevent circumstances are:
a.) the expectation oft the cooperation or consent of a third party necessary for the service to be provided or used by the consumer,
b.) the prospect of tax advantages,
c.) the prospect of public funding and
d.) the prospect of a loan.
- Withdrawal can be declared within one week. The period begins as soon as the consumer becomes aware that the above-mentioned circumstances do not occur or only to a considerably lesser extent. A declaration of rescission in this respect must be made inwriting.
- Quotations are subject to payment and their accuracy is not guaranteed.
a.) Profitool Produktions GmbH may withdraw from the contract without objective justification.
b.) It is granted the right to transfer its obligations or the entire contract with discharging effect to a third party who is not named in the contract.
c.) Profitool Produktions GmbH may unilaterally change or deviate from a service to be provided by it.
d.) For the above-mentioned reasons, Profitool Produktions GmbH may demand a higher fee than the originally determined fee for its services to be renderes within two months of the conclusion of the contract.
e.) The obligation of Profitool Produktions GmbH to compensate for damage to an item which it has assumed for processing is excluded.
f.) Claims of the consumer from § 908 ABGB are excluded.
XI. Serverability clause
Should one of the provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.
XII. Place of Performance and Jurisdiction
- The place of performance for all deliveries and payments shall be A-6500 Landeck, even if the handover takes place at another location as agreed.
- For all legal disputes arising between us and the contractual partner, the competent courtin A-6500 Landeck is the competent court. However, Profitool Produktions GmbH may atany time bring the matter before another court having jurisdiction for contractualpartner.
Austrian law shall apply exclusively.