General Terms and Conditions of Sale and Delivery for Deliveries and Services of “Gunz Warenhandels GmbH” when the business partner is an enterprise (B2B)
Valid as at October 14, 2010
1. Scope of applicability
1.1. Sales, deliveries and services of Gunz Warenhandels GmbH (hereafter: GUNZ) in the context of the mail-order business and internet sales are made exclusively to industry, trade, crafts and independent professions, as well to public administration for use in independent, professional and commercial activity, in accordance with the following general conditions of sale and delivery (hereafter: conditions of delivery), which you are deemed to accept when you place an order or accept a delivery.
1.2. These conditions of delivery are the only ones applicable. No divergent, contradictory or supplementary terms and conditions apply, unless GUNZ has explicitly agreed in writing. These conditions of delivery also apply if GUNZ carries out the delivery to you without reservation, despite being aware of contradictory or divergent conditions on your side.
1.3. Supplementary agreements, reservations and amendments to the contract or to these General Terms and Conditions (GTC) are only valid if GUNZ has confirmed this in writing.
2. Conclusion of the contract
2.1. The offers made by GUNZ, in whatever form (catalogues, brochures, internet pages, price lists, etc.), are subject to confirmation, unless we indicate a period during which they are binding on us. When you order the goods, you commit yourself to purchasing the goods at the indicated price. A contract, regardless of by whom it is initiated, only exists from the time that your order is accepted in writing by GUNZ, supplemented by these GTC, unless there is no written confirmation of the order, in which case the contract will exist from the time of carrying out the assignment or delivery, whereby the delivery note and/or invoice for the goods serve as written confirmation of the order.
2.2. You can place your order by telephone, via the internet, by fax or by letter.
2.3. The information provided by GUNZ in the mail-order catalogue, brochures, pricing manuals, other documents and on the website – such as descriptions, dimensions, weights and images – serve only to identify the goods and are only approximations which do not constitute quality specifications, unless they are explicitly designated in writing as binding. The quality, suitability, eligibility and function, as well as the purpose of use of our goods, is only determined by information and technical specifications that are explicitly designated as such. Public statements, promotions or advertising by us or third parties do not constitute quality specifications of the goods. Loss of weight due to natural evaporation, storage or similar cannot be excluded and GUNZ does not accept liability for them.
2.4. Guarantees as to the quality or durability of our products must be explicitly indicated as such in the confirmation of the order.
2.5. We explicitly reserve the right to make changes in design or further technical developments of our products without prior notice, where they are exclusively intended to improve them, do not compromise the purpose of the contract and are reasonable.
2.6. We reserve the right to restrict delivery of the goods to the usual traded volumes.
2.7. Differences in the range and prices may occur between the catalogue and the online service. Customers ordering from the catalogue are not entitled to invoke other terms on the internet and vice versa. We reserve the right to amend prices.
2.8. You are required to inform GUNZ immediately of any change in name or in the company, legal status, location and corporate address, invoice address, bank details or mode of payment, in writing to the fax hotline +43 5523 63636 22 or by email to firstname.lastname@example.org.
3. Delivery times and deadlines, transfer of risk
3.1. Delivery times and deadlines are only binding if they have been confirmed by us in writing. The goods will only be delivered after your information as our business partner has been checked and approved, and we reserve the right to withdraw from the contract agreed as specified in section 2 if they are not so approved. We will inform you in this event by telephone, email, fax or letter. Our delivery only becomes overdue after the expiry of an extension that you determine. Delivery times only start after the receipt of any agreed payment or when all the details of the order have been clarified. They become extended by any period that the business partner is late in fulfilling his commitments, either in connection with the current order or for other contracts.
3.2. The delivery time is appropriately extended, even if we are overdue, in the case of force majeure and of any impediments which arise after the contract is concluded and which are not the responsibility of GUNZ, such as operational disruptions, strikes, lockouts, official actions, disruptions to work for political or commercial reasons, shortages, difficulties in energy supply, transport delays, disruption of traffic, technical difficulties relating to the type of order which make its delivery impossible or unreasonable; it is irrelevant in this context whether these factors occur at GUNZ, its subcontractors or third party enterprises on which GUNZ is dependent. GUNZ will inform the business partner immediately of the start and finish of such impediments. The business partner can, at the earliest two (2) weeks after such cicumstances arise, require that GUNZ declares whether it withdraws from the contract or delivers within a reasonable time. Damages cannot be claimed against GUNZ in such cases, even when GUNZ withdraws from the contract without being asked to do so by the business partner, as GUNZ is in such cases entitled to do.
3.3. Delivery is undertaken by a courier firm to the delivery address indicated on your order. If the courier is unable to find you on the first delivery attempt, a note will be left with an indication of the time when delivery will again be attempted. If nobody can be found on the second attempt, you are required within 5 days to agree a delivery time with the courier firm.
3.4. We reserve the right to deliver part orders if there is reasonable cause.
3.5. The risk passes to you on delivery of the goods. If the delivery is delayed for reasons attributable to you, the transfer of risk takes place on the first attempted delivery.
3.6. For deliveries by pallet, we take no responsibility for its disposal. One-way pallets must be licenced in accordance with packaging regulations.
3.7. In the event of non-availability of the service specified in the contract, GUNZ reserves the right to provide goods of equivalent quality and price. If this is not possible, GUNZ is entitled to dissolve the contract and is not required to deliver the agreed or promised service. GUNZ hereby commits itself to inform the business partner immediately if non-availability should arise.
3.8. Our business partner can only withdraw from the contract if it has set a reasonable extension in the case of a delayed delivery, such extension to be of at least two (2) weeks, and if GUNZ has failed to meet the new deadline.
3.9. Even if the business partner is entitled to withdraw, GUNZ is not liable to damages for delayed delivery, unless GUNZ has behaved with at least gross negligence or in the case of personal injury.
3.10. If GUNZ has been asked to arrange delivery or dispatch, the choice of means and route of delivery is a matter for GUNZ to decide.
3.11. The risk passes to the business partner on delivery of the goods. If the delivery is made with our own vehicles or vehicles hired by us, the risk passes at the latest when the goods are made available to the recipient at the agreed location of transfer. If this location is not accessible, the risk is transferred at the nearest location to which unimpeded access and exit is possible. In all other cases, thus in particular the delivery by couriers, transport companies, railway, etc., the risk is transferred to the business partner on handover to the courier, etc., even if the delivery is partial or prepaid.
If the delivery is accepted by the courier, etc. without complaint, this is taken as proof of the satisfactory condition of the packaging and correct shipment, unless the business partner can show that the packaging was defective on shipment of the despatch or that shipment was not correctly carried out.
3.12. Unloading is the sole responsibility of the business partner, who must provide suitable unloading facilities and have the necessary manpower available. If the business partner nonetheless requests assistance in unloading or further transport or dispositions, we are not required to assist and it will incur an additional charge if we do so. Such assistance does not carry with it any additional liability or assumption of risk and does not change the transfer of risk in any way. This also applies if the agreement is for free delivery.
3.13. The packaging, the nature of which is decided by us, and other transport accessories (containers for multiple use, mesh pallets, etc.) remain our property. The business partner is required to arrange immediate unloading and return. This does not apply to single-use packaging, which becomes the property of the business partner and will not be taken back.
3.14. If the business partner is delayed in accepting delivery, transfer of risk takes place at the latest when the delay starts, regardless of where the goods are located at that point in time.
4. Prices, payment conditions
4.1. All prices are net (exclusive of VAT) and shown in Euros. The prices are defined as the current value of the goods without additional services by the customer. They are ex works or ex stock, with the cost of dispatch, interim storage, etc. to be added. The statutory amount of Value Added Tax will also be added.
4.2. You will receive an invoice together with (occasionally separately from) the goods for the goods delivered and including any applicable dispatch or COD charges. We reserve the right to request a different form of payment than the one that you propose. We also reserve the right in some cases only to deliver against prepayment or payment on delivery. You will be informed in good time if this is the case. All claims become due on handover of the goods.
4.3. Payment should be made immediately on receipt of the invoice, unless otherwise agreed, and is only valid when GUNZ definitively has the payment at its disposal and in the agreed currency. Unless otherwise agreed, payment is to be made in Euros. Payments must be free of charges for the recipient and any charges which are incurred must be refunded on request.
4.4. We are entitled to charge ten (10.00) Euros for each reminder that is sent after any delay in payment. For every refused payment, GUNZ is also entitled to charge five (5.00) Euros for the return debit note, unless the payment refusal was not your responsibility.
4.5. During the period of any delay in payment, you will incur interest of 10 percentage points above base rate p.a. We reserve the right to show proof of any damages caused by delay and to charge these as well.
4.6. Until payment has been made in full, the goods remain our property. You are required to inform us immediately with all necessary details in the event of distraints or other legal impairments, to enable us to take all legal steps against them. If you do not fulfil your commitments from this contract or other contracts with us, or if we become aware of facts which reduce your creditworthiness, we may withdraw from the contract. In this case, your right to retain any goods received is void and we can require them to be returned.
We are entitled to enter your business property in normal working hours and to take such reserved goods into our possession and to dispose of them at the best obtainable price by sale on the open market or by auction, notwithstanding any payment or other commitments on your part. We will count the proceeds of the sale after deduction of costs against our claims receivable; we will pay you any surplus.
4.7. Offset payments are only credited to you if your counter-claims are set by legal process, uncontested or recognised by GUNZ. You are only entitled to exercise a right to retention, insofar as authorised, if your counter-claim is based on the same individual contractual relationship.
4.8. Part payments can be requested in appropriate measure for deliveries made or held in stock. Part deliveries, which are permitted to a reasonable extent, will be invoiced at once and are each due for separate payment.
4.9. Payments will always be credited against the oldest claim and any other specification by the debtor is invalid and ineffective. Agreed discounts are lost if payment for the invoice to which the discount applies is not accompanied by payment for all earlier invoices.
4.10. Adjustment of invoices by cheque or bills of exchange can only be provisionally accepted. The adjustment by a bill of exchange requires a special prior written agreement. The business partner is liable for costs. Acceptance of a bill of exchange does not imply deferment. A bill of exchange can at any time up to expiry be returned without explanation and cash payment required.
4.11. An offset charge against our claims is only permissible if undisputed or through a counter-claim decided by law. No right of retention can be applied from other transactions in the ongoing business relationship. A right of retention is also excluded if the business partner was aware of the deficiency or other cause for complaint at the time of risk transfer and did not immediately reserve his rights in writing or if he remained unaware of it due to gross negligence, except insofar as GUNZ has acted in bad faith or has provided a guarantee for the condition of the goods. The waiver of claims requires our written agreement and is otherwise not binding on us.
4.12. If a particular remuneration has not been agreed, it is deemed to have been agreed at the normal rate charged by GUNZ on the day that the service is delivered.
4.13. If, after conclusion of the contract, there are indications that the business partner’s ability to pay or discharge other duties is at risk, e.g. delay in payment (including for earlier contracts, returned cheques, bill protest, insolvency applications, distraints, etc.), we are entitled to ask for advance payment or other security at the discretion of the business partner within an appropriate period. If the deadline elapses without this being satisfied, we may withdraw from the contract and/or seek compensation. If the service was partly or completely delivered, all our claims immediately become due, even if previously deferred, etc.
4.14. If we withdraw from the contract for reasons for which the business partner is responsible, in particular under the conditions of point 4.13, we are entitled to demand compensation of 20% of the agreed price, unless the business partner demonstrates that the actual damage was less. Our right to claim compensation for any greater damage remains unaffected.
5. Notices of defects, duty of inspection
5.1. Notices of defects by you require that you immediately inspect the goods after delivery and inform us of defects immediately and at the latest five (5) working days after delivery. Defects not immediately apparent must be reported as soon as they are discovered, and in any case before sale or processing of the goods. Further duties of the business partner under §§ 377ff HGB (German Commercial Code) remain unaffected. If these conditions are violated, the rights of the business partner are forfeited.
5.2. If the goods are defective, we are entitled, at our own discretion, to repair the defect at no cost to you or to deliver a defect-free replacement.
5.3. If the repair or replacement is seriously and definitively declined due to disproportionate cost or other reasons, if the repair or replacement fails or is unacceptable to you, or if other particular conditions apply that justify an immediate assertion other than the rights described in point 5.2, bearing in mind the interests of both sides, then you can choose according to the legal regulations either to withdraw from the contract to which the defective item relates or to reduce the purchase price. If the contractual breach is minor, especially in the case of minor defects, you do not have the right to withdraw. If you choose a price reduction after a failure to satisfy a delivery, the goods remain in your possession, if this can reasonably be accepted. The right to compensation is limited to the difference between the purchase price and the value of the defective goods. This does not apply if GUNZ has deliberately breached the contract.
5.4. GUNZ takes no responsibility for defects which arise due to unsuitable, inappropriate or faulty storage, use or handling by you or which arise through normal wear and tear, if GUNS is not responsible for the damage.
5.5. There is no guarantee or right of exchange for marketing gifts and free supplementary gifts.
5.6. If a defect is reported, the business partner is still required to accept the goods and store them appropriately. GUNZ must be given the chance to inspect the alleged defect before the goods are further assigned, processed, destroyed, etc.; otherwise, the business partner’s rights are forfeited.
5.7. Differences in measure, content, size, weight and colour tones normal in this area of business are not defects. Claims against GUNZ or our representatives are ruled out, in particular claims for compensation including reimbursement, on whatever legal basis they might be, unless GUNZ or one of our representatives has behaved with at least gross negligence or in case of personal injury, or if we are compulsorily liable for other reasons, such as the law on product liability.
5.8. Payment of the invoice is deemed to confirm correct receipt of the goods with respect to condition and quantity. GUNZ cannot be held responsible for whether the purchased goods are suitable for the purposes envisaged by the purchaser.
5.9. Goods imported from other EU countries are only inspected by GUNZ with random samples to the extent normal in this area of business. The condition and labelling of the goods in accordance with food standards laws is assumed and only specially checked if there are concrete reasons for suspicion. GUNZ therefore takes no responsibility for this. Enquiries regarding complaints with respect to food standards should be directed to GUNZ’s nominated suppliers.
5.10. There is no right of recourse against GUNZ as warranty against claims by a consumer, even within the distribution chain.
6.1. We are only liable in cases of deliberate or gross negligence. If we become liable due to gross negligence or deliberate breach of contract, the compensation liability is limited to the foreseeable, typically arising, damages.
6.2. Point 6.1 does not apply in the case of compulsory legal liability, in particular under the law on product liability or culpable liability of damage to life, body or health or if we have issued a guarantee.
6.3. You are required to take all appropriate steps to avoid and minimise damages.
6.4 We take no responsibility for loss of working hours and/or additional costs for business partners in the case of a guarantee or failure to comply with a delivery time, if the responsibility rests with a third party.
7. Rights of return and cancellation
7.1. You have the right to return the goods within five (5) days after conclusion of the contract (see point 2.1 and 2.3), so long as the goods are unused, undamaged and in their intact original packaging. Various types of testing count as use of the goods and in these cases the goods can therefore neither be returned nor cancelled. An administration charge of fifty (50.00) euros will be made to take goods back without a corresponding goods return number. The return of goods will only be accepted if GUNZ has been notified in advance; other returns will not be accepted and GUNZ will not be responsible for any costs that you incur. To satisfy the five (5) day limit (from the date of invoice), it is sufficient to have contacted GUNZ before the deadline. Any payments already made will be credited to your business partner account if the return is accepted, after deduction of any insurance and delivery costs. If the goods were not accepted on return, we reserve the right to invoice you for the costs incurred.
7.2. If parts of a set are missing, GUNZ reserves the right only to take the entire set back and credit it. There is no right to partial compensation. If only part of the set is returned, there is no right to compensation.
8. Data protection
8.1. We always treat your data in confidence. In what follows, you will see an overview of how we handle your data with your permission.
8.2. Personal data that you provide us with your order will be stored for the purpose of processing the order. The storage will be in Austria. With your order, you agree that we may from time to time use your data to inform you about other products that may interest you by post or email. We are also entitled to pass on personal data for debt collection and reserve the right to provide information to protection agencies of business, courts and the responsible authorities.
8.3. In processing and transmitting the data, your sensitive data will be handled in accordance with the legal regulations. You can prevent their further use for marketing purposes at any time by informing GUNZ or sending an email to: email@example.com
8.4. After receipt of your objection or revocation of permission, we will no longer use or process the relevant data to send marketing material, including our catalogue, nor will we pass on your data for marketing purposes.
9. Reservation of title/securities
9.1. Until all claims (including open balances on current accounts) have been satisfied to which we have a current or future legal right against the customer or his enterprise, we will reserve title as described in 9.2 as well as the following securities. We may on request choose to release these if their realisable value, including securities falling outside this stipulation, is consistently more than 20% above the value of the claims. Consistent is defined in this context as the value exceeding 120% of the open balance for more than 6 months, even after allowing for securities outside this stipulation.
9.2. The goods (reserved goods) remain our property until payment is made in full and are to be separately labelled and stored and carefully handled by the business partner at his cost and risk.
9.3. Payments received will be credited as described in point 4.9. Part payments for delivered goods do not result in even partial transfer of title.
9.4. Handling, processing, or transformation of the reserved goods is always carried out for GUNZ as the manufacturer, but without commitment for us and in particular without warranty by us. If our (co-)ownership is lost through processing and merging with items not belonging to us, we agree in advance that the (co-)ownership of the customer of the standardised object is transferred to us in proportion (to the invoice value of the reserved goods compared to the invoice value of the other goods used at the time of the processing and merging). The customer shall preserve the (co-)ownership on our behalf without charge. Goods that are reserved for our (co)-ownership will also subsequently be designated as reserved goods.
9.5. The customer is entitled unless revoked to sell the reserved goods in normal business, so long as the condition of point 9.8 does not apply and on the further condition that he regulates the ownership conditions with his business partners correspondingly to his arrangement with us. Charges and transfers by way of security are not permitted. Any claims that arise with respect to sale of the reserved goods (e.g. insurance, action without permission, etc.), including all current account balances, will immediately be fully assigned to us by the business partner as security, though no more than 120% of the gross invoice value, and we will accept the assignment. We give the business partner revocable authority to collect the claims assigned to us under his own name. This authority may be revoked if conditions arise which make it possible to reclaim the reserved goods under point 9.8. The business partner is required to inform us on request of any third parties and to inform the third parties of their debt to us. Any dispensation of this type of assigned debt by further assignment, including factoring, may only be undertaken with our permission.
9.6. Notwithstanding the assignment of securities described above, the business partner hereby pledges all debts due to him from third parties arising out of the further sale, processing etc. of reserved goods to us. He undertakes immediately to send us, at our first request, lists of the pledged debts from which the reasons and amount can be determined. He also undertakes, at our first request and at his cost, to supply appropriate evidence of creditworthiness for the third party debtors. He authorises us to inform the third parties of the pledged debts. We undertake only to make use of this right if the reserved goods would be reclaimable under the conditions of point 9.8. We have the right to collect the debts if the reserved goods would be reclaimable under the conditions of point 9.8. The pledged debts will only be used to the extent required to cover the amount owing plus interest and costs. The same applies to the sale of the assigned debts.
9.7. If third parties gain access to the reserved goods, the business partner will notify them of our property rights and inform us at once. Costs and damages are at the expense of the business partner, including costs arising from any third party proceedings, if the business partner is responsible for the access.
9.8. If the business partner behaves in breach of the contract and if there are indications as described under point 4.13, unless these can immediately be disproved by the business partner, the right of the business partner to further sale and processing is forfeited under point 9.5 and we are entitled to recover the reserved goods and to access the premises of the business partner for this purpose. The business partner must release the reserved goods at the first request, or where relevant assign his right to retrieve them from third parties. The retrieval or seizure of the reserved goods by us does not constitute withdrawal from the contract.
10. General conditions
10.1. You must take all necessary and reasonable steps to prevent or limit damage through the use of the acquired products.
10.2. Unforeseeable and unavoidable events outside the sphere of influence of GUNS and for which GUNZ is not responsible, such as force majeure, war and natural disasters release GUNZ for their duration from the commitment to delivery or service on schedule. Agreed deadlines are extended for the period of the disruption. You will be appropriately informed from the start of the disruption. If the end of the disruption cannot be foreseen, or if it lasts for more than two months, both parties are entitled to withdraw from the contract - in accordance with point 3.2.
10.3. If a stipulation of the contract and/or these terms and conditions becomes wholly or partially ineffective, the remaining stipulations remain unchanged in effect. The wholly or partially ineffective stipulation shall be replaced by one of which the commercial effect most closely approaches the ineffective stipulation. The same principle applies if a loophole is found in the contract. If stipulations of these general terms and conditions have not formed part of the contract or are ineffective, the same principles apply.
10.4. We take no responsibility for miscalculations, slips of the pen or printing errors.
10.5 The sole place of jurisdiction for all disputes is, as far as legally permissible, 6800 Feldkirch. GUNZ is however entitled to bring suit in any other place of jurisdiction. The law of the Republic of Austria applies, excluding the United Nations regulations specified by the Convention on the International Sale of Goods (CISG).