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Business Terms

General Conditions of Sale and Delivery

Tekpoint Ges.m.b.H.
Mooslackengasse 17
A-1190 Vienna
Austria

 

1. Conclusion of the contract

All deliveries by the seller are effected on the basis of the following General Conditions of Sale and Delivery. Any changes or additional agreements require the written confirmation of the seller to become effective and only apply to the relevant individual transaction. The seller herewith objects to any deviating conditions of purchase of the purchaser; they are also not binding on the seller, even if the seller does not object to them again upon conclusion of the contract. The transmission of the order confirmation shall not be regarded as an acknowledgement of the purchaser’s conditions as well. The seller’s conditions are deemed to be accepted at the latest upon acceptance of the goods.

2. Prices

Unless agreed otherwise, the selling prices applicable on the date of delivery are charged, and any transportation or other incidental expenses are invoiced separately. Any discounts or rebates granted only apply to the respective delivery and not to any follow-up orders or deliveries, including if the seller does not object to any deductions made by the purchaser in the case of possible follow-up orders or deliveries. Unless otherwise agreed offers of the seller are not free of charge, if these offers result from a request of the purchaser and no purchase order results from this request.  

3. Orders

Unless otherwise agreed, orders by the purchaser or amendments of such orders can be made by the purchaser in a written form only. The purchaser is bound to the order and is not entitled to withdraw from the order.  

4. Terms of payment and tax

Unless agreed otherwise, the purchaser shall pay the seller’s invoices prior to delivery.

In case of sale “On Hold” the following shall apply:

After receipt of the agreed deposit payment the goods will be delivered to the forwarder/carrier mentioned in the offer. The forwarder/carrier keeps the goods in the name of the seller, until the purchaser has paid the goods in full and until the seller formally releases by a release letter (see point 4.) the goods. The forwarder/carrier is obliged to inspect the goods whether any goods are damaged or missing and to transmit an inspection report to the seller and to the purchaser. This inspection report shall be deemed as accurate, true and binding for both parties. However, in any case the seller is entitled to conduct an additional inspection of the goods or engage a third person to do so. After receipt of the inspection report the purchaser has to effect payment in full. The full amount has to be credited to the agreed seller’s bank account within seven working days; otherwise the seller is entitled to recall the goods and to demand a penalty up to 30% of the purchase price. In case the inspection report of the forwarder/carrier identifies damaged or missing goods the purchaser may claim a credit note in the amount of the damaged or missing goods.

Cheques and bills of exchange are not accepted. If payment terms are not complied with, the seller is entitled, at its discretion (i) to charge interest on arrears of nine point two percentage points above the base rate, to demand, irrespective of a fault, the costs of extra-judicial recovery and collection measures and to claim damages for any losses incurred by the seller or (ii) to cancel the contract and claim damages due to non-performance. In the latter case the seller is entitled, irrespective of a fault of the purchaser, to demand or to retain the agreed down payment, but at least 15% of the purchase price, as a penalty. The duty to pay the penalty shall not impair the seller’s right to assert any additional losses. Payment periods granted commence on the date of invoicing. If payment periods are not met, the seller is also entitled to demand immediate payment of all of the claims the seller has against the purchaser.

The purchaser and the seller shall purchase and sell the goods in compliance with existing national and international tax law. The purchaser undertakes to indemnify the seller from and against all claims regarding the non-compliance with these provisions, in particular with VAT law. 

5. Delivery period and acceptance date

As a rule, the seller’s particulars regarding delivery dates are non-binding. The seller is not liable for any delays on the part of seller’s suppliers. The seller’s delivery obligation is subject to the reservation of correct and punctual deliveries from its suppliers, unless incorrect or non-punctual delivery from its suppliers is attributable to a fault on the seller’s part. Any claims of the purchaser for damages due to late performance are excluded. The purchaser is obliged to accept the goods immediately after a notification of their provision for delivery. In the event of late acceptance, the purchaser is liable to pay storage expenses without prejudice to any other rights the seller may have. Insofar as partial deliveries are possible, the seller may also effect partial deliveries at its option. Each partial delivery is regarded as a separate transaction and can be invoiced by the seller separately. With respect to mass-produced goods, the seller does not grant any warranty that the ordered quantity is absolutely complied with. Any excess items in the limits of usual tolerances are to be taken over by the purchaser at the same price. Delivery duties and delivery periods shall be suspended as long as the purchaser is late with a payment or fails to perform any other acts necessary for fulfilling the order. Any change in an order results in a change of the originally agreed delivery date.

In case of sale “On Hold” the following shall apply:

After receipt of the payment in full the seller shall send a release letter to the purchaser and the forwarder/carrier. The purchaser has to sign the release letter and thereby agrees with the delivery of the goods according to the inspection report. The forwarder/carrier may only surrender the goods after the purchaser has presented the release letter signed by both seller and purchaser. A transfer of property only takes place after the forwarder/carrier has confirmed the delivery by signing the release letter and after the purchase price has been paid in full. The purchaser has to collect the goods from the forwarder/carrier upon the release of goods. A partial release is not permitted. The forwarder/carrier may hold the goods up to a maximum of 14 days after receipt of the release letter signed by the seller. In case the purchaser does not collect the goods within this period or if the purchaser refuses acceptance of the goods the seller is entitled to recall the goods and to demand a penalty in the amount of 30% of the purchase price

6. Shipment

Where no specific requirements regarding shipment have been defined in the purchase order, transportation is effected at the seller’s best discretion, but without any responsibility for the cheapest means of transportation. Shipment is effected exclusively at the risk of the purchaser, including in the event of freight-prepaid deliveries.

Packaging material is invoiced at cost of sale and not taken back. Goods sent directly to third parties are regarded upon shipment as delivered in compliance with these terms and conditions and as accepted definitely with respect to their outer and inner properties.

7. Reservation of title

The goods delivered remain the seller’s sole property until its total claim has been paid fully. The total claim means both its claim under the delivery of the goods and under the delivery of other goods or due to other legal reasons. The reservation of title only lapses after all of the seller’s claims have been paid by the purchaser. This also applies to a balance to the debit of the purchaser under a current account relationship. If the purchaser is late with payment, the seller is entitled to demand return of the goods at any time, including without cancelling the contract. Any legal action commenced regarding the purchase price or a part thereof shall not affect the seller’s reservation of title. As long as the seller’s reservation of title exists, the seller also has the right to cancel the contract. If the contract is cancelled, the purchaser will be credited only for the amount for the goods returned to the seller, which is the fair value of the goods on the date of return, less any handling expenses or transportation expenses incurred by the seller or other disadvantages caused by the cancellation of the contract, including lost profits. As long as the seller’s reservation of title is in existence, the purchaser may only dispose of the goods with the seller’s prior written consent. If the purchaser disposes of the seller’s goods, the seller automatically acquires all receivables and claims, which the purchaser accrues under the disposition of the goods. If the goods are commingled or processed, all resulting co-ownership claims shall be vested in the seller instead of in the purchaser. In the event of pledging of or any other claims to the delivered goods on the part of third parties, the purchaser shall notify the seller immediately. If the purchaser fails to pay the purchase price indicated in the invoice sent to the purchaser, including the value added tax stated, by the agreed due date, the purchaser shall secure the seller’s claim still outstanding by creating a sufficient lien, at its option, either on real property in the ownership of the purchaser, on items of tangible fixed assets, on investments held by the purchaser in third-party companies, on items of inventories, on bank balances with domestic credit institutions as well as on unconditional claims under contractual deliveries and services provided to customers with impeccable creditworthiness, in each case to the extent of the due purchase price claim.

8. No transfer of rights

The transfer of the rights under the delivery contract to third parties without the seller’s consent is not permitted.

9. Warranty

The purchaser has to inspect the goods immediately upon acceptance or arrival at the place of delivery in the presence of the forwarder or the carrier as the case may be and to immediately give notice of a defect to the seller in writing, in the absence of which the goods are deemed to be free of defects, unless the defects are hidden defects. The notice of a hidden defect is to be given to the seller in writing immediately after the defect has become recognisable by the purchaser.

The agreed warranty period is six months. For used and refurbished phones as well as tablets, the refund policy applies for 30 days from the date of the invoice. Where a justified notice of defects has been given in due time, the seller offers the purchaser at the seller’s discretion a credit note or free replacement against return of the goods complained of. The purchaser’s right of cancellation or rescission of the contract is excluded. The possibility of special recourse pursuant to section 933 b of the Austrian Civil Code (ABGB) after the end of the warranty period is excluded. The seller effects deliveries within the framework of the standards and/or specifications specified in its documents. Any commitments above and beyond this framework in respect of special qualifications and requirements require in all cases the written consent of an authorised representative of the seller.

10. Damage claims and resale

The seller is liable only for an intentional or grossly negligent conduct on its part. Damage claims, in particular those made instead of warranty claims, are statute-barred after six months from the date on which the purchaser has become aware of the damage and the party causing the damage. If the purchaser or any other of the seller’s contracting partner resells the products placed on the market or distributed by the seller, the purchaser or partner is obliged to impose the afore-mentioned regulation to its full extent on its customers and to obligate them to impose it further on all their customers. The purchaser or any other of the seller’s contracting partner shall be liable for all disadvantages the seller incurs, if they fail to further impose the aforementioned regulation. Resale means any transfer of the goods as a whole or part of the goods to another purchaser, whether in unprocessed or processed form.

The purchaser may only resale the goods purchased from the seller to purchasers that are located in countries, in which a use of goods in compliance with the relevant provisions is permitted. Failing this, the purchaser undertakes to indemnify the seller from and against all claims regarding the non-compliance with these provisions.  

11. No offsetting

Offsetting with counter-claims against the seller’s claims is not permitted, unless the seller acknowledges such offsetting explicitly in writing in an individual case by specifying the amount.

12. Release from the performance of contracts concluded

Any events of force majeure and their consequences shall release the seller from its duty to deliver. Changes in the purchaser’s creditworthiness give the seller the right to cancel the purchase or to request payment in advance or securities. In this case, the purchaser shall be liable for expenses incurred by the seller in connection with the order placed. Damage claims made by the purchaser due to these reasons are excluded.

13. Property rights

The purchaser is responsible for not infringing the property rights of third parties in conjunction with the goods and is obliged to indemnify the seller from and against any claims that may be asserted against the seller in connection with such property rights.

14. Confidentiality clause

With regard to information brought to the attention of the purchaser in the performance of the order/delivery, the purchaser is ineligible to divulge this information to third parties or use them for their own benefit or that of any third party. The purchaser must keep this information confidentially, also after the delivery. The purchaser must transfer these obligations to all his subcontractors and employees.

15. Invalidity of individual provisions

If individual provisions of these General Conditions of Sale and Delivery are invalid, the validity of the remaining provisions of these General Conditions of Sale and Delivery and of the conclusion of contract shall not be affected.

16. Applicable law, place of performance and place of jurisdiction

The laws of the Republic of Austria shall be applicable. The provisions of the UNCITRAL Sales Convention of 1980 are excluded. The place of performance for delivery and payment shall be Vienna. The place of jurisdiction for all disputes under this contractual relationship shall be the competent court in Vienna.

 

Rev. 06/2015