COVID – Delivery delay possible!
Due to the restrictions of the delivery traffic, the company Wearmax GmbH can currently no longer exclude delivery delays. Should the case arise, this is basically considered as “force majeure” which also we, despite our efforts, cannot influence. To ensure your supply of goods, we will keep you informed of further developments. If delivery bottlenecks become apparent for orders/call-offs/blanket orders already in progress, we will contact you proactively.
General Terms and Conditions of Sale, Delivery and Payment of Wearmax GmbH
Status January 2021
WEARMAX GMBH | Gewerbepark 30, A-4201 Gramastetten | Phone: +43 (0)7239/70370 | Fax: +43 (0)7239/70370 77 | e-mail: firstname.lastname@example.org | Tax-No.: 226/5255 | UID-Nr.: AT U67042434 | EORI Nr.: ATEOS1000044438 | Court of jurisdiction: Linz
EUR bank details: Raiffeisenbank Gramastetten-Herzogsdorf | BLZ: 34135 | IBAN: AT77 3413 5000 0704 2153| BIC: RZOOAT2L135
USD bank details: Raiffeisenbank Gramastetten-Herzogsdorf | BLZ: 34135 | IBAN: AT24 3413 5001 0704 2153| BIC: RZOOAT2L135
- Our following terms and conditions of sale, delivery and payment (hereinafter referred to as “General Terms and Conditions” or “GTC”) shall apply to all purchase contracts concluded by us as a seller of goods with our customers for whom this business is part of the operation of a company (hereinafter referred to as “Buyer” or “Customer”). We prepare offers and provide services and deliveries exclusively on the basis of these GTC. This applies to existing and future contractual relationships, even if no express reference is made to them. In any case, with the acceptance of a delivery by the customer, our GTC are accepted by the customer.
- Verbal agreements of the contracting parties shall be replaced by the written contract. Verbal subsidiary agreements, assurances of properties and subsequent amendments to the contract shall only apply if they are confirmed by us in writing.
- Deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if we are aware of them, unless we agree to their validity in writing. The written form shall be complied with by sending a fax or an e-mail.
II. trademark protection
The Buyer acknowledges that the trademarks “PEMATEX”, “WEARMAX”, “K 10” and “UNIGLACE” are protected by law and their unauthorized use is illegal and will be prosecuted.
III Offer and content of the contract
1. our offers are subject to change and non-binding, as well as technical. Descriptions or other information in offers, brochures, etc.
2. offers and cost estimates shall only be issued in writing. Offers and cost estimates are, in the absence of any agreement to the contrary, subject to payment and are prepared on the basis of the customer’s details, without any guarantee of completeness or correctness; verbal cost estimates have no significance. We do not check documents, plans and sketches of the customer for their conformity with the natural dimensions or the conditions on site. Insofar as inaccuracies, errors and defects are recognizable to us, we shall point these out to the customer. Deviations
between the measurement provided by the customer and the natural measurement are the responsibility of the customer, whereby the customer must bear any additional expenses arising from this.
3. we reserve the right to sell goods offered to the customer to third parties during the period of validity of the offer (prior sale). This does not give rise to any claims on the part of the customer.
(4) In the event that information in written order confirmations issued by us deviates from the catalog, brochure or other information, the information in the order confirmation shall be binding. The content of the contract is determined by our written order confirmation. In the absence of a written order confirmation, the content of the contract shall be determined by the offer prepared by us and accepted by the Buyer.
5. an over- or under-delivery of +/- 5 % is customary in the industry. Any claims of the customer against us arising from such an over- or under-delivery are excluded. Over- or under-deliveries will be taken into account accordingly when invoicing.
We reserve our property rights and industrial property rights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties.
IV. Sample material
- Samples are charged at cost. Collections and samples made available to the buyer on loan and free of charge remain our property.
- Sample material is non-binding with regard to production-related or material-related deviations in production.
- Delivery periods and delivery dates are non-binding. The agreement of a binding delivery date requires our express written confirmation (also by e-mail). Agreed delivery periods shall not commence until all details of execution have been fully clarified; compliance with the delivery periods pursuant to §§ 3. Agreement presupposes the fulfillment of contractual obligations by the buyer. Delivery times are subject to timely and contractual self-delivery. If we fail to meet specified delivery deadlines, the Buyer shall set a reasonable grace period of at least 3 weeks in writing, which shall commence upon receipt of the deadline by us. After the expiration of the reasonable period, the buyer is entitled to withdraw from the contract. Until receipt of the written notice of withdrawal, we are entitled to deliver.
- The scope of our obligation to deliver results exclusively from this contract. We reserve the right to make changes in design, form and color based on improvements in technology or changes in the legal situation, as well as production or material-related deviations from the sample material, insofar as the changes are not substantial or otherwise unreasonable for the customer.
- Cases of force majeure, such as sustained hindrances to the procurement of goods and materials, delays in delivery by suppliers, operational disruptions, staff shortages due to illness, strikes, lockouts, riots, war and government intervention shall release us from our obligation to deliver and perform for the duration. This shall also apply if the events occurred at the upstream supplier. In case of long-lasting obstacles – of more than 4 weeks – both contracting parties are entitled to withdraw from the contract.
- Partial deliveries are permissible.
- In case of default of acceptance by the buyer, we are entitled to invoice or to withdraw from the contract by granting a grace period of 5 days and to claim damages. The storage of goods not accepted by the Buyer shall be at the Buyer’s risk and expense.
- If delivery deadlines or delivery dates are not met by us and there are no cases of force majeure, the customer is obliged to set us a reasonable grace period of at least 21 days in writing. After expiration of this grace period, the customer may withdraw from the contract. This does not apply to custom orders that involve investment on our part. In this case, the customer is obliged to compensate us in full for the investment expenses incurred.
- In the event of a delay in acceptance of the delivery provided, the customer shall pay any storage costs or demurrage to us. In such cases, the delivery shall be invoiced and payable in accordance with the agreed terms. The risk shall pass to the customer upon notification of readiness for delivery / shipment.
- We are not obliged to deliver if the customer is in default of payment from other deliveries from us.
VI. right of retention
We shall have a right of retention with regard to further deliveries until all previous deliveries have been paid. If, after conclusion of the contract, circumstances become apparent to us which substantially reduce the creditworthiness of the Buyer, or if justified doubts arise as to the Buyer’s ability to pay, we shall be entitled to refuse delivery or to carry it out only after prior payment or provision of security. If the buyer does not pay or does not provide securities, we are entitled to withdraw from the contract (§1052 sentence 2 ABGB).
(1) The delivery shall be deemed to have been handed over to the customer when it is handed over to the transport company or other person or institution designated to carry out the shipment. This also transfers the risk to the customer. The choice of shipping method as well as the choice of the shipping route are left to us.
2. the customer must ensure that there is a possibility of delivery even without prior express notification of the delivery date. In the event of a lack of willingness to accept, he shall be in default of acceptance. Additional costs incurred by us due to delays in delivery for which the customer is responsible shall be reimbursed to us by the customer.
3. the shipping costs are borne by the buyer, except for offers incl. Freight charges. The shipping costs for special order goods (no stock goods) and for express goods shall be borne by the buyer.
4. transport insurance shall be taken out at the written request of the purchaser and at the purchaser’s expense. Any transport damage must be reported immediately to the carrier and to us. If delivery free domicile has been agreed, the purchaser shall notify the carrier of the existence of any damage immediately after delivery and shall notify us thereof.
5. we bear the cost of packaging for transport to the buyer. The costs of any return of transport containers/loaned packaging shall be borne by the purchaser.
6. disposable packaging will not be taken back by us. Upon request, we will name a third party to the purchaser who will recycle the packaging in accordance with the Packaging Ordinance. The goods supplied by us are delivered exclusively in packaging that participates in the ARA system (ARA license no. 10532).
7. reusable containers, which are not expressly included in the price and invoice amount, are only provided on loan during deliveries. They remain our inalienable property and are kept in a special emballage account of the buyer.
For transport reasons, we only deliver whole cartons of 4 sets (Top Coating & Ceramic). Please note that mixed deliveries are not possible.
VIII Return of the goods
The goods may only be returned if we have expressly agreed to this in writing and the goods are in their original packaging, whereby any freight costs shall be borne by the customer. We reserve the right to refuse the return of the goods without giving reasons.
- Our prices are net prices without sales tax. In addition, we charge the sales tax in the respective statutory amount. An intra-community delivery is only made for business purposes to entrepreneurs with a VAT ID number who are subject to purchase taxation.
- Our prices are based on the economic conditions existing at the time of the conclusion of the contract, in particular our prime costs, the purchase prices, the prices for raw materials and supplies and the wage and salary costs. Unless fixed prices or price liabilities due to delivery dates have been expressly confirmed, we reserve the right to adjust prices accordingly for changes in exchange rates, fiscal levies, customs duties, freight, increases in raw materials, manufacturing costs and wages which have occurred or been introduced between the date of the order confirmation and the date of delivery.
- Our receivables are due for payment within 10 days from the invoice date without deduction; individual payment conditions require a written agreement. A cash discount deduction is only permissible (also in the case of cash or cash payments) if the payer is also not in default with other payment obligations to us within the cash discount period.
- If the purchaser is in default with his payment obligation, we shall charge interest at a rate of 8% above the respective base interest rate. Furthermore, all dunning or collection charges and ancillary fees incurred in connection with the outstanding debt shall be paid in the same amount as the principal debt. In the event that we take over the dunning process ourselves, we will charge EUR 15.00 per dunning level for dunning charges. We reserve the right to claim further damages.
- Offsetting by the buyer is only permitted with undisputed or legally established claims.
- The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. Insofar as the customer exercises his right of retention on the basis of alleged defects, this shall be limited in amount to the costs of remedying the defect.
- If the customer withdraws from the contract without justification, he is nevertheless obliged to pay the agreed remuneration in accordance with § 1168 ABGB. Alternatively, we shall be entitled to claim liquidated damages from the customer in the amount of 30% of the gross sales price. We reserve the right to claim higher damages against appropriate proof.
- Cancellation is expressly not possible for customer-specific special orders. In this case, the customer shall in any case pay the full agreed price.
XI. Notice of defects
- The buyer must inspect the goods immediately after delivery. If defects of quality or title, the absence of a warranted quality of the goods, excess, insufficient or incorrect deliveries are discovered, the buyer must notify us of this in writing immediately, at the latest within 14 days of receipt of the goods.
- The purchaser of finished preparations (cleaning agents, varnishes, etc.) must check – if necessary by trial processing – whether the delivered goods are suitable for the intended use. This applies in particular if thinners, hardeners or other components are added by the purchaser which were not purchased from us.
- If defects or other complaints are not asserted within the time limits of the above paragraphs, any claims under warranty, damages and error against us shall be excluded and the delivered goods shall be deemed approved.
- After cutting or otherwise commenced processing of the goods, the complaint of obvious defects is excluded.
5. the lodging of a complaint shall not release the purchaser from its payment obligation.
- The delivered goods are defective if they do not comply with the contractual agreement. Production-related fluctuations in the quantity and quality of individual batches, technically unavoidable deviations in quality, color, dimensions, (specific) weight, finish, design and pile distortions (shading in carpet fading) do not constitute a defect, nor do production- or material-related deviations from the sample material. All samples used by us are for illustration of color samples only. The samples used do not constitute a binding offer or samples for grain or texture. Therefore, the customer has no right to a certain pattern or structure. Anything to the contrary shall be expressly agreed in writing.
- If the goods are defective, we shall, at our discretion, remedy the defect by improvement or replacement delivery within the limitation period (item XIV.) if a complaint is made in due time (item XI.). The reversal of the burden of proof according to § 924 ABGB at our expense is excluded. The existence of the defect at the time of transfer of risk, the time of detection of the defect and the timeliness of the notice of defect must be proven by the customer.
- We are not obligated to improve or replace the goods if this requires disproportionate costs. The costs are disproportionate if they exceed 25% of the purchase price of the delivery item.
- The buyer can only demand a price reduction (reduction of the purchase price) or cancellation (rescission of the contract) if the existing defect could not be remedied by us despite two improvements or one replacement delivery, if we refuse the improvement or replacement delivery due to disproportionate costs, if we unjustifiably refuse or unduly delay a necessary improvement or if the buyer cannot reasonably be expected to accept an improvement. Conversion is excluded in the case of minor defects.
- The purchaser must give us the necessary time and opportunity to carry out the improvement or replacement delivery after consultation with him.
- If the goods were subsequently transported to a location other than the customer’s branch office and the expenses, in particular transport, travel, labor and material costs for the improvement or replacement delivery increase as a result, these increased expenses shall be reimbursed to us by the purchaser.
- In the case of third-party products, our warranty shall be limited to the assignment of the claims we have against the supplier of the third-party product. In the event that the purchaser is unable to enforce his warranty rights against the supplier of the third-party product, we shall provide a warranty within the scope of our terms and conditions.
- Recourse claims of the buyer against us are excluded. Compensation for any recourse claims by the buyer was taken into account accordingly in the pricing. The compensation for the low warranty cases is made by a lump-sum discount.
- In case of improper storage or use, all claims of the buyer (of whatever kind) are excluded.
- As a matter of principle, only our product description shall be deemed agreed as the quality of the goods. Public promotion or advertising shall not constitute a contractual description of the quality of the goods. The customer does not receive any guarantees in the legal sense from us.
- Our technical application advice is given to the best of our knowledge and in accordance with the latest state of the art. Therefore, if our products are used with careful attention to the indicated instructions for use, as well as to the procedure suggested by us on the materials for which these products are intended, no damage will occur. However, the use of our products is beyond our control, is the customer’s own responsibility, and does not relieve the customer from its own examination of the products supplied by us for their suitability for the intended processes and purposes. Our advice is therefore non-binding and cannot be invoked against us as a basis for liability – also with regard to any third-party property rights. The relevant recommendations, guidelines and standards as well as the recognized rules of technology must be observed.
- Liability for slight negligence is excluded for damages of any kind. This applies in particular to damages incurred by the purchaser as a result of delivery in breach of contract or delayed delivery, including consequential damages, or as a result of omitted or incorrect advice (instructions for operation and care, etc.) about the goods.
- The exclusion of liability does not apply to claims arising from the Product Liability Act and for personal injury, insofar as liability cannot be excluded or limited.
- The burden of proof for the existence of gross negligence or intent lies with the purchaser.
- Claims for damages are limited to the amount of the order value (excl. VAT). Compensation for lost profit or other financial losses of the customer are excluded.
SPECIAL NOTES: Please be sure to observe our current safety data sheet. Cleaning of the tools with water. Note the batch pressure. Only use products with the same batch pressure. The cured floor sealant is predominantly resistant to chemicals. Coloring substances such as hair dyes, dyed disinfectants or products containing plasticizers such as vehicle tires, chair castors and carpet pads can cause irreparable discoloration of the floor sealant. Likewise, no warranty can be given for any interactions of the coatings that may occur, caused by migration of ingredients from the floor covering or impurities that have not been removed from the surfaces to be sealed and the damage that may result (delamination or discoloration of the floor sealant). The WEARMAX recommendations for substrate preparation, as well as cleaning and maintenance of WEARMAX-sealed surfaces must be strictly observed.
IMPORTANT NOTE: All consumption quantities stated in our data sheets may vary due to the different absorbency of the substrate. Our technical application recommendations, which we give to the best of our knowledge on the basis of our experience in the laboratory and in practice, are non-binding and do not establish a contractual legal relationship or any ancillary obligations arising from the purchase contract. We recommend that you test our products for their suitability for the intended use on your own responsibility. In case of doubt, suitability and consumption quantities should be checked by laying out a sample area.
Our technical application advice is given to the best of our knowledge and in accordance with the latest state of the art. Therefore, if our products are used with careful attention to the indicated instructions for use, as well as to the procedure suggested by us on the materials for which these products are intended, no damage will occur. However, the use of our products is beyond our ability to control, is the customers’ own responsibility, and does not relieve the customers from their own testing of the products we supply for their suitability for the intended processes and purposes. Our advice is therefore non-binding and cannot be invoked against us as a basis for liability – also with regard to any third-party property rights. The relevant recommendations, guidelines and standards as well as the recognized rules of technology must be observed.
- Warranty claims of the customer become time-barred six months after handover.
- Claims for damages must be asserted within six months of the injured party becoming aware of the damage, but at the latest within three years of the event giving rise to the claim.
- Delivered goods remain our property until full payment of all claims in connection with the object of purchase. If we have entered into contingent liabilities in the interest of the Buyer, all deliveries shall remain our property until full release from such liabilities. This shall also apply if the payments were made for specifically designated receivables. The inclusion of individual claims in a current account as well as the drawing of a balance and its recognition shall not affect the retention of title.
- If the goods subject to retention of title are processed by the buyer or combined or mixed with other items, we shall become the sole or co-owner in accordance with the statutory provisions. If the purchaser becomes sole or co-owner by law, he is obliged to transfer his co-ownership to us upon request by handing over the item to us (transfer of ownership by way of security).
- The purchaser shall be entitled to sell goods subject to retention of title in the ordinary course of business if he assigns to us already now the claims accruing to him from the resale of such goods together with all ancillary rights (assignment in advance). We accept this assignment. The Purchaser and Reseller undertakes to immediately make a note of the assignment in its books of account and the list of open items when a claim arises from the resale of goods subject to retention of title, indicating which claim has been assigned to us and when. The purchaser and reseller further undertakes to disclose to us, upon request, all outstanding claims arising from the sale of goods subject to retention of title together with the associated debtors and to allow us to inspect the business books in order to check the book entries. We authorize the buyer and reseller, subject to revocation, to collect the claims assigned to us. This authorization to collect shall automatically expire upon the opening of bankruptcy proceedings against the Buyer’s assets or a deterioration of the Buyer’s economic situation.
- If goods subject to retention of title become a dependent part of a property, the buyer shall assign to us the claim arising therefrom in the amount of the invoice value of the goods subject to retention of title. We accept this assignment.
- In the event of conduct in breach of contract on the part of the purchaser, in particular in the event of default in payment, we shall be entitled to take back the delivery item after issuing a reminder and setting a deadline. The assertion of the reservation of title as well as the delivery item by us shall not be deemed to be a withdrawal from the contract.
- The purchaser must inform us immediately of any enforcement measures by third parties against the delivery item subject to retention of title or against the claims assigned to us, handing over the documents necessary for the objection.
- The delivery item subject to retention of title shall be insured by the Buyer at the Buyer’s expense, in particular against fire and theft. All claims against the respective insurer shall be assigned to us with regard to the items subject to retention of title. We hereby accept this assignment.
XVII Data protection
XVII Place of performance/jurisdiction/applicable law
- The place of performance for all claims arising from the contractual relationship is our registered office.
- For all present and future claims arising from the business relationship, it is agreed that the competent court shall be Linz.
- Our terms and conditions and the entire legal relationship between us and the Buyer shall be governed exclusively by Austrian law, to the exclusion of the rules of Austrian private international law. The application of the Vienna UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
- The only relevant language for business transactions (contract language) is German, which also applies to all documentation, descriptions, data sheets etc. If, however, communication takes place in another language, the chosen language should also be the language of the contract, but it is pointed out that in the case of questions of interpretation, only the German wording is authoritative. The deviation (regarding the language of the contract) is valid only for this Buyer and for the contract concluded in this way (i.e. the Buyer cannot claim to conclude further contracts in another language as well).