COVID – Delivery delay possible!
Due to the restrictions on delivery traffic, Wearmax GmbH can currently no longer rule out delivery delays. Should the case arise, this is generally considered to be “force majeure” which we, despite our efforts, cannot influence. In order to ensure that you are supplied with goods, we will keep you informed about further developments. If there are any delivery bottlenecks for ongoing orders / call-offs / blanket orders, we will contact you proactively.
General Terms and Conditions of Sale, Delivery and Payment of Wearmax GmbH
Stand Jänner 2021
WEARMAX GMBH | Gewerbepark 30, A-4201 Gramastetten | Telefon: +43 (0)7239/70370 | Telefax: +43 (0)7239/70370 77 | e-mail: email@example.com | Steuer-Nr.: 226/5255 | UID-Nr.: AT U67042434 | EORI Nr.: ATEOS1000044438 | Gerichtsstand: Linz
EUR-Bankverbindung: Allgemeine Sparkasse OÖ | BLZ: 20320 | IBAN: AT47 2032 0321 0021 0213 | BIC: ASPKAT2LXXX
USD-Bankverbindung: Allgemeine Sparkasse OÖ | BLZ: 20320 | IBAN: AT38 2032 0321 7561 3228 | BIC: ASPKAT2LXXX
(1) 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, including those concluded via the online store operated by us at www.wearmax-coating.at, which are 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 shall apply 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, the customer accepts our GTC.
2. oral agreements of the contracting parties are 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.
3. deviating, contradictory or supplementary general 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 is maintained 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 that their unauthorized use is inadmissible and will be prosecuted in court.
III. Offer and Contractual Content
1. our offers are subject to change without notice and are non-binding, as are technical descriptions or other details in offers, brochures, etc.
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 drawn up on the basis of the customer‘s details, without any guarantee of completeness or correctness; verbal cost estimates are of 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
The customer shall be responsible for any discrepancies between the dimensions provided by the customer and the natural dimensions, and the customer shall bear any additional expenses incurred as a result.
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). The customer shall not incur any claims as a result.
4. In the event that details in written order confirmations issued by us deviate from those in catalogs, brochures or other information, those in the order confirmation shall be binding. The content of the contract shall be 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 shall be excluded. Over- or under-deliveries will be taken into account accordingly in invoicing.
6. 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
1. Samples are charged at the cost price. Collections and samples made available to the purchaser on loan and free of charge shall remain our property.
2. Sample material is non-binding with regard to production-technical or material-related deviations in production.
1. delivery periods and delivery dates are non-binding. For the agreement of a binding delivery date it requires the express, written (also by e-mail) confirmation by us. Agreed delivery periods shall not commence until all details of execution have been fully clarified; compliance with the delivery periods in accordance with the agreement shall be subject to the Buyer fulfilling its contractual obligations. Delivery periods are subject to timely and contractual self-delivery. If we fail to comply with specified delivery periods, 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 expiry of the reasonable period, the purchaser shall be entitled to withdraw from the contract. Until receipt of the written notice of withdrawal, we shall be entitled to make delivery.
2. The scope of our obligation to deliver shall be determined exclusively by 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.
3. 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, lock-outs, riots, war and government intervention, shall release us from our obligation to deliver and perform for the duration of the event. This shall also apply if the events have 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.
4. Partial deliveries are permissible.
5. in case of default of acceptance by the buyer, we are entitled to invoice or to withdraw from the contract by setting a grace period of 5 days and to claim damages. Goods not accepted by the Buyer shall be stored at the Buyer‘s risk and expense.
6. if delivery periods 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 customer-specific orders that involve investments on our part. In this case, the customer is obligated to compensate us in full for the investment expenses incurred.
7. 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.
8. we are not obliged to deliver if the customer is in default with 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 for. 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 effect delivery 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 means that the risk is transferred to the customer. The choice of the mode of dispatch as well as the choice of the dispatch route are left to us.
2. The customer shall ensure that there is a possibility of delivery even without prior express notification of the delivery date. If the customer is not ready to accept delivery, he shall be in default of acceptance. Additional costs incurred by us due to delays in delivery for which the customer is responsible are to be reimbursed to us by the customer.
3. shipping costs shall be borne by the buyer, except for offers including freight costs. The shipping costs for special order goods (no stock goods) and for express goods shall be borne by the buyer.
4. the conclusion of a transport insurance takes place on written desire of the buyer and on his costs. 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 immediately after delivery of the existence of any damage and notify us thereof.
5. we shall bear the costs of packaging for transport to the buyer. The costs of any return of transport containers / returnable packaging shall be borne by the Buyer.
6. one-way packaging will not be taken back by us. Upon request, we will name a third party to the buyer who will recycle the packaging in accordance with the Packaging Ordinance. The goods delivered by us are exclusively delivered 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, shall only be provided on loan for the deliveries. They shall remain our inalienable property and shall be kept in a special packaging account of the Buyer.
8. for transport reasons we deliver only whole cartons of 4 sets (each Top Coating & Ceramic). Please note that mixed deliveries are not possible.
VIII. Return of the goods
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 sales tax at the respective statutory rate. An intra-community delivery is made only for entrepreneurial 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.
1. Our claims are due for payment from the date of invoice within 10 days with 3% discount or within 14 days without discount. The discount deduction is only permissible (also in case of cash payment) if the payer is also not in default with other payment obligations towards us within the discount period.
2. If the buyer is in default with his payment obligation, we shall charge interest in the amount of 8% above the respective base interest rate. Furthermore, all reminder or collection charges and ancillary charges 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, the customer shall pay a lump sum of EUR 40,- for this. We reserve the right to claim further damages.
3. Offsetting by the customer is only permitted with undisputed or legally established claims.
4. The customer is authorized to exercise a right of retention only 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.
5. If the customer withdraws from the contract without justification, he shall nevertheless be 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.
6. In the case of customer-specific special orders, withdrawal is expressly not possible. In this case, the customer must in any case pay the entire agreed price.
XI. Notice of defects
1. In the absence of a special agreement the Wearmax GmbH delivers materials in usual quality and condition. The purchaser has to examine the goods immediately after delivery. If material defects or defects of title, the lack of a warranted quality of the goods, too much, too little or wrong deliveries are found, the purchaser has to inform us immediately, at the latest within 14 days after receipt of the goods, in writing, stating an exact description of the alleged defect, otherwise the contractual partner loses his rights. Complaints due to incomplete or defective delivery must be reported within the same period of time.
2. 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 shall apply in particular if thinners, hardeners or other components are added by the Buyer which were not purchased from us.
3. If defects or other complaints are not asserted within the periods specified in the above paragraphs, any warranty claims, claims for damages and claims based on error against us shall be excluded and the delivered goods shall be deemed to have been approved.
4. Complaints about obvious defects are excluded after the goods have been cut to size or otherwise started to be processed.
5. The lodging of a complaint does not release the purchaser from his obligation to pay.
1. 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 shall not constitute a defect, nor shall production- or material-related deviations from the sample material. All samples used by us serve exclusively to illustrate color samples. The samples used do not represent a binding offer or samples for grain or structuring. The customer therefore has no claim to a specific pattern or structure. Anything to the contrary shall be expressly agreed in writing.
2. If the goods are defective, we shall, at our discretion, remedy the defect by improvement or replacement delivery within the limitation period (point XIV.) if a complaint is made in due time (point 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 discovery of the defect and the timeliness of the notice of defect must be proven by the customer.
3. We are not obliged 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.
4. The buyer can require the price reduction (reduction of the purchase price) or transformation (cancellation of the contract) only if the existing lack could not be repaired despite twice improvement or unique spare delivery by us, if we refuse the improvement or spare delivery because of disproportionate costs, if we refuse a necessary improvement unjustifiably, unduly delay or if an improvement is not reasonable for the buyer. Redhibitory action is excluded in the case of minor defects.
5. The purchaser must give us the necessary time and opportunity to carry out the improvement or replacement delivery after consultation with him.
6. 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.
7. In the case of third-party products, our warranty shall be limited to the assignment of the claims which we have against the supplier of the third-party product. In the event that the Buyer cannot enforce his warranty rights against the supplier of the third-party product, we shall provide warranty within the scope of our terms and conditions. If third parties assert product liability claims against Wearmax GmbH due to circumstances in the area of the contractual partner after the passing of risk (handing over of the goods to the forwarder), Wearmax GmbH will be fully indemnified and held harmless by the contractual partner.
8. Recourse claims of the buyer against us (especially according to § 933b ABGB) are excluded. The compensation for possible recourse claims of the Buyer has been taken into account accordingly in the pricing. The compensation for minor warranty cases is made by a lump-sum discount.
9. In case of improper storage or use, all claims of the buyer (of whatever kind) are excluded.
10. As a matter of principle, only our product description shall be deemed agreed as the quality of the goods. Public promotions or advertising do not constitute a contractual description of the quality of the goods. The customer does not receive any guarantees in the legal sense from us.
11. Our technical advice is given to the best of our knowledge and in accordance with the latest state of the art. Therefore, no damage will result from the use of our products if the stated application instructions are carefully observed, as well as the procedure instructions suggested by us on the materials for which these products are intended. However, the use of our products is beyond our control, is the customer‘s own responsibility and does not relieve the customer from his own examination of the products supplied by us as to 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.
1. Liability for slight negligence is excluded for damages of any kind. This applies in particular to damages suffered by the buyer by delivery contrary to the contract or delayed delivery including consequential damages or by omitted or faulty advice (instructions for operation and care etc.) about the goods. The Wearmax GmbH is liable for damages caused by injuries of life, body or health according to the legal regulations. For other damages the Wearmax GmbH is only liable for intent and gross negligence. The liability according to the Product Liability Act (PHG) remains unaffected by the above provisions.
2. The exclusion of liability does not apply to claims from the product liability law and for personal injuries, as far as the liability cannot be excluded or limited. Claims for damages shall become statute-barred six months after the contractual partner has become aware of the damage and the damaging party, but no later than one year after delivery.
3. The burden of proof for the existence of gross negligence or intent shall lie with the purchaser.
4. 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. Compensation by Wearmax GmbH for loss of profit, consequential damage and damage to the bare assets of the contractual partner of Wearmax GmbH is excluded in any case.
SPECIAL NOTES: Please be sure to observe our current safety data sheet. Clean tools with water. Observe the batch pressure. Only use products with the same batch pressure. The cured floor sealant is mainly resistant to chemicals. Coloring substances such as hair dyes, dyed disinfectants or products containing plasticizers such as vehicle tires, chair castors and carpet pads may cause irreparable discoloration of the floor sealant. Likewise, no warranty can be given for any interactions that may occur between the coatings, caused by migration of ingredients from the floor covering or impurities that have not been removed from the surfaces to be sealed and any resulting damage (delamination or discoloration of the floor sealant). The WEARMAX recommendations for substrate preparation as well as cleaning and care of WEARMAX -sealed surfaces must be strictly observed.
1. Warranty claims of the contractual partner shall become statute-barred six months after delivery. In case of improper storage or use, all claims of the contracting partner of any kind are excluded. The lifting of the burden of proof according to § 924 ABGB at the expense of Wearmax GmbH is excluded. The existence of the defect at the time of delivery, the time of detection of the defect and the timeliness of the notice of defect have to be proved by the contractual partner. The right of recourse according to § 933b ABGB is excluded.
2. Claims for damages must be asserted within six months after the aggrieved party has become aware of the damage, but at the latest within three years after the event giving rise to the claim.
XV. Retention of title
Our customers (specialized dealers) use the advantages of the trend-setting Internet shopping and market this concept together with us. We arrange Internet orders for our customers (specialist dealers) and deliver the goods ordered by the end consumers to the selected customer. The end consumer collects the goods directly from the customer (specialist retailer) and pays on the spot. The customer (specialist retailer) is the contractual partner of the end consumer. The customer (specialized dealer) undertakes to accept the sales prices listed on our homepage and receives his usual purchasing conditions in return. We undertake to include the customers (specialized dealers) participating in the web store in the list of specialized dealers on the homepage and thus to provide them with the internet orders.
XVII. Data protection
We are entitled, in compliance with the provisions of the Data Protection Act, to store and transmit data relating to goods and payment transactions with the customer to store, process and transmit data of the goods and payment transactions with the customer, as far as this is necessary for the usual support and/or for the proper execution of the order. The buyer expressly gives his consent to this.
XVIII. Place of performance/court of jurisdiction/applicable law
1. The place of performance for all claims arising from the contractual relationship shall be our registered office.
2. The place of jurisdiction for all present and future claims arising from the business relationship shall be the competent court in Linz. Valid for deliveries in USA: Disputes, disagreements or claims arising out of or in connection with an agreement or an individual sales contract based on an agreement, including their validity, invalidity, breach, dissolution or nullity, shall be finally settled under the rules of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or three arbitrators appointed in accordance with these rules. Austrian substantive law shall apply, excluding the application of the UN Convention on Contracts for the International Sale of Goods and the Austrian Private International Law Act. The language to be used in the arbitration proceedings shall be English. The place of arbitration shall be A – 4201 Gramastetten. Unless otherwise agreed between the contracting parties, all procedural acts shall take place in A – 4201 Gramastetten or Austria.
Claims against Wearmax GmbH have to be asserted before the International Arbitration Court of the Austrian Federal Economic Chamber within one year from the due date, or in case of damage within one year from the date of damage and knowledge of the damaged party, otherwise they will expire.
3. 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.
4. only relevant for the business transaction (contract language) is German, this also applies to all documentation, descriptions, data sheets etc.. If, however, communication takes place in another language, the chosen language should also apply as the language of the contract, but it is pointed out that in questions of interpretation only the German wording is decisive. The deviation (regarding the contract language) is only valid for this buyer and for the contract concluded in this way (i.e. the buyer cannot claim to conclude further contracts in another language).
If our T&Cs are not objected to in writing within ten days, they shall be deemed accepted.