TERMS AND CONDITIONS
IQ - brand, design & production GmbH Österreich, Buch in Tirol I.
Unless other arrangements are explicitly made in writing in a given case, the following General Terms and Conditions of Delivery and Sale shall apply to all legal transactions based on which we (the company IQ brand, design & production GmbH, hereinafter shortly referred to as “IQ brand”) sell goods to customers.
II. DEFINITION OF TERMS:
These Terms and Conditions of Delivery and Sale shall apply to both delivery and purchase agreements. The terms “orderers, prices, etc.” used in these General Terms and Conditions shall include and shall also mean “purchasers, purchase price, etc.”.
III. CONCLUSION OF AGREEMENTS:
Conflicting General Terms and Conditions of the orderers shall be effective only if they have been explicitly recognised in writing by IQ brand. The offers of IQ brand shall be subject to change and shall not oblige IQ brand to accept orders. All representatives of IQ brand shall only be entitled to oblige IQ brand within the framework of these General Terms and Conditions of Contract. IQ brand shall not be bound to verbal arrangements made with the representatives; special arrangements deviating from these General Terms and Conditions shall only be effective in writing and shall require explicit acceptance by IQ brand. The agreement shall come into being by a written order confirmation of IQ brand or by actual delivery.
Unless explicitly agreed otherwise, delivery shall be performed ex factory. Extra costs for special delivery requests shall be borne by the orderer. IQ brand shall remain endeavoured to meet delivery periods; however, greed delivery periods are not to be regarded as “fixed dates”, but the tolerances customary in the industry shall apply. The delivery period shall commence only with the end of the day on which the order is confirmed by IQ brand and any agreed down payment is received. If the orderer amends its order prior to delivery, this shall interrupt the run of the delivery period, which shall commence anew upon receipt of the amended order or of the undersigned order confirmation addendum. All events of force majeure within the meaning of these Terms and Conditions shall release IQ brand from fulfilling the agreement for their duration and according to the extent of the obstacles; in such cases, IQ brand shall also be entitled, at its option, to give notice of rescission of the agreement. Where IQ brand gives notice of rescission of the agreement for the reason above, IQ brand shall only be obliged to repay the effected down payment free of interest, but not to pay damages. “Force majeure” within the meaning of these Terms and Conditions shall mean all circumstances beyond the control of IQ brand, especially non-timely delivery by upstream suppliers, events of force majeure in the narrower sense (e.g. war, conflagration, floods, earthquake, etc.), unforeseeable operational disruptions, shortage of energy, materials and raw materials, official interventions, transport and customs delay and labour conflicts.
V. BEARING OF RISK, TRANSPORT INSURANCE, DEFAULT OF ACCEPTANCE:
The risk, even for freight-paid delivery and delivery free Austrian border, and for delivery ex works, irrespective of who bears the freight costs and who actually performs the transport, shall pass to the orderer once the goods are provided to the orderer or carrier in the plant as per agreement. Transport insurance shall be taken out only at the orderer’s request and expense. If the orderer comes into default of acceptance or if the goods cannot be delivered to the orderer, since it has not effected the stipulated payments, IQ brand shall be entitled to claim the locally customary downtime fee or storage fee as compensation from the start of the default of acceptance or the readiness of IQ brand to perform notwithstanding any further claims for damages and the other legal consequences of the default of acceptance.
VI. WARRANTY, DAMAGES AND PRODUCT LIABILITY:
a) The warranty period for the products and services of IQ brand shall be two years. Technical information in catalogues, prospectuses, price lists and the like shall be subject to change and may be amended if required. They shall become binding for IQ brand only if they have been explicitly laid down in the order confirmation of IQ brand. The products and services of IQ brand must be inspected by the purchaser immediately after being taken over, and defects must be notified in writing or by e-mail or fax without delay. Default in inspection and complaint shall result in any warranty and damage claims being lost. Any further processing of or amendment to the delivered products shall be regarded as acknowledgement of proper delivery. Any existing defect shall not entitle the orderer to remedy the defect itself or to have it remedied by third parties, but IQ brand must be provided with an opportunity for improvement within a reasonable period beforehand.
b) The orderer may assert claims for damages only in cases of gross negligence or wilful intent. The orderer must demonstrate the existence of gross negligence. This shall also apply, in particular, to cases of default of delivery and bad delivery. In any case, claims for damages shall only comprise the costs of the mere damage repair, but not consequential damage and loss of profits.
c) Product liability claims for material damage shall be excluded.
VII. RETENTION OF TITLE:
Title to the delivered goods shall remain with IQ brand until they have been paid in full (invoice amount, interest, expenses and costs). Title of IQ brand to the goods shall not expire by handling or processing, but it shall be explicitly agreed that the item manufactured in this way shall be manufactured for IQ brand. Retention of title shall also remain in force for all claims arising in connection with the delivered goods, i.e. claims from repairs, deliveries of spare parts and accessories. As long as the delivered goods are subject to retention of title, the orderer shall be obliged to insure them against fire, water and theft. The orderer’s claims from such insurance contracts must be assigned to and written notice of the assignment must be given to IQ brand. As long as the retention of title exists, any alienation, pledge, transfer by way of security, renting or other surrender of the delivered goods without the written consent of IQ brand shall not be permitted. If creditors of the orderer intervene, especially if the delivered goods are seized, the orderer must immediately notify IQ brand by registered letter and bear the costs of measures taken to remedy the intervention, especially intervention processes, unless they can be collected by the counterparty. The orderer shall be obliged to maintain the delivery object in a proper condition for the duration of the retention of title and to have necessary repairs immediately carried out in the plant of IQ brand, except in emergencies. If the orderer does not meet its payment obligations and the obligations resulting from the retention of title of IQ brand, ceases its payment or judicial composition or bankruptcy proceedings are initiated in relation to its assets, the entire residual debt shall become due, even where bills of exchange with a later maturity date are pending. If the entire residual debt is not paid immediately, the orderer’s right of use to the delivered goods shall expire, and IQ brand shall be entitled to immediately claim surrender to the exclusion of any rights of retention. All costs arising due to the resumption of possession of the delivered goods shall be borne by the orderer. IQ brand shall be entitled, without prejudice to the orderer’s payment obligation, to utilise the product of IQ brand along with accessories at best by sale by private agreement. If the orderer does not meet its liabilities and IQ brand asserts the retention of title, it may not be objected in any case that the delivered goods must serve to maintain the trade.
Unless agreed separately, the invoices of IQ brand shall be payable immediately after receipt without deduction. Payments shall be offset against the respective oldest claim. In case of doubt, any agreed payment period shall commence with the invoice date. Bills of exchange and cheques shall be accepted by way of payment only after separate arrangement, with the orderer bearing all costs and expenses. When using bills of exchange, IQ brand shall not assume any warranty for timely presentation and protest. If the orderer comes in default of payment, also without its fault, IQ brand shall be entitled to offset 11% default interest, and all reminder and collection expenses must be reimbursed. Such default consequences shall also apply to default of acceptance, notwithstanding any further legal or contractual consequences of such default of acceptance. If circumstances creating the impression that the orderer’s creditworthiness is reduced become known, IQ brand shall be entitled to claim advance payments or to rescind the agreement if such payments are not effected. If the orderer comes in default, in whole or in part, with an instalment payment or bills of exchange in an instalment purchase transaction, the entire residual purchase price shall become due. The orderer shall be entitled to offset against counterclaims only if such counterclaim is not disputed by IQ brand or a final executory title exists.
IX. PROPERTY RIGHTS:
The manufacturing process, the patents and the other know-how of the goods delivered by IQ brand shall be its intellectual property and subject to its property rights. Any assignment, especially the production and/or distribution of items of IQ brand by third parties in violation of its rights, shall be prosecuted. IQ brand explicitly points out that it shall not assume any liability for products not manufactured by IQ brand. Only the gloryfy® original and its materials shall guarantee maximum quality, flexibility and stability and a long service life. Due to the property rights applications made by IQ brand, imitators shall be directly prosecuted and prompted to refrainment by the patent lawyer of IQ brand. The gloryfy® distribution partner authorised by IQ brand shall be obliged to immediately forward to IQ brand any property rights infringements in connection with products of IQ brand. Customised products shall always be accompanied by a manufacturer note.
X. PLACE OF PERFORMANCE, PLACE OF JURISDICTION AND APPLICABLE LAW:
The place of performance for both parties shall be A-6220 Buch in Tirol. The Austrian court factually competent for A-6020 Innsbruck shall herewith be agreed as the place of jurisdiction for all disputes resulting directly or indirectly from the agreement (including claims from bills of exchange and cheques). Austrian substantive law shall be applied to all disputes from agreements. The applicability of the UN Sales Law shall be excluded. Only in case that the agreement on the applicability of Austrian law is ineffective (e.g. in the course of any litigation in a “Third World” country), the UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods - Federal Law Gazette
1988/96) is to be applied subsidiarily. The contract language shall be German.
XI. AMENDMENTS TO PROVISIONS:
Subsequent amendments to the terms above shall remain reserved if legal measures or changes in economic conditions make this appear necessary.
XII. PARTIAL INEFFECTIVENESS:
If individual provisions of these General Terms and Conditions of Delivery and Sale are or become legally ineffective, this shall not affect the validity of all other provisions of these General Terms. The ineffective provision shall be replaced by an effective one, whose content pursuant to its economic purpose shall come closest to the purpose pursued with the respective ineffective clause.