GENERAL TERMS OF BUSINESS
Top Impex Marketing GmbH, Albrecht-Dürer-Strasse 4, A-9500 Villach, Austria.
FN: 181713a, UID Nr.: ATU 478 21004, St.-Nr.: 013/3969-10
1. General Conditions and Scope
1.1 The following terms shall be applicable for all offers, deliveries and services supplied by Top Impex to customers.
1.2 Consumers, according to the subject terms of business, are natural persons for whom the legal transaction does not belong to their enterprise. Contractors, according to the subject terms of business, are natural persons or legal entities for whom the legal transaction forms a part of their company. An enterprise is any organisation of independent economic activity designed to last even if it is not profit-oriented. Customers, according to the subject terms of business are consumers as well as contractors.
2. Conclusion of Contract
Top Impex shall submit a legally binding offer upon enquiry of the customer. Upon acceptance of the offer in writing by the customer the contract shall be concluded in legally valid form between Top Impex and the customer.
3. Right of Rescission
3.1 The products of Top Impex are mainly custom-made products with reference to which any right of rescission is excluded following the legally effective conclusion of the contract and the expiry of the terms agreed in this item. Contractors shall not have a right of rescission after the conclusion of the contract. Consumers who have submitted the offer neither at the premises used permanently by Top Impex for their specific purposes nor at a stand used by Top Impex for this purpose at a fair or market, can rescind from the contract in writing within one week as from the acceptance of the offer.
3.2 The declaration of rescission of the consumer shall be sent to Top Impex within the term mentioned in item 3.1.
3.3 Top Impex shall have the right to rescind from the contract at any time
3.3a , if the customer does not effect payment at the time agreed
3.3b , if a bankruptcy procedure is instituted with respect to the customer.
4.1 The prices shall be agreed in binding form upon conclusion of the contract.
4.2 The prices are exclusive of the statutory value added tax, as applicable.
4.3 The prices exclude packaging; the costs of delivery shall be charged separately.
5.1. The delivery terms are binding only if confirmed explicitly in writing by Top Impex.
5.2 There is no obligation for Top Impex to supply the product prior to the complete payment of the products by the customers.
5.3 In case of force majeure (war, riot, natural catastrophes, risk of terrorism, etc.) Top Impex shall be entitled to defer the service agreed for the duration of the event plus a reasonable starting period, or to rescind from the contract without providing the service.
5.4 Transport damage shall be reported and documented by the customer immediately after acceptance of the product, otherwise the product shall be deemed to be duly delivered.
6. Reservation of Title, Storage Costs
6.1 The products hereunder shall remain the property of Top Impex until complete payment by the customer has been effected.
6.2 The customer shall bear the storage costs and any other costs resulting from the non-payment or non-acceptance of the product.
6.3 The customer shall not be allowed to dispose of the products under reservation of title, i.e. by sale, pledge, chattel mortgage or transferral for use. The customer shall be obliged to keep Top Impex indemnified against losses and/or legal proceedings resulting from an ordinance against the terms of business.
7. Terms of Payment
7.1 Unless the offer does not stipulate other payment terms, payment of the entire invoice amount, including costs of dispatch, shall be effected onto the following account: Die Kärntner Sparkasse AG, Neuer Platz 14, 9020 Klagenfurt, Austria, account name: Top Impex Marketing GmbH: account no.: IBAN: AT952070600000134577 BIC: KSPKAT2K according to the offer within 7 days as from the acceptance of the offer.
7.2 In case of delay in payment, delay interest amounting to 8% shall be charged.
8. Instructions for Care
8.1. The instructions for care handed over to the customer shall be complied with by the customer in the care of the product, otherwise liability of Top Impex shall be excluded.
8.2 The instructions for care are part of these terms of business and the customers shall undertake to carry out the care in accordance with the instructions for care.
9. Warranty, Liability
9.1 Top Impex warrants that the products delivered at the time of delivery are in compliance with the properties indicated in the respective product descriptions. The risk shall pass to the customer upon handover of the products by Top Impex to the freight forwarder. The date of dispatch on the bill of lading or on the shipping documents is decisive.
9.2 Furthermore, the passing of risk to the customer shall take place on the date on which Top Impex would be able to dispatch the product to the customer and the dispatch cannot be carried out because the customer, in violation of the contract, has not effected payment to Top Impex.
9.3 The liability for damage is excluded for slight negligence. For the rest, all the legal stipulations shall be applicable.
9.4 The term of warranty shall start with the day of dispatch, delivery or handover of the product.
9.5 The customer, prior to asserting claims in court, shall submit a notice of defects in writing and Top Impex subsequently shall have the right to carry out an improvement or price reduction.
9.6 The burden of proof for the occurrence of a defect shall lie with the customer.
9.7 The right for warranty expires if it is not asserted in court by the customer within 2 years.
9.8 The liability of Top Impex resulting from any contract based on the terms of business shall be limited to the value of the respective order.
10. Interpretation, Modification of Law
If individual stipulations of these business terms or parts thereof are invalid or should become legally invalid or unenforceable, the validity of the remaining stipulations shall not be affected. In such a case the respective stipulations shall, in mutual cooperation of both parties to the contract, be substituted by stipulations which are as close as possible to the economic content of the invalid or unenforceable stipulations. The same shall be applicable for the case of a loophole in the provisions of the subject terms of business.
11. Applicable Law
The Austrian Law shall be exclusively applicable to the basic transaction between Top Impex and the customer as well on to the subject terms of business, and the customer shall submit himself/herself to such law. The application of the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL Sales Convention) shall be excluded.
The jurisdiction for all disputes resulting from the subject contract shall be the materially competent court in Klagenfurt, Austria