General Terms and Conditions
All offers are subject to change until confirmed by us. An order shall only be considered as accepted by us if confirmed by us in writing. Sale and delivery take place only under the following conditions. Deviations and subsidiary agreements require a written confirmation. Changes, suspensions and cancellations of orders can only be made with our explicit approval.
Our list prices are non-binding orientation prices. They were calculated on the basis of prices for materials, wages, salaries, fees, etc., which were in force at the time of the creation of the offer or the confirmation of the order. We reserve the right to adjust the prices if this calculation basis demonstrably changes up to the day of delivery; this even if prepayment has already been made. Prices shall be understood as free carrier to any Austrian receiving station; for other countries in accordance with the provisions of separate agreements. Reorders will be delivered carriage forward. We are in particular entitled to charge for extra costs due to a delay which was not caused by us in clarifying the technical or legal requirements for the delivery or for overtime, night or weekend work or specially expedited transportation due to explicit customer wishes.
The time specification is always to be considered approximate, but with a tolerance of +/- 3 weeks, unless we have explicitly committed ourselves in writing to deliver within a specified period or by a certain date. Unforeseen obstacles, late deliveries of ordered materials and third-party products, workers’ uprisings and strikes at our company or our sub-contractors, as well as force majeure, release us from adherence to the agreed delivery period. Penalties for delay, compensation claims or a right to withdraw from the order due to delayed delivery are excluded.
All shipments are sent at the expense and risk of the recipient. We are only obliged to arrange for transport insurance, in particular insurance against the dangers of war, strikes and civil commotions, if the customer explicitly imposes this and undertakes to pay the consequent costs. Any compensation for confusions or damage during transportation is expressly excluded. In case of underweight or damage of the consignment, a complaint must be submitted to the railway or postal service or any other carriers and an official confirmation of damage must be requested.
The customer has the fundamental choice of whether improvement or replacement should take place. We are entitled to refuse the chosen remedy if it is impossible or, compared to the other remedy, is coupled with a disproportionately high expenditure for us. For companies, we initially provide a warranty for defects by repair or replacement, at our choice. If an improvement is not possible or practicable, the customer is fundamentally entitled, at his option, to demand a price reduction or a conversion of the contract, unless it concerns only a minor defect. For businesses, our company reserves the right to choose between price reduction and conversion. Entrepreneurs must check the delivered products for defects within a reasonable period and report them within a time limit of one week after receipt of the goods; otherwise, the assertion of warranty rights, consequential damages and avoidance on account of mistake is excluded. The entrepreneur bears the full burden of proof for all eligibility requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the complaint. The customer demonstrably undertakes to hand all instructions, product information or similar that are currently or hereafter created by us to his buyer and to bind his customers to the same commitment. The customer furthermore undertakes to refrain from making advertising statements about our products which go beyond our own advertising and would thus expand our product liability towards final consumers. Our liability is limited to the content of advertising releases, product information, and web pages of our company. Differently phrased purchasing conditions of our customers are neither agreed nor approved. The present contract and all legal disputes arising from it shall be governed exclusively by Austrian law. Mandatory provisions of the Consumer Protection Act and Product Liability Law remain unaffected hereby.
The return of criticized goods requires our explicit prior agreement. The return must be carried out postage-free to St. Andrä / Lavanttal. Returned goods which are sent without our prior consent will not be accepted. The storage of raw materials, semi-finished or finished products, or sent back goods can only be carried out lawfully after prior written agreement and must be reimbursed to us separately. Should the dispatch of goods ready for shipment not be carried out within one month after invoicing without our fault, or be postponed at the request of the client, our performance shall be deemed rendered and we are entitled to store the goods at the expense of the client, whereby storage costs arising in this regard must be compensated promptly by the client. The agreed terms of payment shall not be changed thereby.
The payment conditions shall be determined by the applicable price list. Our selling prices, as well as all offers and calculations are in euro. Invoice amounts are payable net within 14 days. For late payments, default interest shall be calculated in the amount of 1% PM. Should the purchaser fail to fulfil his obligations, or if he discontinues his payments, the entire remaining debt becomes due, even if there are drafts with a later maturity in effect. The purchaser agrees that reminder fees in the amount of € 40.00 and collection costs in accordance with the collection regulations, and costs of pre-trial intervention of a lawyer in accordance with the Lawyers’ Fees Act will be billed and the customer also undertakes the complete payment of these additional charges and costs. Furthermore, the purchaser explicitly agrees that capitalized interest and dunning and collection expenses or costs of the pre-litigation lawyers’ intervention will be paid as the main item in addition to the amount in controversy from the original claim in the case of judicial proceedings. However, we reserve the right to deliver only against advance payment, cash on delivery or against a bill of exchange. Employees and representatives of our company are only authorized to accept payments if they have a written power of attorney for collection. Any withholding or offsetting of payments by the purchaser due to any counterclaims is not permitted.
RETENTION OF TITLE:
The goods remain our property until full payment has been made. Furthermore, the customer undertakes to inform us immediately in the event of an insolvency procedure or to take all necessary steps to separate the goods that are still our property and to notify us immediately of our retention of title in every case. If the buyer does not fulfil his obligations or if he stops payments or in the case of the buyer’s insolvency, we are entitled to demand the immediate surrender of the goods under exclusion of any right of detention. After the taking custody of the object of purchase, it is up to our discretion to either sell the object of purchase in the best possible way and to credit the proceeds to the buyer to cover outstanding debts, or to take the object of purchase back at the invoice price and to charge the buyer rent for the period of his possession of the delivered products at the customary and usual rate.
DELAY: Rights granted in Par. 918 of Austrian General Civil Law (ABGB) shall be applied without a grace period and at the same time to other, not yet completed transactions and to call-off deliveries. Also, we are always entitled to refuse deliveries until the buyer has fulfilled the obligations he has already entered into with us but has not yet fulfilled.
The place of jurisdiction for both parties shall be the materially competent court of 9433 St. Andrä. The contractual relationship shall be subject to Austrian law. The applicability of the UN CISG is excluded; the contract language is German. Performance and payment shall each take place in St. Andrä in the Lavant Valley.
WARRANTY: For the first two years from the date of delivery, we offer a full warranty for Flexima sleeping systems. In this period, we correct all damage that is attributable to material defects free of charge by repair or replacement. In the third year of use, the warranty is reduced by 20% and in the following years reduced by 10%, so that in the third year of use 20%, in the fourth 30%, in the fifth 40%, etc. are charged to the customer’s account as the customer’s share of the costs. All travel and transport costs shall be borne by the purchaser. Our warranty service does not interrupt the warranty period nor does a new warranty period begin.
The following are excluded from our guarantee commitment:
Defects that have been caused by improper handling – e.g. the use of force, overloading – if the weight restrictions which are recommended for the mattress are exceeded by the user by more than 10 percent, if modifications have been undertaken by the buyer etc.; damage due to normal wear and tear; mattress covers and handles, as well as other fabric covers; contamination by mildew stains (mould).