GENERAL TERMS OF SERVICE
HeatArt Vertriebs GmbH
1. Area of Usage
For all deliveries, services and offers of the HeatArt Vertriebs GmbH the General Terms of Service of the HeatArt Vertriebs GmbH apply exclusively. Contradictionary Terms of Service are valid only if they have been explicitly approved in written form. By sending resp. signing the order the sales partner accepts the Terms of Service of the HeatArt Vertriebs GmbH. The Terms of Service of the HeatArt Vertriebs GmbH are also valid for all future business relations within the scope between the parties even if not explicitly referred to. The Terms of Service as well as possible revisions of them will be published on the website http://www.heatart.at/ and can also be viewed in the offices of the HeatArt Vetriebs GmbH.
2. Offer, Assignments, Orders
Our offers/cost estimates are open regarding prices, amounts, delivery deadlines and delivery options. Contracts are only concluded by the written issue of the order confirmation by the HeatArt Vertriebs GmbH or in the absence of such by the delivery of the ordered products. In the case of the refusal of an order the customer will be notified as soon as possible.
3. Delivery, Transport, Default of Acceptance
The sales prices of the HeatArt Vertriebs GmbH are ex store Wiener Neustadt including packaging, but excluding delivery, installation and insurance costs. The HeatArt Vertriebs GmbH has the right to ship all products at the expense and risk of the sales partners. The deliveries will always be exectued at the prices and conditions valid at the day of shipment, plus legal taxes. The HeatArt Vertriebs GmbH may also send shipments in parts. The customer has no right to deny partial deliveries. The HeatArt Vertriebs GmbH reserves the right for constructive changes of the products. The risk of sinking, loss or damage of the product is transferred to sales partner upon handover to the shipper/carrier or in the case of pick up by the customer upon the placing at disposal. The HeatArt Vertriebs GmbH is not obligated to contract transport insurance. Insurance of the products will only be contracted upon written assignment by the sales partner and on his expenses.
The sales partner explicitly agrees that third parties assigned by the HeatArt Vertriebs GmbH, e. g. sales partners of the HeatArt Vertriebs GmbH accept the products on behalf of the sales partners.
The costs for the collection and/or disposal of electronic devices are to be carried by the according user himself. In case the sales partner fails to accept the product as planned (default of acceptance) the HeatArt Vertriebs GmbH reserves the right to, after an according insuccessful respite, to store the products in their own storage, charging 0,1% of the total product value excluding taxes per day or part thereof as storage fee.
At the same time the HeatArt Vertriebs GmbH reserves the right to either insist on the fulfillment of the contract or, after the issue of an according respite of at least 2 weeks, to refrain from the contract and to make other use of the products.
4. Delivery Deadline
The HeatArt Vertriebs GmbH will do its best to deliver as fast as possible. Fixed deadlines only apply if they have been explicitly agreed upon in written form. In this case the customer has to grant the HeatArt Vertriebs GmbH an according respite of at least three weeks.
In case of an insuccessful termination of the respite the customer may withdraw from the contract. Further claims of the customer from this withdrawal are not vaild.
5. Official and Licensing Approvals
In case official or licensing approvals are necessary for the fulfillment of the contract, the sales partner has to get them in time. Especially the sales partner has to take resonsibility for their economic and/or private use in the case of the sending of individual motives.
In case of the non-compliance with official and/or licensing regulations the sales partner has to keep the HeatArt Vertriebs GmbH free of any damage or legal responsibility.
6. Reservation of Proprietary Rights
The property of the delivered products is only transfered to the contract partner upon the complete payment of the sales price. The HeatArt Vertriebs GmbH reserves the right to obviously mark the reservation of proprietary rights. This marking may not be removed by the contract partner. The customer is obligated to not sell, lease out or give into mortgage any products under the reservation of proprietary rights. The HeatArt Vertriebs GmbH reserves the right to request from the customer the handover of the products placed under proprietary reservation at any time without respite or a withdrawal from the contract should he default on the obligations towards the HeatArt Vertriebs GmbH.
In the case of an enforcement of the proprietary rights reservation the sales partner must immediately hand over the according products. The enforcement of the proprietary rights reservation does not clear the sales parnter of his obligations, especially not his obligation to pay the sales price. The taking back of the products under proprietary reservation do trigger a withdrawal from the contract only when this is stated explicitly in written form. In the case of a withdrawal of the products the HeatArt Vertriebs GmbH reserves the right to bill the customer with the costs for transportation and manipulation fees as well as a certain amount for the value reduction, at least 25 % of the product value.
Bills issued by the HeatArt Vertriebs GmbH are due in total immediately upon receipt of the bill. In the case of valid doubts about the liquidity or credit status of the sales partner the HeatArt Vertriebs GmbH reserves the right to withdraw from all active contracts regarding any outstanding deliveries or to make their fulfillment dependent on further appropriate securities, especially pre-payments. The HeatArt Vertriebs GmbH reserves the right to accept and/or execute services only after pre-payments. The sales partner has no right to charge own claims against those of such from the HeatArt Vertriebs GmbH unless those claims of the sales partner have been accepted by the HeatArt Vertriebs GmbH in written form or are asserted by court. A retention of goods by the sales partner is not valid. In the case of default payments default interest of 12 % p.a. become due. The sales partner is further obligated to compensate the HeatArt Vertriebs GmbH for all collection expenses as well as any costs for legal assertions resulting from his inability to pay.
8. Defects Liability/Warranty
The defects liability is guaranteed for a period of 6 months, disregarding any other legal or contractual agreements. The period starts upon the handover, the delivery of the products or the exectution of services. The sales partner must immediately claim any deficiency, in any case, though, no later than 14 days after delivery resp. the execution of the service, including statements about the defect and billing number as well as existent documents, samples, packing slip, in written form. In the case of hidden defects the written claim has to be sent in no later than within 12 months after delivery of the product. Receipt right reservations of the customer are invalid.
The premise for any claims from defect liabilities or warranties of the sales partner is that the products have been installed by authorised third parties. Any warranty for actions of third parties, e. g. fitters or electricians is invalid. The defect liability and warranty further cease in case the sales partner fails to initiate necessary repairs or maintenances withing the set warranty period. Any modification of the product which has not been approved by the HeatArt Vertriebs GmbH resp. the operation of the product together with other devices and/or accessories whose compatibility has not been explicitly granted by the HeatArt Vertriebs GmbH resp. the improper operation of the products leads to the ceasing of the warranty and defect liability. The HeatArt Vertriebs GmbH will only fulfill warranty claims for attributes explicitly the sales partner has been explicitly guaranteed are covered. The warranty and defect liability do not cover any damage of wear parts, in case of an act of God, water damage, extreme defilement, fire, lack of ventilation, voltage fluctuations of more than +/- 10 % as well as in the case of electric resp. electromagnetic impacts and other external impacts. The warranty and defect liabiliy based on § 922 para. 1, second sentence, second phrase ABGB (description, test, sample), § 922 para. 2 ABGB and § 933 para. 1 ABGB are invalid. In case of a sample delivery this delivery is executed by the HeatArt Vertriebs GmbH excluding any warranty or defect liability claims.
9. Act of God
An act of God including any operational inabilities of the HeatArt Vertriebs GmbH or our suppliers, the lack of workpower, energy or ressources, strikes, transport disruptions or legal official claims or measures as well as any likewise circumstances for which the HeatArt Vertriebs GmbH is not liable for, hold the HeatArt Vertriebs GmbH free of any obligations to deliver for their entire duration or extend of impact. Should the HeatArt Vertriebs GmbH be unable to deliver due to any of these reasons the sales partner will be informed immediately. Should the duration of the impact last for longer than 8 weeks the HeatArt Vertriebs GmbH reserves the right to withdraw from the contract. The sales partner may not derrive any compensatory claims from this withdrawal.
The HeatArt Vertriebs GmbH is liable without limitations according to the legal regulations for personal damages that result from the guilty failure to uphold legal obligations by the HeatArt Vertriebs GmbH, if only if they occured due to intention or wanton negligence. Any liability for slight negligence is invalid. Legal limitation periods apply.
The products only assure such securities which could be expected according to the appropriate legal regulations for the products, its use, etc. Any improper use and impacts upon as well as the non-compliance with service or operation guidelines of the product or the execution of installation works resp. the initiation of operation under the use of third party products or by non-authorised third parties lead to the ceasing of any liabiliy.
In the case of any liability being put to claim all compensations are limited to the total value of the according bill of the deficient product/service.
Should the sales partner intent to execute any claims derived from the liability of the HeatArt Vertriebs GmbH due to product liabilities on recourse, the HeatArt Vertriebs GmbH needs to be informed of these claims in written form (registered mail) within three weeks of notice, specifying the underlying circumstances in detail, in the case of judicial execution immediately. In the case of a recourse claim the HeatArt Vertriebs GmbH can only be held liable in the case of intention or wanton negligence.
Any liability for collateral damages, especially loss of profit, follow-up damages or claims by third parties, is invalid. The shifting of the burden of proof is invalid.
All compensation claims resulting from deficiencies of deliveries and/or services have to be – should the deficiency not be explicitly approved by the HeatArt Vertriebs GmbH – jurisdicitionally assertedwithin 6 months after their objective recognition, no later, though, than within 3 years after the event that marked the begin of the liabiliy, otherwise all claims will cease.
Should the HeatArt Vertriebs GmbH be held liable due to any action performed by one of its sales partners the according sales partner shall keep the HeatArt Vertriebs GmbH free of any damage or liability.
11. Data Protection, Copyright
The sales partner agrees that the HeatArt Vertriebs GmbH stores company- as well as person-related data of the sales partner in computer processible form and processes them by means of machines, especially in EDP, for tasks that derive from the contract. As far as the HeatArt Vertriebs GmbH therefore relies on the services of third parties, the HeatArt Vetriebs GmbH reserves the right to present them with data about the sales partner should it be required to fulfill their services. The sales partner explicitly give his permission that the HeatArt Vertriebs GmbH may send him information about its products and services as well as advertisement via e-mail, sms, fax and mail. The sales partner’s permission may be revoked at any time in written form. The HeatArt Vertriebs GmbH reserves the right to add the sales partner in their list of references. Plans, scraps or other technical documents as well as samples, catalogues, prospects, images and similar remain the intellectual property of the HeatArt Vertriebs GmbH; the sales partner receives no whatsoever right of utilization or exploitation.
12. Right for Withdrawal of the Client according to § 3 KSchG
In case the contract partner concluded the contract neither in the offices of the HeatArt Vertriebs GmbH nor at an exhibition or information booth of the HeatArt Vertriebs GmbH, he may withdraw from the contract within one week. The withdrawal period starts with the conclusion of the contract. The withdrawal has to be issued in written form and needs to be sent to the HeatArt Vertriebs GmbH within the mentioned period (post mark). The contract partner has no right for withdrawal if he initiated the business resp. if there were no talks between the contract partners prior to the conclusion of the contract.
13. Final Provisions
This contract is due to Austrian Legislation.
The responsible court is the factually considered court for the First District of Vienna (Innere Stadt). In case one of the regulations of these terms of service is or becomes invalid the effectiveness or feasibility of all other regulations will not be affected. In this case the invalid regulation is replaced by one that comes closest to its economic content. Oral side agreements only become valid upon their written formulation and signature of both contract parties. Each change of these terms of service requires written formulation. This also applies for changes of the formal requirements.
As far as the contract with the contract partner is subject to the Consumer Protection Act the present regulations apply at least to such as extent as the do not contradict the legal regulations of the Consumer Protection Act.
The contract partner has to immediately inform the HeatArt Vertriebs GmbH about all changes of the address of his paying office, legal form as well as any changes that have legal importance for as long as the legal business subject to this contract has not been completely concluded. Should the contract partner fail to communicate changes of his address and should legally important declarations and bills by the HeatArt Vertriebs GmbH sent to his before mentioned address therefore get lost, these declarations and bills will still be considered as received.
Vienna, February 2011