1 Fundamentals and scope
1.1 These general terms of supply are considered the basis of all contracts concerning the supply of goods or the performance of services by Zumtobel Licht GmbH, A-6850 Dornbirn (hereafter “Seller”) to its Customers (hereafter “Customers”).
1.2 Deviations from these conditions are only effective with written acknowledgement from the Seller. Purchasing conditions or other conditions presented by the Customer are explicitly excluded.
1.3. The foundation of these general terms of supply is formed by the B 2110 regulations of the Austrian Standards Institute (ÖNORM) in the version current at the time the offer is submitted. The B 2110 Austrian Standards Institute regulations are considered to have been agreed upon unless they are modified by subsequent provisions or by individual written agreements.
2.1 Offers from the Seller are considered provisional and unbinding. In particular, the right to sell the goods in the interim remains reserved.
2.2 For all offer and project documents, together with all associated enclosures and models, dimensioned drawings and descriptions, the reservation of industrial property rights and copyrights also applies in accordance with clause 13.
2.3. Unless otherwise agreed in writing, the offers are valid for a period of three months. The prices offered do not include VAT.
3 Contract conclusion
3.1 The contract is considered to have been concluded when the Seller, after receiving the order, has sent a written order confirmation or a shipment to the Customer. By contrast, the Seller’s confirmation that an order has been received or has arrived is not considered to represent the conclusion of a contract.
3.2 Special Customer instructions concerning, for example, delivery preferences, dates, discounts etc. are considered peripheral suggestions by the Customer. They only form part of the contract if they are expressly recognised as binding by the Seller within the scope of the order confirmation.
3.3 After conclusion of the contract, changes can only be made to the order by the Customer with the consent of the Seller and with the proviso of indemnification.
3.4 If, after conclusion of the contract, events occur which no longer enable the contract to be fulfilled under the agreed conditions in a way which covers costs, or which actually make the fulfilment impossible for the Seller, the Seller is free to withdraw from the contract.
4.1 The prices are considered ex warehouse from the Seller including packaging and freight to the Austrian border, but excluding insurance, taxes and duties (such as, for example, VAT; WEEE costs of the EU directive on electric and electronic devices or customs charges), assembly, installation, commissioning as well as other incidental costs. Such costs shall be at the Customer’s expense and shall be additionally invoiced by the Seller or the responsible authorities.
4.2 The prices offered are based on the costs at the time of the offer. If the costs increase by the time the contract is concluded, the Seller is entitled to adjust the prices accordingly.
5 Scope of delivery
5.1 The Seller reserves the right to make voluntary changes to the design or fittings of the goods for technical reasons or on the basis of legal or regulatory requirements.
6.1 The delivery and fulfilment of the delivery date generally takes place carriage paid to the designated destination (CPT). If special terms, such as DDU or others, are agreed, the interpretation according to the then current standard conditions of the International Chamber of Commerce in Paris (INCOTERMS) takes precedence.
6.2 In the absence of a written agreement to the contrary, the designated delivery time serves only as an indication to the Customer and is not binding.
6.3 The delivery period begins with the latest of the following times:(I) date of order confirmation; (II) date in which the Customer has fulfilled all technical, commercial and other preconditions incumbent upon him; (III) date on which the Seller receives any payment or surety to be made prior to delivery of the goods.
6.4 Approvals required from the authorities and, for example, third parties, for the design of the equipment are to be obtained by the Customer.If such approvals do not take place in a timely fashion, the delivery period lengthens accordingly.
6.5 The Seller is entitled to carry out partial or pre-deliveries and to charge for them. If the delivery is agreed on call, the goods are considered to have been called one year after ordering at the latest.
6.6 Insofar as, on the side of the Seller (including essential suppliers of the Seller who are difficult to replace) circumstances occur which are unforeseeable or independent of the party’s intention, such as, for example, all cases of force majeure, which jeopardise the observance of an agreed delivery date, the delivery date lengthens in all cases by the duration of these circumstances; included in this especially are armed confrontations, official interventions and prohibitions, transport and customs delays, transport damage, lack of power and raw materials, labour disputes as well as the loss of an essential supplier who is difficult for the Seller to replace.
7 Contracts and services
7.1 Contracts and services are to be paid for according to the time spent by the Seller’s employees and assistant’s based on the hourly rates set by the Seller at the time plus the actual expenses and material costs that arise. Drawing up repair offers, cost estimates and appraisals will be considered fee-based tasks in every case.
7.2. For services such as commissioning or the like, the Austrian Standards Institute (ÖNORM) 2110 regulations are considered to have been agreed, unless something different has been agreed in writing.
7.3. In repair orders, services recognised as advisable by the Seller will be performed and charged for. The same applies to performance and additional performance the advisability of which only becomes apparent when a job is being carried out. In this regard, where possible the Customer’s approval will be obtained for additional costs that exceed 15% of any cost framework which may have been agreed.
8 Transfer of risks and place of fulfilment
8.1 The place of fulfilment for the delivery of goods is always the factory or warehouse of the Seller. With the separation or departure of the delivery from the factory or warehouse, use and risk pass to the Customer, regardless of the pricing terms agreed for the supply (such as post-free, CIF, etc.). This also applies if the delivery takes place within the scope of an installation or if the transport is organised or carried out by the Seller.
8.2 In case of loss or damages during transport, the complaint against the carrier is incumbent upon the Customer. It is recommended that an official statement of facts is immediately arranged.
8.3 With orders and services (see clause 7) the place of fulfilment is the place where the service will be performed; in case of doubt it shall be the factory of the Seller. Upon a service or partial service being performed, the risks relating to it pass to the Customer.
9.1 Payments are to be made free of deductions to the Seller’s payment office in the agreed currency (generally euros) within 14 days of the invoice date. Payment conditions or agreements differing from this are valid only with the proviso of the Seller’s written consent.
9.2 A payment is considered to have been made on the day in which it is available to the Seller.
9.3 Cheques will only be accepted on account of payment and only with the proviso and in the amount of the actual credit on the Seller’s account less interest and expenses. The same applies for the exceptional acceptance of drafts. Any agreement to the contrary, in particular the agreement to accept cheques or drafts in lieu of payment, is expressly considered not to have been made.
9.4 The Customer is not entitled to withhold or offset payments because of guarantee claims or other counter-claims.
9.5 If the payment period is exceeded, delay interest will be charged at 10% above the then valid discount rate of the Austrian National Bank. If payment is late by more than 90 days, or if an insolvency procedure is initiated, any discounts or bonuses which may have been granted are forfeited and the gross invoice amounts are to be paid. In this case, the delay interest calculation takes place based on the gross amount from the due date of the invoice.
9.6 If the Customer is in arrears with an agreed payment or other performance arising from this or other business, the Seller, without prejudice to his other rights, can defer his own obligations until the payment or other service has been effected and demand a reasonable extension of the delivery period, and set all open claims arising from this or other business as due and charge delay interest for these amounts based on their maturity, as previously set out, unless the Seller demonstrates even greater costs. In all cases, the Seller is entitled to invoice the Customer for pre-trial costs, reminder notice expenses, the operating costs of collection agencies and lawyers’ costs.
9.7 The Seller retains ownerships of all goods delivered by him until the invoice amount, plus any possible interest and costs, has been paid in full, and is entitled, according to his own discretion, to announce this reservation of proprietary rights , to notify responsible domestic and foreign authorities of it, and to arrange for it to be registered, until payment has been received in full. The Customer hereby cedes to the Seller as surety of the purchase price his claim from any resale of the goods under reservation of proprietary rights – even when they have been processed, reworked or intermixed – and undertakes to make a corresponding note in his accounts or invoices. At the Seller’s request, the Customer must make known the ceded claim, together with the debtor, make all documents and details required for his collection of accounts available and notify the garnishee of the cession. Upon distraint or another claim made upon the goods with reservation of proprietary rights, the Customer is obligated to point out the ownership rights of the Seller and to immediately inform him.
10 Complaints and guarantees
10.1 Complaints about wrong deliveries or apparent faults must be made in written form within eight days of delivery of the goods. For the rest, the guarantee period for new goods is 24 months after dispatch. It begins at the time when risks and use are transferred (see clause 8).
10.2 The Seller guarantees only that the goods supplied by him are free from manufacturing and/or material defects. Lamps and electronic wearing parts as well as used goods are excepted from any guarantee. Warranted characteristics are only those which are explicitly described as such in the product information. A warranty applies at the latest until the expiry of the guarantee period. Technical or formal changes in the products, which are designed to improve them or to take account of changed legal regulations, can be made by the Seller without further publication.
10.3 If goods are manufactured by the Seller on the basis of construction details, drawings, models or other specifications from the Customer, the Seller’s guarantee is limited to careful execution.
10.4 When the Customer has supplied proof of a manufacturing or material fault, the Seller can either supply a free replacement or repair the fault, according to his own preference.
10.5 All incidental costs which arise in connection with the fault repair (such, for example, as those concerned with fitting and dismantling, transport, disposal, travel time, hoisting equipment, scaffolding) shall be at the Customer’s expense.
10.6 Invoices for repairs carried out by Customers or third parties will only be recognised if the Seller has been notified of these costs in advance in writing and the Seller has confirmed the assumption of costs in writing. For the rest, the guarantee expires immediately if the Customer or a third party makes changes or carries out repairs to the goods without written permission from the Seller.
11 Withdrawal from the contract
11.1 A prerequisite for the Customer’s withdrawal from the contract is a delivery delay in which the Seller is grossly at fault, and which continues after the expiry of a reasonable grace period, which is to be set by the Customer in writing, and which must be a minimum of 30 days. The Customer’s withdrawal can only be declared and made effective in a recorded delivery letter sent to the Seller.
11.2 In addition to his rights according to clause 3.4, and his other rights, the Seller is entitled to withdraw from the contract, (I) if, on grounds which the Customer must support, carrying out the delivery or the beginning or the continuation of the service would be impossible or would be delayed further despite the setting of a reasonable grace period; (II) if, in the opinion of the Seller, well-founded doubts arise with regard to the Customer’s ability to pay and/or despite the Seller’s request, the Customer does not immediately make an advance payment; (III) if a petition to initiate insolvency proceedings against the Customer’s property is lodged. The withdrawal can be declared on the above grounds with regards to a still unfulfilled part of the delivery or service.
11.3 In the case of withdrawal, notwithstanding the Seller’s claims for damages, including pre-trial costs, services or partial services already performed are to be paid for in accordance with the contract. This also applies insofar as the delivery or service has not yet been accepted by the Customer as well as to preparatory actions performed by the Seller. The Seller is entitled to demand the return of already delivered items, subject to reasonable credit against losses.
12.1 Excepting compulsory law, the Seller shall only be liable for damages to his goods and services covered by this contract to the extent that deliberate or gross negligence on his part is proven. Liabilities for casual negligence, compensation for consequential damage and property damage, savings not achieved, loss of interest and damages arising from the claims of third parties against the Customer are excluded.
12.2 Compensation is excluded when any possible conditions for assembly, commissioning and use (such as those contained in operating instructions, for example) are not observed, or when legal or official authorisation requirements are disregarded.
13 Industrial property rights and copyrights
13.1 If goods are manufactured by the Seller on the basis of construction details, drawings, models or other specifications of the Customer, the Customer must indemnify and hold the Seller harmless against any possible intellectual property right infringement, and, at the Seller’s request, join associated proceedings as a party or intervenor at his own expense and conduct the trial in favour of the Seller.
13.2 Offer and project documents as well as detailed design documents such as, for example, plans, sketches and other technical documents, just as models, catalogues, brochures, illustrations and the like, always remain the intellectual property of the Seller and are subject to the relevant legal regulations with regard to copying, imitation, competition etc. The Seller can request the return of the documents at any time and they are to be returned to him unasked if an order is issued elsewhere.
14 Return of goods
14.1 Returns will only be processed after agreement with the sales office responsible, which will issue the respective returns note. Identification of the goods as well as details of the purchase invoice or delivery note must be indicated on the return goods note.
14.2 The agreed return with return goods note is to be delivered to the central warehouse of Zumtobel Lighting GmbH, Schweizer Straße 30, A-6850 Dornbirn. All costs associated with this shall be at the Customer’s expense.
14.3 On condition that the returned goods are listed in the Seller’s firm and in their original packaging, and that the reference period is no more than 90 days ago, a credit will be given of the invoiced net amount minus a deduction for processing costs as follows: (I) for Zumtobel ‘A’ products, which are highlighted in blue on the price list, the deduction will be 20%, (II) for all other Zumtobel products the deduction will be 30%, (III) for the merchandise “BEGA,” “Boom,” “Limburg,” and “Tre Ci Luce” the deduction will be 20%.
14.4 Credit cannot be given for unpackaged or damaged goods or individual parts of packaging units. This also applies to goods that are not a part of the Seller’s standard product range, such as lamps, special orders or specially painted goods, for example.
15 Return of palettes
Within Austria, empty palettes in perfect condition can be returned by rail at the Seller’s expense and without prior arrangement to the central warehouse of Zumtobel Lighting GmbH, Schweizer Straße 30, A-6850 Dornbirn.
16 Sample deliveries
16.1 If the Customer so wishes, the Seller can leave the goods from the product range as a sample for a period of at most four weeks for viewing at no cost. In this respect, a delivery is only considered a sample delivery if it is explicitly described as such by the Seller in the delivery note and/or invoice. Lamps, electronic wearing parts and special manufactures can not be received as samples.
16.2 Upon delivery of the goods as a sample, an invoicing takes place as per the agreed standard conditions. After the return of the goods in their original packaging within the stated period, a credit note for the invoice will be created.
16.3 If the goods do not arrive at the Seller’s place of business within the time period, they shall be considered definitively to have been purchased. The same applies if the returned goods have been partially or fully replaced, changed or damaged or if they bear traces of installation.
17 Small quantity surcharges
For all orders with a net goods value of less than €250 (excluding taxes, duties and costs), a small quantity surcharge of €25 per delivery will be levied. Late or partial deliveries, for which the Seller is at fault, are excepted from this rule.
18 Online orders
18.1 For Customer orders on the Seller’s electronic ordering platform via the internet (hereafter “online ordering system”) the following clauses additionally apply:
18.2 Access to the online ordering system is received by those who validate their use by entering the username and password allocated by the Seller (hereafter “login credentials”). The Customer undertakes to change the password immediately after receiving it and at regular intervals thereafter, and to protect it from access by unauthorised persons. Separate login credentials will be given to each person authorised by the Customer within reasonable scope. Under no circumstances may login credentials given out by the Seller be passed on by the person receiving them on the supplier’s side and the Customer is obligated to immediately report significant changes in the access permissions of authorised persons to the Seller. The Customer is responsible for the consequences of a disregard of this provision by himself, his institutions, employees, assistants and proxies.
18.3 Whoever legitimises themselves with the Customer’s log-in credentials in the online ordering system, shall be considered by the Seller as entitled to transact all possible legal transactions on the online ordering system in the name of the Customer, regardless of whether this person actually is the Customer or someone whose access is authorised by the Customer. The Customer shall accept all legal transactions carried out in the online ordering system under his login credentials as binding.
18.4 With orders in the online ordering system, the contract can also be concluded through the sending of an email by the Seller in which the contract is confirmed. The confirmation that an order has been received, which is created by the online ordering system, does not represent the conclusion of a contract.
18.5 The Seller offers no guarantee whatsoever for the error-free operation of its online ordering system and expressly excludes liability for any damages arising through the use of its online ordering system or the associated use of the internet. Any responsibility or liability for interruptions of access is also excluded, such as, for example, missing or faulty availability of the online ordering system or erroneous transfer of information or explanations of the usage of the online ordering system. By using the online ordering system, the Customer confirms that the risks of the internet have been sufficiently explained to him.
18.6 The Customer takes note that through the use of the online ordering system from abroad he may violate foreign law, for example by using the encryption procedure that is used in the online ordering system. The Seller rejects any liability or responsibility in relation to this.
19 Severability clause
If individual clauses of this contract should be ineffective, the other clauses shall not be affected thereby. The ineffective clause is to be replaced by a valid one, which comes as close as possible to the objective pursued.
20 Court of jurisdiction and applicable law
The court of jurisdiction is Feldkirch. The contract relationship is governed exclusively by Austrian law, to the exclusion of the rules regarding reference to the laws of another country. The application of the United Nations UNCITRAL agreement concerning international sale of goods contracts is expressly excluded.
Vienna, March 2010