(hereinafter: "standard conditions") of DeeLuxe Sportartikel Handels GmbH (hereinafter: "DeeLuxe") for all business transactions between Dee Luxe and its contractual partners (hereinafter: "CP").
I. Scope of Application
(1) DeeLuxe concludes contracts with its CP exclusively on the basis of these standard conditions.
Divergent conditions of a CP shall only be valid if additionally agreed upon in writing. If, due to lack of a written agreement, standard conditions of CP are submitted to DeeLuxe, CP expressly waives all rights arising therefrom. If single provisions of DeeLuxe´s standard conditions should be declared void, all other provisions of standard conditions remain nonetheless valid.
(2) Standard conditions, once agreed upon between DeeLuxe and CP are valid for all future contracts between these parties.
(3) CP may not transfer or assign its rights and obligations arising from a contract with DeeLuxe to any third party, without DeeLuxe´s written consent.
(4) Cancellations, modifications, supplementations or amendments of contracts between DeeLuxe and CP are only valid if in writing. The remedy to demand cancellation of contracts on the grounds of "laesio enormis"
(German: Verkürzung über die Hälfte) is expressly excluded. Without written authorization from Dee Luxe, employees of DeeLuxe are not entitled to alter these conditions in any way. If commitments made by employees should become legally binding for DeeLuxe due to mandatory provisions of law, DeeLuxe is entitled to terminate the contract at any time without becoming liable for payment of damages or indemnity of any kind.
II. Conclusion of Contract and Price Formation
(1) Offers received by DeeLuxe from its CP are only deemed accepted if acceptation is confirmed either by written letter of acceptance or by fulfillment of contract through DeeLuxe. CP is bound to his offer for 12 weeks after receipt by DeeLuxe.
(2) Offers of DeeLuxe are without obligation and can be altered or revoked by DeeLuxe even after receipt of CP's answer. All statements in pamphlets, circulars, catalogs, advertisements, price lists etc., are strictly without obligation for DeeLuxe.
(3) Technical alterations as well as alterations in color and form or discrepancies from models, specimens or samples of whatever kind, are to be accepted by CP at payment of list price as long as they do not run counter to the intended purpose.
(4) Prices, payment currency and supplementary services included in the price are determined by DeeLuxe´s "Terms and Conditions" for the specific country. If prices according to DeeLuxe´s price list should rise between conclusion of contract and fulfillment of contract through both contracting parties, the price is adjusted accordingly. If contracts are concluded without explicit determination of price, list prices as of the day of invoice are deemed agreed upon.
III. Business and Technological Documents, Sales Promotion Articles
(1) All business and technological documents as well as sales promotion articles designed or handed over by DeeLuxe remain property of DeeLuxe. Any distribution or other commercial use and exploitation is only permitted with DeeLuxe´s written authorization. Sales promotion articles may only be used for presentation and marketing of products of DeeLuxe.
(2) DeeLuxe may, at its own discretion, demand return of such documents or sales promotion articles regardless for which reason at any time and at the cost of CP.
IV. Deliveries of Goods/Provision of Services, Passing of Risk, Delay
(1) Deliveries of goods and provision of services are, particularly concerning delivery clauses, performed in accordance with DeeLuxe´s "Terms and Conditions" for the specific country. If not agreed upon otherwise, DeeLuxe is to deliver goods and provide services "ex-stock Kufstein or Hall".
(2) Place of performance for all obligations of DeeLuxe and CP is AT-6330 Kufstein / Austria.
(3) Notwithstanding any delivery clauses contained in the "Terms and Conditions" for the specific country, the risk - also in case of part-delivery - passes over to the CP, when the goods leave DeeLuxe´s distribution center. If collection of goods at DeeLuxe´s is agreed, this shall apply as soon as the goods are placed - on time
- at CP's disposal.
(4) A date of delivery or term for delivery is only binding, if it has been expressly declared binding upon conclusion of contract.
(5) If certain goods which are to be delivered are not available, DeeLuxe is entitled to fulfill its obligation to deliver by delivering comparable goods, even if these are not necessarily alike regarding their design and looks. The CP is obliged to accept such goods without reservation.
(6) If deliveries of goods or provisions of services are delayed due to circumstances for which DeeLuxe is not at fault, the term for delivery/provision is automatically extended accordingly and without need of further notification. In this case, DeeLuxe is not liable for any legal consequences that ensue, not even if DeeLuxe is already in delay with meeting any other obligation. If fulfillment of contract is unduly impeded, DeeLuxe is entitled to rescind the contract under exclusion of claims for damages.
(7) If DeeLuxe is responsible for the delay, CP may either demand fulfillment of contract or rescind the contract after having set in writing and actually granting an appropriate time limit of at least four weeks.
(8) In any case, DeeLuxe is entitled to withhold delivery of goods or provision of services - without becoming liable for delay - until agreed down payments have been received by DeeLuxe, any other contractual obligations of CP have been fulfilled or payments on any other claims have been received in due time. If a
credit rating of CP through or on behalf of DeeLuxe or its insurer shows a negative result, DeeLuxe may in any case demand full payment in advance or furnishing of an original bank guarantee document before delivering the goods.
(9) As far as legally permitted, claims against DeeLuxe for damages due to delay are excluded. In case of slight negligence such claims are always excluded.
(10) If delivery of goods or provision of services by DeeLuxe becomes impossible, all contractual obligations are terminated. If the impossibility - or any delay of delivery of goods or provision of services - is caused by non-delivery or delayed delivery through a supplier of DeeLuxe, CP is not entitled to claim damages of any kind.
(11) DeeLuxe is entitled to make partial deliveries and to invoice these separately.
(12) Damages to goods or missing quantities of delivered goods which can be recognized at sight, are to be recorded in writing by the recipient upon taking over the goods, otherwise all rights and remedies are extinguished. Acceptance of goods cannot be refused for these reasons.
(13) If CP does not accept the goods or services provided according to the contract and at the time or place agreed, DeeLuxe is entitled to rescind the contract after setting and lapse of a time limit of 14 days. In case of imminent danger, DeeLuxe can, at its own discretion, choose to either store the goods or sell, rent or in any
other way commercially exploit these "at best" for the account of and at the cost of CP and under exclusion of liability for damages.
V. Payment, Delay of Payment and Set-Off
(1) If DeeLuxe´s ‘Terms and Conditions’ for the specific country do not provide for otherwise, payments are due, free of any deductions within 30 days after date of invoice. Deductions of cash discounts are not permitted. All payments must be made to a bank account of DeeLuxe. CP is not entitled to set-off own claims
against claims of DeeLuxe. DeeLuxe may, at its discretion, credit payments - regardless of their dedication - to any accounts open.
(2) If one due payment is not made in time, all other outstanding payments are automatically due without further notification.
The same applies if CP's financial circumstances should deteriorate seriously.
(3) Default of payment comes into effect automatically and without notification. A default interest rate of 10 % p.a. is agreed upon; any exceeding damages due to loss of interest or fluctuations of exchange rates must also be reimbursed to DeeLuxe.
(4) In case of rescission of contract by DeeLuxe, delivered goods are to be returned to DeeLuxe
immediately and at cost of CP. All expenses are to be refunded to DeeLuxe and reimbursement is to be paid for decrease in value of the goods. For reimbursement of damages incurred in the above context, CP must immediately and under exclusion of any rights to lower this amount pay, without demanding any further proof, a cancellation fee amounting to 20 % of the gross invoice amount. Damages exceeding this amount must also be reimbursed.
(5) If goods are not returned voluntarily, DeeLuxe is entitled to take possession of these goods on its own by resorting to self-help, without entitling CP to any claims of restitution, refraining from action, reimbursement or any other claims under civil law.
(6) Notwithstanding any provisions of mandatory law, CP has no right of retention or lien in respect of the goods owned by DeeLuxe.
VI. Reservation of Title
(1) Goods delivered by DeeLuxe remain unrestricted property of DeeLuxe until claims of DeeLuxe arising from delivery of these goods, including interest, costs and expenses, have been entirely satisfied and until all other present and future financial obligations of CP towards DeeLuxe have been fulfilled completely.
Contractual partner must, at own cost and upon his own initiative, undertake all necessary steps and actions to ensure the establishment and preservation of DeeLuxe´s reservation of title. Upon request, CP must, at any time, within 24 hours and at his own cost, submit a list of all goods subject to reservation which are in his custody (including dates of sale and invoice numbers).
(2) Sale, pledge or any other assignment of the goods subject to reservation for security is only permitted with express authorization by DeeLuxe, whereby authorization can be revoked by DeeLuxe informally at any time. CP must inform the purchaser or creditor of DeeLuxe´s reservation of title. DeeLuxe´s consent extinguishes automatically in case of an insolvency or of execution proceedings. This notwithstanding CP already now irrevocably offers to assign, for purpose of payment, all claims toward third parties arising from the sale of these goods to DeeLuxe. DeeLuxe can accept this offer for assignment of claims at the cost of CP at
any time and without time limit and is entitled to collection of sums due.
(3) In case of seizure or any other claims regarding the goods delivered, CP must notify DeeLuxe and protect DeeLuxe´s property at CP's own cost. In case of non-payment of payments due to DeeLuxe, stoppage of payments, opening of insolvency proceedings or execution measures against property subject to reservation, CP must immediately return all goods subject to reservation to DeeLuxe. In absence of any other declaration, a retraction of goods by DeeLuxe is not deemed a rescission of contract. If the goods subject to reservation are separated from the bankruptcy's estate by DeeLuxe, DeeLuxe is entitled have them stored at
the cost and risk of CP.
(1) With respect to all defects, the limitation period is six months beginning from the passing of risk. For spare parts and subsequent improvements, the warranty term is three months. Warranty claims become statute-barred at the latest within six months after timely notification of defect. In cases of warranty DeeLuxe is not subject to claims for damages or reimbursement claims of any other kind.
(2) Notifications of visible defects or missing parts, must be made immediately, at the latest however within eight days after the beginning of the period of warranty - hidden defects within eight days after their discovery -
and in all cases by way of registered mail. All notifications must be received by DeeLuxe within the 8 - day term, otherwise it is assumed that the goods were accepted without reservation and free of defects.
(3) DeeLuxe may, at its discretion, satisfy claims of warranty completely either by:
a) addition of the missing elements,
b) subsequently making improvements the goods on the spot,
c) subsequently making improvements at a place of DeeLuxe´s choice or
d) replacement of the defect goods or of defect parts thereof.
(4) In cases of substantial and irremovable defects, only the right of rescission of contract may be executed.
Above mentioned options (a - d) also apply for such cases in which, due to the nature of the goods, CP has other claims in the place of or next to warranty claims (e.g. claims contesting or for adaptation of the contract due to error or other failures of intention).
(5) Costs arising from the above listed measures are - with the exception of forwarding costs for replacements or spare parts - to be borne by CP. The extent of warranty for exported goods is limited to the cost of such services which would have had to be performed in case of warranty at the place where such goods passed the frontier.
(6) Warranty of DeeLuxe is excluded if the goods were used improperly, or otherwise than can normally be expected, if the defect was caused by CP or third parties, if one of the latter has in any way manipulated or repaired the goods by himself or as long as CP has not performed all his obligations - especially that of
payment. Warranty is excluded for parts which can be consumed or which are subject to wear and tear.
VIII. Indemnity and Product Liability
(1) In cases of indemnity, DeeLuxe is not liable for slight negligence; further excluded is indemnity for consequential and pecuniary damages, for default of interest as well as for damages arising from claims of third parties towards CP. As far as in single cases further going exclusion of liability is legally permissible, it is
the furthest going legally permitted exclusion of liability is deemed agreed upon. If any conditions of DeeLuxe regarding the usage of goods are disregarded, liability is excluded entirely.
(2) In case of gross negligence, liability for damages is in any case limited to a sum equaling ten times the net invoice amount of the goods delivered.
(3) If at all, only in cases of gross negligence DeeLuxe is obliged to pay interest on amounts which are to be refunded upon recession of contract.
(4) Notwithstanding any provisions of mandatory law, liability for damages under the laws on product liability (Produkthaftungsgesetz) or other comparable bodies of law is excluded, regardless which legal system these regulations may belong to. CP is obliged to transfer and make effective this exemption from liability in favor of DeeLuxe toward his respective purchasers and to oblige these to in turn make this right of exemption effective down to the final user and to establish documentary proof of this fact. CP is further obliged to constantly inform his employees regarding all information and directions supplied by DeeLuxe with its products as well as concerning legal provisions and decrees and to establish proof that the employees have been informed as outlined above. This applies also for CP's customers. CP must also keep all documents and materials for at least ten years after sale or other bringing into circulation of the products and must hand over these documents and materials to DeeLuxe immediately upon request.
IX. Choice of Law and Jurisdiction
(1) For all contracts concluded between DeeLuxe and CP and for all claims arising from the legally effective existence or non-existence of these contracts, the application of Austrian national law is stipulated, however excluding the provisions of Austrian international private law and those of the United Nations Convention on the International Sale of Goods (UNCITRAL)
(2) For all legal disputes arising from a contract concluded or to be concluded on the basis of these terms between DeeLuxe and its CP, the competent court for Vienna is stipulated and agreed to have exclusive jurisdiction. DeeLuxe, however, may also take legal action against CP before any other domestic or foreign court.
X. Data Processing
(1) In the course of processing data, we file all data relating to our business relationships corresponding to the pending data protection laws; DeeLuxe reserves the right to share this data with a third party.