All our contracts, agreements and legally relevant notices are exclusively based on the following terms and conditions; any terms and conditions of the buyer diverging therefrom, shall only be applicable if confirmed by us in writing.
SEC. 1. CONCLUSION OF CONTRACT:
(1) Orders are generally accepted by way of order confirmations; if we do not reject an order within 20 days after its receipt, it shall be considered as accepted.
(2) Even after acceptance of an order, models and colours are subject to modifications. Such modifications shall not constitute any grounds for claims on the part of the buyer.
SEC. 2. DELIVERY:
(1) The date of shipping shall be deemed to be the date of fulfilment of the delivery period. Delivery dates are given in periods of 15 days, ending either on the fifteenth or on the last day of the relevant month.
(2) In the event of a delivery delay, the withdrawal from the contract shall be considered as effective after expiration of a 22 days period of grace, following the agreed delivery date, unless the customer rejects such withdrawal prior to the end of the period of grace and demands fulfilment of the contract. In such a case, the seller must immediately give a binding delivery date. Unless the buyer immediately rejects this delivery date, this date is deemed the fixed delivery date.
(3) Withdrawal from the contract shall also be considered as effected if, prior to or during the period of grace, the seller, having set a binding delivery date, requests that the buyer declare whether he insists on the fulfilment of the said fixed date and the buyer fails to answer immediately, or if it is not possible to come to an agreement on a new delivery date.
(4) In case of the seller’s delayed delivery, the buyer may also, instead of automatically granting a period of grace to complete delivery within 22 days in accordance with subsection (2), set a period of 15 days for the seller, declaring that he refuses fulfilment of the contract after expiration of this period.
(5) Supply disturbances resulting from force majeure or measures ordered by the authorities shall not be considered as delivery delay and shall entitle us, i.e. the seller, as well as the buyer to extend the term of delivery and acceptance, for the duration of the disturbance (3 weeks maximum) under exclusion of claims for damages.
SEC. 3. SHIPPING/SPECIAL SERVICES:
(1) Shipping is ex works carriage paid, at buyer’s risk, with the choice of route and type of despatch being up to the seller.
(2) Low volume shipments are despatched carriage forward, in accordance with the regulations of the “Konditionenkartell der Deutschen Schuhindustrie” (“cartel on uniform terms and conditions of the German shoe industry”).
(3) Special services ordered by the buyer, such as special packing specifications, despatch types, product labelling etc., are to be paid by the buyer.
SEC. 4. RESERVATION OF TITLE:
(1) Until they are paid, delivered goods shall remain the property of the seller. The buyer may, however, sell the goods as part of his regular business operations. In case of the buyer’s insolvency, the seller shall be entitled to have access to all the goods delivered by him.
Without prior consent of the seller, the buyer is not entitled to pledge or assign as security any of these goods for the benefit of third parties. In case of seizure by a third party, the buyer immediately has to notify the seller thereof.
The striking and acceptance of the balance shall not have any effect on the reservation of title.
SEC. 5. WARRANTY; COMPLAINTS:
(1) Notice of visible defects has to be made in writing, within 10 days after receipt of the goods, stating the grounds for this letter of complaint.
(2) In case of hidden defects the legal provisions shall apply.
(3) Provided that the seller has not reacted to the buyer’s notice of defect within ten working days, the rejected goods can be sent back free of charge; otherwise sending back the rejected goods free of charge requires prior consent of the seller. In the event that the complaints prove to be justified, the seller shall compensate the buyer for the mailing costs incurred in this matter.
(4) If our investigation reveals that the complaint was justified, we shall, within 15 days and upon our own option, either ship a replacement delivery free of charge or issue a credit note for the relevant amount. In case of a complaint concerning individual pairs of shoes, the buyer is entitled to hand out a replacement pair to the customer, provided that the complaint obviously
results from a fabrication or material default. In case of doubt the pair under complaint should to be sent back to us, and we shall respond to this complaint within a period of fifteen days, not counting the time for the postal service, a period to be awaited by the buyer.
(5) Further claims of the buyer shall be excluded. This refers in particular to the invoicing of any form of processing fees for the complaints entered. Claims for damages shall only be applicable in cases of gross or deliberate negligence. Duties of care for third parties resulting from this contract as well as the liability for entrepreneurial damage to property are excluded.
(6) If the seller takes back the goods delivered by him, be it in exercising his reservation of title, due to payment defaults on the part of the buyer or for any other fair reasons, the seller shall be entitled to credit these goods in the amount for which he can sell them to other customers.
SEC. 6. TERMS AND CONDITIONS OF PAYMENT:
(1) Invoices are issued on the day of delivery of the goods; in the event of early delivery, the agreed date of delivery shall be deemed to be the date of issuance.
(2) For loss-free payments the following conditions shall apply:
- within 10 days after issuance of invoice: 3% discount
- within 30 days after issuance of invoice: net cash
The day on which the buyer has evidently sent off payment shall be deemed to be the payment date.
(3) The due date for contractually agreed fees shall not be suspended by the assertion of alleged claims of warranty, guarantee, damages, product liability or the like. In particular, the customer is not entitled to any right of withholding of payments or set-off against claims.
Claims resulting from other business transactions may only be offset against our claims after they have been established by a competent court with legally binding effect or in case of our acknow ledgement thereof.
SEC. 7. DELAY OF PAYMENT:
(1) In case of default of payment within the stipulated time, any reminder as well as collection costs must be reimbursed and default interest on arrears at a rate of 9.2 percent points above the European Central Bank’s base rate shall be due and payable.
(2) If the buyer is in arrears with a payment due from current or past business transactions, or if the financial situation of the buyer has substantially deteriorated, or if there is not sufficient security for a loan insurance, the seller shall, upon his own choice, be entitled to either withdraw from the still unfulfilled part of the contract or to demand cash payment or other securities for the pending deliveries before handing out the goods, without being obliged to grant a grace period prior to that.
SEC. 8. THIRD-PARTY E-COMMERCE PLATFORMS:
The Buyer may offer and/or sell the products via individual third-party online selling platforms only with the prior written consent of the Seller. The Seller may refuse to grant consent only for good cause, for example if it is necessary to protect the image and/or the quality of the Seller’s product and/or brand. In the event of a violation of the above-mentioned obligation, the Seller shall have the right to protect and defend its rights against the Buyer in any manner whatsoever, including claims for injunctive relief and abatement of a nuisance or damages.
SEC. 9. MISCELLANEOUS PROVISIONS:
(1) The business relations between the buyer and us, i.e. the seller, are subject to Austrian Law. Therefore, the application of international purchase agreements shall be excluded.
(2) If one of the aforementioned provisions becomes invalid for whatever reason, this shall not affect the validity of the remaining provisions.
(3) Changes or amendments to this contract require the written form; the same shall also apply to an amendment of the written form clause itself.
(4) The place of fulfilment shall be our registered head office.
(5) The court having jurisdiction in all matters of our registered head office shall be agreed upon as the exclusively competent court.