- These Terms and Conditions (“T&C”) apply to all orders, sales and deliveries of products (“Products”) as well as to services that are offered, distributed and provided by Nothegger Massiv GmbH, FN 560407 d, Strass 89, 6393 St. Ulrich am Pillersee, email@example.com, (“Nothegger”). These T&C also apply to orders, sales and deliveries that are made via the web shop at infittery.com.
- These GTC are authoritative for all customers of Nothegger (“Customer”). In some cases, special agreements are made in the individual provisions insofar as the Customer is a consumer in the meaning of Sec. 1 Protection Against Dismissal Act – KSchG (“Consumer”). Customers that are natural persons must be at least 18 years of age.
- The Customer’s terms and conditions, in particular terms and conditions of purchasing, do not apply, even if Nothegger has not rejected them specifically. Terms and conditions of this kind shall only apply if the parties have made an alternative written agreement in individual cases.
- Nothegger reserves the right to amend these T&C. The T&C as amended at the time of the Customer’s order shall apply in each case to the sale and delivery of products as well as to the provision of planning, assembly and project work.
Order, order confirmation and shipping confirmation
- Any diagrams, price quotations and other public statements made by Nothegger in relation to products and services constitute an invitation to the Customer to make a binding offer to Nothegger for the purchase of the products or the provision of the services (“Order”). Orders by the Customer are binding for a period of fourteen (14) days unless otherwise agreed.
- Nothegger will send to the contact details provided by the Customer (in particular e-mail address) a confirmation that the order has been received by Nothegger (“Order Confirmation”). This order confirmation does not constitute an acceptance of the Customer’s order, but merely confirms its receipt. Nothegger has the discretionary right to accept or refuse some or all of the Customer’s order without statement of reasons. Partial acceptance will only take place for consumers if the consumer has an interest in partial fulfillment.
- The Customer’s order is accepted by Nothegger (i) by actual handover of all or only individual products to the shipping service provider for forwarding; (ii) actual performance of the services; or (iii) explicit acceptance of the order by Nothegger. As an alternative to shipment or actual performance, Nothegger may accept the Customer’s order by means of an explicit confirmation (“Job Confirmation”). Should the job confirmation deviate from the order, the job confirmation shall be authoritative unless the Customer objects within 7 days following its receipt.
- The contract for the sale and delivery of the products comes into effect between the Customer and Nothegger upon issue of the job confirmation, shipment or actual performance of the services. The purchase price, the individual products and the required services are specified in the job confirmation.
- Diagrams, drawings and specifications of dimensions and performance as well as public statements (e.g. on the website or in marketing documents) shall not form part of the Contract unless they are explicitly marked as binding in the job confirmation.
General performance provisions
- Nothegger has the discretionary right to commission third parties with fulfillment of some or all of the Contract when necessary, whereby no direct contractual relationship whatsoever shall arise between the third party and the Customer in these cases.
Prices and payment
- All stated prices are in euro and include value-added tax but are exclusive of shipping costs or other charges unless stated otherwise.
- Cost estimates by Nothegger are non-binding as a rule unless they have been explicitly described as binding.
- At the time of the order, the Customer authorizes Nothegger – subject to acceptance by Nothegger – to debit the respective purchase price of the products including shipping costs or the agreed fee and shall do so with the means of payment selected by the Customer. Nothegger’s performances shall be provided with advance payment, except where the parties have agreed otherwise.
- Nothegger is authorized when the order is placed to debit the purchase price plus the shipping costs or the other agreed fee with the means of payment selected by the Customer. The Customer’s account will not be debited until the order has been accepted by shipping, performance of the service or by job confirmation.
- Default interest of 8% p.a. is agreed in the event that the customer is in default of payment. A lump sum of EUR 20.00 is charged for dunning notices.
Delivery date and delay
- Delivery dates or deadlines stated by Nothegger shall not be binding.
- Where failure to adhere to the delivery date is due to force majeure, including in particular pandemics, industrial action or other events that are beyond the control of Nothegger, such as delivery delays at Nothegger’s suppliers/contracting partners in particular, the period for performance shall be appropriately extended in every case for the duration of the obstacle. Nothegger will notify the Customer as early as possible of the beginning and end of such circumstances.
- The Customer must extend to Nothegger a grace period of at least four weeks insofar as Nothegger is in default. The Customer shall only be entitled to withdraw from the Contract due to default by Nothegger after fruitless expiry of this grace period.
- Nothegger shall not be in default as long as the customer has failed to fulfill agreed or evidently necessary duties of cooperation, such as notification of dimensions or other specifications.
- Nothegger may withdraw from the Contract in the event that the Customer fails to fulfill its duties of cooperation despite written instruction to do so and the extension of a grace period of fourteen days.
Transfer of risk/delivery
- Nothegger delivers products and goods ex works (EXW) Incoterms unless otherwise agreed. Risk is transferred to the Customer when the products and goods are made available at the loading ramp.
- The risk of loss or damage to the products shall be transferred when the products are handed over to the shipping service provider if Nothegger sends the products via its web shop. If the Customer is a consumer and Nothegger ships the products, the risk of loss of or damage to the products shall not be transferred to the Customer until the products are delivered to the Customer or to a third party designated by the Customer.
- The risk shall be transferred upon handover of the products to the shipping service provider if the Customer itself has concluded the forwarding agreement without making use of an option recommended by Nothegger.
Reservation of title
- Nothegger reserves title to the products until full payment of the purchase price and any additional charges (in particular shipping costs) has been made by the Customer.
- In the event that the Customer sells the products, it shall automatically assign to Nothegger all receivables from the third party due to this sale until such time as all of Nothegger’s claims have been satisfied in full. This provision does not apply if the Customer is a consumer: The Customer shall perform all actions that are necessary to declare this assignment (especially the advice note).
- The Customer must notify Nothegger without delay of any actions affecting the reservation of title, in particular of compulsory execution measures.
- Nothegger does not provide any warranty for defects that result from information, drawings or individual wishes provided by the Customer or for materials that were made available by the Customer.
- Warranty shall not be provided in the following cases especially: Unsuitable or improper use, natural wear and tear, improper, faulty or negligent handling or cleaning and unusual influences.
- In the event of a defect that is covered by warranty, Nothegger is entitled to repair or replace the products at its own discretion at Nothegger’s registered address. The Customer carries the costs of returning the products. Nothegger carries the costs of return shipment insofar as the Customer is a consumer.
- Where the Customer is a consumer, the Customer shall be entitled to withdraw from the Contract in the event of a defect that is more than minor and Nothegger allows a grace period of fourteen days for repair or replacement to expire fruitlessly. The Customer shall only be entitled to a reduction in the purchase price in the event of insignificant defects.
- The Customer is obliged without delay to inspect services for defects at the acceptance date and to give written, specific and immediate notice of any such defects in an acceptance report. Where defects that would be identifiable by suitable inspection are not noted in the acceptance report, the performance shall be deemed to have been approved and the signing of the acceptance report shall be deemed to be a waiver of further claims by the Customer. Defects that are not identifiable upon inspection (“Concealed Defects”) must also be reported in writing and specifically without delay, but no later than 14 days after they become identifiable. If written and specific defect notification is not made in the acceptance report or, in the case of concealed defects, within 14 days from the date of detection, the Customer shall no longer be entitled to any claims for warranty, damages due to the defect or error in regard to the flawless nature of the service. This provision 5. does not apply if the Customer is a consumer.
- The presumption of defectiveness at the time of handover pursuant to Sec. 924 General Civil Code of Austria (ABGB) is excluded by mutual agreement. The Customer therefore carries the burden of proof in regard to the defectiveness. This provision 6. does not apply if the Customer is a consumer.
- Insofar as the performance is repaired or replaced, the statutory warranty period shall only recommence for the part of the performance that was repaired or replaced.
Liability and compensation
- Nothegger shall not be liable for damages caused by ordinary and gross negligence, with the exception of personal damages. Liability is excluded furthermore for purely financial damages, loss of profits, damages incurred by third parties, indirect damages and consequential damages.
- The reversal of the burden of proof pursuant to Sec. 1298 ABGB is excluded. This provision 2. does not apply if the Customer is a consumer.
- Nothegger’s liability is capped at the sum insured.
- Claims for compensation against Nothegger or its employees shall lapse within three months after knowledge of the damage and the damaging party. The authoritative period shall be three years if the Customer is a consumer.
- Where the Customer is a consumer, provisions of this item 9 that limit or exclude liability shall not apply insofar and inasmuch as there has been gross negligence or intent on the part of Nothegger.
- Insofar as Nothegger makes use of a vicarious agent for fulfillment of the contractual claims, Nothegger’s liability shall be limited furthermore to the amount that Nothegger could assert by seeking recourse against the vicarious agent. This provision 6. does not apply if the Customer is a consumer.
- All legal relations between Nothegger and the customer are exclusively governed by Austrian law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.
- The contracting parties agree that the court that is materially competent at the registered address of Nothegger shall have jurisdiction for all disputes arising from or in connection with this contractual relationship. Nothegger shall nevertheless be entitled to take action at the registered address of the Customer. Nothegger is obliged to take action against the Customer at its place of residence, habitual abode or place of employment insofar as the Customer is a consumer.
- The place of fulfillment for all obligations arising from this contractual relationship is the registered address of Nothegger.
- The Customer may not transfer or assign this Contract to third parties without the written consent of Nothegger.
- Emails shall be sufficient to satisfy the written form requirement unless specifically agreed otherwise.
- The Customer takes note that Nothegger shall send it the information that is relevant to the Contract by email. The Customer is therefore obliged to notify Nothegger without delay of any changes to its contact details, in particular its contact email address. Nothegger shall not be liable for damages or disadvantages that are incurred due to a violation of the Customer’s notification obligation.
- The Customer is only entitled to offset its claims against claims held by Nothegger if the claims are legally related, have been recognized or adjudicated upon finally.
- Should individual provisions of these T&C be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on their basis. The invalid provision must be replaced by a valid provision that most closely resembles the original meaning and purpose.
- The Customer is obliged to notify Nothegger of any changes in its address. If the Customer does not provide notification of a change in address, declarations by Nothegger shall be deemed to have been received if they are sent to the Customer’s last known address.
- Changes and additions to this Contract must be in writing. This applies also to a waiver of the written form requirement.