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I. VALIDITY
These General Terms and Conditions apply to the sale and delivery of goods by our company. In particular, they also apply to all transactions made in the online shop. These General Terms and Conditions apply to companies under the Austrian Commercial Code (Unternehmensgesetzbuch, UGB), and to consumers under the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KschG), under the special conditions named in the General Terms and Conditions in this regard. For companies, these General Terms and Conditions also apply as a framework agreement for all future legal transactions between the parties even if these conditions are not explicitly referred to. In that context, we refer to our “General Terms of Sale and Delivery (GTSD)”; those terms form an extract of or supplement these General Terms and Conditions but do not replace them. Unless we have expressly consented to their validity in writing, we do not acknowledge any terms of purchase from customers who are entrepreneurs if those terms oppose, deviate from, or supplement these. We hereby reject any conflicting confirmations of a customer who is an entrepreneur that refer to that customer’s terms of business and purchase.
II. PROPOSAL, ORDER PROCEDURE AND SIGNING OF CONTRACT
Our proposals are always subject to change. Third parties must not be advised of the contents of the proposal unless authorized by the seller, neither may the proposal be used for fraudulent purposes. If a proposal does not lead to a contract being signed, the seller reserves the right to reclaim the proposal including all attachments and samples. Samples or drawings submitted by the party making the inquiry will only be returned on request. If no contract is signed, the seller is permitted to destroy the proposal documents (drawings, samples, etc.) after the proposal period (3 months after the proposal date).
If a customer places an order in the online shop, they can select the desired product and add it to their shopping cart by clicking the button “Add to shopping cart”. Placing an item in the shopping cart will not establish a contract relationship.
The customer can view the shopping cart’s content at any time by clicking the button “Shopping cart“. If the customer would like to purchase the products in the shopping cart, they must enter their name and address, select the shipping and payment method, then check and send the order.
In the meantime, the seller reserves the right to sell any objects contained in the proposal that are in stock. The written order confirmation defines the scope and terms of the order delivery. Only written correspondence (including by fax or telex) or orders received by email are binding for us. Please note that orders received by electronic means (e.g. email) are legally valid without a signature. The contract is also concluded when goods ordered by the customer are dispatched. For framework contracts, only the separately agreed contract period will apply. If proposals are submitted to us, the company making the offer is bound to a suitable validity period; this must be at least 8 days from receipt of the proposal.
III. DATA, DOCUMENTATION AND DATA PROTECTION
Technical documentation such as drawings, plans, sketches, descriptions, catalogues, brochures, drawings showing dimensions, material properties or weight data, and any samples or models supplied by us remain our intellectual property, are intended for information purposes only, and do not represent an assurance of properties unless this is referred to specifically in writing. Peraqua reserves the right to make changes where deemed necessary due to technical advancement. All technical documents remain the intellectual property of Peraqua and may only be used for the agreed purposes. Peraqua Professional Water Products GmbH collects, processes, and uses personal data even without the customer’s express consent if this is necessary to enter into and perform a contract, and those data will be forwarded to commissioned processors for that purpose. They will be treated confidentially in accordance with applicable data protection laws. Furthermore, we refer to our data privacy notice Data Privacy
All information gained and exchanged as part of business partnership is to be treated as secret and must not be passed on to third parties without our authorization.
IV. PRICE AND PAYMENT TERMS
Unless agreed otherwise, the prices quoted are excluding VAT, ex works or the stores of the supplier, including standard packaging, in € (euros). All additional costs, such as costs of freight and insurance, are to be borne by the customer. Likewise, the customer has to bear all costs for every kind of tax, dues, fees and customs duty. The prices that apply at the time the contract is signed are those quoted in our current gross price list in the agreed currency, or if this is changed, in the equivalent value of the alternative currency. We reserve the right to make corresponding price adjustments after the contract has been signed if there are changes in wage costs due to collective negotiations applying to the whole industry, or wage increases applying only to our company, or other changes in cost that affect our pricing structures, such as the price of materials, energy, transport, contract work, finance, surcharges, etc. Additional work or activities are invoiced according to the actual wage and material costs used. Fees and costs that arise to fulfil authorities‘ legislation at the place of installation, or are connected with supplies and services, are to be borne exclusively by the customer. Our invoices are to be paid 14 days at the latest after the invoice is submitted, in the amount of the sum indicated. The following applies if nothing else is agreed in the order confirmation:
The payment by the customer is not valid until the sum has reached our business account and is deemed paid.
Interest and fees for reminders will be invoiced for in the case of late payment, unless exempt payments have been agreed with the seller in writing. The seller is permitted, from the due date onwards, to invoice for interest on arrears at a rate of 6% p.a. above the base rate of the Austrian National Bank, although our minimum rate is set to 12%. In addition, any discount agreements are no longer applicable. This does not affect our right to make a further claim for damages due to default. The full purchase price will be due immediately; if the agreed payment is not made in full, a payment from the customer is overdue after 10 days. The same applies if the customer‘s payment difficulties become obvious, especially if insolvency or restructuring proceedings are initiated against the customer’s assets. The new due date also applies to payments arranged to be made by the customer by bank draft at a later date. In such a case, we are also permitted to implement a delivery stop without being obliged to refund any damages caused as a consequence. Reminder and collection tariffs are to be paid at reasonable/standard rates. In the case that the seller suffers financial damages due to the customer‘s non fulfilment of the agreed payment obligations, the supplier reserves the right to do as he pleases with moulds, tools, rigs and completed parts.
The customer cannot retain payment or offset costs in our invoices due to any counter claims, regardless of their legal aspect. Adherence to the payment conditions and payment periods form an essential component of the contract for implementing supplies and services.
V. DELIVERY PERIODE
We are not obliged to deliver goods or services until the customer has fulfilled all obligations necessary to the extent required in order to perform proper delivery. The delivery period does not apply until all commercial and technical details needed to fulfil the contract have been received and the payment terms clarified. Unless agreed otherwise in writing, delivery periods quoted in proposals or order confirmations are approximate and non-binding and can never be regarded as final deadlines. We are authorized to exceed the agreed dates and delivery periods by a maximum of 20 working days. If the goods are not delivered within this period, the customer may not withdraw from the contract until this period has expired and a reasonable extension has been set.
It is not possible for both contract partners to withdraw from the contract until the delivery date confirmed by us has been exceeded by more than 2 months. This right to withdraw from the contract does not apply, however, if we issue a ready-to-ship note or start shipment of the goods but are unable through no fault of our own to deliver within the non-binding confirmed delivery period. Adherence to the delivery period depends on trouble-free delivery of goods from our suppliers, including any severe disruptions within or outside the company or forms of Force Majeure (strikes, severe damage to machines, fire, flooding, impending war, pandemic diseases, etc.). In the case of such influences we are either totally free or – reflecting the circumstances – partially free from our obligations. Partial deliveries are permissible, may not be rejected if the delivery is otherwise found to be in order, and authorize us to present an invoice for partial payment.
VI. ORDERS, ACCEPTANCE OBLIGATIONS, RETURNS
Orders are not binding until the seller has provided written confirmation. This must contain the delivery address and type of shipment. Additional details such as article number and article description inline with our documentation are absolutely essential in order to avoid misunderstandings and ensure timely processing of the order. The seller has the right to deliver up to plus/minus 5% of any goods ordered in bulk. If the value of an order is below our minimum order value of € 75, we have to invoice a minimum quantity surcharge of € 30 in addition to the order value.
An article-related minimum quantity surcharge will be agreed with the customer if the order does not reach our minimum order quantity set for specific articles for economical and production reasons. From the moment the seller issues an order confirmation, the seller is authorized to start with production at any time independently of the agreed delivery period. Withdrawal from the contract is excluded after the goods have been produced and the customer is obliged to accept and pay for the goods already produced. This acceptance obligation applies also to general contracts and orders controlled by E-commerce systems. The quantity of items agreed in the proposal are manufactured for stock and these are to be accepted by the customer without exception, even if there are any article changes or the article is to be discontinued.
The return of goods already accepted inline with the agreement can only be approved in special cases and following prior confirmation. In such cases we retain a credit of 30% of the value of goods that still possess a commercial value. We will dispose free of charge any goods that due to technical changes or any other reason are of no further use.
VII. DELIVERY, PACKAGING, SHIPMENT, DELAYED ACCEPTANCE
Retention of title applies exclusively to all deliveries. Ownership is not transferred to the customer until their entire obligations relating to our goods supplies have been settled. This even applies if the purchase price for certain goods deliveries nominated by the customer has been paid. For ongoing invoices, the retention of title clause serves as security for outstanding payments. Any processing of goods supplied by us and still in our ownership takes place on our behalf without placing us under obligation and without affecting our rights to ownership.
The customer will look after our property, process it for us if required and advise us immediately of attempted seizure by third parties. The customer may use our property in normal business transactions provided they fulfil their obligations to us. As a result of selling on the goods we supplied, the customer hands over to us the right to claim against third parties herewith as security up until payment of all claims, even future claims on our business arrangement – including any financial claims. Our goods are packaged – to the extent this is agreed and confirmed in writing, either as we see fit using standard commercially acceptable methods or as specified by the customer (individual packages, special colours, etc.) – at the customer‘s expense. Costs of packaging to customer specifications are listed in a separate invoice. In order to simplify deliveries it is generally only possible for us to dispatch orders in standard packaging units (see gross pricelists). We have to invoice a packaging surcharge of € 6 per order item for small series that deviate from our standard packaging units. As long as goods are packaged as usual by us, claims cannot be made against us for damage presumed a result of the packaging. Unless agreed otherwise, goods are dispatched using a means of transport deemed the most suitable by us, and at the risk of the recipient. The delivery is deemed completed once the goods are ready for shipping at the works named for delivery and the customer has been advised that the goods are ready for shipping, or the goods have been handed over to a forwarding agent. Transport insurance is only taken out if requested and paid for by the recipient. We accept no responsibility for delays or failure during transport. On receipt, the goods are to be checked to make sure they are in order since the goods were prepared for shipping. The following points must be checked if part of the consignment is missing or damaged:
Check for damage to pallet or our packaging film. Check carton for quantity and deformation.
Check for destroyed and/or damaged products.
Claims of this kind will only be acknowledged if notified in writing within 5 days of receiving the goods. If the ordered goods are not accepted as agreed, the seller can claim compensation after setting a reasonable extension period. If goods are returned, not accepted or the customer withdraws from the contract, we will charge for the relevant goods – in addition to the costs incurred to be determined by the deliverer – a fixed price of 15% of the order value to cover processing costs and loss of profit. If the customer exchanges series articles or other justifiable goods within our product range, we will invoice for the same order value an additional 5% on top of the purchase price to cover the seller‘s costs. If non justifiable goods are exchanged then the customer has to bear the costs incurred in excess of the fixed price due to loss or expense during reuse.
VIII. RETENTION
If not a consumer business, the customer is only authorized to retain a reasonable part – not the entire amount – of the gross invoice sum in the case of a justified claim, except in the case of a reverse transaction.
IX. WITHDRAWAL FROM CONTRACT
If acceptance is delayed (clause VII) or there are other substantial reasons prevailing such as, in particular, rejection of a petition in bankruptcy on grounds of insufficient assets, delayed payment, or occurrence of a natural catastrophe, we are entitled to withdraw from the contract providing it has not been fully fulfilled. In the event of a withdrawal where the Client is at fault, we may demand a fixed rate of damages of 15% of the gross invoice amount or compensation for the loss actually incurred by the withdrawal and be released from all agreed obligations to perform and deliver. We are entitled to hold back outstanding deliveries or services and to demand payment in advance and/or deposits, or to withdraw from the contract after setting a reasonable extended time limit. If the customer withdraws from the contract without just cause, or demands its cancellation, we shall have the right to choose between insisting on the fulfilment of the contract and cancellation of the contract.
In the latter case, the customer shall be obliged at our discretion to pay either a fixed rate of damages of 15% of the gross invoice amount or compensation for the loss actually incurred due to withdrawal. Under the KschG, a consumer may withdraw from or rescind the contract within 14 days without giving reasons. That 14-day period for withdrawal or rescission will begin to run when the customer or its delegate takes possession of the goods (or for partial deliveries, when the last part is delivered). To exercise this right of withdrawal or rescission, the customer must issue its statement using a clear declaration via letter, fax, or email.
X. FORCE MAJEURE
The seller is released entirely or partly from fulfilling the contract on schedule if prevented from doing so by an event of force majeure. Such events are exclusively those that are unforeseeable and unavoidable for an experienced supplier. (Strikes, severe machine damage, fire, floods, threat of war, pandemics, etc.). Deadlines and delivery periods that cannot be met due to the influence of the force majeure are extended by the duration of the effect of the force majeure.
XI. WARRANTY, GUARANTEE, OBLIGATION TO INSPECT AND REGISTER COMPLAINTS
Our products are covered by a warranty as laid down by law. Claims are assessed based on the current national laws (Austrian law – “Allgemeines Bürgerliches Gesetzbuch” – ABGB). However, alternative agreements can be made if required. These need to be clarified in writing. The warranty period is 2 years and starts on the date the goods are dispatched ex works. Peraqua guarantees that the products are free of fabrication and material flaws. However, the warranty does not include parts that, due to their function, have a normal service life shorter than the guarantee period specified by law for moving parts.
The warranty also excludes: damage due to natural wear, insufficient maintenance, disregard of operating and instruction manuals, excessive stress, unsuitable utilities, chemical or electrolytic influences, incorrect installation by the customer or third parties, modifications performed by customer and incorrect handling as well as the consequences of other reasons that cannot be traced back to us or are not within our scope of responsibility. We decide on how to settle customers‘ warranty claims, either by replacement, repair within a reasonable period or price reduction. The customer may only withdraw from the contract if the problem is severe and cannot be rectified through replacement or repair and a price reduction is not reasonable to the customer. The customer‘s right to claim damages in relation to rectifying a fault through improvement or replacement cannot be implemented unless we have defaulted on fulfilling our warranty obligations.
Warranty claims for moving parts must be made legally valid within one year of shipment. The one year period also applies to hidden faults, although the period does not start until the hidden fault is discovered. If the customer maintains that a fault is evident, claims resulting as a consequence, especially relating to warranty or damages, can only be made valid within the first 6 months after shipment of the goods to the customer if the customer can prove that the fault was already present at the time the goods were shipped or handed over. For goods supplied that cannot be installed in a plant component due to their condition, a warranty period of 2 years is agreed. Our obligation to provide a warranty expires if the customer or a third party changes or repairs the goods supplied without our written permission, or if the customer does not take immediate suitable action to limit the extent of damage so we are able to rectify the fault. Our obligation expires in any case when the warranty period expires; special cases involving the customer claiming an extension to the warranty period because the customer has fulfilled warranty obligations themselves are excluded.
If an order is produced based on the customer’s design specifications, drawings, raw material instructions or models, then we are not liable for the correctness of the design or selection of materials, but merely that the contract has been fulfilled in accordance with the customer‘s instructions. The customer is to hold us harmless and indemnify us without restriction in the case of infringement of third party property rights. We assume no liability of any kind whatsoever for repairs performed by the customer, or modifications made to old goods or goods not supplied by us. Old goods are those for which the warranty period of 2 years specified above has already expired or where the customer knows the part was already used by us or a third party. In all other cases the legal grounds of the current Austrian warranty laws for consumer business will be used as a basis. In addition, the customer is to immediately check the goods after handover in accordance with the Austrian Business Enterprise Code, or within 6 working days at the latest. We are to be advised of any faults discovered during the check immediately in writing – within 3 working days of their discovery at the latest – specifying the type and extent of the fault.
Hidden faults are to be registered immediately on their discovery. If faults are not reported, or they are not reported in time, then the goods are deemed accepted. The assertion of warranty claims or claims for damages or the right to claim innocent misrepresentation based on faults is excluded in these cases.
XII. DAMAGES AND PRODUCT LIABILITY
All claims for damages are excluded in cases of slight negligence. This does not apply to personal injury and in consumer business for damage to parts taken on for further processing. The presence of slight or gross negligence is to be proven by the injured party unless it concerns a consumer business contract. If it is not a consumer business contract, the absolute statute of limitation of damage claims is 3 years from the transfer of risk. The regulations on damages in these T&Cs or any other terms agreed only apply if the claim for damages is made separately or instead of a warranty claim. Recourse claims as specified in § 12 of Austrian product liability law are excluded, unless the party justified for recourse proves that the fault and as a consequence the damage resulting from the original association of this fault can be attributed to stem from our area of control and are a result of gross negligence or intent. Moreover, if the goods are supplied to resellers, the liability for damages deduced from product liability law, and any product liability claims deduced from other regulations, are excluded.
In turn, resellers are obliged to state in contracts with their customers this exclusion of liability for damages as mentioned above (except in the case of end consumers). If this contractual obligation is not fulfilled, the receiver is liable for all damages that occur jointly and separately. The goods supplied offer only the level of reliability that can be expected based on the content of standards, permits, descriptions in technical datasheets, user manuals, instructions from the supplier‘s works on handling and range of applications or application conditions as well as maintenance and other information provided at the time the contract is signed.
XIII. PROTECTIVE RIGHTS
For goods supplied that the seller manufactures according to instructions made available by the customer or under contract from the customer where the customer confirms the fabrication documentation, the customer provides exclusive guarantee that through the manufacture of the goods supplied no protective rights of any kind or trade secrets of third parties are infringed. If any protective rights of third parties are then claimed, the seller is not obliged to check the correctness of the claim, but is entitled under exclusion of all damage liability claims from the customer to stop production of the goods and demand payment of the costs incurred. The customer is fully liable for non-consequential and consequential damages arising as a result of infringement or protective rights claims and the seller is entitled to demand a suitable advance on costs to cover all process costs. The seller is free to release at will all goods covered by the contract or goods manufactured by the seller.
XIV. CHANGES TO PERFORMANCE/CONTRACT
If the contract is not with a consumer business, then minor or other changes to our performance or delivery obligation that are acceptable to our customers are deemed approved. This applies in particular to certain necessary deviations (e.g. dimensions, colours, changes in material, etc.). If the customer requests changes to the scope of performance in the contract after the contract has been signed, then all costs incurred in connection with the changes implemented and to be implemented by Peraquago will be borne by the contract party that requested the changes. Peraqua is not obliged to implement the changed contract until written confirmation has been provided and all costs arising in connection with the change in contract have been settled, or can be deemed settled, by the other contract party.
XV. CHOICE OF LAW, LOCATION OF FULFILMENT AND JURISDICTION
Austrian law will apply. The contract language is German. The forum will be within Austria. The place in which the delivery is taken over is expressly agreed as the place of performance. Any disputes arising from this contract will be decided by the court having subject matter jurisdiction at the registered office of Peraqua Professional Water Products GmbH. If the customer is a consumer under the KschG and has its residence or customary abode in Austria or works in Austria, any actions against that customer must be brought in the court in whose district that residence, customary abode, or place of work is located.
XVI. FINAL CLAUSES
The customer grants his permission that the data handed over in the course of fulfilling this contract, including data relating to personnel, can be saved and processed electronically by us. The customer is obliged to advise us of changes to their residential or business address and email address as long as the business specified in the contract has not been completely fulfilled by both parties. If this advice is not provided, then any correspondence and information sent to the last known postal and email address will be classed as received. Sub-agreements or amendments to these general terms and conditions are to be in written form. All preceding contracts or other agreements are no longer valid. Finding individual provisions of these General Terms and Conditions to be fully or partially ineffective due to compulsory statutory provisions (including without limitation the KschG and Product Liability Act) will not render ineffective its remaining provisions.
Peraqua Professional Water Products GmbH.