The following terms of delivery and payment constitute the principal part of every contract entered into with ISOCELL GmbH & Co KG now and in the future. Differing general terms and conditions specified by partners of ISOCELL GmbH & Co KG are not considered as being included and do apply.
2. Delivery date and deadline
Delivery times and dates are not binding unless expressly declared as ‘set dates’. Claims for damages may not be made as a result of delivery delays.
3. Delivery and transfer of risk
The obligation to supply is suspended for such periods as the buyer is in arrears with payment for the product or with payments in connection with other legal transactions. Delivery of the goods is made in the trade packing ex works or branch, for account of and at the risk of the buyer. Transfer of risk takes place when the goods are handed over to the forwarder or when the goods are loaded onto the transport vehicle provided. Transport damage is therefore always the responsibility of the acceptor. Prices agreed as excluding delivery do not include loading charges. After receipt an immediate inspection of the goods must take place to ensure that delivery has been duly carried out and that the goods are conform to their description. Notice of complaints must be given in writing immediately and without delay to avoid loss of title.The packaging material must be disposed of by the customer.
The customer undertakes to comply with the formalities applicable to handover on the construction site or other delivery address. Should none be present the seller has the right to unload the goods on the account of the buyer and at the buyer’s risk and to deposit the goods so fulfilling the contract.
5. Payment and price
All prices are subject to change. Payments must always be made within 8 days of date of invoice. Receipt of the invoice has no relevance to the date when the payment is due. If the buyer is in arrears with payment default interest at the rate of interest for an unsecured business loan of at least 11.2% p.a. becomes payable. All costs including out-of court costs for assertion of claims as well as those incurred through a debt collection agency are charged to the customer at the rates set out in these conditions.
6. Proprietary rights and assignment of claims
1) The following agreed retention of title serves to secure all existing current and future claims of the Seller against the Buyer arising from the supply relationship between the parties to the contract concerning insulation materials supplied, airtight products and machines which process these products (including balance claims from a current account relationship limited to this supply relationship).
(2) The goods delivered by the Seller to the Buyer shall remain the property of the Seller until all secured claims have been paid completely. The goods as well as the goods covered by the retention of title replacing them in accordance with the following provisions shall hereinafter be referred to as "reserved goods".
(3) The Buyer shall store the reserved goods free of charge for the Seller.
(4) The purchaser is entitled to process and sell the reserved goods in the ordinary course of business until the case of enforcement (paragraph 9) has occurred. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the Buyer, it is agreed that the processing is carried out in the name and for the account of the Seller as manufacturer and that the Seller directly acquires the ownership or - if the processing is carried out from materials of several owners or the value of the processed object is higher than the value of the reserved goods - the co-ownership (fractional ownership) of the newly created object in the ratio of the value of the reserved goods to the value of the newly created object. In the event that no such acquisition of ownership should occur at the seller, the Buyer already now transfers his future ownership or - in the above ratio - co-ownership of the newly created object to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall assign to the Buyer, to the extent that the main item belongs to him, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the goods subject to retention of title (as far as material is concerned), the Buyer hereby assigns to the Seller, by way of security, the resulting claim against the purchaser - in the case of co-ownership of the Seller in the goods subject to retention of title pro rata in accordance with the co-ownership share -. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably legitimates the Buyer to collect the claims assigned to the Seller in his own name. The Seller may only revoke this direct debit authorisation in the case of enforcement.
(7) If third parties have access to the reserved goods, in particular by seizure, the Buyer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for such costs.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The Seller shall be responsible for selecting the items to be released thereafter.
(9) If the seller withdraws from the contract in case of breach of contract by the buyer - in particular default in payment - he shall be entitled to demand the return of the reserved goods.
7. Guidance and instructions for use
Consultancy services provided by ISOCELL GmbH & Co KG do not form part of the order and are without exception non-binding. The customer is obliged to request a description of the product and the guidelines for use and to adhere to these specifications during installation of the material supplied. Decisions concerning the use and application of the goods are made at the customer’s own risk.
Indications made by ISOCELL GmbH & Co KG relating to quantities or areas for coverage etc. are not contractually binding. Such values may differ considerably due to local conditions, the actual installation, methods of application etc.
9. Warranty and Guarantee
ISOCELL GmbH & Co KG shall provide warranty for duly notified defects within the scope of the guarantee and warranty at its discretion by improvement, exchange for faultless goods, price reduction or also cancellation of the contract and crediting of the purchase price. The customer may only demand a price reduction or rescission after a written additional respite has been set if ISOCELL GmbH & Co KG does not carry out an improvement or exchange of goods within a reasonable period of time. All warranty claims of the customer against ISOCELL GmbH & Co KG shall expire 2 years after delivery of the goods.
10. Liability and compensation
The liability of ISOCELL GmbH & Co KG for damage claims of any kind whatsoever is limited to particularly wilful negligence and intent. This does not however apply in the event of injury to persons. No liability is accepted for consequential damage, indirect damage or accompanying damage. All claims for damage on the part of the customer against ISOCELL GmbH & Co KG. are limited by statue to maximum 3 years after delivery of the goods, even in the event that faults are identified at a later date. The buyer and/or the customer waives the right to claim compensation from ISOCELL GmbH & Co KG for warranty that has taken place and also for damage governed by the product liability law. The customer undertakes to impose the aforementioned waiver to every further company and to indemnify and hold harmless ISOCELL GmbH & Co KG against such claims by others.
11. Exclusion of set-off
The customer expressly waivers compensation for any counterclaims against ISOCELL GmbH & Co KG for claims to which he is entitled.
12. Jurisdiction and applicable law
Unless the application of the laws of another country is mandatory, this contract is subject to the laws of the Republic of Austria to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods and the conflict rules of the Austrian international private laws. The Parties are agreed that the exclusive place of jurisdiction for any disputes arising from this contract is the court of law responsible for 5202 Neumarkt am Wallersee, Austria. The purchaser declares that he is an entrepreneur as defined in KSchG (Austrian Consumer Protection Act) and that he is purchasing the purchase object for entrepreneurial purposes so that the provisions of the KSchG do not apply.
13. Data protection
The customer gives his express consent for ISOCELL GmbH & Co KG to collect, process and use the personal data, in particular contact and address data, real estate and financial data (VAT Reg.No., Tax ID), required for the execution and execution of this contract; this is done in compliance with the data protection regulations and other legal provisions applicable under the General Data Protection Regulation (GDPR).
ISOCELL GmbH & Co KG will store the aforementioned personal data for the duration of the execution of this contract, but in any case for the duration of the statutory storage obligations.
In connection with the personal data collected, processed and used by ISOCELL GmbH & Co KG, the purchaser is entitled (insofar as legally applicable) to the rights of information, correction, deletion, restriction, data transferability and objection. These rights can be asserted directly against the seller (by e-mail at firstname.lastname@example.org or by post to the address indicated on the cover sheet). It is possible to lodge a complaint with the Austrian Data Protection Authority.
14. Written form of the declaration
Verbal side-agreements have not been made. The cancellation, modification or amendment of the terms and conditions must be made in writing and signed by all parties. This shall also apply to any waiver of this formal requirement.
15. Salvatory clause
Should any part of this agreement contradict any existing law or be invalid for any reason, the rest of the agreement shall remain unaffected and valid. The invalid provision is to be replaced by a valid provision which is as close as possible to the economic equivalent of the intended aim.
Issued October 2019