1.1. These General Terms and Conditions (“GTC”) apply to all legal transactions between Airffect GmbH (“AIRFFECT”) and the contractual partner (“Customer”).
1.2. By submitting an order to AIRFFECT, the client acknowledges the validity of these General Terms and Conditions in the version valid at the time of placing the order.
1.3. The validity of other general terms and conditions of business or contractual conditions is expressly excluded, irrespective of the form and timing of any communication. This also applies in the event that AIRFFECT has not expressly objected to this.
1.4. There are no verbal or written ancillary agreements to these terms and conditions or the agreement between AIRFFECT and the client. Amendments and supplements thereof shall be deemed legally binding.
2. Completion and content of the contract
2.1. A contract is concluded only by the written and signed acceptation of the offer (by letter or fax) from AIRFFECT. In the case of a divergent acceptance or reference to the customer’s own terms and conditions, this is then a contract offer from the client to AIRFFECT. This will only be concluded after expressing written acceptance. The mere delivery of the goods does not mean a contract conclusion based on the conditions of the offer of the client. The offers of AIRFFECT are binding for 10 working days, whereby Saturday is seen as a working day.
2.2. Partial deliveries are expressly permissible.
2.3. AIRFFECT employees are not authorised to make any arrangements that differ from these terms and conditions or list prices. Any such arrangements must be confirmed by AIRFFECT in writing.
3. Term of delivery
3.1 The delivery period is calculated from the receipt of payment on the account of AIRFFECT.
3.2 If a delivery item leaves the factory upon expiry of an agreed delivery date, the latter shall be deemed to have been complied with. If information on the completion of the delivery item is required, or if the Customer is obliged to make changes or deviations from the original order, the agreed delivery dates shall be deemed non-binding. If the customer is in default with his service or parts thereof, the agreed delivery date shifts accordingly.
3.3 Delivery dates may vary and delivery times may be extended in cases of force majeure or events which make it difficult or impossible for AIRFFECT to deliver the goods (including, but not limited to, malfunction, fire, strikes, attacks, traffic disruption, trade restrictions), whether said events occur at AIRFFECT itself or its subcontractors.
3.4 If non-compliance with a delivery date is due to reasons for which AIRFFECT is responsible, the client may give AIRFFECT a reasonable period of grace of at least 3 weeks in writing. After expiration of this period, the client may withdraw from the contract. Claims for damages in this case shall be deemed to be excluded, provided that the client cannot demonstrate the intent or gross negligence of AIRFFECT.
3.5 The delivery of the goods is subject to a conditional written agreement by the manufacturer, Adventure Industries Sp. Z. O., Ul. Mokra 27, 05-092, Łomianki – Kiełpin Warszawa, Poland. The customer is obliged to accept the deliveries and services. AIRFFECT delivers uninsured. The risk falls on the customer as soon as the delivery item has been handed over to the freight company or other dispatcher – in the event of the buyer’s default of acceptance, from the date of dispatch. This also applies if the freight company was assigned by AIRFFECT and is contracted at the expense of the customer. In the event of default of acceptance, the customer must bear the storage costs. In the absence of an explicit agreement, the goods are sold as “ex works” Incoterms 2010.
3.6 The client is responsible for the installation or assembly and all related services and necessary materials, as well as for all settings which have to be done on the item. The contractor shall carry out all such work, with the exception of all claims for indemnity and damages, by a specialist and bear the appropriate costs himself.
3.7 The client must examine and establish the technical requirements for the use of the products themselves. Unless expressly agreed otherwise, the customer shall ensure that any necessary permits have been granted.
4. Prices, terms of payment and cancellation fees
4.1 Prices are non-obligatory, in Euros, excluding VAT ex works. All transport and packaging costs, freight and insurance charges, customs, charges and duties shall be borne by the customer and shall be invoiced separately.
4.2 Unless otherwise agreed, AIRFFECT shall invoice the first half of the contract sum after acceptance of the quotation. The production of the products only begins after receipt of the payment on AIFRRECT’s account, thus the delivery periods are also calculated from this date. The second half of the sum is billed when the products are ready for collection. Unless otherwise agreed, payments must be made within 14 days from the date of the invoice to the following account of AIRFFECT GmbH:
IBAN: AT79 5800 0205 9700 2018
4.3 If the customer is in default of payment, AIRFFECT is entitled to claim interest on arrears in the amount of 9,2% above the base interest rate and the compensation of the operating costs. If the customer is in arrears with his payments for a period of more than two months, AIRFFECT shall be entitled to withdraw from the contract and to demand compensation for any damages incurred.
4.4 AIRFFECT has the right to place partial payments at its own discretion.
4.5 Orders are binding upon receipt of the order by AIRFFECT. If the customer revokes an order after receipt of the order by AIRFFECT, the customer shall pay cancellation fees in the amount of 20% of the net order value. If the order is a special order and if AIRFFECT has already made arrangements to accommodate the customer, the cancellation amount to be paid increases to 40% of the net order value.
5 Warranty and liability
5.1 The customer has to check the goods immediately after receipt for possible defects and damages and to assert claims to AIRFFECT in writing within a period of 7 days. If the customer fails to examine or display any defects or damages within this period, the customer must prove that a defect or damage existed at the time of handover. The assertion of warranty claims and claims for damages must be made within a period of 6 months from the date of transfer and is deemed to be excluded thereafter. §§ 924 and 933b ABGB shall not apply. The warranty period is 12 months from the date of delivery.
5.2 Several repairs and substitute deliveries are permitted. The warranty expires if the customer or a third party not authorised by AIRFFECT has made changes or repairs to the subject matter of the product. A claim for damages on the part of the customer due to delayed delivery because of force majeure and unforeseen events is excluded.
5.3 5.3 AIRFFECT shall be liable – except for personal injury – only for damages caused by intent or gross negligence. The client has to prove that the damages are attributable to a fault of AIRFFECT. AIRFFECT shall not be liable to the contract partner for lost profits, loss of use or consequential damages.
5.4 AIRFFECT shall not be liable for damages resulting from improper use or assembly, lack of or improper maintenance, natural wear and tear, weather conditions, transport and storage, negligent behavior of the customer or its vicarious agents or the like. AIRFFECT shall also not be liable for claims for damages by third parties resulting from non-compliance with the instructions for use or negligent handling, including slight negligence.
5.5 Minor technical modifications as well as deviations from drawings and catalogues shall be deemed approved in advance.
5.6 AIRFFECT assumes no liability for claims arising in connection with possibly required public-law authorisations or emission regulations.
5.7 The maturity of contractual claims shall not be affected by the occurrence of a warranty claim. In particular, there is no right of retention or set-off. If the customer is in default of payment, AIRFFECT has the right to refuse removal of defects.
5.8 Returning the goods, which are not based on warranty claims and have not previously been approved by AIRFFECT, shall be at the risk of the customer, who shall bear all costs incurred. AIRFFECT reserves the right to refuse acceptance of unauthorised returns.
6 Electronic commerce
6.1 Orders or other legal declarations of the client may be sent by email using our electronic formulae, with the exception of acceptance of the offer, which must be signed and sent by letter or fax. However, in order to be effective, it must be accessible to AIRFFECT. Transmission errors – irrespective of the cause – shall be borne by the customer.
7. Non-binding information
7.1. Offers from AIRFFECT are always non-binding and must be regarded as an invitation to submit an offer by the contractor.
7.2. All data in catalogues, price lists, etc. are not to be regarded as an offer and are non-binding. Patterns or photographs used in the course of the offer are used to illustrate the delivery item. The actual delivery item may deviate from these, unless otherwise agreed-upon in writing.
8. Reservation of ownership
8.1 The delivery item remains the property of AIRFFECT until payment has been made in full. The reservation of ownership does not touch on the passing of risk stated in point 2.4. The client may not sell or pawn the delivery item until full payment has been made, and must handle and operate it with care. The customer shall notify AIRFFECT immediately in the case of non-intended dispositions by third parties.
9. Right of retention and offset
9.1 In the case of disputes, AIRFFECT is entitled to withhold or terminate deliveries and/or services.
9.2 An offset with claims of the contractor against claims of AIRFFECT is excluded.
10. Rescission waiver
10.1 The contestation of the contract on the grounds of error or reduction by more than half, shall be precluded. After that, the contestation or adjustment of the contract due to error is excluded for the client.
11. Naming as a reference customer
11.1 The customer agrees to the direct or indirect reference to his contractual relationship with AIRFFECT, in particular the naming of the client as a reference.
12. Extraordinary termination
12.1 AIRFFECT shall be entitled to terminate the agreement at any time.
12.2 AIRFFECT shall particularly be entitled to terminate the contract without notice if:
• judicial composition proceedings or bankruptcy proceedings of the client’s assets have been opened, or the opening of the bankruptcy proceedings is rejected for lack of sufficient assets. The right to extraordinary termination may be exercised in the event of compensation during the entire duration of the judicial composition proceedings until the termination thereof, and in the other cases indefinitely until the termination of the service.
• the customer is in default with his services; If a delivery is to be delivered in parts and the customer is only in arrears with partial services, the extraordinary termination may be declared only with respect to the individual partial services or all outstanding parts, whereby no additional respite is required by AIRFFECT.
• circumstances exist which make it impossible to fulfil the order in time or extend over a total of more than half of the originally agreed-upon delivery time, as long as AIRFFECT is not responsible for it.
• cases of force majeure or other unforeseeable events occur.
12.3 If the customer is at fault for the extraordinary termination, he shall have to compensate AIRFFECT for any resulting damages.
12.4 If AIRFFECT makes use of the right of extraordinary termination, the customer is not entitled to any claims for damages.
13. Data collection
13.1 The data collected during order and delivery (particularly name, address, telephone and fax numbers, email addresses, addresses, order date, ordered and delivered products or services, amount ordered, price, delivery dates, payment details etc.) are stored and further processed by AIRFFECT in EDP. The customer declares his consent hereto.
14. Miscellaneous provisions
14.1 Should one provision or several provisions of these General Terms and Conditions or the agreement concluded between AIRFFECT and the customer be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. In lieu of the ineffective provision, the parties undertake to agree to a new provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision and which they would have agreed to had they known of the invalidity or impracticability.
14.2 All rights and obligations arising from the agreement shall be transferred to any legal successors of both contracting parties.
15. Applicable law and jurisdiction
15.1 All disputes arising out of or in connection with the agreement concluded between the client and AIRFFECT are subject exclusively to Austrian law, with the exclusion of UN purchase law and conflict of law regulations.
15.2 For all disputes, the court of jurisdiction for commercial matters in 1010 Vienna is the agreed-upon court.