general terms and conditions
1. Scope of application
1.1. These General Terms and Conditions (T&Cs) apply in the version valid on the day the contract is concluded, for all contracts (services contracts, sales contracts, etc.) which are concluded between FIXINGGROUP GmbH and the purchaser of the service, purchaser, or client (hereinafter referred to as the “Customer”). Agreements to the contrary must be in written form. On conclusion of the contract, the Customer declares his/her agreement to the existing T&Cs and to be bound by them.
1.2. Verbal agreements between FIXINGGROUP GmbH and the Customer are invalid if they are not confirmed in writing by FIXINGGROUP GmbH.
1.3. The T&Cs can be accessed at any time at [http://www.fixinggroup.com/en/agb.html], and can be saved or printed as a PDF version. A printed version of the T&Cs applicable at the date of the contract’s conclusion will only be provided on request. The version of the T&Cs applicable at the date of the contract’s conclusion is authoritative.
1.4. The Customer’s General Terms and Conditions or forms do not, on any account, become a component of the contract.
1.5. In the event of an ongoing business relationship, contracts issued later, even if issued verbally, are deemed issued with FIXINGGROUP GmbH’s T&Cs, even without separate reference to them.
1.6. For legal transactions with consumers in the sense of the Austrian Consumer Protection Act (KSchG), the T&Cs here apply inasmuch as they do not conflict with provisions of the Austrian Consumer Protection Act (KSchG) or the Austrian Distance Selling Act (FAGG), where application is mandatory.
2. Conclusion of contract
2.1. FIXINGGROUP GmbH reserves the right to change the content of the respective service portfolio at any time. That means that all technical details and descriptions of the contractual object (in prospectuses, catalogues, price lists, websites, etc.) are subject to alteration and non-binding.
2.2. A Customer’s order constitutes an offer to conclude a contract, and the Customer is bound by it for a reasonable period, being at least thirty (30) days (the time period begins on receipt of the offer by FIXINGGROUP GmbH).
2.3. The offer is first accepted by shipment of the products ordered to the Customer. It is only if the Customer should order work services that the Customer’s offer is accepted by FIXINGGROUP GmbH by the sending of an order confirmation (in writing or by email), which includes the products or services and the price, payment, and delivery conditions.
2.4. FIXINGGROUP GmbH is free not to accept orders.
3. Purchase price/payment for work
3.1. Purchase price
3.1.1. The prices listed on the website www.fixinggroup.com and in FIXINGGROUP GmbH’s prospectuses are the non-binding, recommended sales prices ex works. The prices are applicable from the date of publishing until revocation. When new prices are published, all preceding prices cease to be valid. Errors and changes to the current price remain reserved.
3.1.2. Insofar as not otherwise specified, all price information is understood to refer to net prices in euros, exclusive of the statutory VAT and exclusive of all fees and costs incurred with the shipment (e.g. packaging costs, shipping costs, etc.). The statutory VAT and all fees and costs incurred with the shipment, contract fees, import and export duties, and transaction fees, tariffs and customs duties, official commission fees, etc. are borne by the Customer.
3.1.3. For sales to Customers outside of the European Union (EU), no VAT applies. These Customers must, however, pay the respective national import charges. For sales to Customers outside of Austria, but inside the EU, no Austrian VAT applies with evidence of a valid UID number. However, these companies have to pay the VAT in their home country. Invoicing is done in euros.
3.2. Payment for work
3.2.1. Payments for work are always to be agreed individually between FIXINGGROUP GmbH and the Customer.
4. Payment terms and methods
4.1. FIXINGGROUP GmbH’s invoices are payable, independent of receipt of the goods, and irrespective of the investigations of complaints about defects, within 14 days from the invoice date with a 2% discount, or within 30 days net.
4.2. If, exceptionally, agreements are made for payment by instalments, the payment date is deemed to have been missed for default of even just one instalment, and all of FIXINGGROUP GmbH’s outstanding claims are immediately due in their entirety.
4.3. When in default of payment, the Customer is obligated to pay interest in default of 9.2% above the base interest rate to FIXINGGROUP GmbH. When in default of payment, the Customer is further obligated to compensate FIXINGGROUP GmbH for all warning and collection fees incurred by the default of payment. FIXINGGROUP GmbH expressly reserves the right to claim higher loss due to the default.
4.4. The Customer is not entitled, for whatever reasons, to a right of retention, or to offset with counterclaims.
4.5. FIXINGGROUP GmbH reserves the right to request advance payments from Customers. FIXINGGROUP GmbH can also exercise this right before provision of services.
5. Delivery (service) conditions
5.1. All delivery (service) dates and delivery (service) periods are approximate and non-binding. If it is not possible to provide the delivery or service within the agreed time period, FIXINGGROUP GmbH informs the Customer of this immediately, and the Customer grants FIXINGGROUP GmbH a reasonable grace period of at least six weeks. Where this grace period passes without success, the Customer can rescind the contract if s/he has given notice of the rescission when setting the grace period. The Customer’s compensation claims due to delayed delivery/service or non-performance are excluded.
5.2. FIXINGGROUP GmbH is entitled to provide partial deliveries or services. The Customer is to accept partial deliveries or services. FIXINGGROUP GmbH is entitled to provide partial invoices, and the partial invoice is to be paid by the Customer under the payment terms specified under Point 4.
5.3. In the following cases, the delivery or service periods within the meaning of Point 5.1. are suspended, and only begin to run again anew after the reason for the interruption has ceased to apply: Breach of the duty to co-operate by the Customer; default by the pre-suppliers in supplying FIXINGGROUP GmbH; technical defects in production and transport facilities and other cases of force majeure.
5.4. Should an interruption within the meaning of Point 5.3. last longer than two months, both FIXINGGROUP GmbH and the Customer are entitled to terminate the contract. The Customer is not entitled to this right if s/he is responsible for the suspension.
5.5. The delivery is made to the Customer address. For incorrect, incomplete, or unclear information from the Customer, s/he bears all of the costs resulting from this. Liability for FIXINGGROUP GmbH is excluded.
5.6. The risk of lost and damage to the goods passes to the Customer (company) on delivery of the goods to the consignor (haulier, freight carrier, post, etc.). The goods are only insured by FIXINGGROUP GmbH against transport damage with express written instruction, and on the account of, and at the expense of, the Customer.
5.7. If the delivery or service is not accepted by the Customer, FIXINGGROUP GmbH is entitled, setting a 14-day grace period, to a right to rescind the contract. Where FIXINGGROUP GmbH rescinds the contract, the Customer is obligated to compensate FIXINGGROUP GmbH for the damages from non-performance. Where the contract is rescinded, FIXINGGROUP GmbH has the choice, even without specific proof of damage, to request 30% of the agreed order amount as flat-rate compensation.
5.8. FIXINGGROUP GmbH’s written consent is required for the Customer to return delivered goods, and only takes place at the Customer’s expense and risk. Delivery note and/or invoice numbers are always to be cited with a return.
5.9. The packaging for the delivered goods is not taken back by FIXINGGROUP GmbH.
5.10. The expense which we incur due to the return, treatment, and resale are deducted at 20% with the credit for the claim for the purchase price.
6. Guarantee, compensation, and product liability
6.1. The statutory guarantee provisions apply subject to the following.
6.2. Goods descriptions in prospectuses, catalogues, price lists, on FIXINGGROUP GmbH’s website etc., for example illustrations, measurements or weight specifications, do not constitute a guarantee of properties, and are subject to alteration and non-binding.
6.3. The guarantee periods are limited to six months for used goods.
6.4. In order to avoid the loss of all claims, the Customer is to examine the delivered goods or the services rendered immediately on receipt of the delivery or the notice of completion from FIXINGGROUP GmbH. Complaints are to be made about any defects identified immediately, in sufficient detail, by registered post. Defects only coming to light later are also to be reported immediately on discovery, in writing and in detail.
6.5. In the event of a breach of obligations accepted by contract or imposed by law, FIXINGGROUP GmbH is only liable in the event of intent or gross negligence. Personal injuries are excluded from this. Compensation for lost profit and purely financial loss is excluded. The Customer is to prove gross negligence. This also applies for compensation for consequential loss. Compensation claims must be asserted in court against FIXINGGROUP GmbH within six months, failing which they will expire.
6.6. Discrepancies in measurements, features, materials, or similar which are customary in the trade or caused by manufacturing techniques do not constitute defects. If the Customer makes changes to and/or processes the goods or services from FIXINGGROUP GmbH, this leads to a complete loss of any guarantee and compensation claims. The same applies with improper handling of the delivered goods or service rendered.
6.7. Liability for property damage from a product defect is excluded. The Customer undertakes also to transfer this exclusion of liability to its customers.
7. Retention of title
7.1. All goods remain FIXINGGROUP GmbH’s property until full payment of the purchase price or price for work, together with all ancillary claims (e.g. shipping costs, etc.). If the Customer falls into default with his/her payment obligations, FIXINGGROUP GmbH is entitled to demand the surrender of the goods it owns, including without rescission of the contract, and collect these from the Customer, whereby the Customer waives the right to assert any possible rights of retention.
7.2. If the Customer resells goods subject to FIXINGGROUP GmbH’s retention of title, the Customer’s claim for the purchase price takes the place of the retained title. This claim for the purchase price is assigned to the FIXINGGROUP GmbH from the date on which it arises.
8.1. If FIXINGGROUP GmbH’s products are resold by the Customer, it is to use the original product name. Otherwise, the Customer is not permitted to use FIXINGGROUP GmbH’s trademarks and/or product names without its written permission.
9. Assignment of claims
9.1. FIXINGGROUP GmbH is entitled to assign its claims against the Customer to third parties. However, an assignment of the Customer’s claims against FIXINGGROUP GmbH requires the express prior and written permission of FIXINGGROUP GmbH.
10. Data protection
10.1. FIXINGGROUP GmbH’s employees are subject to the duties of confidentiality under data protection law.
10.2. The Customer acknowledges that the data on the Customer given in a contract with FIXINGGROUP GmbH are stored and processed for the purposes of accounting and customer records. The data are used to fulfil the statutory provisions and to process the payment transactions. Customer data are not disclosed to third parties without authorisation unless this is absolutely necessary to process the contract. The Customer’s personal data necessary to process the transaction are stored and processed in accordance with the statutory provisions. The Customer has the right to access his/her personal data and rectify it.
10.3. The Customer expressly agrees that a request can be sent to Creditreform. The Customer further agrees that FIXINGGROUP GmbH submits all data to Creditreform in the event of the Customer’s default of payment, and it makes this data accessible to third parties.
10.4. The Customer agrees also to be informed of additional services and products from FIXINGGROUP GmbH, such as events, publications, etc. by email. The Customer can revoke this consent at any time (Section 28 Data Protection Act (DSG)).
11.1. FIXINGGROUP GmbH has compiled the information on the website www.fixinggroup.com with the greatest care and attention. Nevertheless, no guarantee is accepted for its accuracy and completeness. Any liability for potential losses in connection with use of the information provided on FIXINGGROUP GmbH’s website is expressly excluded. FIXINGGROUP GmbH expressly dissociates itself from the content of other websites linked to on the website, and states that it does not take any responsibility for their content.
12.1. All messages, graphics, and the design of the FIXINGGROUP GmbH website are exclusively for the Customer’s personal information. They are used at the user’s risk. All data is protected under the respective applicable provisions of copyright law. The processing, reproduction, disseminating, and/or public display of the website and its contents exceeds ordinary usage, and constitutes a breach of copyright. All drafts, plans, and other documents created by FIXINGGROUP GmbH are the sole property of FIXINGGROUP GmbH, and the Customer may not (continue to) use them or make them accessible to third parties.
13. Jurisdiction/applicable law/place of performance/severability clause
13.1. These T&Cs and all contracts concluded between FIXINGGROUP GmbH and the Customer are exclusively subject to Austrian law, excluding UN sales law, and excluding national and international conflict of law rules.
13.2. The court competent for FIXINGGROUP GmbH’s registered office is exclusively competent for all disputes of any kind from or in connection with these T&Cs or a contract concluded between FIXINGGROUP GmbH and the Customer.
13.3. The place of performance for delivery and payment is FIXINGGROUP GmbH’s registered office.
13.4. Should individual provisions of these General Terms and Conditions be or become wholly or partially invalid or unenforceable, this does not affect the validity of the remaining provisions. The invalid provisions are replaced with ones which comes as close as possible to what was intended.