General terms of business (GTB)
Art. 1 General
(1) The following General Terms of Business are an integral part of contracts concluded with Bionah. By accepting them without contradiction or upon receipt of our goods or any service, the customer agrees to the validity of these terms also for any future business.
(2) Verbal subsidiary agreements, exclusion, alteration or amendments to these terms require written confirmation by us to be valid. The same shall apply to any waiver of this written-form requirement.
(3) The validity of any deviating General Terms of Business of the customer (buyer) shall not be recognized if they had been sent to us in a letter of confirmation or any other written form.
Art. 2 Acceptance of orders
(1) Our offers are subject to change. All orders shall become binding for us only after the goods have been delivered or after written confirmation of the order by us.
(2) We will not verify the correctness of the buyer's information and specifications which form the basis of the offer and the confirmation of order.
(3) Unless stipulated in writing that the buyer only intends to order a certain version of a product, the version which has been modified in the course of technical development will be supplied.
(4) Any verbal subsidiary agreements or warranties of our agents or other sales staff require our written confirmation to be valid.
Art. 3 Prices
(1) Unless specified differently - all prices are quoted in euros plus the statutory value-added tax to be borne by the buyer in the relevant statutory amount. Unless otherwise agreed in writing, transport and insurance costs plus payable value-added tax shall be charged separately.
(2) We reserve the right to invoice the prices valid on the day of the delivery. The respective terms are set forth in the currently valid purchasing price list.
Art. 4 Delivery and dispatch
(1) The choice of the route and means of transport is subject to our reasonably exercised discretion unless a different agreement has been previously made in writing.
(2) The delivery costs (delivery charges) at destination shall be paid by the buyer respectively the receiver. The same shall apply to any additional costs resulting from special requests (express delivery, special packing, etc.).
Art. 5 Passing of risk, insurance
(1) Unless differently agreed in writing, dispatch of goods will be not insured by us.
(2) Upon transfer of the goods to the forwarder, at the latest, however, after leaving our warehouse, the risk shall pass to the buyer.
(3) Risk shall also be transferred to the customer should the latter default on acceptance.
Art. 6 Delivery dates, delay in delivery, non-delivery, partial delivery
(1) Confirmed orders and delivery dates shall be valid subject to correct, timely and complete supply by our presupplier unless non-delivery or delay in delivery is our fault. In the event of delay in delivery or our failure to perform delivery, the buyer shall have the right to rescind from the contract after granting us an adequate extension of time in writing and stating that he will not accept the goods after the expiration of this extension of time. If the buyer does not exercise his right of withdrawal, he may claim compensation for any damage caused by delay or non-performance only within the definition of article 8 of these General Terms of Business.
(2) Partial deliveries are permissible.
(3) In the case of force majeure we shall have the right – also within the period of delay – to postpone delivery for the duration of the event of force majeure and to withdraw fully or partially from the contract due to the part of contract which has not been fulfilled without the possibility of asserting any claims against us. Force majeure are all circumstances we can not be held responsible for and render the fulfilment of the delivery obligation impossible or unacceptable; such circumstances are strikes, lockouts, situations similar to war, bans on imports and exports, measures of authorities or similar.
(4) In the cases of item the buyer, on his part, shall have the right to withdraw from the contract in so far as he can prove that full or partial fulfilment of the contract is no longer of any use to the buyer. Withdrawal with regard to any partial delivery already performed by us shall remain excluded.
Art. 7 Notice of defects and warranty
(1) For proven material defects of products which are delivered from us and become evident only before usage, we will grant a warranty of two years, calculated from the date of delivery to the buyer, according to the following regulation and provision. Specification of a deficiency free condition of a product is generally only provided by the manufacturer's description in the processing instructions / instruction manual to the product groups in their present current version as agreed upon. The documentation will be provided separately to the buyer upon request. Advertising undertaken by the manufacturer shall not be deemed to constitute additional contractual physical characteristics of the goods.
(2) The buyer shall be obliged to inspect the delivered goods within two weeks after delivery and claim potential deficiencies in writing providing order data as well as the delivery note and/or invoice numbers. The customer shall bear the full burden of proof regarding all prerequisites of claims, in particular relating to the defect itself, the time at which the defect is detected, and the timeliness of notifications of defects. Should the buyer neglect the form and timeline for the notice of defects, the goods are considered deficiency free. The punctuality of the claim depends on the date/time of delivery to us.
(3) Goods under complaint are to be sent back to us upon demand. Shipping charges are covered by us if the claim is legitimate and within the timeline, otherwise the buyer will be held responsible.
(4) If the notice of defect is justified, we will grant a warranty to such extent that we will eliminate the defect or deliver substitute goods at our discretion. We may use this right two times. Should the customer opt to withdraw from the contract following abortive supplementary performance to rectify material defects or defects of title, the customer shall not be entitled to assert further claims for damages based on the defect. Should, following abortive supplementary performance, the customer opt to assert claims for damages, the goods shall, where reasonable, remain in the possession of the customer. Claims for damages shall be limited to the difference between the purchase price and the value of the defective goods.
(5) Any warranty claim shall be excluded if
- the buyer does not adhere to the technical instructions and/or application information specified by us,
- performs changes of any kind or repairs of the delivered goods by individuals not authorized from us or
- delivered goods were handled improperly
(6) Any potential notice of defect shall not affect the buyer's payment obligation.
Art. 8 General liability
(1) In appropriate application of article 7 (5) a liability for damages on our part shall be excluded if damage is completely or predominantly caused by conditions listed under article 7 (5)
(2) We shall not beliable in case of slightly negligent violation of non-essential contractual obligations.
(3) The buyer's damage claims resulting from a deficiency shall be time-barred for a period of one year after delivery of the goods. This shall not apply if we can be accused of fraudulent intent.
(4) L imitations of liability shall not apply to buyer's claims under product liability. Furthermore, the limitations of liability shall not apply to all cases of bodily injury or health damage attributable to us, or to loss of life by buyer or any other mandatory liability conditions.
Art. 9 Liability for product description and application information
(1) All information regarding the product and procedures are to the best of our knowledge and based on experience. The buyer, however, shall be obliged to verify for his own accountability the suitability of our products and procedures for his own use – also with regard to the protection of third party property rights. This applies in particular to usage of our products which deviates from any usage and procedures identified by us in so far as they are not medical products. As far as medical products are concerned divergent usage is prohibited by law.
(2) Except as otherwise agreed, brochures and catalogues are not binding. Information in technical documents shall only be binding in so far as they have been expressly specified.
(3) We shall be liable for the correctness of product information provided by us within the scope of article 8 of these terms. Additional claims for damages of the buyer shall be excluded.
Art. 10 Payment and invoicing
(1) Unless otherwise agreed in writing our invoices shall be paid in advance.
(2) In the event of delay of payment of the buyer we shall be entitled to charge interest in the amount of 8% above the basic interest rate. Date of payment shall be the date when we receive payment respectively the date when the invoice amount is credited to our account. The assertion of further damage caused by delay case shall be reserved.
(3) If the conditions of payment are not adhered to or circumstances become known which are suitable - according to our sound commercial judgement - to reduce the credibility of the buyer, we shall be entitled notwithstanding any other statutory rights to demand prepayment for deliveries still to be effected or request security and after the expiration of an appropriate extension to provide such security and the buyer' failure to furnish security we shall be entitled to withdraw from the contract or demand compensation for non-performance.
(4) With the effect of discharging the obligation, payments can only be made directly to us. Should several accounts (invoices) be unsettled, payments will shall be offset with the oldest account (invoice) plus additional costs unless otherwise specified by us even if the seller has specifically identified a payment claim. Setting off is always carried out on the costs, then on the interest and finally on the principal claim (amount/invoice).
(5) The buyer shall only have the right to set off sums, if his counterclaim has been recognized by declaratory judgment, is undisputed or recognised by us. The buyer shall also not have a right of retention due to disputed counterclaims.
Art. 11 Return of goods
(1) Without our prior written consent delivered deficiency free goods to the buyer can not be returned or exchanged.
(2) Goods in opened packages can principally not be returned or exchanged. Liquids and products with limited shelf life (expiration date) are also excluded from exchange.
(3) All returns are at cost and risk of the buyer.
Art. 12 Reservation of ownership
(1) We retain ownership of all goods supplied by us (retention of ownership) until all current and future claims resulting from the business relationship are settled in full. In case of proceeding account, the reservation of the rights of ownership shall be regarded as security for our respective claims in the account balance. This shall also apply when payments are made by the customer for specific claims (accounts receivable).
(2) Treatment or processing of goods under reservation of ownership shall always be carried out upon our order without any form of liability resulting to our detriment thereof. We shall have ownership of the new products which have been processed or treated. In case of processing with other goods that are not supplied by us, we shall have co-ownership of the new product in the ratio of the value of the goods under reservation of ownership to the other processed goods at the time of processing. In case the goods under reservation of ownership are mixed or connected with other goods, the buyer shall immediately transfer his ownership resp. co-ownership rights to the new product or the mixed stock and store these for us free of charge.
(3) The buyer may resell the goods under reservation of ownership only in the course of proper business transaction under customary terms of business and only as long as he meets his payment obligation towards us in a timely manner. The buyer shall be obliged to resell the goods under reservation of ownership only under the reservation of ownership rights and ensure that claims resulting from such resale transactions can be transferred to us.
(4) The buyer's claims from the resale of goods under reservation of ownership are immediately ceded/transferred to us. These claims serve as a security to the same extent as the goods under reservation of ownership.
(5) Should the buyer resell the goods under reservation of ownership together with other goods that are not supplied by us, the cession of the claim (account receivable) shall be equal to the total invoice amount resulting from the resale of our goods under reservation of ownership.
(6) Should the buyer resell goods under reservation of ownership within the scope of a commission business, the buyer's claims resulting from the commission business shall be immediately transferred to us and serve as a security to the same extent as the goods under reservation of ownership. The provisions of these General Terms of Business concerning claims of the buyer from a resale of the goods under reservation of ownership shall be applied correspondingly to the buyer's claims from the commission business.
(7) Should the buyer include claims from the resale of goods under reservation of ownership into an open account relationship with his customers, he shall transfer to us already now such final account balance as is recognised in his favour in the receivables of the open current account relationship corresponding with the sales value of our goods under reservation of ownership.
(8) The buyer shall be authorised to collect the claims from the resale of goods under reservation of ownership as long as he meets his payment commitment towards us in a timely manner. We may revoke this authorisation any time in the event of a delay in payment, cessation of payment, transfer of the buyer's business operations, impaired credit- and trust-worthiness or dissolution (liquidation) of the buyer's company as well as in case of breach of the contractual obligations in accordance with item (12); in case of
(9) delay in payment, however, we may revoke this authorisation only after a reasonable extension.
(10) In the event of revocation of the authorisation to collect claims the buyer shall be obliged to inform his customers immediately of the cession of the claims to us and hand over all the information and documents required for collecting. Moreover, in this case he shall be obliged to release or transfer to us any securities which he is entitled to from customer claims.
(11) Should the realisable value of the securities existing for us exceed our secured claims by more than 20 % we shall be insofar be prepared – at the request of the buyer – to release securities at our discretion.
(12) The buyer shall be obliged to immediately inform us of a seizure or other legal or actual impairment or danger to the goods under reservation of ownership or other securities that are available to us.
(13) The customer shall be obliged to sufficiently insure goods under reservation of ownership against any damage resulting from fire, water and theft. He shall already now cede (transfer) his claims from the insurance agreements to us.
(14) In case of delay in payment as well as in the event of cancellation of the sales contract, the buyer declares his consent for us to remove (confiscate) or initiate the removal of the goods under reservation of ownership. Removal (confiscation) shall only represent a cancellation if this has been explicitly declared in writing.
Art. 13 Property rights
It is not permissible - instead of BIONAH products including BIONAH shade determination devices - to offer or supply substitute products or recommend shade determination tables for our shade system or associate our trademarks with terms such as "Substitute", "Approximate/comparable value" or similar respectively compare our trademarks and shade names with substitute products and other shade determination devices in catalogues, price lists, offers, etc.
Art. 14 Export limitations
With the exception of the trade among member states of the EU, export transactions/business requires our prior written consent.
Art. 15 Place of fulfilment, place of jurisdiction, applicable law and invalid provisions
(1) Place of fulfilment for delivery and payment is Bruneck.
(2) Place of jurisdiction for both contracting parties is Bozen in Italy.
(3) The law of the Republic of Italy shall be applicable.
(4) Any change or invalidity of individual provisions shall not affect the validity of the remaining provisions. In the event of invalidity of an individual provision the buyer shall be obliged to agree on a valid provision which is legally permissible and most similar to the invalid one in an economic view.