General Terms & Conditions
General Terms and Conditions of Franz RÜBIG & Söhne GmbH & Co KG for consumer use (B2C). Concerning B2B business it is referred to the GENERAL CONDITIONS OF SALE AND DELIVERY of Franz RÜBIG & Söhne GmbH & Co KG (www.rubig.com / Terms and Conditions Die Forge).
1. Scope of the General Terms and Conditions
1. These General Terms and Conditions (GTC) refer to all offers, legal transactions and howsoever natured market performance of Franz RÜBIG & Söhne GmbH & Co KG, particularly the delivery of products. All deliveries and performance are just based on this General Terms and Conditions, unless something else is agreed upon in written form.
2. These General Terms and Conditions (GTC) refer to all offers, legal transactions and howsoever natured performance of Franz RÜBIG & Söhne GmbH & Co KG for consumers in the meaning of the Austrian Consumer Protection Act. In the meaning of this law every physical person is regarded as a consumer, who is no entrepreneur. Those physical persons are regarded to be an entrepreneur, for whom the legal transaction is part of running their enterprise. The long- term intended organization of self-employed economic activity, even not focussed on profit, is regarded to be an enterprise.
3. These GTC are regarded to be the frame agreement for all further legal transactions (e.g. further or additional orders) with the client.
These GTC and the other contractual basis are based upon the following terminology, as long as there is no other meaning, which can be unambiguously deducted from the spirit and purpose of these rules:
1. “Client” means any contractual partner or negotiator of Franz RÜBIG & Söhne GmbH & Co KG, particularly everybody, who is buying respectively ordering a product, no matter of an agreement already in existence. In any case a “Client” is a physical or juristic person, who is a “Consumer” in the meaning of the Austrian Consumer Protection Act.
2. “Performance” means any tangible or intangible product, any tangible or intangible item provided by Franz RÜBIG & Söhne GmbH & Co KG.
3. „Product“ is any tangible or intangible good, which is offered respectively sold by Franz RÜBIG & Söhne GmbH & Co KG.
4. „Order“ is any binding request of a client for a performance of Franz RÜBIG & Söhne GmbH & Co KG, particularly the request for delivery of products.
5. „Contract“ means the legal transaction settled between Franz RÜBIG & Söhne GmbH & Co KG and the Client.,
3. Order, Contract, Delivery, Performance
1. The offers proposed by Franz RÜBIG & Söhne GmbH & Co KG are non-binding and subject to conformance, they have the character of a calling for order-placement approaching the Client.
2. Orders placed by the Clients of Franz RÜBIG & Söhne GmbH & Co KG are binding offers for conclusion of a contract. Upon reception of an order by Franz RÜBIG & Söhne GmbH & Co KG the order is binding for the client. Franz RÜBIG & Söhne GmbH & Co KG shall confirm the order in due time. The reception of the confirmation does not yet mean acceptance of the order. Franz RÜBIG & Söhne GmbH & Co KG is entitled to accept the offer of the Client within a period of 30 days by either sending the product immediately or via sending an order confirmation in written form; not till then the Contract obtains validity. The deadline depends on the date of dispatching. Any tacit consent by Franz RÜBIG & Söhne GmbH & Co KG is excluded.
3. Franz RÜBIG & Söhne GmbH & Co KG points out explicitly that the acceptance respectively the execution of the Order is subject to the real existing delivery possibilities. Franz RÜBIG & Söhne GmbH & Co KG reserves the right to reject or non-execute orders of the Clients, particularly even after reception, especially then, when there are unsettled positions from earlier invoices of the Client. This does not constitute any kind of rights for the Clients.
4. The rights of the Clients based on the orders are not transferable to third parties without written consent of Franz RÜBIG & Söhne GmbH & Co KG.
5. For reasonable technical and layout-based deviations of features in display-material, catalogues and written documents as well as changes in design, construction and materials in the course of technical progress and development Franz RÜBIG & Söhne GmbH & Co KG reserves the right to exclude any liabilities of any kind, which could be raised against Franz RÜBIG & Söhne GmbH & Co KG. Franz RÜBIG & Söhne GmbH & Co KG does not take any responsibility for the correctness, actuality and completeness of the information provided on this website and excepts any errors, particularly referring to price marking and deviation in colours. Franz RÜBIG & Söhne GmbH & Co KG does not take any responsibility for the match between the colours shown at the websites and the actual colours due to the fact, that the reproduction of colours might also be influenced by the quality of the Clients output device.
6. Special or additional client-requirements concerning the Products or Performance of Franz RÜBIG & Söhne GmbH & Co KG need in any case an explicit written confirmation by Franz RÜBIG & Söhne GmbH & Co KG to become binding. Post-contractual requests for modification may be executed by Franz RÜBIG & Söhne GmbH & Co KG on an exceptional and totally untitled base against an appropriate cost refund by the client.
7. The supplier selection is done by Franz RÜBIG & Söhne GmbH & Co KG, the client is not entitled to request the choice of a specific source of supply.
8. The choice concerning mode and route of dispatch is on the side of Franz RÜBIG & Söhne GmbH & Co KG. In particular there is no obligation to select the cheapest alternative. Packaging is done in a customary way. Special packaging has to be refunded by the client. The disposal of the packaging material has to be done by the client on his own expense. Express and airfreight supplements are invoiced separately. Transport insurance is concluded by order and for account of the client.
9. Please find a detailed description of the single steps of the order process at “Ordering”.
4. Time and date of delivery
1. Agreements on binding delivery dates or times between Franz RÜBIG & Söhne GmbH & Co KG and the client have to be made in writing.
2. Agreed deadlines for deliveries do not start to run unless all for the fulfilment of the contract necessary technical and other information, documents, advance payments or other performances of the client are confirmed as received by Franz RÜBIG & Söhne GmbH & Co KG.
3. The delivery is regarded to be in due time, if the Products left the site of Franz RÜBIG & Söhne GmbH & Co KG in due time and the client was informed about this in due time.
4. Interruption of operations, force majeure or other events beyond the control of Franz RÜBIG & Söhne GmbH & Co KG, in particular delays and similar on the sourcing side, shall entitle Franz RÜBIG & Söhne GmbH & Co KG to withdraw from the contract because of partial or total non-fulfilment.
5. In case of “estimated”, not exactly defined delivery dates or times the client is entitled to grant an extension of the delivery time of minimum 14 days, when the estimated time and date of delivery is delayed for more than three weeks.
5. Right of withdrawal
1. According to §5e of the Austrian Consumer Protection Act the client is entitled to withdraw from the contract within seven working days (Saturdays are excluded) starting with the day of Product reception or starting with the day of contract conclusion in case of services. The withdrawal does not need any statement and must be done in written form (e.g.: letter, fax, E-Mail..). This right of withdrawal does not exist for the delivery of Products, which are prepared or fabricated specifically to the demand of the Client, which are individualized for the Client, which are due to their properties not suitable for reshipment, which are perishable or which exceeded the date of expiry; furthermore for the delivery of audio and video - Products and software, as soon as the delivered data media was unsealed by the client.
2. In case of an effective withdrawal both parties have to place back all received performance. If a Client has no possibility to return the received performance totally, in parts or in a downgraded condition he has to substitute the value in an appropriate form. The Client does not have to pay compensation for lost value, if he does not use the Products as an owner and omits everything, which could deteriorate their value. Reconsignment of parcels shall happen in any case at the expense of the Client.
3. Withrawal or cancellation statements have to be sent to Franz RÜBIG & Söhne GmbH & Co KG, Mitterhoferstrasse 17, A-4600 WELS, E-Mail: firstname.lastname@example.org, Tel.: +43 7242 47135-0 .
6. Transfer of risk, default of acceptance
1. Upon dispatch of the delivery at Franz RÜBIG & Söhne GmbH & Co KG or at a supplier in case of direct shipments, the transfer of cost and risks to the Client takes place, even if there is a special price agreement.
2. In case of default of acceptance on the side of the Client, Franz RÜBIG & Söhne GmbH & Co KG is entitled, either to store the Products at costs of 0.1 % of the invoiced amount per day and to insist on fulfilment of the contract or to set a new appropriate deadline and to withdraw from the contract after the expire of the deadline. In case of taking advance of a withdrawal by Franz RÜBIG & Söhne GmbH & Co KG, the Client is obliged to pay as indemnification 25 % of the invoiced amount as compensation for storage costs.
3. If the Products are picked up by the Client transfer of cost and risks takes place at handover of the Products, in case of default of acceptance by the Client cost and risk transfer takes place at the day of default.
7. Price and payment conditions
1. Prices are in EURO including VAT ex works of Franz RÜBIG & Söhne GmbH & Co KG.
2. It is agreed upon, that the valid price is the website-price at the day of order. Payment means are Prepayment, PayPal, giropay online, eps online or credit card. If the payment is done via giropay or eps, Franz RÜBIG & Söhne GmbH & Co KG will deliver the Product/s not before the payment is received. Payments, which are made at employees or representatives of Franz RÜBIG & Söhne GmbH & Co KG, who are not explicit entitled in written for debt collection, do not deliberate the Client from his liability.
3. Invoices of Franz RÜBIG & Söhne GmbH & Co KG – even partial invoices – have to be paid without any deductions. Drafts or Cheques are not accepted. Franz RÜBIG & Söhne GmbH & Co KG reserves the right, to dedicate incoming payments at his own discretion to possible several open positions.
4. Payments via PayPal, giropay online, eps online or credit card pay off the liability not before the corresponding redemption.
8. Forwarding costs
Forwarding costs are invoiced by Franz RÜBIG & Söhne GmbH & Co KG additionally to the mentioned (VAT including) prices of the Product/s. Please find the actual terms and conditions of freight forwarding at “Shipping and Delivery Information”.
In case of extremely heavy Products (more than 31.5 kg) or awkwardly shaped Products which is mentioned at the side of the Product we additionally surcharge. Minimum order value is € 10.
9. Title retention
1. For the delivery of Performance, Product/s or services our General Terms and Conditions, the respective latest issue thereof, shall apply exclusively on assertion of the extended retention of title. The goods stay under the exclusive ownership of Franz RÜBIG & Söhne GmbH & Co KG until all liabilities emerging from the contract, especially the total settlement of the account (including interests and side costs) is done by the Client.
2. Until the settlement of the total account is not done by the Client, he is not entitled to dispose of the goods. He bears the full risk in particular the risk of destruction, loss or deterioration.
3. As long as the goods are subject to retention of title, the Client has to handle the goods with care.
4. If the goods are processed by the Client into other moveable objects, this happens without any obligation for Franz RÜBIG & Söhne GmbH & Co KG. The new goods pass into the ownership of Franz RÜBIG & Söhne GmbH & Co KG. In case of further processing by bonding, mixing or combining with other goods not being under Franz RÜBIG & Söhne GmbH & Co KG’ s ownership, Franz RÜBIG & Söhne GmbH & Co KG acquires common ownership up to the invoiced share of the goods subject to retention of title at the new moveable object.
5. If the goods have been attached, seized or otherwise disposed of by third persons, the client must notify Franz RÜBIG & Söhne GmbH & Co KG immediately and provide an indication for the ownership of Franz RÜBIG & Söhne GmbH & Co KG.
6. In case of being non-compliant with the contract, especially at default payment, Franz RÜBIG & Söhne GmbH & Co KG is entitled to take back the goods subject to retention of title or to request from the Client, where applicable, the assignment of his claim for return versus third parties.
7. In case of non-compliance by the Client versus the agreements on retention of title, the Client is, without crediting an actually occurred damage (in particular costs for third party processing at attachment lawsuits) obliged to pay a contractual penalty in the amount of the double value of the goods subject to retention of title. In case of default all the liabilities of the client will become due immediately. In this case Franz RÜBIG & Söhne GmbH & Co KG is immediately entitled to request restitution of the goods excluding any right of retention.
10. Warranty, Compensation for Damages, Prohibition of Assignment
1. All issues which are not regulated under this General Terms and Conditions are under the terms of the applicable legal regulations.
2. Franz RÜBIG & Söhne GmbH & Co KG does not assume any liability for the usual depreciation of the goods and for defects, which had been caused by inadequate handling of the goods.
3. Any melioration or replacements within the warranty – subject to no other agreement - will be done within a notice period of four weeks.
4. In case of subsequent deliveries Franz RÜBIG & Söhne GmbH & Co KG does not assume any liability for exact conformity with the first delivery.
5. If the Client is damnified in the course of transaction processing Franz RÜBIG & Söhne GmbH & Co KG is liable just in case intentional acts or in case of intentional acts and acts of gross negligence done by vicarious agents. In case of personal injuries Franz RÜBIG & Söhne GmbH & Co KG is even liable for slight negligence. The regulations of the Product Liability Act will remain unaffected.
6. The assignment of warranty or compensation claims or similar is inadmissible.
7. In case of explicit issuing warranties Franz RÜBIG & Söhne GmbH & Co KG, such warranties are just effective in case of adequate handling of the goods, in particular professional instalment, maintenance and adequate care. Excluded are wear and tear of any kind and damages caused by the Client or third parties. Warranties granted by third manufacturers are effective according to their warranty terms.
8. Any kind of instructions given in hand-outs or user manuals or by other product information as well as care and assembly instructions have to be strictly obeyed by the Client to prevent damages. It is explicitly pointed out to beware of using the goods in others than the usual application fields.
9. Faultless and/or anytime available data communication via internet cannot be safeguarded according to the present-state-of-the-art technology. Franz RÜBIG & Söhne GmbH & Co KG therefore does not take any liability either for a constant and uninterrupted availability of the online-business-system or for technical or electronical faults during the act of order execution, in particular for those, where we have no influence over, even not for the delayed acceptance or procession of offers.
11. Data Protection
1. It is clearly pointed out, that in case of contract-conclusion concerning goods or services the transfer of personal Client data (name, title, address, birth date, profession, e-mail-address, phone number) to service partner is obligatory, because they need those data for processing the transaction. Service partner are the authorized forwarder and the authorized bank for handling the payments. This is explicitly accepted by the Client.
2. The order processing is done by means of automatic data processing. Franz RÜBIG & Söhne GmbH & Co KG is entitled to automatically proceed and to store personal Client data as long as it is used for contract fulfillment.
3. The Client agrees with storing his personal data (name, title, address, birth date, profession, e-mail-address, phone number) at the mailing list of Franz RÜBIG & Söhne GmbH & Co KG and furthermore with processing the data by Franz RÜBIG & Söhne GmbH & Co KG in a way, which enables Franz RÜBIG & Söhne GmbH & Co KG to inform the Client about products, news, promotions etc via post, phone, fax or E-mail.
12. Choice of Law / Jurisdiction
1. All disputes related to this General Terms and Conditions or/and the Contract will be regulated according to Austrian Law excluding conflicting regulations of the Private International Law and CISG. This is also valid for questions of conclusion and interpretation of the General Terms and Conditions and of the Contract. This Choice of Law is valid insofar as the Client does not loose the protection of the mandatory rules of his country of origin. Country of origin is defined as the country, where the Client has his main residence.
2. Place of jurisdiction is A- 4600 Wels/Austria respectively the court having jurisdiction. This is even valid for those Clients, who do not have their main residence in Austria.
13. Change of address and Copyright
1. The Client is obliged to disclose changes in his physical or business address immediately, verifiable and unrequested to Franz RÜBIG & Söhne GmbH & Co KG, as long as the present transaction is not totally completed on both sides. If the disclosure is omitted, all information respectively statements sent by Franz RÜBIG & Söhne GmbH & Co KG to the last disclosed address are regarded to be received by the Client. In a particular case, the Client is responsible for providing evidence of the reception of his notification of change.
2. The complete content of this website including schedules, plans, layouts or other technical documents as well as samples, catalogues, hand-outs, illustrations, reproductions and suchlike stay always under the ownership, in particular intellectual ownership of Franz RÜBIG & Söhne GmbH & Co KG. The Client does not acquire any kind of right, like e.g. usage or exploitation rights.
14.Miscellaneous, Salvatory Clause
1. The headlines of the regulations of these General Terms and Conditions are just dedicated to give a general view and cannot be used in any way for the interpretation of these regulations.
2. Should any provision of this Contract be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and the purpose of such invalid, ineffective or unenforceable provision as regards subject-matter, amount, time, place and extent.
Wels, September 2013