Terms & Conditions
Legal information and general terms & conditions
LOXONE ELECTRONICS GMBH (AUSTRIA)
|Address:||Smart Home 1|
|Phone:||Austria: +43 7287 7070 0|
Germany: +49 8592 6148899
|Fax:||+43 7287 7070 999|
|FB No.:||FN 326074 x|
|Registered at:||Linz Regional Court, Austria|
|ECG Authority:||Rohrbach district|
LOXONE US INC.
|Address:||1300 E. New Circle Road #180|
Lexington, KY 40505
|Phone:||+1 (859) 554 3147|
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Terms & Conditions
Last updated as of 06.10.2016
All items and services provided by ‘Loxone Electronics’ (the seller) are subject to these General Terms and Conditions (T&Cs). Any agreements that differ from the T&Cs, including the T&Cs of a contract partner, only apply if they have been explicitly agreed in writing and have been signed by ‘Loxone Electronics’ prior to any sale. ‘Loxone Electronics’ is not obliged to contradict the T&Cs of the contract partners in matters that are in conflict with their own T&Cs, not even if the contract partners T&Cs explicitly require contractual parties to do so. Instead ‘Loxone Electronics’ reserves their right that they solely want to trade based on their T&Cs as outlined in this document. These T&Cs apply to the current business transaction and any future business engagements, as well as to all information provided in printed materials, price lists, advertisements, information on packages etc. given in connection herewith, regardless of whether they were provided verbally, in writing or on the web.
2. OFFERS AND CONTRACTS
All offers are non-binding and subject to alteration. A business contract is only formed at the time of ‘Loxone Electronics’ issuing an order confirmation in writing or at the time of dispatch of the products or delivery of services. Loxone reserves the right to default on any business contracts that involve third party products that are purchased through Loxone, in the event of the third party not honoring their supply obligations. Any third party products offered supplied by Loxone, any information about services or products provided by ‘Loxone Electronics’ in price lists, catalogues, advertising media, etc., are not equivalent to offers. Verbal information, additional agreements and any other declarations and promises of any kind provided by ‘Loxone Electronics’, also in connection with product returns and complaints, are not contractually binding unless confirmed in writing by ‘Loxone Electronics’ prior to the conclusion of the business. Alterations or additional T&Cs for a contract must be submitted in writing and signed to come into effect. This also applies to the omission of this rule of writing. Employees other than senior management of ‘Loxone Electronics’ are not authorized to provide legally binding declarations, e.g. promises concerning certain special delivery terms or similar.
All charges for products and services are based on the pricing valid on the day of the purchase. All sales accrue VAT or relevant local sales taxes in accordance with the legislation applying to the sale in the respective country. The prices settled are valid save as provided by an alteration of the production costs. If product or service prices are affected by exchange rates Loxone Electronics reserve the right to pass any extra costs on to the buyer. This regulation does not apply for consumer pricing. All prices quoted are provided excluding surcharges, such as, packaging, shipping and customs charges. These charges will be detailed separate to products and services. Services, in particular maintenance, repairs, installation work and training will be charged at predefined hourly rates by ‘Loxone Electronics’. If the value of the goods is below $150.00 including VAT, ‘Loxone Electronics’ reserves the right to charge an administration surcharge of $18.00 including VAT.
Special costs for software carriers (e.g. CDs, flash drives, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees are invoiced separately.
Software libraries are charged based on the list prices valid on the day of delivery. All other services (consultancy, programming, training, support, etc.) will be charged at the rates in effect on the day the services are performed. Deviations from the amount of time quoted required for particular work (which serves as the basis for the Proforma invoices) for which the seller is not responsible, will in the final invoice be charged based on the actual time spent.
The costs for travel expenses and overnight accommodation costs are invoiced separately to the buyer. The rates chargeable are the ones valid on the day the costs were incurred. Any transit time between jobs is to be considered as work time.
4. FULFILMENT OF CONTRACTS AND DELIVERIES
Delivery times are not binding and do not start before the clarification of all technical and other details of the order. This also applies to delivery and settlement periods relating to warranty or guarantee claims and other benefits. In any case ‘Loxone Electronics’ reserves a delivery period of 30 days beginning with the confirmation of order. As such ‘Loxone Electronics’ cannot be held responsible for delivery delays and no claims for financial damages (including loss of earnings) of any sorts can be made by the buyer. Partial deliveries of orders are permitted within reasonable limits. Events of force majeure and other events beyond the control of the ‘Loxone Electronics’, especially delays in the supply chain, entitle ‘Loxone Electronics’ to extend the delivery periods beyond 30 days and also gives Loxone Electronics’ the right to default on the contract. This applies even if events occur at a time in which ‘Loxone Electronics’ is already in default. For consumers, products will be delivered by a tracked and signed for delivery service (UPS). The goods remain the responsibility of Loxone until the point of delivery to the consumer. For trade purchases, all products goods are supplied Ex Works. As such transportation costs and risks are assumed by the buyer, even for partial deliveries. The risks are assumed by the buyer even if free delivery is agreed. Insurance of the goods in transit is only provided at the explicit request of the buyer and at the expense of the buyer. Risks are assumed by the buyer with the hand over of the goods to the courier or freight company and never later than the delivery of goods to the buyer or their representative. Regardless of the delivery location and regardless of the party covering the transport costs the assumed place of sale is always Kollerschlag, Austria. In case of export of the goods, the buyer is obliged to arrange the necessary export and customs authorizations at the buyers expense. ‘Loxone Electronics’ is not responsible for the legality of the export of the goods. If ‘Loxone Electronics’ through the dispatch, transport or export of the goods incurs any expenses or costs, the buyer is to compensate for these and indemnify Loxone Electronics.
The creation of bespoke plans and programs is based on the nature and extent of information provided by the client. All documentation provided is binding. This also includes test results that are appropriate and sufficient for the application in question and a test environment for additional test should these be required. All test results and a suitable test environment are to be provided in a timely manner and at the cost of the client. If the test environment is a live system that is already in operation it is the responsibility of the client to ensure a safe test environment and create backups of important data.
The basis for the creation of bespoke plans and programs is always a written functional specification that is prepared by Loxone Electronics based on information provided by the client or is prepared by the client themselves. Any cost estimates and offers are based on the functions outlined in the specifications. The specifications shall be verified by the client for accuracy and completeness and written consent to the specification is to be provided prior to the commencing of any work. Alterations or additions to the functional specification can lead to changes in delivery dates and separate pricing agreements for the work.
Bespoke plans and programs require formal acceptance no later than four weeks after delivery to the client. Acceptance of the work fulfilling the agreed specifications has to be in a written report by the client. (Checks for accuracy and completeness are to be carried out by the client based on the test information). Should the client let the period of four weeks come to pass without accepting the program, the supplied software is considered to be accepted at the end of this period. The use of any bespoke software provided by the client in a life installation will automatically deem the software to be accepted. Potential shortcomings, which are deviations from the written functional specifications, are to be well documented by the client and Loxone Electronics is to be notified about these immediately. Loxone is committed to take corrective action in the fastest possible manner. In case of major shortcomings that have been reported in writing, which prevent the start or continued life operation of a system, will require a renewed complete acceptance report of the whole system after corrective action has been taken. The client is not entitled to refuse the acceptance of software due to minor shortcomings.
On purchase of library (or standard) programs the client acknowledges the scope of the functionality of the software purchased and no acceptance report is required.
If it turns out in the course of the work that the execution the order as specified is technically or legally impossible, Loxone Electronics is obliged to notify the client immediately. If the client does not change the functional specification to an extend that enabled the execution of the order, Loxone Electronics reserve the right to refuse the completion of the work. If the cause of the impossibility is the result of incomplete, missing or inaccurate information by the client or due to a change to the original functional specifications by the client Loxone Electronics is entitled to refuse the completion of the work and cancel the order. Any costs incurred to date for the activities and associated expenses, as well as any dismantling are to be covered by the client.
Shipment of program carriers, documentation, and specifications is always at the expense and risk of the client. Insurance is only provided at the explicit request of the client and at the expense of the client
Loxone Electronics shall endeavor to meet the agreed dates for completion as accurately as possible. The target completion dates can only be met if the client provides all required information in a timely manner at the dates indicated by Loxone Electronics. This in particular, but not exclusively, applies to the acceptance of the functional specification at the agreed date and timely responses throughout the project. Delivery delays and cost increases that result from incorrect, incomplete, or subsequently amended data and information or documents provided by the client are not the responsibility of Loxone Electronics and cannot lead to Loxone Electronics being in breach of the contract. Any resulting additional costs are to be assumed by the client. For orders that include multiple units or programs, Loxone Electronics is entitled to make partial deliveries and to submit partial invoices.
Cancellation by the client are possible only with the written consent of Loxone Electronics. If Loxone Electronics agrees to the cancellation, Loxone Electronics has the right to charge a cancellation fee of up to 30% of unbilled contract value of the entire project in addition to any services already provided.
Right of Withdrawal
In accordance with the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, you have the right to cancel any order without giving a reason from the point of purchase until 14 days after receiving the goods. Cancellation must be made in writing (email, letter or fax) during this period. Please direct all cancellation requests to:
Smart Home 1
Fax: +43 7287 7070 999
Results of cancellation
In case of an effective cancellation the mutually received benefits are to be returned and any benefits (eg. interest) is to be surrendered. If you cannot, or only in part, or only return goods in a deteriorated condition, compensation for the received performance and benefits (eg. benefits of use) has to be made. Compensation for the deterioration and derived benefits, is only applicable to the extent of use or the deterioration due to use of the goods, beyond testing the properties and functionality. By “testing the properties and functionality” we refer to the testing and trying out the goods, as it would be possible and customary in a retail store.
Process of cancellation
After notifying us of your intent to return any items or cancel services, all items that have been part of the order have to be returned. Partial returns are not accepted. It is the responsibility of the buyer to pay for the return postage of the items and ensure their arrival (proof of delivery required). All returns have to be made within 30 days of stating your intention to cancel the order. A refund for the goods will be made within 14 days of receipt of the goods.
Varriations of cancellation peroid
In accordance with local regulations in countries other than the US the following notice periods apply:
- 8 business days: Canada and Mexico
6. GUARANTEE, LIABILITY AND DEALER REGRESS
The buyer is obliged to examine all goods and check for any defects or damage prior to accepting delivery of the goods. Mechanical damage, such as damage to the goods caused by transport must be reported to ‘Loxone Electronics’ within 24 hours following the receipt of the goods. All complaints and claims regarding incorrect quantities or missing items are to be reported to ‘Loxone Electronics’ by the buyer in writing immediately, and no later than 1 week following the receipt of the goods. Complaints about defects are no reason to withhold any payments. The conditions mentioned above do not apply if conclusive legal rules, e.g. general consumer rights or other local legistlations differ.
6.1. Warranty period
With new appliances, the guarantee period lasts 24 months, while with used ones the legal guarantee rights are excluded. This does not apply if something different was agreed upon in writing, or, if conclusive legal rules, e.g. for consumer shops, lay down a longer guarantee period. The guarantee period runs from the moment of the taking-over of the goods. Improvements or improvement attempts neither prolong nor interrupt the guarantee period. A relevant prolongation of the guarantee period only applies to the part repaired if conclusive legal rules, e.g. for consumer shops, preclude the exclusion of the prolongation or interruption of the guarantee period. An inhibition or interruption of the guarantee period only occurs, however, if a court enforces the guarantee claim or if ‘Loxone Electronics’ acknowledges the defect in writing. Improvement attempts are no acknowledgement and do not bring about a prolongation of the guarantee period. The same applies to improvements that were carried out in a fair manner, i.e. without the recognition of the legal duty. In the event of partial deliveries, the guarantee period starts with the delivery of the particular part.
6.2. Mode of complaints; Returns
The contract partner is obliged to enforce his guarantee or compensation claims exclusively by keeping to the mode of complaints as given in the following: to enforce one’s guarantee claims the number and date of the invoice, and the defect needs to be stated and is to be handed in/delivered free to ‘Loxone Electronics’/the service partner. In the event of sending the product complained about (Send-In Service), the costs for the transport to ‘Loxone Electronics’/the service partner will be borne and the risk of a possible loss or of a delay during the transport will be taken by the person enforcing the claim, and for that reason, concluding appropriate insurance is recommended.
If the mode was not kept as agreed upon, the claimed goods will be returned without being dealt with and a standard treatment fee amounting to $15.00 plus sales tax will be charged. If it turns out that no defaults are present on the claimed product or that the default data were given wrong, a standard fee for minimum treatment amounting to $15.00 plus sales tax will be charged. The contract partner is reserved the right to prove that either no costs or only a smaller amount arose. Above written procedure is valid for all returns.
6.3. Scope of warranty
In the event of a justified complaint about defect, ‘Loxone Electronics’ will first of all attempt to improve the faulty item, if need be, provide a replacement. If a complaint is made later than six months following the date of production, the amount of the possible repayment is calculated from the purchase price minus benefits of use. Only if the defect removal is refused unjustly in writing, despite the appropriate period, the contract partner is entitled to have the default removal carried out by a different company. All these rules do not apply if conclusive legal rules, e.g. for consumer shops, appoint differently. If conclusive legal rules, e.g. for consumer shops, provide for nothing to the contrary, the contract partner is in charge of the proof that the defect claimed was already present at the moment of the handing over of the item. This applies at any rate, i.e. also with consumer shops, to defects that only appear six (6) months following the delivery of the item. It is generally assumed that a defect complained about after the twentyfourth (24) month of the guarantee period is a matter of a common wear and tear that the contract partner/ultimate buyer is responsible for, and does not justify any guarantee claims.
6.4. Warranty for parts subject to wear and tear, wrongful use
Further, it is pointed out that for products, e.g. parts subject to wear and tear, the life of which is generally expected to be under the guarantee period mentioned above or under a guarantee period laid down by law, the guarantee claims cannot be fulfilled within the entire guarantee period. With accumulators, for example, the efficiency falls off after six (6) months of normal use, and therefore guarantee claims for accumulators, especially those concerning efficiency, can basically be accepted within six (6) months following the delivery. For the same reasons, guarantee claims concerning the picture quality of LCD displays cannot be accepted twelve (12) months following the delivery any more.
6.5. No guarantee claims can be accepted for products that
were damaged or made unable to operate
1) by using the product for a purpose for which they were not intended, non-observance of the notes for the user contained in the Instructions for Use and/or in the Guarantee Certificate or the repair and service card delivered together with the product, or by any other incorrect use of the product, e.g. if the contractually provided goods were operated together with such devices or programmes the compatibility of which was not explicitly confirmed by ‘Loxone Electronics’,
2) by changing the product,
3) by attempts to repair the product by a third person, i.e. not by ‘Loxone Electronics’ or a service partner authorised by ‘Loxone Electronics’,
4) by improper transport or improper package for the return of the product to ‘Loxone Electronics’ or a service partner of ‘Loxone Electronics’,
5) by improper installation of products provided by third persons (e.g. memory modules).
6.6. Cession of guarantee and compensation
The cession of guarantee and compensation claims and others is impossible. If the contract partner enforces guarantee claims or withdraws from the contract, he is to furnish ‘Loxone Electronics’ an appropriate compensation for the use as well as indemnification for the reduction in value of the performance.
6.7. Limitation of liability
Compensation and error appeal claims that result from a possible faulty delivery or an improper execution of another service of ‘Loxone Electronics’, e.g. in connection with carrying out guarantee repairs, are explicitly excluded; in particular any liability for loss of data and loss of profit of the contract partner. The liability exclusions or limits stated here apply to claims of the contract partner on the basis of the legal regulations that were issued in the explanation of the guidelines 99/44/EG of the European Parliament and the Council of the 25th May 1999 in the particular EU countries, e.g. they apply to the redress claim of the contract partner after the execution of the guarantee duty towards the user. The liability limits stated above do not apply in the event that the damage resulted from our intention or gross negligence; they do not apply to personal injury if a transaction for a delivery by a fixed date was agreed upon, further if damage results from the absence of a quality that we have guaranteed, and they do not apply to claims based on the law of product liability (see Point 8).
6.8. Warranty for contract partners
If the contract partner disposes of the goods obtained from ‘Loxone Electronics’ to an ultimate buyer, ‘Loxone Electronics’ may arrange – e.g. in the Service and Repair Sheet enclosed to the device – that possible guarantee claims enforced from ‘Loxone Electronics’ or a service partner by the ultimate buyer in the name or by order of the contract partner as his performance accomplice are arranged directly with the ultimate buyer provided that the guarantee claims enforced by the ultimate buyer do not exceed the claims that the contract partner is entitled to. If within the frame of the guarantee, the ultimate buyer/user lodges his claims directly against the contract partner, the ultimate buyer/user explicitly renounces any form of redress claims against ‘Loxone Electronics’.
Possible independent guarantee promises given to the ultimate buyer by ‘Loxone Electronics’, e.g. as a Guarantee Certificate enclosed to the product, are a “limited product guarantee”, which is independent of the guarantee claims of the buyer in the way they are stated under this point and those laid down by law in the particular countries – concerning this, see regulations in the following point 6.
6.9. Warranty for programming services and software products
Notices of defects are valid only if they concern defects that are reproducible and if they are submitted within 4 weeks after delivery of the agreed service or, in the case of custom-designed software, after acceptance of the program in accordance with point 4, and documented in writing. In fulfilment of the warranty, rectification of defects takes precedence over price reduction or rescission of the order. If the notice of defects is justified, the defects are to be remedied within an appropriate period of time, and the buyer is to make available to the seller all measures required by the latter to investigate the problem and remedy the defects. The presumption of defectiveness in accordance with § 924 of the ABGB is ruled out.
Revisions and additions, which, before the agreed work is handed over, prove to be necessary because of organizational deficiencies or technical deficiencies in the program, and for which the seller bears responsibility, are to be carried out free of charge by the seller.
The costs for support provided, diagnosis of errors, remedying defects and failures that are the responsibility of the buyer, as well as other corrections, revisions and additions are to be carried out by the seller and the costs charged to the buyer. This is also the case for the remedying of errors when program revisions, additions or other interventions have been carried out by the buyer himself or by a third party.
Furthermore, the seller assumes no warranty for defects, failures or damages that are due to improper use, altered components in the operating system, interfaces and parameters, the use of inappropriate organizational resources and data carriers, insofar as these are stipulated, unusual operating conditions (particularly deviations from the installation and storage provisions) or damage during shipment.
For programs that are subsequently altered by programmers of the buyer or by third parties, any existing warranty of the seller’s is no longer applicable.
Insofar as the subject of the order is the revision or supplementation of existing programs, the warranty covers the revision or supplementation. The warranty for the original program does not thereby again come into effect.
7. LIMITED PRODUCT GUARANTEE
If ‘Loxone Electronics’ guarantees certain goods to be free from defects in material and treatment given in the Guarantee Certificate enclosed to the product, under certain conditions for a guarantee period laid down, the guarantee is a limited product guarantee, which grants the buyer the rights stated in the guarantee declaration but which does not limit the lawful guarantee claims of users/consumers according to the legal regulations of the country in which the product was bought. The guarantee performance may only be enforced in that country in which it was first sold to an ultimate buyer. It is explicitly pointed out that all guarantee claims granted by ‘Loxone Electronics’ within the framework of a limited product guarantee, exclusively exist under the limits and exclusions referred to in the guarantee certificate and in the following:
a) No guarantee claims can be accepted for products that were damaged or made unable to operate 1) by using the product for a purpose for which they were not intended, non-observance of the notes for the user contained in the Instructions for Use and/or in the Guarantee Certificate delivered together with the product, or by any other incorrect use of the product, e.g. if the contractually provided goods were operated together with such devices or programmes the compatibility of which was not explicitly confirmed by ‘Loxone Electronics’,
2) by changing the product,
3) by attempts to repair the product by a third person, i.e. not by ‘Loxone Electronics’ or a service partner authorised by ‘Loxone Electronics’,
4) by improper transport or improper package for the return of the product to ‘Loxone Electronics’ or a service partner of ‘Loxone Electronics’,
5) by incorrect handling or as a result of mechanical load (such as percussions, dropping, high pressure or similar)
6) by improper installation of products provided by third persons (e.g. memory modules),
as well as for products that ‘Loxone Electronics’ obtained from a sub supplier about whose property court proceedings due to insolvency was initiated at the time of the enforcement of the guarantee claims, or such proceedings were imminent. The guarantee period is basically six (6) months for accumulators and twelve (12) months following the delivery for LCD displays.
b) Guarantee performance can only be claimed according to the particular mode laid down in the guarantee certificate: bring-in service, send-in service, etc. To enforce one’s guarantee claims, please have a look to the mode of complaints as stated in point 5.3.
c) If a complaint about defects is lodged within the framework of the limited guarantee during the guarantee period agreed upon, ‘Loxone Electronics’/the service partner will, at his own discretion, remove the claimed defects, exchange the faulty parts or issue a credit note about the purchase price; as far as the amount of a possibly issued credit note is concerned, see point Guarantee. The guarantee period will be neither prolonged nor interrupted by improvements or attempts to carry out an improvement. The enforcement of further claims by the buyer/user, particularly claims based on possible concomitant and resultant damage within the framework of the guarantee settlement is explicitly excluded, in any case, however, it is limited to deliberate or grossly negligent acting or default of ‘Loxone Electronics’. The fault is to be proved by the contract partner, as far as it is lawfully admissible. Possible claims are limited with the simple net value of the goods and the maximum sum amounting to a total of $5,000.00. A liability for the loss of business opportunities, data or programs and the loss of profit of the contract partner is excluded in any case.
8. INSTALLATION AND OTHER TECHNICAL REGULATIONS
When using the delivered or repaired goods, the installation, operation and other technical regulations as well as product specific instructions must be strictly observed. ‘Loxone Electronics’ cannot be held liable for damages of any kind that may arise due to overloading or improper handling, operation, installation, installation or the like. ‘Loxone Electronics’ cannot be held liable or provide any guarantee for the compatibility of their own products with third party products or systems. Furthermore, ‘Loxone Electronics’ liability for the violation of any warning or information requirements is limited to unless these were intentional or the result of gross negligence.
9. LIABILITY UNDER THE PRODUCT LIABILITY ACT
This is in accordance with the “Produkthaftungsgesetz (PHG)”.
The contract partner expressly waives the claim for compensation for damage to property suffered in the course of his business (§9 PHG). In the event that the contract partner sells the goods to another business, he agrees to make the other business aware of the above waiver in accordance with §9 PHG and to accept this. In the event that the contractor fails to make the other business aware of this, the contract partner commits himself to indemnify ‘Loxone Electronics’ and provide compensation for all costs arising in connection with claims of this liability. Should the contract partner himself, within the framework of the PHG, be asked for liability, he will explicitly waive any redress against ‘Loxone Electronics’.
10. COPYRIGHT AND USE
The seller or any licensors are entitled to all copyrights on the agreed services (programs, documentation, etc.). The buyer obtains only the right to use the software after payment of the agreed remuneration strictly for his own purposes, only with the hardware as specified in the contract, and, in accordance with the number of licenses acquired, simultaneously at different workplaces.
By this contract the buyer acquires merely the authorization to use the software. Further distribution of the product by the buyer is not permitted, as per the copyright law. The buyer does not by virtue of participating in the conception of the software acquire any rights beyond its use as set forth in this contract. Any infringement of the copyrights of the seller will result in the right to claim damages, in which case the seller is entitled to full compensation.
The buyer is permitted to make copies for archival and data backup purposes only on condition that the software does not contain an express prohibition on the part of the licensor or a third party and that all notices of copyright and ownership are transferred unchanged into these copies.
Should the disclosure of the interfaces be necessary to produce compatible third party software, the buyer is to request this of the seller with remuneration of costs. If the seller does not comply with this stipulation and decompilation follows in accordance with copyright la w, the results are to be used exclusively for the production of interoperability. Misuse will result in claims for damages.
11. RESERVATION OF TITLE; LIEN
All goods remain the property of ‘Loxone Electronics’ until all outstanding claims, no matter for what legal reasons (also from previous transactions), are paid in full. For purchases on account, the goods and the retention of the title over them acts as a security for outstanding balances. During the existence of the retention of title claim disposal, use, pledging of the goods, cession by security, or any other transfer or disposal of the purchased or repaired goods to a third party is not permitted, if this is outside of usual business activities. If the property is seized or damaged by a third party, it is the buyers responsibility to inform Loxone Electronics immediately. The buyer is obliged to cover the direct and indirect costs costs that may occur to recover or repair the goods, this includes any recovery proceedings, including costs of legal proceedings. The buyer is obliged to take due care of the goods belonging to ‘Loxone Electronics’ for the full time that the retention of the title lasts. In the event of enforcement of the retention of title claim, the buyer is to compensate for any possible reduction in value, regardless of who is to blame for the loss, and to pay an appropriate compensation for the use.
The buyer acquires no ownership of any products that result of installing or using of the goods, not wholly and neither in part. Such processing of the goods is undertaken with the understanding that all resulting goods still fall under the retention of title claim.
However, if the retention of title is declared void by any circumstances, then ‘Loxone Electronics’ and the buyer hereby agree that the title of any produced goods will pass to ‘Loxone Electronics’, which assumes full ownership of these. The buyer remains the gratuitous depositary. If multiple parties hold a retention of title claim over the newly created goods, then ‘Loxone Electronics’ assumes joint ownership of the new goods. The ratio of ownership and title in this case is to be based on the ratio of the invoice value of the goods delivered by ‘Loxone Electronics’ to the invoice value of other goods.
If despite the retention of title by ‘Loxone Electronics’ the buyer supplies the goods to their customer, he cedes all resulting claims against his customers, up to the height of the claims of ‘Loxone Electronics’, who herewith accepts this cession as security. The buyer hereby agrees that all receivables arising out of the supply of the goods covered by retention of title, including any processed goods, are to be directly transferred to ‘Loxone Electroncis’.
If the processed goods contain, in addition to the seller´s goods covered by retention of title, only such objects which either belonged to the buyer or were supplied only under so called simple retention of title, the buyer will assign the entire proceeds of sale to the seller. If, however, a number of suppliers have rights of assignment in advance to the same goods, the seller is entitled to a fraction of the receivables in the proportion of the invoice value of the goods supplied by the seller to the invoice value of the remaining goods.
If the contract partner does not meet any of his commitments or if he stops his payments, the outstanding debt becomes payable despite a later maturity of the bill of exchange. In this event, ‘Loxone Electronics’ is entitled to require the immediate return of the goods sold or repaired, while all rights of retention remain excluded. After taking these objects back, it is within ‘Loxone Electronics’s discretion either to sell the objects and to credit the achieved proceeds minus the sale expenses, to the contract partner to his other existing commitments, or to take back the goods at the purchase price minus a possible reduction in value.
To safeguard the claims of ‘Loxone Electronics’ including those of from unrelated legal transactions, ‘Loxone Electronics’ is entitled to keep back any goods supplied for repair until all open claims are settled, including the claims from the legal transaction in question. In any case, ‘Loxone Electronics’ is not obliged to carry out any repairs or replacements, even those that come within the product warrantyas long as the contract partner has not settled the open claims.
12. PAYMENT CONDITIONS
The bill is payable after reception, without discount or any other deductions. The payment objectives may be revoked by ‘Loxone Electronics’ at any time without giving any reasons. ‘Loxone Electronics’ is entitled to deliver the goods only with advance payment or COD. For the case of a delay, regardless of who is to blame, interests payable on arrears amounting to 1 per cent per month are agreed upon. The contract partner has to compensate for all costs arisen in this way, e.g. out-of-court costs for payment requests, collection and lawyer. Cession bans and analogously identical General Terms of Business (“AGB”) of the contract partner are ineffective. If a deterioration in the financial circumstances of the contract partner takes place, or if circumstances which could diminish his credit worthiness become known after the contract was concluded, all claims will become payable immediately. Further deliveries are only carried out against advance payment. We are also entitled to charge the payments already made to the costs incurred for interests, payment requests, collection and lawyer. In any case, the payments made will be basically charged for our oldest claims, regardless of the fact that the payment reason is explicitly different. Contrary remarks regarding this, on receipts or other documents of the contract partner will become ineffective. Employees of ‘Loxone Electronics’ are not authorized to receive payments unless the contrary is explicitly agreed upon in writing. The contract partner is not entitled to settle the claim of any possible kind, unless they are explicitly acknowledged by ‘Loxone Electronics’ in writing, or judicially established as legally valid. In the event of export business the contract partner is obliged to send all export and customs documents and others like that in the original back to ‘Loxone Electronics’, otherwise the contract partner is obliged to pay possible fees imposed. If there are more contract partners, they are liable jointly and severally.
Where orders encompass a number of units (e.g., computer programs and/or training sessions, completion in stages), the seller is entitled to submit an invoice after the delivery of each unit or service.
Payment on the agreed-upon dates is an essential condition for delivery and for fulfilment of the contract by the seller. Failure on the part of the buyer to comply with the agreed payment schedule entitles the seller to discontinue current work and to withdraw from the contract. All costs connected therewith as well as loss of profit are to be borne by the buyer. The buyer is not entitled to withhold payment because of incomplete total delivery, guarantee or warranty claims, or complaints.
13. LOYALITY, PROTECTION OF DATA PRIVACY, NONDISCLOSURE
The parties to the contract obligate themselves to reciprocal loyalty. They will not hire away staff or employ, including by way of third parties, staff of the other party to the contract who have worked on the realization of the projects, during the duration of the contract or for 12 months after the end of the contract. A party to the contract in violation of this clause is obliged to pay lump-sum damages in the amount of one annual salary of the employee.
The seller obligates his employees to observe the provisions of §15 of the Data Privacy Law. Read more in our data privacy statement.
14. COURT OF JURISDICTION, APPLICABLE LAW, OTHER REGULATIONS
Austrian law applies to all disputes arising from this contract the applicability of the UN purchase right becoming explicitly excluded. The ineffectiveness of particular regulations does not affect the effectiveness of the other regulations of these terms of business. As far as the ineffective regulations are concerned, the parties to the contract enter an agreement to close the regulation loophole by means of the regulation closest to the ineffective one. For consumer shops according to the regulations of consumer protection law, the General Terms of Business are effective to the extent that they do not limit the conclusive regulations for consumer shops according to the legal regulations of the country in which the product was bought. The parties to the contract agree upon the cognizant courts in Linz, however, ‘Loxone Electronics’ is entitled to file complaints with other courts provided that another court of jurisdiction is given.