General Terms and Conditions of Business and Delivery
1. General:
These terms and conditions of business are an integral part of every product and service we offer and every legal transaction with TISUN® GmbH (referred to as TISUN® henceforth). Other agreements, especially contradictory oral arrangements, are only legally binding if confirmed in writing. General terms and conditions of business, regardless of the type, that conflict with these terms and conditions of business shall be considered invalid and therefore do not form part of the agreement. If individual provisions in this agreement prove to be legally invalid, the remaining provisions are not affected.
2. Products and services:
Products and services offered by TISUN® are subject to confirmation. We reserve the right to make changes to products due to technical developments. All technical documents are intellectual property of TISUN®.
3. Orders:
Telephone orders are only accepted at the risk of the contract partner and subject to the currently applicable general terms and conditions of business. Direct orders by the contract partner become legally binding on sending the order confirmation or the delivery slip. Oral agreements, promises etc. including those of representatives and other company employees of TISUN® require written confirmation before becoming legally effective. Special requests and guarantees of special properties which vary from standard offers must be agreed in writing.
4. Prices:
Unless otherwise agreed in writing, prices are net prices ex works, not including packaging and not including discounts. They are guideline prices unless a fixed price has been expressly agreed in writing. If material costs increase in the period of time between bid quotation and signature of the contract, the prices shall increase accordingly, provided that the time between order placement and provision of the service is over two months. All products and services above and beyond the original subject of the contract must be paid for in accordance with the actual cost. Any price reductions agreed shall only be applicable if all ordered goods are purchased.
5. Delivery/provision:
Delivery is made at the contract partner's cost and risk. The risk and price hazard shall be passed on to the purchaser with the transfer of the goods to the freight carrier or forwarding agent. The contract partner is aware that delivery – also if this should be made directly by TISUN® – requires an access road that can accommodate a heavy truck. The contract partner shall also pay for and obtain any premissions and traffic safety measures that may be required. If these requirements are not fulfilled by the specified delivery address, the contract partner has to bear any resulting additional costs. Delivery will be made to the address of the contract partner unless agreed otherwise. If the delivery address should change after conclusion of the contract, TISUN® is entitled to charge the contract partner the extra cost incurred (travelling expenses etc.). The contract partner undertakes to provide staff to unload the goods, particularly if products are very heavy or bulky. The contract partner is required to store the goods separately from the goods supplied by other vendors and identify them as TISUN® products. The delivery periods are subject to correct and punctual delivery by sub-suppliers. Delivery periods are never binding unless a fixed date is expressly agreed. They begin on receipt of the order confirmation or on the day of agreement by the sales staff, but never before clarification of all execution details. Failure of the contract partner to provide information about the latter in good time, will mean that the contract partner will also have to bear responsibily for resulting delays in delivery and TISUN® shall be freed from any claims for liability. The same shall apply for fixed dates. If no other agreements are made, delivery periods are quoted from the shipping location by TISUN®. If the agreement is changed retrospectively, TISUN® is entitled to fix a new date of delivery. The goods shall be considered to be delivered on time even if these are not fetched immediately after notification of readiness for shipping on the delivery date. If this occurs, TISUN® is entitled to store the goods at the cost of the customer. TISUN® is not liable for delivery delays not caused by the company or due to slight negligence. In this case, the contract party waives the right to withdraw from the contract and to assert claims for damages. The contract partner is liable for delays in the provision of the service caused by themselves and must bear all resulting additional costs. These costs can be invoiced separately. Natural catastrophes, labour disputes, sovereign acts, war, riots, traffic impediments and other unforseeable events, etc., release TISUN® from the obligation to deliver for the duration of their effect, or entirely, if delivery becomes impossible.
6. Shipping costs:
All shipping costs must be borne by the contract partner, unless other agreements are made.
7. Transport damage:
The contract partner bears the costs resulting from transport damage due to force majeure and other risks excluded from the indemnity insurance of the freight carrier or forwarding agent. The contract partner or recipient is obliged to check the condition of the goods together with the delivery company on receipt. In case of externally visible damage or short delivery, written reservation has to be indicated on the delivery slip or shipping document and confirmed by signature of the delivery company. Not immediately recognisable short deliveries or damages have to be reported in writing to the delivery company as well as to TISUN® not later than within three days after acceptance of the delivered goods, otherwise all claims for compensation are void. If the contract partner fails to fulfil these inspection and notification obligations, the contract partner has to make any claims for compensation directly to the delivery company. In this case, TISUN® shall transfer its claims from the shipping or transport contract to the contract partner if requested. In case of properly certified transport damage, the contract partner is required to report the damage immediately upon receipt of the goods to TISUN® in writing, otherwise claims for compensation are lost. Claims against third parties resulting from this damage must be ceded to TISUN® on request. If it should not be possible to make a claim for compensation from the delivery company because the contract partner reports the damage late, or if the claims are void as a result of the statute of limitations, TISUN® is released from any liability for compensation to the contract partner.
8. Complaints and warranty:
The contract partner or recipient of the goods is obliged to inspect all of the goods for any deficiency after delivery of the goods and to report these in writing to TISUN® not later than within 3 working days after delivery. The warranty to the contract partner shall become void if this stipulation is not fulfilled.. If a deficiency is recognised at a later stage, but before expiry of the warranty period, the contract partner is required to report this in writing to TISUN® within one week after discovery and to refrain from any further processing. If no report is sent within the period set, the goods shall be considered approved. In deviation from legal regulations, it is hereby agreed that the warranty period shall expire two years after the issue date of the invoice. If materials of the tanks in the TISUN® product range should demonstrably fail to meet the requirements of the standard EN 12975, free of charge repair shall be conducted, or if this is not appropriate, the tank concerned shall be replaced at no extra charge, within a period five years after invoice issue date. This shall not apply in case of incorrect assembly and installation, exceeding the permitted operating pressure and improper use. If collectors in the TISUN® product range should lose functionality within ten years after the relevant invoice issue date, TISUN® shall be committed to restore the collectors. This excludes all damage, malfunctions and changes attributable to incorrect assembly and installation, mechanical stress, force majeure and weather-related influences (e.g. broken glass in collectors) as well as operating and maintenance errors. This special regulation for collectors shall also not apply for minor variations in colour, decrease in performance and damage and changes to the surface that have no effect on the functionality of the collector. All warranty and claims for damages including claims from the special regulations for collectors and tanks in the TISUN® product range shall become completely void, if assembly and start-up installation was not carried out by an authorised specialised company (installer), with observation of the respectively applicable assembly and operating instructions, if TISUN® or those appointed by the company were not given an opportunity to inspect the claimed deficiencies on site immediately after their occurrence, if no evidence of proper start-up and conduction of annual inspection and maintenance by a specifically authorised specialist company can be supplied, if the protective anode of all domestic hot water tanks was not checked by an authorised specialist
company every year and found to be functional, if a protective anode is missing or the permitted operating pressure is exceeded, if oxygen is present in the heating system, if finned tube heat exchangers are utilised without installed electrical separations, if the original TISUN® frost protection and the hydraulic connection and expansion sets with expansion compensation are not used. To ensure full functionality of the solar system, TISUN® recommends conduction of a solar check by TISUN® or an authorised TISUN® partner at least once a year. No changes may be made to the subject of complaint without express written approval, or the warranty claims become void. Warranty is provided at the discretion of TISUN® in the form of repair or replacement of the subject of complaint. Replaced parts and products become property of TISUN®. There is no entitlement to conversion or price reduction, unless the deficiency cannot be rectified within a reasonable period. Any labour costs associated with replacing the goods and the costs of finding the fault shall be borne exclusively by the contract partner. No liability for production- and material-related variations in colour is accepted. If the TISUN® products are installed in other systems, these are required to comply with the technical standards in our enclosed product descriptions and operating instructions or the warranty becomes void. Damage resulting from improper treatment by the contract partner or the contract partner's assistants is excluded from the warranty. The right of recourse in accordance with § 933b ABGB (Austrian Civil Code) between the parties to the contract is excluded.
9. Exclusion of liability:
No liability whatsoever is accepted for consequential harm caused by a defect. TiSUN will not accept liability for correct static execution of the base and the on-site frame.
10. Product liability and compensation:
TISUN® shall not accept liability for the correctness of data on handling, operating or running contained in brochures, technical descriptions or other directions of the manufacturers. Resulting damage is the liability of the manufacturer and/or importer and all claims must be made to him/them. TISUN® undertakes to cede any claims for compensation resulting from the contractual relationship with the importer or manufacturer to the contract partner on request. The contract partner waives the right to claim compensation for follow-on damage and to claim for lost profit from TiSUN®, if TISUN® is not responsible for either intentional or grossly negligent action. TiSUN® points out that no solar Keymark certification is avaialble for custom size collectors.
11. Returning delivered goods:
Returns of non-defective goods are only accepted in special cases and after prior written approval. Custom
productions, special orders, products that are not in the original packaging or damaged cannot be taken back at all. The return delivery has to be sent with shipping paid and at the risk and cost of the contract partner to the TISUN® delivery warehouse. Credit for returned goods in perfect condition will be calculated based on the invoice amount and the remaining value of the goods minus handling fees of 15% of the net value of the goods.
12. Payment:
If no other agreements were made, all payments must be made immediately. The full amount must be paid by credit transfer, including all transaction fees. If a discount is granted, all previous invoices must be paid to entitle the customer to deduct the discount amount. Cheques and bills of exchange will only be accepted if agreed separately and only as payment, not in full discharge of the obligation. All recovery and discount charges are payable by the contract partner. Payments must be made relieving debt only to the account specified in the order confirmation or invoice or to a person with the authority to collect. Sales tax on the entire price must be paid in full after billing unless other terms and conditions of payment were agreed correcting the purchase price.
13. Late payment:
If the payment target is exceeded, if payment is received late or if deadlines are not met, late charges calculated at 5% above the rate set by the Austrian National Bank will be levied. We reserve the right to claim for damages beyond that. f the contract partner makes a late payment, TISUN® is entitled to demand immediate settlement of all outstanding payments. This shall apply even if a deferral was agreed before. TISUN® is furthermore entitled to demand advance payment and sureties for outstanding deliveries, without affecting other rights. All dunning and collecting charges incurred, as well as legal costs, have to be paid by the contract partner. The latter agrees that incoming partial payments will first be used for costs and dunning fees, then interest and other additional fees, and finally for the principal purpose.
14. Retention of title:
All delivered, installed or otherwise supplied products shall remain property of TISUN® until full payment of all
demands. If goods subject to retention of title are processed with goods belonging to others, title is not lost. Instead, the new item becomes joint property, to a value in proportion to the value relationship of the processed goods at the time of processing. If the goods under retention of title are sold on, the contract partner cedes the resulting claims from the purchaser(s) to the amount of the value of the sold goods under retention of title as surety to TISUN®. Until revocation at any time, the contract partner is entitled to collect amounts due ceded to TISUN® as surety. However, the contract partner may not cede these to third parties. On request by TISUN® the contract partner is obliged to inform his buyer of the cession and to tell him that the buyer can only discharge his debts by paying TISUN®. The agreed cession of claims does not release the contract partner from on-time payment of all claims. The contract partner is obliged to inform TISUN® immediately about seizure of the goods under retention of title.
15. Place of performance and jurisdiction:
Place of performance for both parties is the headquarters TISUN®. For all legal disputes between TISUN® and the contract partner, regardless of the amount in dispute, the sole competent court shall be the district court of Kufstein (Bezirksgericht Kufstein) in accordance with § 104 JN (Austrian Code of Judicial Organisation) or Article 23 of the Council Regulation (EC) No 44/2001 (EuGVVO). This also applies to law cases concerning bills of exchange and cheques.
16. Applicable law:
The contract parties agree that only Austrian law will be applicable for all legal transactions with TISUN® including the matter of the coming into existence of the contract. The application of the provisions of the United Nations convention on contracts on international purchasing is excluded on mutual agreement.
17. Data storage:
The contract partner agrees that his data shall be recorded, stored and processed electronically where necessary for business, and in accordance with the data protection law.
18. Trademark protection:
TISUN®, the TISUN® logo, TISUN®.com and Pro-Clean® are trademarks or registered trademarks of the TISUN® group of companies in Austria and/or other countries. All rights of use and marketing of the trademarks are exclusively reserved for TISUN® Brand GmbH (HYPERLINK www.TISUN.com/brandguide www.TISUN.com/brandguide).
19. General:
TISUN® reserves the right to make technical changes to the offered products. No rights whatsoever can be derived from any setting and printing errors in the price lists. Images shown therein are symbolic photographs. Product prices are net prices excluding value-added tax. Prices are subject to change. Prices quoted without specification of quantity are prices per piece.
Version 09/2009 – © TISUN® GmbH, Photos: TISUN® GmbH, Thomas Kirschner