General Terms & Conditions (T&Cs)

 



I. Preamble

In all clauses of these General Terms and Conditions (short: T&Cs) the expression “contracting partner” always refers to the natural or legal person staying in business relationship with iLLUMiNNO GmbH (short: iLLUMiNNO).

 

II. Application (Validity)

Deliveries, deliverables and offers of iLLUMiNNO are executed solely on the basis of these T&Cs; varying or contradicting conditions of the contracting partner are only applicable if explicitly accepted in writing; particularly any action of contractual performance is not deemed as acceptance of the terms and conditions of the contracting partner. The existing T&Cs are the basis for every future business contact between iLLUMiNNO and the contracting partner.

 

III. Conclusion of contract and obligation to deliver

The confirmation of order in writing shall be authoritative for the scope of obligation to deliver. All orders shall only be deemed to be accepted if they were confirmed in writing (mail, fax, e-mail), respectively were conducted accordingly. The dispatch of ordered goods effects the conclusion of the contract. An obligation to deliver does not exist till the contracting partner has fulfilled all its duties necessary to conduct delivery; particularly not till any technical and contractual details, preliminary inputs and preparatory measures are fulfilled. Ancillary agreements, exceptional conditions, and subsequent amendments to the contract require confirmation in writing.

 

IV. Delivery, default of acceptance

Delivery is carried out to the delivery address mentioned by the contracting partner. Unless otherwise agreed upon in writing place of performance is the registered office of iLLUMiNNO. From handing over the goods to the carrier the goods shall be transported on the account and at the risk of the contracting partner. In case iLLUMiNNO choose the carrier the kind of transportation is deemed to be accepted by the contracting partner. Insurance for deliveries shall only be effected on explicit request by the contracting partner, and on its account. The weights determined at the point of departure shall be regarded as binding for both parties. Marginal and for the contracting partner reasonable alterations of the obligation to deliver and perform are deemed to be accepted in advance.

The contracting partner is obliged to accept the delivery at the agreed date. In case of default of acceptance the risk of loss passes on to the contracting partner and iLLUMiNNO is authorized either to store the goods and charge 0.2 percent of the gross invoice amount per commenced day or to have the goods stored on the account and at the risk of the contracting partner. Irrespective of the above iLLUMiNNO is authorized, after setting a reasonable period of grace, to either 1) demand the purchasing price (without the contracting partner having the right of delivery-versus-payment defence) or 2) to withdraw from the contract and utilize the goods elsewhere.

In the event of default of acceptance or unjustified reshipment of goods free of defects the contracting partner has to bear all resulting costs (as for example costs of shipment, appropriate storage costs, additional packing costs, etc.) and any income deficit. Reshipment shall not release the contracting partner from its obligation to pay. iLLUMiNNO is entitled to all rights due to default of acceptance even without reminder or setting a period of grace if the contracting partner has submitted an application for composition proceedings, or if he or one of his creditors files a petition for bankruptcy.

Unless otherwise agreed in writing, call-up orders or master orders shall be fulfilled within one year from the date the confirmation of order has being issued. iLLUMiNNO notifies the contracting partner of the maturity date by letter, fax or e-mail. Merchandise not called up till maturity date shall be stored at the expense and risk of the contracting partner and iLLUMiNNO is entitled to charge the above mentioned (paragraph 2) storage costs and incurring charges for outstanding accounts on the basis of the invoice value of the goods not called up.

After further 8 weeks have expired, iLLUMiNNO is entitled to utilize the merchandise elsewhere, and to charge the contracting partner accrued interest, storage costs, and all charges incurred, as well as any income deficit.

 

V. Terms of delivery

Delivery deadlines shall only be deemed as legally binding if set down in the confirmation of order and confirmed by us in writing as "fixed" or "binding". Marginal exceedances of delivery deadlines has to be accepted by the contracting partner, without any claim for damages occurred. In the absence of any agreement, delivery deadlines shall remain subject to review.

The delivery deadline shall prevail, unless circumstances occur which are unforeseeable or beyond the will of the contracting parties; such as all instances of force majeure, armed conflicts, interventions and prohibitions on the part of official bodies and authorities, delays in respect of transport and customs clearance, damage in transit, energy and raw material shortages, or furthermore rejection of a substantial or significant part of the work, labour disputes, or the loss of a major sub-contractor who is difficult to replace. In the event of such circumstances – even if they happen in the sphere of a sub-contractor – iLLUMiNNO shall be authorized to either postpone the delivery for the period of the impediment or withdraw from the contract due to impossibility of fulfilment.

In the event of the agreed delivery deadline being exceeded by more than 6 weeks due to demonstrable fault of iLLUMiNNO alone, the contracting partner shall be entitled to withdraw from the contract. Precondition to the right of rescission is the notification by the contracting partner of his intention to exercise the right of rescission at least 21 days prior to exercise thereof.

 

VI. Price

Unless otherwise agreed in writing, prices of iLLUMiNNO shall be understood as ex-works (EXW, Incoterms 2010) registered office iLLUMiNNO, plus packing, in Euro (EUR) and excluding statutory Value Added Tax.

Prices are based on the cost situation and rates of exchange at the time of confirmation of order. In the event of cost changes – for instance of wages, materials, utilities, transportation, external services, finance, etc. - and/or changes in the rates of exchange arising till the date of delivery iLLUMiNNO shall be entitled to effect a commensurate price adjustment.

In the event the business transaction being concluded in a foreign currency, the conversion shall be effected on the basis of the rate of exchange for the foreign currency as published by the Austrian National Bank on the date of confirmation of order or on the date of delivery - at the discretion of iLLUMiNNO - whereby the contracting partner shall bear the exchange rate risk and the accruing bank service charges.

If it is not possible to comply with the agreed method or channel of payment the contracting partner shall be obliged to inform iLLUMiNNO thereof immediately in writing and to present suggestions for handling the payment. Thereafter payment shall be effected at the discretion of iLLUMiNNO.

 

VII. Terms of payment

Unless agreed otherwise in writing, payments shall be effected exclusively to the payment agencies and in the currency designated on the invoice. Unless otherwise confirmed, invoices shall be paid within 12 days of the date of invoice without any deductions. Costs of money transfer and accruing bank charges shall be borne completely by the contracting partner. Cash discounts require a separate agreement. In the event of default of payment – also with partial payments – all cash discount agreements become void. Payments of the contracting partner shall only be deemed as effected when the amount has been credited to the payment agencies.

In the event of payment being made by bills of exchange or other forms of payment order, the costs for discounting and collection shall be borne by the contracting partner. Bills of exchange shall be accepted only with prior agreement in writing; but in any event only subject to the possibility of discounting and only for the purpose of payment. Payment by bill of exchange shall not be deemed as cash payment.

The contracting partner shall not be entitled to withhold or offset payments without prior consent in writing; even on the grounds of complaints regarding the delivery. The contracting partner has to assert any possible claim separately or by means of legal action.

In the event of contract violation through the contracting partner, particularly in the event of default of payment or acceptance, deterioration of the financial situation of the contracting partner or difficulties in effecting payment (for instance bill of exchange proceedings with third parties, judicial attachment of the purchaser's assets, etc.) iLLUMiNNO shall be entitled to adapt the terms of payment for each business case (present and future) at any time, on its own initiative and by unilateral declaration, demand immediate payment of all outstanding invoice amounts, even if they have an agreed or postponed payment date, and to demand cash payments or sureties against the return of the bills of exchange accepted for payment.

 

VIII. Default of payment

In the event of default of payment, irrespective of fault, the contracting partner is obliged to pay default interest (including compound interest) of one percent per month and bear all reminder charges and expenses of collection. The right to assert further claims reserve unaffected.

Default of payment of the contracting partner releases iLLUMiNNO from every duty of delivery and service and entitles it to withhold deliveries, to demand advance payment or sureties or alternatively to withdraw from the contract if the appropriate period of grace has expired.

 

IX. Rescission of contract

Default of acceptance or payment by the contracting partner or other good reasons, like particularly deterioration in the financial situation or insolvency of the contracting partner or if a petition in bankruptcy has been dismissed entitles iLLUMiNNO to withdraw from the contract and releases it from every duty of delivery and service. In the event of rescission of contract the contracting partner is obliged, irrespective of fault, to pay lump sum damages of 15 percent of the gross invoice amount. Damage which exeeds the contractual penalty has to be compensated as well.

If the contracting partner withdraws unjustified or requests to withdraw from the contract it is at the discretion of iLLUMiNNO to either insist on the fulfilment of the contract or to accept its rescission; the second obliges the contracting partner - at the discretion of iLLUMiNNO - to either pay lump sum damages of 15 percent of the gross invoice amount or to reimburse the actually occurred damage.

 

X. Expenses of reminders and collection

In the event of default of payment the contracting partner is obliged, irrespective of fault, to reimburse iLLUMiNNO the actually occurred expenses of reminders and collection, as far as they are inevitable to assert the legal rights and appropriate in relation to the outstanding receivables. If iLLUMiNNO pursues the dunning process on its own the debtor is obliged to pay EUR 15,- for each effected reminder and to keep the obligation on file EUR 10,- for each started quarter. Beyond that every additional damage, in particular the damage resulting from higher interest on bank accounts, has to be reimbursed, irrespective of fault for the default of payment.

 

XI. Warranty (defects liability)

The technical information provided by iLLUMiNNO is regarded as approximate. The right to effect modifications or design improvements at any time is reserved.

Complaints regarding the quality, type, or quantity of merchandise has to be submitted immediately on receipt of the goods in writing. In the event of any modifications to the merchandise by the contracting partner any obligation of warranty expires.

A warranty period of six months from delivery shall be deemed to be applicable. The contracting partner is obliged to prove the defectiveness of the goods at the time of delivery. Claims of recourse due to warranty granted by the contracting partner to his customers are excluded.

Items which are subject of complaint shall be returned carriage and postage paid or made available for inspection (at discretion of iLLUMiNNO). In the event of a complaint being justified, iLLUMiNNO, upon return of the defective items, provide replacement or carry out rectification of the defect free of charge and carriage paid. Claims for rescission of contract or for reduction of the purchase price may be asserted only if neither rectification nor replacement is possible. iLLUMiNNO will rectify the defect if this should not be impractical. In the event of impossibility or impracticality of rectifying the defect, in particular if this would entail disproportionate expense, iLLUMiNNO shall be entitled to settle the warranty claims by a reduction in price, or to withdraw from the contract, at its discretion, in which case performance and counter-performance is returned.

Liability in respect of defects shall not comprise natural wear and tear, damage resulting from incorrect or negligent handling, storage, or excessive strain through human, natural, chemical or electrical influences, which occur without fault of iLLUMiNNO or its suppliers.

The contracting partner acknowledges and agrees that, in the event of assertion of a warranty claim by the contracting partner, iLLUMiNNO shall be entitled to transfer remedying of the asserted defect to an expert company being named by iLLUMiNNO, with all rights and obligations and full debt discharging effect.

 

XII. Compensation for damages

iLLUMiNNO shall only be liable for damages if the complainer can prove intentional damage or gross negligence; this is not applicable to injuries to persons. An entitlement to damages expires after 6 month from notice of damage and its causer, in any case after 7 years from delivery or performance.

Liability for minor negligence, compensation for consequential loss, such as unrealised profits, savings not achieved, loss of interest, expenses resulting from production downtimes or shutdowns, expenditures for additional work by the contracting partner and concomitant expenses, etc., as well as compensation for financial loss and damages arising from third-party claims against the contracting partner shall be excluded.

 

XIII. Product liability

Claims of recourse in terms of § 12 Produkthaftungsgesetz (Austrian Product Liability Act) are excluded, except the legitimated person for recourse proves that the damage has been caused in the sphere of iLLUMiNNO and with gross negligence.

 

XIV. Retention of title

iLLUMiNNO retains the ownership of delivered products until receipt of all payments deriving from the contract. In case of behaviour by the contracting partner which is contrary to contract, in particular default of payment, iLLUMiNNO shall be entitled, after expiration of a reasonable period of grace, to recover the delivered object; the contracting partner is obliged to return it.

In the assertion of the right of retention of title a withdrawal from the contract is only intended if explicitly expressed. In case of redemption of the goods iLLUMiNNO is entitled to charge accrued costs for shipping and handling. If a third party tries to get access to the goods, especially concerning mortgages, the contracting partner is obliged to inform the third party of the ownership of iLLUMiNNO. Unless the third party does not reimburse iLLUMiNNO for any costs of judicial and extrajudicial assertion of rights the contracting partner is liable for this amount.

Provided that commerce with goods of iLLUMiNNO is part of its every day business the contracting partner is authorized to sell the goods during his ordinary course of business; contrary to that the contracting partner is not allowed to dispose of the goods - in particular to sell, mortgage, lend, donate or give away the goods - until the purchasing price is fully settled. The contracting partner bears all risks in respect of the goods, particularly the risks of destruction, loss, accidental damage and theft.

 

XV. Assignment of receivables

Until the purchasing price is fully settled the contracting partner assigns all receivables against his customers or third parties (up to the gross invoice amount) deriving from reselling the goods – irrespective if the goods were sold without or after further processing - on account of payment to iLLUMiNNO. The contracting partner is authorized to collect the receivables. iLLUMiNNOs entitlement to pursue the collection on its own remains unaffected thereby; it is guaranted not to exercise this right as long as the contracting partner meets all its obligations and is not in default of payment. If this is the case, the contracting partner is obliged - on request of iLLUMiNNO - to 1) disclose the receivables assigned and its debtors, 2) submit all relevant data for collection, 3) deliver all corresponding documents and 4) inform concerned third parties of the assignment.

The assignment shall be recorded in the business accounts, particularly on the open item list and shall be mentioned on delivery receipts and invoices. In the event the contracting partner is in default of payment, the incoming sales revenues shall be separated and held on behalf of iLLUMiNNO. Any claims against insurance providers are deemed to be, within the limits of § 15 Versicherungsvertragsgesetz (Austrian Insurance Contract Act), assigned to iLLUMiNNO.

The processing or transformation of the object of supply by the contracting partner will always be undertaken on behalf of iLLUMiNNO. In the event the object of supply being processed with other objects not belonging to iLLUMiNNO, iLLUMiNNO shall acquire joint ownership of the new item in proportion of the value of the object of supply to the other processed items at the time of processing. The same conditions apply to the item created by the processing as to the goods subject to retention of ownership.

In the event the object of supply being inseparably connected or mixed with other objects not belonging to iLLUMiNNO, iLLUMiNNO shall acquire joint ownership of the new item in proportion of the value of the object of supply to the other connected or mixed objects at the time of connecting or mixing. If the connecting or mixing takes place in such a manner that the item belonging to the contracting partner is to be regarded as the main item, then the contracting partner shall assign joint ownership to iLLUMiNNO in due proportion. The contracting partner shall safeguard the right of full ownership or joint ownership on behalf of iLLUMiNNO.

In order to secure claims, the contracting partner also assigns to iLLUMiNNO the claims accruing to it from the connection of the object of supply to a piece of real estate.

 

XVI. Applicable law and place of jurisdiction

Only Austrian Law shall be applicable; excluding provisions governing conflicts of Laws. Language of contract shall be German or English. The factually competent court at the registered office address of iLLUMiNNO shall be locally competent for jurisdiction of all disputes arising from the contractual relationship, and for procedures deciding claims arising from bills of exchange.

iLLUMiNNO shall also be entitled to assert claims before the factually and locally competent authorities and courts at the address of the contracting partner.

 

XVII. Change of address

The contracting partner is obliged, as long as the contract is not mutually fulfilled completely, to inform iLLUMiNNO of any change of address. Without notice all correspondence shall be deemed as delivered if sent to the last mentioned address.

 

XVIII. Copyright

Plans, drafts, cost estimates or any other technical documentation as well as any samples, catalogues, brochures, images, presentations or the like remain intellectual property of iLLUMiNNO; the contractual partner or any third party does not obtain any exploitation right. Any usage, in particular any transmission, duplication and publishing require explicit approval.

 

XIX. Obligations deriving from the contract

In the event of individual provisions of these T&Cs being rendered invalid, in whole or in part, the validity of the remaining conditions shall not be affected thereby. The invalid provision shall be replaced by that which most closely resembles its desired effect.

 

XX. Legal succession

Any rights and obligations deriving from a contract devolve without notice of the contracting partner to the extent and according to § 38 para. 1 UGB (Unternehmensgesetzbuch, Austrian Business Enterprise Code) to a singular legal successor. The contracting partner waive his right of objection according to § 38 para. 2 UGB. Consequently the duration of iLLUMiNNOs liability is limited according to § 39 UGB.

 

XXI. Concluding Provisions

Additional and ancillary agreements require written form with original or secure electronic signature to constitute a valid agreement; this shall also apply to the waiving of the formal requirement of written form.