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General Terms & Conditions of BSH Hausgeräte GmbH (GTCs)

I. General
  1. The present General Terms & Conditions in their respectively valid version apply to all sales by BSH Hausgeräte GmbH (BSH). For the duration of existing or ongoing contractual relations, they will apply even if an order is made without reference to these General Terms & Conditions.
  2. BSH considers these GTC an integral part of every order. Differing or supplementary conditions will be binding only if submitted to BSH management in writing and approved by the same. If a party placing an order unilaterally rejects the applicability of these GTC, BSH shall be entitled to withdraw from the contract.
  3. The respective valid version of the General Conditions of Delivery of Electrical Wholesalers in Austria will be only subsidiary in applicability to the GTC of BSH.
  4. The "Joint Guidelines of the Association of the Austrian Electrical and Electronics Industries (FEEI) and the Austrian Federal Radio and Electrical Retailers' Committee for the Processing and Remuneration of Warranty Services for End Consumers" will also be only subsidiary in applicability to these GTC.
II. Contract Closing
  1. The contract between the party placing an order and BSH will enter into effect as soon as, following receipt of an order, a written order confirmation was sent or delivery was made.
  2. Orders will remain binding for the party placing them for at least one month following their receipt by BSH. If an order confirmation deviates from the order placed, the content of the confirmation will apply unless written objection is made without delay. If such objection is made, goods delivery may be stopped without further notice to the ordering party. The ordering party can not derive any claims from such delivery refusal.
III. Delivery
  1. All delivery times specified are non-binding. An ordering party may withdraw an order only after an explicitly determined and acceptable extension period has expired without delivery of the ordered goods. For technical reasons this extension period may not be shorter than one month.
  2. If stated delivery times cannot be met due to production or operational stoppages occasioned by force majeure, the delivery time must be extended by a commensurate period. Force majeure includes such "acts of God" as extraordinary natural events, war, unrest, shortages of power or raw materials as well as operational disruption, including in supplier enterprises. The ordering party may exercise its right of rescission only after expiry of an appropriate extension period set by it.
  3. If, at the request of the ordering party, delivery or dispatch of the goods is delayed by more than a month after notice that the goods are ready for forwarding has been given, the ordering party may without separate notification be charged a storage fee of 0.5% of the purchase price of the ordered goods or, in the case of part-deliveries, 5% of the purchase price of non-delivered goods, for every (part-) week after the notice of dispatch-readiness. This storage fee may not, however, exceed 10% of the purchase price of the goods. This will not apply if proof of higher storage costs is provided. In this case, the ordering party will be charged the higher storage costs. In addition, after a period of five months, BSH reserves the right to both withdraw from the order and charge the ordering party not only the accrued storage costs, but also a cancellation fee in the amount of 30% of the purchase price of the goods or, in the case of part delivery, of the purchase price of the remaining goods. The non-delivered goods may then be sold to third parties without the ordering party gaining any calculable advantage therefrom.
IV. Prices
  1. Unless agreed otherwise elsewhere, all quoted prices are net prices, that is, they in particular do not include value-added tax. However, the price includes the packaging typically required for the relevant product.
  2. Special requests by the ordering party (e.g. delivery to an address other than that of the ordering party, accelerated dispatch, or use of a special shipper) will be taken into consideration where organizationally feasible. Any additional costs accruing therefrom will be charged to the ordering party.
V. Payment and Setoff
  1. Payment will be considered to have been made when the relevant amount has been credited to the BSH account.
  2. Late payment by the ordering party will – subject to assertion of other claims – incur late-payment interest of 1.5% per month starting from the due date.
  3. Agreed grace periods and discounts will no longer be valid and all claims will be due immediately if the ordering party falls behind with any part payment. The same will apply if checks or money orders are not redeemed upon presentation or if application for the institution of insolvency proceedings into the assets of the ordering party is filed.
  4. In the event of late payment by the ordering party, payments will be allocated first to costs (including the extra-judicial cost of dunning and collection), then interest, and finally the outstanding amount itself, beginning with the oldest amount due.
  5. The ordering party may not offset BSH claims by counter-claims against BSH.
  6. BSH may issue the ordering party with quarterly, half-yearly or annual balance statements. The balance shown therein will be binding for the ordering party, unless rejected under provision of appropriate proof within a period of four weeks.
VI. Retention of title
  1. Goods will remain the property of BSH until paid in full.
  2. Within the framework of its regular business operations, the ordering party may resell goods delivered to it subject to retention of title by BSH. However, the ordering party will in that case be obliged to transfer to the BSH account the invoiced price of ordered goods as and when such goods are resold. If the ordering party fails to meet this obligation, BSH will be entitled to collect all delivered goods, including goods provided for display purposes. In this case, the ordering party explicitly waives its right to any claims to forbearance, for protection against disturbance and to compensation.
  3. The retention of title also serves to secure all outstanding claims from earlier transactions. To secure its retention of title and as a further security in the event of late payment, BSH is therefore entitled to take custody of the goods until all unpaid claims have been settled in full. This will not affect the validity of the purchase agreement or change the due dates of outstanding claims.
  4. Application of this security mechanism will not constitute contract rescission unless rescission is explicitly declared in writing.
  5. Goods reservation depends on full payment or provision of other surety. Here, too, the ordering party waives claims to forbearance, protection against disturbance and compensation.
  6. In the event of late payment, the ordering party may resell goods delivered under retention of title only if the resale is conducted within the framework of its regular business operations and for cash. The ordering party is obliged to transfer invoiced amounts without delay to cover its liabilities to BSH (in the event of late payment, interest will be charged as per Section V.2). If goods are resold on credit, the ordering party must provide evidence that it has submitted its customer to the above retention of title and communicate the complete name and address of the purchaser and goods recipient, both of whom must be notified about the retention of title, in writing to BSH.
  7. Until payment has been made in full, the ordering party will remain liable for all goods resold under retention of title. It is therefore also obliged to ensure that there is adequate insurance cover and, with respect to goods not yet paid in full, transfer the claims arising from such insurance cover to BSH without being requested to do so.

VII. Goods Provided for Display
Goods may be provided for display purposes only upon conclusion of a separate agreement. This agreement will determine whether and in what amount a "display model discount" is offered and which grace period BSH is willing to grant. Both the discount and the grace period will differ depending on the goods concerned. The trader may not sell goods sold to him at a discount for display purposes except by express prior consent of BSH. If the trader breaches this clause, he will forfeit the right to receive goods for display purposes.

VIII. Packaging
BSH is not obliged to accept returned packaging. Special requests by the ordering party (e.g. special packaging) will be taken into account where organizationally feasible. The ordering party shall bear any additional costs thereby incurred.

IX. Place of Performance, Transfer of Risk
All sales are made carriage paid. For this reason, all risks pass to the ordering party as and when the goods are unloaded from the delivery vehicle. If goods are purchased "directly ex-factory" or "directly ex- warehouse", the risks devolve upon the ordering party as and when the goods leave the factory or warehouse, no matter who pays the transport costs. In the case of orders for which "provision for collection by customer" is agreed, the risks devolve upon the ordering party as and when the goods are made available on the notified provision date. Orders will be considered fulfilled when unloading of "carriage-paid" goods begins, goods sold "directly ex- factory" or "directly ex-warehouse" when leave the factory or warehouse and goods sold "for collection by the customer" when notice of their availability has been given.

In principle BSH is under no obligation to take back delivered faultless goods. However, if BSH agrees to take goods back nonetheless, it will not be obliged to reimburse any paid amounts. Rather it will issue the ordering party with a credit slip. The customer will also be obliged to contribute to the costs thereby caused to BSH.

X. Warranty
  1. BSH provides a guarantee for the promised features and for faultless operation based on the relevant state of the art. However, BSH reserves the right to makes construction or design changes that impair neither the proper functioning nor the value of the goods.
  2. Should a promised feature be missing or goods prove defective, the defect will be rectified within an appropriate time, whereby BSH determines whether free repair is performed by its own customer service or replacement goods are delivered. If this is not possible or only at disproportionate expense, the ordering party may demand a reduction in price or – if the fault is not negligible – conversion of its order.
  3. Legal and contractual claims of the ordering party based on defective goods must be lodged in court within 24 months of the transfer of risk (cf. Section III). Failure to do so in a timely manner will lead to forfeiture of all rights. In the case of goods sold as "diminished in value" or used, this period is reduced to 12 months from the transfer of risk (cf. Section III), even if this has not been expressly stated.
  4. BSH will not be liable for consequential damage caused by goods defects.
XI. Recourse by the Ordering Party from Consumer Warranties Claims for recourse under Section 933b of the Austrian Civil Code (AGBG) will be processed as per the relevant applicable version of the "Joint Guidelines of the Association of the Austrian Electrical and Electronics Industries (FEEI) and the Austrian Federal Radio and Electrical Retailers' Committee for the Processing and Remuneration of Warranty Services for End Consumers". The FIEE will be only subsidiary in applicability. The right of recourse of the ordering party will not apply if it has not observed the regulations contained in this guideline. Application of the guideline may be ceased at any time with one month's notice. This shall not affect applicability of the guideline for the sale of goods delivered (cf. Section II) to the ordering party before the one-month notice period expired. The applicable legal regulations otherwise govern. For this reason, even without prior express agreement, expenses incurred will only be reimbursed to the BSH customer service division or an authorized service partner. To assert its right of recourse, the ordering party must, after honoring its own warranty obligations, present the following documents and items:
  • A copy of the purchase receipt and delivery confirmation to the consumer;
  • The service slip signed by the consumer including a description of the defect, details of the device, and the consumer's full address;
  • The replaced part and the invoice for the new part or replaced good;
  • Proof and details of the required expenditure/costs.

The work must be performed in a professional manner, in particular in compliance with all legal, public, and technical requirements and recommendations regarding product safety, and the relevant quality standards. All replacement parts must be original equipment manufacturer spares. The cost of materials will be reimbursed at cost. Expenditure for travel and labor will be paid as a flat fee unless the ordering party provides proof of inevitably higher costs. The costs of the chosen form of improvement will be reimbursed only if not unreasonable. The ordering party must obtain the agreement of BSH to bear the costs of the chosen form of subsequent performance before the service is performed.

The above regulations apply to claims of the ordering party even if it does not sell directly to consumers, but to resellers who themselves face recourse from consumers, where the relevant costs must be reimbursed by the ordering party. If, due to goods defects, the ordering party is required to take goods back or sell them at a lower price, the ordering party shall be entitled, subject to Section X. and the terms specified therein, to reduce the purchase price paid correspondingly or claim conversion of the purchase agreement. However, it must first seek and obtain the agreement of BSH that the goods may be taken back or the price lowered.

XII. End-user Warranty
  1. An end-user warranty is granted for electrical household goods ("white goods") in accordance with the warranty conditions applicable to the relevant device. This warranty does not affect the warranty obligations of the ordering party to its customers. BSH reserves the right to reject a warranty claim by an end-user if a defect is caused by improper connection, operation, or use of the device. Warranty claims will be processed exclusively by the BSH customer service division or an authorized service partner. Attempts by third parties to conduct repairs will forfeit the legal and contractual warranties as well as the entitlement to compensation claims.
  2. If the ordering party supplies resellers, it is obliged to inform them of the end-user warranty.
XIII. Contract Rescission
  1. BSH reserves the right to rescind the contract for cause. Cause may include situations in which it appears likely that the ordering party will be unable to meet its liabilities (e.g. if application for bankruptcy proceedings has been filed). The right to rescind for cause is given even if a contract was closed that did not include the present GTC.
  2. If the ordering party wishes to revoke its order, BSH may, in lieu of insisting on fulfillment, levy a cancellation fee of 30% of the gross list price as well as all costs incurred until revocation was completed, including the costs of dunning, collection and all judicial and out-of-court legal fees.
  3. BSH may also levy a cancellation fee if the ordering party defaults on payment and does not seek to revoke its order. This will not affect its claim to reimbursement of all other costs caused by late payment by the ordering party.
XIV. Complaints Procedure
  1. Complaints for recognizable defects or recognizably incomplete or incorrect delivery must be lodged without delay. Specifically, "without delay" means that BSH must be notified in writing within three days of receipt of the goods.
  2. Other identified defects must also be notified in writing without delay.
  3. Failure to complain to BSH or give prompt notice of defects will constitute acceptance of the goods.
XV. Commercial Protective Rights
  1. If a third party lodges legitimate claims against the ordering party with regard to goods delivered by BSH for breach of a commercial protective right or copyright (hereinafter “Protective Right”), BSH will be liable to the ordering party as follows:
    a) At the discretion of BSH and its own expense, it will either acquire the Protective Right, change the goods such that they no longer constitute a breach of a third-party Protective Right, or replace the goods. If this is not acceptably possible, BSH will take back the goods and reimburse the purchase price.
    b) The aforementioned obligations will only arise if the ordering party notifies BSH in writing without delay about the third party claim, reserves all defense measures and settlement negotiations, and does not declare acceptance of a breach itself.
  2. Claims by the ordering party will be rejected if the breach of a Protective Right arises due to special requests made by the ordering party, or due to a use of the same not foreseeable by BSH or improper use, or because the ordering party has altered the goods or uses them together with products not supplied by BSH.
    3. No other claims may be lodged against BSH, no matter what their nature. The regulations in Section X remain unaffected hereby.
XVI. Other Liability
  1. Damages claims of the ordering party, regardless of legal grounds, are precluded, except where liability by BHS is compulsory, e.g. under product liability law or due to malicious intent or gross negligence, lack of promised features, or breaches of essential contractual obligations (cardinal duties). However, compensation for breaches of cardinal duties will be limited to the typical contractually foreseeable damage, except in the case of malicious intent or gross negligence.
  2. No claims, in particular for damages or recourse, may be lodged in the event of non-compliance with the advice contained in the user manual or installation instructions or misuse of the goods. The same will apply to damage caused by unprofessional installation, set-up, or repair of the goods or damage sustained during transportation following the transfer of risk to the ordering party. All relevant standards must be observed when handling the goods.
  3. The aforementioned regulations do not constitute a change in the burden of proof to the detriment of the ordering party.
XVII. Jurisdiction and Governing Law
The Commercial Court of Vienna is the exclusive court of jurisdiction for all disputes under the present contract, including with regard to its legal existence.

Austrian law will govern exclusively. In the event that, at the expressed insistence of the ordering party, goods are delivered outside Austria, the UNCITRAL Convention on Contracts for the International Sale of Goods will not apply.

(BSH/AGB/20.04.2009)