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General Terms and Conditions of HSPi Kiteboarding

General Terms for customers, suppliers, and general affiliates

  1. In case of an online, personal, or written order of services or products via the company’s website (www.hspi-kiteboarding.com), employees, or business executive Herbert Schiwampl Jr., the following terms and conditions of HSPi Kiteboarding apply

Services:

Technical and planning operations of HSPi Kiteboarding

  • joineries
  • production and mending of  kiteboarding products as well as fibre-reinforced objects
  • boating
  • product development
  • project execution interior construction

  1. In case of an online order via our partner shop (Spreadshirt) for HSPi Kiteboarding Surfware, the following terms and conditions of Spreadshirt apply (link)

  1. General Terms

Unless otherwise agreed, our general terms and conditions, that have been announced to our affiliates, apply.

The contracting party agrees, that in case of their use of general terms and conditions our own conditions are assumed, even if the conditions of the contracting party remains unopposed.

Any actions on our part cannot be regarded as approval of other terms and conditions that our own.  Remaining obscurities in the interpretation of contract have to be cleared in such a way, that all contents are valid which are usually agreed on in similar cases. Rights and duties from the contract can only be transferred to third parties with the written consent of HSPi Kiteboarding. If one of the clauses of these terms is void, all other clauses remain unaffected.

Consumer business underlying these terms and conditions, is a legal transaction of a customer provided it is not related to the works of their enterprise.

  1. Estimate of costs / Offer

An offer/ estimate of costs is principally written, tentative, and for valuable consideration if the underlying transaction is not a consumer business and nothing else has been agreed upon in written form. These charges will be subtracted when placing the order of the total amount of the transaction.   Verbal agreements concerning the cost assessment are tentative and free of charge.

 

  1. Binding Offer

If the underlying transaction is not consumer business, all offers are only binding if they are stipulated in written form.

  1. Acceptance of the offer / estimate of costs

The contract comes into being with the acceptance of the signed offer. The acceptance of an offer of our company is principally only possible concerning our entire provided performances. If the transaction is not consumer business, alterations in the contract are necessary. Parts of the offer that are consensually left open have to be clarified in the contract note.

  1. Prices

All of our prices, including shipping costs, are stated in euros, VAT (value added tax) included, unless specified otherwise.

  1. Purchase order and contract formation

·         ONLINE

Through clicking “Bestellung absenden” you place a binding order of the goods in your shopping basket. We will be notified of the content of your basket as soon as you place your order.

·         via mail or order form

Through sending in a written and signed form of your order, you place a binding order of your product.

The contract is only then completed, when HSPi Kiteboarding has sent you the reviewed sales confirmation by mail or e-mail and the company is explicitly in agreement with your order (products, services).

For our part, the contract is completed with the written sales confirmation.

Regarding a verbal contract with the business executive and proprietor Herbert Schiwampl Jr. and your acceptance of the products or services, the contract is completed as soon as the costumer receives his bill.

  1. Undertaking by employees

Even if our company’s employees are allowed to make promises to customers according to the Consumer Protection Act, in order to secure a non-actionable transaction we call attention to the fact that our employees must not make promises that differ from these guidelines.

  1. Title retention clause

All our delivered and fitted products remain in possession of the company until the complete payment of the ordered goods. Even in the case of a delay of payment our company is entitled to reclaim goods without withdrawing the contract.

  1. Access to reservation of title

Another use, disposal, or pledge of the reservation title is prohibited without the explicit approval of our company.

Any use of the reservation title by third parties has to be reported to our company immediately. The customer is obliged to prevent the access of third parties by all means. The customer is also obliged to bear the thereby arising costs and to keep the company from claims that may arise through an interaction with third parties.

  1. Shipping

In case of a delivery ex works, whereby the customer wishes their purchase to be delivered to a specific place under his name and bill, the mode of transportation has to be determined by the customer. Shipping by train, mail, carrier, or haulier is to be expected. Our company has fulfilled the delivery commitment by the handover to the latter and has to fulfil the warranty obligation only at the place of transaction, unless it involves a consumer business.

  1. Delivery date and default in acceptance

Concerning delivery periods and deadlines, the given dates are non-binding, unless a fixed date has been agreed by way of exception. An actual delivery date has to be arranged with the customer at least 14 days prior to the expected delivery date. If the customer is not available at that time or has not taken measures necessary for the delivery he/ she is in default of acceptance. At this point of time, all risks and costs (bank charges, cost of transport, storing prices etc.) are transferred to the customer. The same guidelines apply in case of a part delivery.

  1. Partly Delivery

The costumer is obliged to accept part deliveries, provided it is appropriate and an entire delivery has not been arranged.

  1. Default in Delivery

If the arranged delivery date is exceeded by more than two weeks, the customer has to grand the company an adequate grace period of at least two weeks. Only after this period the customer is able to withdraw from the contract. Damage compensation claims due to default in delivery can only be accepted if our company is guilty of gross negligence.

  1. Transfer of Risk

All risks, even unexpected sinking, are transferred to the customer when delivered. Regarding ex-works deliveries, the purchase is regarded as delivered with the reception of the notice concerning the readiness of dispatch plus an appropriate pick-up period of two weeks maximum; in all other cases the power of disposal will be transferred.

  1. Deviating terms

Unless the transaction is a consumer business, conditions that vary from the content of the general written contract have to be stipulated in written form, at least in the form of a written confirmation of the order, to be valid.

  1. Choice of Law

This contract shall be subject to the Austrian substantive law. The UN Sales Law does not apply.

  1. Specifications by the customer

If the customer wishes to include his own plans and specifications, unless the accuracy of these plans is overtly evident, only the customer is liable. If any instruction, plan, or specification by the customer turns out to be incorrect, our company has to inform the customer immediately and has to demand new instructions. Until this point of time, all costs concern the customer. If the customer does not give new instructions within a reasonable period of time or no instructions at all, he/she is responsible for any consequences of delay.

  1. Change of address

Both parties have to inform one another about changes of address. If the customer omits to do so, last-mentioned address is considered the shipping address. The defaulting party is reliable for expenditures regarding the address inquiry.

  1. Increase in costs

Offers and estimate of costs will be made to the best of our knowledge; special instructions by the customer, which lie outside of the range of our professional knowledge or expertise cannot be taken into account. If, during a job execution, the necessity of other actions or increase in costs of more than 2,5% of the originally stipulated price show up, the company has to inform the customer immediately. If the customer is not able to decide whether they accept the increase in costs and the continuation of the interrupted work, our company will charge the additional workload and to withdraw from the contract.

  1. Repair

Our company must draw the customer's attention to the uneconomic viability of a repair if the customer does not expressly insist on reinstatement at any price. If during the procedure the company realises that a product is beyond repair, the customer has to be notified immediately. In this case, the customer has to bear the costs up to now, and, if technically possible and if the customer insists, pay for the assembling of fragmented parts.

  1. Material

Wood is a natural product. Its diverse biological, chemical, and physical characteristics have to be kept in mind during the purchase, processing, and use. The variety of colour, structure, and other traits within one kind of wood are neither reasons of complaint nor reasons of liability. If necessary, the costumer is advised to consider the knowledge and opinion of a professional.

  1. Place of execution

 The place of execution for the performance on our part as well as the counter performance is the main office of HSPi Kiteboarding, and possibly exact information on other places such as rented premises, construction sites, etc.

  1. Assembly

Goods that are purchased ex works are generally considered as orders without assembling. Further hours will be charged if the buyer requires the assembling of his products with documentary proof. Additional charges have to be paid according to collectively agreed or lawful addition for any additional work, extra hours, night-time hours, and other additional costs on our part.

  1. Obligation to co-operate

Our company is only bound to the execution of services as soon as the customer has met the necessary obligation on their part.  All technical and contractual details have to be previously arranged. The relocation of door or window frames and the like as well as possible masonry work or scaffolds have to be provided by the customer, unless it is specifically stipulated that these services are included in the price. Light flux and high voltage current is also to be provided by the customer. The carpenter is not allowed to carry out works outside his trade (gas, water and electrical connections must be made by authorised personnel).

  1. Transactions with authorities or third parties

The customer has to bear all costs regarding required approval by third parties, reporting to authorities, and obtaining of permits.

  1. Protection of plans and documents / secrecy

Plans, sketches, and other documents such as brochures, catalogues, presentations, and the like provided by our company remain out intellectual property. Any use,  especially transfer, reproduction, publication, and general putting at the disposal even if only some pages are copied, is only allowed with our explicit approval.

All the documents mentioned above can be claimed back by our company at any time and have to be returned to us immediately if the contract is not concluded.

Furthermore, the contracting party is bound to secrecy towards third parties concerning the knowledge taken from our business relation.

If the contracting party provides us with documents or services that are subject to legal and copyright protection, the customer automatically grants us the unlimited rights of use however not the exclusive rights of use, in the absence of an expressly converse agreement.

  1. Cancellation charge / forfeit money

By paying a cancellation charge (forfeit money) the customer is allowed to withdraw from the contract and 75% of the purchase price/ works compensation without giving any reasons (§ 909 ABGB  General Civil Code Austria).

  1. Date of payment

Joineries, furniture production, assembling

50% of the order total has to be paid upon the receipt of the order confirmation; the agreed delivery period starts with  the day of payment. Another 50% of the order total is due on the day of delivery and assembling. If the customer does not stick to these guidelines our company is entitled to withhold the delivery. Invoices have to be paid within 14 days of the billing date.

Kiteboards

Concerning customer-specific kiteboards, 100% of the order total has to be paid upon the receipt of the order confirmation. Since every board is individually crafted according to each customer’s specifications, a resale on our part is not possible.

Online-Shop

100% of the order total has to be paid upon the receipt of the order confirmation.

  1. Refusal of payment

The customer is only entitled to refuse to pay if our company did not stick to the guidelines of the contract concerning delivery, or if the delivery is endangered due to pecuniary circumstances about the customer did not and did not need to know about. However, if our company provides sufficient indemnity, even in such cases the customer is bound to pay at the agreed date.

Justified complaints enable to withhold only a comparative part of the billing amount, unless the underlying transaction is a consumer business.

  1. Payment

Generally, payment is preferred in cash or via bank transfer. (ohne Abzug?) Regarding payment with bill of exchange, cheque, and the like, the transfer is completed with the time of the encashment. The customer is responsible for any bank charges.

  1. Reminder charges and expenses of collection

In case of a default of their contractual obligations, the customer is obliged to bear the costs of reminder charges and expenses of collection necessary for a prosecution, if they are at the appropriate rate to the operated demand. Furthermore, the customer is obliged to pay €17 for each reminder notice as well as €120 for keeping the obligation on file per half-year, if these costs are at the appropriate rate to the operated demand.

  1. Default charges

 If the customer fails to meet the payment deadline, our company will demand default charges. In case of private clients, 5% of the order value, and in case of entrepreneurs 8% will be charged. 

  1.  Appropriation of payments

Unallocated payments will be allocated firstly to any costs (in particular in accordance with clause 35), then to interest in particular in accordance with clause 36), and finally to the main account.

  1. Maturity date

In the event that the ordering party proves unable to fulfill their payment or insurance obligations or in case of bankruptcy, the total open amount becomes due.

In case of consumer business this is only applicable, if our company has already delivered a certain performance, the pending performance of the customer has been due for at least six weeks, and if the company has urged the ordering party to pay under penalty of acceleration of maturity date, and with the setting of a new deadline (at least two weeks) without results.  

  1. Charging of counterclaims

The customer may only offset any counterclaims against our claims, if their counterclaims are in legal relationship with their liability, are accepted by our company, juridical determined, or in case of insolvency of our company.

  1. Warranty

The following deviations from the legal warranty provisions apply, unless the matter is a consumer transaction:

·         Noticed and noticeable damages have to be reported to our company immediately, or the guarantee and other standards stated in § 377 UGB become invalid

·         If the damaged parts have been altered by any other party than our company the warranty claim becomes invalid for the customer, unless an emergency repair is necessary or our company is in default of improvement.

·         The warranty period is six months for movable (e.g. kiteboards), and 18 months for unmovable products.

·         Damage at the time of handover has to be proven by the customer, against the presumption rule § 924 ABGB

·         Our company is entitled to choose between improvement or replacement of a product

HSPi Kiteboarding products:

  • The warranty is only valid if the product has been used on water. As soon as our kiteboards are used on ramps, kickers, and the like, the warranty becomes void.

Excluded from the warranty claim

  • deficiencies that arise from misuse, negligence, or general wear marks
  • this includes: modification and drilling in combination with other components
  • damages from excessive exposure to the sun
  • damage from excessive tightening and improper assembling of screws
  • damage from incorrect handling and storage
  • all other damages that do not arise from material deficiency and processing errors
  • cases in which repair work is done by the customer or third parties
  • In case of repair work by HSPi Kiteboarding the period of warranty does not extend.

  1. Wear parts

The durability of wear parts varies according to the respective state of the art.

  1. Features of the delivery item

 The delivery item provides security only according to the respective Austrian norms, operating instructions, prescriptions about the treatment of the delivered object (operating and care instructions), necessary maintenance, and especially according to the regular checks, unless the matter is a consumer transaction.      

  1. Appointment for improvement or replacement

Appointments for improvement or replacement of a product have to be agreed in a given case. However, if the customer is not present at a given date or complicates/ renders any improvement or replacement impossible, the customer has to bear the cost for further attempts of improvement. 

  1. Liability for damage

Our company is only liable for damages caused by gross negligence or purposeful harm. This limitation of liability does not apply to personal damage or damages on a product that was taken over for processing.

  1. Cancellation Policy

Offers in distance marketing / instructions on the right of withdrawal

In case of online offers

Customers, whose purchase applies to the Consumer Protection Act, can withdraw from a distance contract within a period of seven workdays from the date of delivery onwards.

It is sufficient to send the notice of repudiation of contract within this period without giving reasons.  Saturdays are not regarded as workdays.

In case of a repudiation of contract, the partial or complete refund of the purchase takes place step by step parallel to the return of the ordered goods. The customer has to bear any costs that come up with the return.

The goods should be free of tear and wear, still originally packed, and ready for reselling. If any goods show signs of usage, our company has to charge a fee, unless these signs are caused by the intended usage.

The costs for the return shall be borne by the customer. If the amount of shipping costs is not paid sufficiently or not shipping costs are paid at all, our company is entitled to invoice a certain amount for this service.

In the case of audio and video recording such as CDs, DVDs, VHS Cassette tapes, etc. as well as computer software, the right of withdrawal only applies if the products are still sealed. 

  1. Cancellation Policy for customers in Germany

Offers in distance marketing / instructions on the right of withdrawal

In case of online offers

Revocation and consequences

The customer may withdraw from the contract in written form (postal, via fax or e-mail) within 14 days without giving any reasons. Also, if the goods are transferred to you within the deadline, the customer withdraws by returning the ordered products. The withdrawal period starts when the notification is received in written form, however not before the goods have reached the recipient, nor before we have fulfilled our obligation to provide information as defined in article 246 § 2 in conjunction with § 1 (1) and (2) EGBGB (Introductory Act to the German Civil Code). In case of a repeated delivery of the similar products, it does not start before the first part delivery.

The timely dispatch of the revocation or the goods is sufficient to comply the terms of the revocation period.

Revocation must be sent to:

HSPi-Kiteboarding e.U

Florianisiedlung 6a
7083 Purbach am Neusiedlersee
Austria

In case of effective revocation, the mutually received services and if so derived profits (e.g. interest) are to be returned. If the customer cannot return the provided services, can only partly return them, or return them in a damaged state, the customer is obliged to pay compensation. In case of damaged goods, the customer is only bound to pay compensation if the damage is caused by usage that goes beyond the features and functionality that have been established in the inspection. “Inspection of features and functionality” is defined as the examining and testing the product as generally possible and common in a store.

Items that are consignable by parcel post are to be returned at our cost and risk. Products that are not consignable by parcel post will be picked up from the costumer. Duties for the compensation of payment must be fulfilled within 30 days. For the customer, this period begins with the mailing of the goods, for us it begins with the reception.

 

HSPi Kiteboarding
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