1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all sales contracts and other contracts, e.g. dealer-, distribution-, commission-agreements (in the following “the contract”), between, on the one hand, Sans Rival GmbH, a limited liability corporation established under the laws of Austria and registered with the Austrian Registry of Firms under the register number FN 344531 p, with its registered seat in Altmünster and its business address at Marktstrasse 22, 4813 Altmünster, Austria (hereinafter referred to as “Sans Rival”), and on the other hand, Sans Rival’s customers, even if they are not explicitly referred to in pre-contractual negotiations.
1.2 By accepting an offer of Sans Rival, the customer acknowledges and submits itself to these GTC.
1.3 Any modification of these GTC by a customer requires the explicit, prior and written consent of Sans Rival.
1.4 Any general terms and conditions of business, and references to orders, order slips etc. of Sans Rival’s customers are hereby expressly rejected.
2. Conclusion of the contract and prices
2.1 Unless it is expressly agreed in writing, offers by Sans Rival are non-binding. In case however, Sans Rival makes a binding offer, unless otherwise expressly agreed upon, that offer shall be valid for a period not exceeding 30 days (“Acceptance Period”).
2.2 Sans Rival will prepare a written offer at the customer’s request. A contract shall be concluded if the content of the offer is clear and the customer accepts the offer in writing within the Acceptance Period. A contract is only binding upon Sans Rival when concluded in writing (by letter, e-mail or fax). Any oral agreement setting aside this written form requirement is invalid.
2.3 Prices are ex works (Incoterms 2010) in Altmüpnster, Austria, and are in the currency specified, excluding VAT and other taxes and duties.
2.4 Payments received will be applied to satisfy any outstanding interest and then principal. Counterclaims, of whatever kind, may not be set-off against Sans Rival’s claims – this does not apply on consumers. The customer is not entitled to assign claims against Sans Rival to third parties.
3.1 Unless otherwise expressly stated, invoices shall be paid within 7 days of receipt, without deductions.
3.2 Unless otherwise explicitly stated, all payments to Sans Rival shall be made using the electronic payment facility of PayLife Bank GmbH, which is accessible on Sans Rival’s website www.sansrival.eu, and the customer shall accept any terms and conditions of the PayLife Bank GmbH required using the electronic payment facility.
3.3 In the event of default (even if the customer is not at fault), Sans Rival is entitled to charge default interest at an annual rate of 9,2% above the prime interest rate as published by the Austrian National Bank from time to time. Sans Rival will charge reminder fees of €25, starting with the first reminder, and, if the default persists, the costs of a collection agency and/or any legal expenses.
3.4 Customer does not have a right of retention and waives its rights to set-off. This does not apply on consumers.
4. Online shop
4.1 Sans Rival provides an online shop where the customer may purchase products that are described in the shop. In order to purchase products the customer must register at the online shop by creating an online account at “MY ACCOUNT“.
4.2 To purchase products at the online shop the registered customer must provide personal data to Sans Rival in an online form. The customer’s personal data are processed according to Sans Rival’s data privacy statement (section 13 of the GTC). It is mandatory to provide the following information: first name, last name, address, country, city, zip/postal code and phone number. The customer must also provide information about the shipping and payment method.
4.3 Before completing the online form, the online shop provides the ordering information, whereas the customer can correct that information. Completing the online form by clicking on “order with obligation to pay” at the online shop does not conclude a contract between Sans Rival and the customer; it constitues merely an offer from the customer to Sans Rival to conclude a contract. The contract is concluded if Sans Rival accepts the offer either by written confirmation to the customer or by complying with the customer’s order. Nevertheless, as soon as the customer’s order is received by Sans Rival’s server, the customer receives a confirmation of the technical receipt.
4.4 The customer must ensure that the password to its online account is kept secret and that no third parties gain unauthorized access the customer’s online account. If the customer is aware that a third party has gained unauthorized access to its online account, the customer must immediately inform Sans Rival thereof via email to email@example.com.
4.5 It is at the discretion of Sans Rival to block or deactivate an online account without prior warning if there is reason to belief that the person using the online account is not the registered customer. In case Sans Rival has blocked or deactivated an online account the registered user will be informed thereof.
4.6 Where a third party uses the online account of a registered user, all actions of the third party are attributed to the registered user. Purchases of goods or changes of personal data of the registered user made by third parties are valid as long as Sans Rival has not been informed of an unauthorized access to the online account. Sans Rival reserves its claims against the customer for damages caused by third parties which have used the customer’s online account.
4.7 Concerning the consumer’s right to withdrawal see 16.2.
4.8 Concerning the consumer’s right to legal warranty see 16.4.
5. Delivery of Goods and Transfer of Risk
5.1 Sans Rival is obliged to perform its contractual obligations only once it has received full payment of the goods.
5.2 Upon customer’s request, Sans Rival can arrange for delivery of the goods. Unless agreed otherwise, any delivery fees can be invoiced separately.
5.3 Delivery of goods occurs at the customer’s risk and expense.
5.4 Any and all adverse legal consequences, in particular the danger of loss or damage to goods shall be transferred to the customer when the goods are ready for handover to the customer, or, for contracts of sale involving the delivery of goods, upon hand-over of the good to the carrier or any other designated person entrusted with the delivery of the item.
5.5 If the customer refuses acceptance of goods, the customer shall be required to bear all transportation and storage costs, without prejudice to its payment obligations.
5.6 Delivery times are non-binding. Unless otherwise explicitly agreed upon, Sans Rival will ensure that goods are ready for delivery within 10 business days from receipt of payment, insofar as its manufacturing, performance and development capacities permit. Shorter times must be explicitly agreed upon in writing and will entitle Sans Rival to apply a 10% surcharge to the net invoice amount.
5.7 If required, Sans Rival will provide suitable packaging for transport.
6. Reservation of title
6.1 Until the customer has paid to Sans Rival the complete purchase price for the goods, the goods shall remain in property of Sans Rival.
6.2 Without the explicit, prior, and written consent of Sans Rival, the customer is not entitled to resell goods subject to Sans Rival’s reservation of title, to transfer them by way of security or to use them as collateral. If any goods in the property of Sans Rival are resold, customer is obligated to inform any potential purchaser of the goods that customer has not yet acquired complete and unlimited property rights in and to the goods, but can – until complete payment of the goods – transfer only a continuance right to sell the product to the potential purchaser, and the customer shall be obliged to effect a transfer of its claim against its purchaser to Sans Rival as security for any outstanding claims of Sans Rival towards the customer. Upon request of Sans Rival, the customer shall provide written evidence to Sans Rival that it has informed its purchaser of the transfer of claim.
6.3 If a third party distrains, or otherwise encroaches upon goods subject to Sans Rival’s property, the customer must notify Sans Rival immediately and reimburse Sans Rival for any costs incurred in the process of asserting its claims.
7. Warranty for Customers not being consumers
7.1 Sans Rival warrants and is liable only for goods delivered according to this contract and only to the extent provided for in this contract. Sans Rival warrants that new goods have the contractually agreed characteristics. Sans Rival warrants that the goods comply with legal regulations in force at Sans Rival’s main residence and comply with all certification requirements in this country. Customer shall be responsible for fulfilling any and all legal regulations or requirements, e.g. marketing or safety regulations, in the area, where the goods are marketed by the customer, which are not required at Sans Rival’s main residence seat. If any such regulations or requirements are applicable customer shall notify Sans Rival thereof in writing. If, after such written notice, Sans Rival accepts purchase orders by customer, Sans Rival warrants that the goods also comply with these communicated legal requirements.
7.2 Features provided for in sales catalogues, prospectuses and advertising materials, and on Sans Rival’s websites are non-binding. The customer shall always be required to prove that the defects existed at the time of handover.
7.3 The warranty period is 6 months from receipt of the supply or services. Customer´s legal regress according to Section 933 b of the Austrian General Civil Code (Federal Law Gazette JGS 1811/946 as amended) to supplier is explicitly excluded.
7.4 Goods shipped hereunder shall be subject to acceptance by customer immediately upon receipt thereof. Customer is obliged to inspect the goods as soon they are received and to immediately notify Sans Rival in writing of any defects discovered, indicating in detail the nature and extent of the defect. Concealed defects must be reported in writing as soon as they are discovered. The written notification must be received by Sans Rival within three days of receipt of the goods or discovery of the defect, failing which any warranty claim shall be forfeited. If the defect is not notified in due form within this time-limit, the goods will be deemed to have been approved. In such a case, no warranty claims or claims for damages may be brought nor may any errors be claimed in respect of defects.
7.5 Warranty claims may not be brought if the goods have been stored or handled improperly.
7.6 In case that according to these GTC and the contract customer shall have a claim of warranty against Sans Rival, it shall be at Sans Rival´s discretion to exchange of the respective good or to repair or have it repaired, or supply the lacking, to reduce the price or to rescind from the contract, thereby taking the goods back and refunding the customer any amounts paid.
7.7 Upon notification of a defect by the customer, Sans Rival will provide the customer with instructions how it will fulfill its warranty obligations. Defect goods may only be returned with the express permission of Sans Rival. Sans Rival will not carry any costs involved in express transport of such goods, in either direction.
8. Limitation of Liability
8.1 Sans Rival shall not be liable for any damages caused by slight or minor gross negligence; this does not apply to any mandatory statutory liability, in particular to the liability under the Austrian Product Liability Act and liability for culpably caused personal injuries. The party adversely affected will be required to prove blatant gross negligence. Sans Rival will only be liable for lost profits in the event of blatant gross negligent or intentional conduct, which the customer will be required to prove. This shall, in particular, be applicable for liability caused by a defect according to Section 933a of the Austrian General Civil Code (Federal Law Gazette JGS 1811/946 as amended), as well as liability for consequential harm caused by a defect and for customer´s claims of recourse.
8.2 The customer declares that it is aware of the particular risks associated with the goods purchased.
8.3 The customer is obliged to take all reasonable measures to avoid or limit damages.
9. Product liability
9.1 In the event of third-party claims against the customer as a retailer based on the Austrian Product Liability Act (Federal Law Gazette Nr. 99/1988 as amended), the customer is obliged to notify Sans Rival immediately and to hand over all information on the claim asserted. In the event that the customer does not fulfill its obligation vis-à-vis its customer to name Sans Rival as the upstream supplier within the statutory time-period stipulated in the Austrian Product Liability Act, and is consequently held liable, the customer shall have no legal recourse against Sans Rival.
9.2 Warning label: Attached to every water-ski is a warning label with the following content:
“WARNING: OPERATING THIS DEVICE CAN RESULT IN
DEATH OR SERIOUS INJURY!”
The customer acknowledges the content of this warning label.
The customer is obliged not to remove the warning label from the water-ski and to oblige any successive purchaser of the water-ski not to remove it either.
10. Sans Rival’s trademark rights, copyright and other intellectual property rights
10.1 Sans Rival reserves all rights to its goods, trademarks, patents, utility models, designs, licences, quotations, know-how, drawings, presentations, layouts, images, logos, photographs, graphics as well as valid domain registrations, in particular but not limited to the sign SANS RIVAL, the domain name www.sansrival.eu, any technology or design of the goods of supplier, all contents of the website www.sansrival.eu and, in particular, texts, images, graphics, sound, animation and video files, as well as all other content and data made available by Sans Rival on its websites (“the Intellectual Property Rights”). Customer acknowledges the Intellectual Property Rights and agrees,
• not to infringe the Intellectual Property Rights, whether directly or indirectly, either by itself or via third parties;
• to refrain from registering, having third parties register any Intellectual Property Rights anywhere in the world or asserting any intellectual property rights which infringe Sans Rival’s rights or are wholly or partially identical with them or are similar or equivalent to them to the extent that they appear virtually identical or confusingly similar;
• not to reproduce or imitate Sans Rival’s products, or have them copied or reproduced by third parties; and
• to not acquire any rights to the Intellectual Property Rights, in particular, but not limited to, the trademarks which are currently or in the future registered and used by Sans Rival, any other distinguishing marks, or similar terms, and (trade-) names, patents, utility models and licences, in particular not in countries or regions where Sans Rival has not (yet) any protection.
10.2 Customer acknowledges that Sans Rival is and remains the sole proprietor of the Intellectual Property Rights. Customer agrees to use the Intellectual Property Rights only in connection with this contract and as instructed by Sans Rival. Customer agrees to desist from any other usage of the Intellectual Property Rights, in particular, customer will not affix to products, which are not products of Sans Rival. Customer acknowledges that its usage of the Intellectual Property Rights may only serve to Sans Rival’s benefit and advantage; any usage of the Intellectual Property Rights and any right of possession possibly acquired by this usage (even in countries where Sans Rival has no protection) shall be accounted to Sans Rival and shall entitle Sans Rival with the right of possession; as far as such rights of possession cannot be established, customer shall be obligated to adjust for this with adequate remuneration. If customer acquired rights (either through registration, or through usage), which are either identical, similar or equivalent to the Intellectual Property Rights or infringe these rights, customer agrees to immediately transfer these rights to Sans Rival, or to arrange for such transfer and/or to take all necessary actions or provide the necessary declarations for such transfer.
10.3 Customer additionally agrees, to neither directly nor indirectly attack the Intellectual Property Rights, in particular to set no action, which would cause Sans Rival’s rights to be partially or entirely eliminated or obstructed in its existence and protection effect, or which would entirely or partially impede the issuance thereof, in particular to not file any applications for cancellation, objections, oppositions, or nullity proceedings, or to file similar legal actions and remedies and/or to assert in proceedings the entire or partial invalidity or nullity of these protective rights.
10.4 Customer agrees to use the advertising and miscellaneous marketing material provided and/or contents of the website, or parts thereof, only for its marketing activity and for the furtherance of the profit of the goods supplied by Sans Rival, and any such material and/or content may not be used or exploited in a way which goes beyond the contractual purpose. In particular, they may not be reproduced or made available to third parties.
10.5 Any and all obligations imposed upon distributor under section 7 shall also apply to actions and/or omissions by or through affiliated companies or to other third parties, which are directly or indirectly induced by distributor to such actions and/or omissions or where distributor directly or indirectly assists or supports such actions and/or omissions.
10.6 The customer shall fully indemnify Sans Rival against all claims which may be made against Sans Rival for damage caused by, or arising from, or in connection with any infringements by the customer of copyright and/or performance rights, trademarks, designs, patents and utility patent rights or other industrial property rights and against all costs and expenses incurred including the costs of investigating and defending such claims.
10.7 In the event that the customer commits an infringement of any of the obligations laid down in this section 10 of the GTC, then a penalty of EUR 25,000 (in words: Euro twenty-five thousand) shall be paid to Sans Rival, irrespective of fault and not conditional on any loss being sustained. This penalty may not be reduced by any court and is without prejudice to any claims of Sans Rival in excess of this amount, in particular compensation claims, actions for accounting, claims for reasonable remuneration or actions for injunctive relief.
11. Proprietary information
11.1 Customer agrees to keep strictly confidential, neither directly nor indirectly, in part or partially make available to third parties, nor use for any purposes apart from the performance of this contract, for an unlimited period of time and unaffected by eventual further obligations arising under the GTC, all of San Rival’s proprietary information as well as all not generally known information, know-how, provided in the course of conduct of this contract, all not generally known technical and economic information, manuals and documents, in particular invoices, delivery notes, construction drawings and samples for products, which concern San Rival itself, San Rival’s products or Intellectual Property Rights (“Confidential Information and Data“).
11.2 Customer shall confer this obligation under section 11.1 also on its employees and contractors, who might gain knowledge of any Confidential Information and Data for the performance of this Agreement. Distributor shall only disclose the Confidential Information and Data to any such employees or contractors, who have undertaken the obligations of this section 11. in written form.
11.3 The covenant of confidentiality set forth herein shall survive and continue to be in force after termination of this contract. Upon termination of this contract – on whatever grounds – Confidential Information and Data or copies or other ways of duplications thereof are to be returned immediately to supplier.
12. Affixing of names or trademarks, references
12.1 Sans Rival is entitled, even without specific authorization of the customer, to affix a manufacturer’s mark and/or company name and/or the trademarks of Sans Rival or its business partners on any goods provided. The customer is obliged to leave these marks on the advertising medium, not to remove them and, if necessary, to enable Sans Rival to renew them.
12.2 Sans Rival may use the customer’s name as a reference and may disclose the goods provided to the customer to any third party, unless expressly agreed upon otherwise.
13. Data Privacy Statement
13.1 Sans Rival’s data privacy statement is an integral part of these GTC. The data privacy statement is issued in a separate document for the purpose of clarity only.
14. Term and termination, amendments to the GTC
14.1 Contracts with Sans Rival for repeated services, especially servicing contracts, are, unless explicitly agreed upon otherwise in writing, concluded for an indefinite duration and may be ordinarily terminated at the end of a month, giving 3 months notice.
14.2 In particular in the following cases, Sans Rival is entitled to rescind from the contract:
• if it becomes apparent that the supplies and/or services to be provided by Sans Rival infringe statutory and/or official regulations and/or legal conditions;
• if the customer is more than 14 days in default with a payment, and a reminder has been issued by Sans Rival, setting an extension period, without this resulting in payment;
• bankruptcy proceedings are instituted against the customer or an application for such proceedings to be instituted has been rejected because the customer’s assets are not sufficient to cover the costs, or if circumstances exist which would justify the institution of such proceedings or the rejection of such an application;
• if the customer infringes the obligations laid down in section 10, or
• if the customer infringes any other material provision of the contract or of these GTC.
14.3 With effective termination (for whatever ground) of this contract, the costumer:
a) shall desist from any further marketing activity of the goods;
b) shall desist from using the Intellectual Property Rights; any and all Intellectual Property Rights possibly acquired by customer in any country shall be transferred to Sans Rival immediately at it’s cost;
c) shall transfer all goods not yet sold at its own cost to Sans Rival or a third person to be designated by Sans Rival and receive adequate remuneration. The adequate remuneration price shall correspond to the actually paid purchase price minus 20% per year, to be calculated from delivery of each good;
d) shall return immediately and at customers’s own cost all samples and documents provided by Sans Rival, for instance advertisement as well as marketing material, to Sans Rival or to a third party to be designated by Sans Rival; or – upon explicit written instruction of supplier – shall destruct the above mentioned samples and documents..
14.4 With effectiveness of the termination of this contract any and all outstanding receivables of Sans Rival against customer shall immediately come due as far as they are not already due and Sans Rival shall be entitled to appoint a new distributor. In any case of termination of this contract Sans Rival shall not be liable for any possibly lost profits of customer. In case of termination of this Agreement – for whatever reason – any domain registrations of customer containing SAN RIVAL or similar shall be transferred to Sans Rival at the cost of customer.
14.5 Sans Rival reserves the right to amend these GTC at any time. Sans Rival will notify the customer of the amended GTC in an appropriate manner. If the customer does not explicitly reject the amended GTC within 2 weeks of having received the notification, the new GTC will be deemed to have been approved.
15.1 Each party submits to the exclusive jurisdiction of the comptent courts of 1010 Vienna, Austria for any disputes resulting from this agreement. This does not apply on consumers.
15.2 This Agreement shall be governed by the laws of Austria under the exclusion of its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG). This does not apply on consumers.
15.3 The invalidity or unenforceability of any particular clause of these GTC shall not affect the remaining provisions hereof. If any provision of these GTC is or becomes invalid or unenforceable, it shall be replaced by a valid and enforceable provision which comes economically closest to what the parties intend with the invalid or unenforceable provision.
16. Special Terms for Consumers
16.1 This section 16 of the GTC only applies to customers that are consumers pursuant to Section 1 of the Austrian Consumer Protection Act (Federal Law Gazette Nr. 140/1979 as amended).
16.2 Right of Withdrawal: Consumers have the right to withdraw from this contract with Sans Rival within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day
(a) in the case of a service contract ‘of the conclusion of the contract.’;
(b) in the case of a sales contract: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.’;
(c) in the case of a contract relating to multiple goods ordered by the consumer in one order and delivered separately: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good.’;
(d) in the case of a contract relating to delivery of a good consisting of multiple lots or pieces: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last lot or piece.’;
(e) in the case of a contract for regular delivery of goods during a defined period of time: ‘on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the first good.’..
To exercise the right of withdrawal, the consumer must inform us of his/her decision to withdraw from this contract by an unequivocal statement to Sans Rival (contact details see below) e.g. by a letter sent by post, fax or e-mail. To meet the withdrawal deadline, it is sufficient for the consumer sends his/her communication concerning his/her exercise of the right of withdrawal before the withdrawal period has expired.
16.3 Effects of withdrawal: If the consumer withdraws from this contract, Sans Rival shall reimburse to him/her all payments received. This including the costs of delivery (with the exception of the supplementary costs resulting from consumer’s choice of a type of delivery other than the least expensive type of standard delivery offered by Sans Rival), without undue delay and in any event not later than 14 days from the day on which Sans Rival is informed about the consumer’s decision to withdraw from this contract. Sans Rival will carry out such reimbursement using the same means of payment as consumer used for the initial transaction, unless consumer has expressly agreed otherwise; in any event, consumer will not incur any fees as a result of such reimbursement. Consumer is only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
Sans Rival may withhold reimbursement until Sans Rival has received the goods back or consumer supplied evidence of having sent back the goods, whichever is the earliest. The consumer shall send back the goods without undue delay and in any event not later than 14 days from the day on which consumer communicates the withdrawal from this contract to Sans Rival. The deadline is met if the consumer sends back the goods before the period of 14 days has expired. The consumer has to bear the direct cost of returning the goods.
If consumer requested to begin the performance of Sans Rival’s services (other than delivering goods) during the withdrawal period, consumer shall pay Sans Rival an amount which is in proportion to what has been provided until consumer has communicated Sans Rival the withdrawal from this contract, in comparison with the full coverage of the contract.’.
16.4 The notification of withdrawal and the good to be returned shall be sent to:
Sans Rival GmbH
16.5 Nothing in these GTC shall affect a consumer’s statutory warranty rights pursuant to Section 9 of the Austrian Consumer Protection Act in connection with Sections 922 to 933 of the Austrian General Civil Code (Law Gazette JGS 1811/946 as amended).
17. Mandatory Statutory Provisions: Insofar as provisions in these GTC deviate from any mandatory statutory provisions, the statutory provisions shall apply.
18. Transfer of rights and obligations
The customer undertakes to impose the obligations which it has assumed on any party which the customer transfers Sans Rival’s goods, on whatever legal grounds and to transfer the obligations which it has assumed to any legal successor.