General Terms and Conditions

1. Preamble

1.1 These General Terms and Conditions of Sale and Delivery (hereinafter: “GTC”) shall apply unless the contracting parties have expressly agreed otherwise. Any deviating, conflicting or supplementary general terms and conditions of the buyer shall not become part of the contract, even if known, unless expressly agreed to in writing.

1.2 Meissl Open-Air Solutions GmbH is hereinafter referred to as the “Seller”, the customer/client as the “Buyer”.

1.3 The following provisions relating to the delivery of goods shall also apply accordingly to services.

1.4 For assembly work, the applicable assembly terms and conditions of the Austrian Mechanical Engineering and Steel Construction Trade Association shall apply in addition.

2. Offer

2.1 Offers issued by the Seller shall be non-binding and without obligation.

2.2 By placing an order, the Buyer submits a binding contractual offer. The contract shall be deemed concluded when the Seller dispatches a written order confirmation after receiving the order. The Seller shall be entitled to reject acceptance of any order.

2.3 All offer and project documents may neither be reproduced nor made accessible to third parties without the Seller’s consent. The Seller may request their return at any time; if the order is placed elsewhere, the documents must be returned to the Seller immediately.

2.4 If import and export licences, currency permits or other official approvals (e.g. building permits) are required for the proper execution of the agreement, the Buyer must use all reasonable efforts to obtain these approvals in due time. Any liability of the Seller arising from the Buyer’s failure to obtain such approvals in time is expressly excluded.

2.5 Information contained in catalogues, brochures and similar documents shall only be binding if expressly referenced in the order confirmation.

2.6 Subsequent changes and amendments to the contract shall only be valid if confirmed in writing.

2.7 Drawings, sketches and other technical documents as well as samples, catalogues, brochures, illustrations and similar items shall always remain the intellectual property of the Seller.

2.8 Any use, reproduction, distribution, publication or presentation of such documents shall only be permitted with the Seller’s express consent.

3. Packaging

3.1 Unless otherwise agreed, the quoted prices do not include packaging. Packaging costs shall be borne by the Buyer.

3.2 Packaging shall be carried out in the customary manner to prevent damage to the goods under normal transport conditions to the agreed destination. Packaging shall only be taken back by the Seller if agreed in writing.

4. Transfer of Risk

4.1 The time at which the risk is transferred shall be determined as follows:

a) For “ex works” deliveries, the risk shall pass from the Seller to the Buyer when the goods are placed at the Buyer’s disposal. The Seller must inform the Buyer of the point in time from which the Buyer may take possession of the goods. Such notification must be given in due time to allow the Buyer to take the customary measures.

b) For deliveries “on rail, truck or barge” (agreed place of dispatch), “delivery destination” or “carriage paid to…”, the risk shall pass when the transport vehicle loaded with the goods is taken over by the first carrier.

c) For deliveries on an “FOB”, “CIF” or “C & F” basis, the risk shall pass when the goods have actually crossed the railing of the vessel at the agreed port of shipment.

4.2 Unless otherwise agreed, the goods shall be deemed sold “ex works”.

4.3 The Seller shall only be obliged to obtain transport insurance if this has been expressly agreed in writing.

4.4 Otherwise, the INCOTERMS in the version valid on the day of contract conclusion shall apply.

4.5 If dispatch from the factory is delayed due to reasons attributable to the Buyer, the risk shall pass to the Buyer on the day the goods are ready for shipment. If delivery on call has been agreed, the goods shall be deemed called off no later than one year after the order date. All deadlines to be met by the Seller commence from the precisely specified dates.

4.6 Separately agreed quality inspections or trial runs shall not affect the provisions regarding place of performance and transfer of risk.

4.7 (Consumer regulation) If the Buyer is a consumer, the risk passes—contrary to the above provisions—only upon handover of the goods to the consumer or a third party designated by the consumer who is not the carrier. However, if the consumer has concluded the transport contract without using an option proposed by the Seller, the risk shall pass upon handover of the goods to the carrier. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover.

5. Delivery Period

5.1 The Seller is entitled to make partial and advance deliveries.

5.2 Announced delivery dates are non-binding unless a binding delivery date has been expressly agreed in writing.

5.3 Unless otherwise agreed, the delivery period begins at the latest of the following dates:

a) Date of the order confirmation;

b) Date on which all technical, commercial and financial obligations incumbent on the Buyer have been fulfilled;

c) Date on which the Seller receives any advance payment due before delivery and/or the date on which a required letter of credit has been opened.

5.4 If delivery is delayed due to a circumstance on the Seller’s side that constitutes grounds for relief, the delivery period shall be extended accordingly. Grounds for relief include circumstances arising after conclusion of the contract that hinder performance, such as labour disputes and all circumstances beyond the control of the parties (force majeure, war, strikes at subcontractors, natural disasters, fire, mobilisation, seizure, embargo, currency transfer restrictions, riots, lack of transport, general shortage of supplies, restriction of energy consumption).

5.5 If the Seller is responsible for a delay, the Buyer may demand performance or may withdraw from the contract after granting a reasonable grace period. In cases of custom-made goods, the grace period must consider that the Seller may not be able to use already manufactured components elsewhere.

5.6 If the extended delivery period according to section 5.5 is not met due to the Seller’s fault, the Buyer may withdraw from the contract, via written notice, in relation to all goods not yet delivered and all goods already delivered that cannot reasonably be used without the undelivered goods. In such case, the Buyer is entitled to reimbursement of payments made for undelivered or unusable goods and—if the delay was caused by gross negligence of the Seller—to compensation for justified expenses incurred up to dissolution of the contract that cannot be reused. Delivered but unusable goods must be returned to the Seller.

5.7 Claims of the Buyer against the Seller arising from delay other than those listed under section 5 are excluded.

5.8 If the Buyer fails to accept the duly provided goods at the contractually agreed place or time and the delay is not caused by the Seller, the Seller may demand performance or withdraw from the contract after granting an acceptance period. If the goods have been segregated, the Seller may store the goods at the Buyer’s cost and risk. The Seller is also entitled to reimbursement of all justified expenses incurred in fulfilling the agreement which are not covered by already received payments.

5.9 If the Buyer is in delay with construction-related preparatory work (e.g. insufficient or inadequately qualified auxiliary personnel), causing a delay in performance, the delivery period shall not commence until the Seller notifies the Buyer of the deficiency.
The Buyer shall bear all additional costs caused by improper preparatory work, including costs incurred by the Seller for arranging or performing such preparatory work. These services shall be invoiced separately.

6. Price

6.1 All prices are daily prices in EURO and are subject to change.

6.2 Unless otherwise agreed, prices are ex works without packaging but including loading. If delivery including transport has been agreed, prices do not include unloading or carrying. Shipping costs shall be borne separately by the Buyer and depend on value and weight.

6.3 If prices are left open at contract conclusion, the sale price valid on the day of delivery shall apply, based on the current price list and project calculation.

6.4 If the Buyer places an order deviating from the total offer, the Seller reserves the right to adjust prices accordingly.

6.5 For repair orders, the Seller shall perform all services deemed necessary and appropriate, invoiced based on actual expenditure. This applies also to additional services whose necessity becomes apparent during execution, without separate notification.

6.6 Costs incurred for preparing repair quotations or expert assessments must be paid by the Buyer even if no order is placed.

7. Payment

7.1 Payments must be made in accordance with the agreed payment terms. Unless otherwise agreed in the order confirmation, half of the purchase price is due upon receipt of the order confirmation, and the remainder upon notification of readiness for shipment.

7.2 The Buyer may not withhold payments due to warranty claims or other counterclaims not recognised by the Seller. For consumers, withholding is only permitted if the counterclaim arises from the same purchase contract.

7.3 If the Buyer is in default of any payment or obligation, the Seller may insist on performance and may:

a) withhold its own contractual obligations until outstanding payments or obligations are fulfilled;

b) claim an appropriate extension of the delivery period;

c) declare the entire remaining purchase price due;

d) charge default interest of 4% for consumers or 5% above the base interest rate for entrepreneurs; or withdraw from the contract after granting a reasonable grace period.

7.4 If, after expiry of the grace period under section 7.3, the Buyer has not fulfilled the due payment or obligation, the Seller may withdraw from the contract by written notice. Already delivered goods must be returned upon request, and the Buyer must compensate the Seller for any reduction in value as well as all justified expenses incurred for contract performance.
Regarding goods not yet delivered, the Seller may make finished or semi-finished parts available to the Buyer and demand the corresponding proportion of the purchase price.

7.5 Ownership shall remain with the Seller until all financial obligations of the Buyer have been fully met. The Buyer must comply with all formal requirements necessary for the retention of title and may only resell, process or combine the goods after full payment.
In case of seizure or other claims by third parties, the Buyer must assert the Seller’s ownership rights and notify the Seller immediately.
Any change of possession must also be reported immediately.
If the Buyer defaults on payments or if there are justified concerns regarding the Buyer’s solvency, the Seller is entitled to reclaim the goods and declare contract withdrawal; transport costs shall be borne by the Buyer.

7.6 In case of payment default or justified solvency concerns, the Seller is further entitled to withhold outstanding deliveries/services, demand advance payments or securities, or withdraw from the contract without granting a grace period.

7.7 If even a single outstanding invoice must be legally enforced, all open invoices become immediately due, and any discounts or reductions previously granted shall no longer apply.

7.8 Incoming payments shall be credited first to compound interest, then interest, costs, collection expenses, and lastly to the outstanding principal beginning with the oldest debt.

8. Warranty

8.1 The Seller is obliged, under the following conditions, to remedy any defect impairing usability that is due to faulty construction, materials or workmanship.

8.2 This obligation applies to defects occurring within two years in the structural components such as umbrella, bar structure, wind walls and base frames. The warranty for all other accessories is also two years.
The warranty period begins at the transfer of risk, or—if installation is included—upon completion of installation, as documented in a handover protocol.

8.3 The Buyer may invoke this article only if defects are reported to the Seller immediately in writing. Warranty and guarantee claims for the canopy covering are expressly excluded if defects result from improper handling by the Buyer.
This includes in particular:
– failure to fasten the safety strap when the umbrella system is closed in windy conditions,
– improper use of the protective cover.
Damages such as flutter breaks, cracks or chafing marks caused by failure to use the safety strap or protective cover are expressly excluded.

8.4 Upon proper defect notification, the Seller shall—at its discretion:

a) remedy the defect on site;

b) request the defective goods or parts to be returned for repair;

c) replace the defective goods;

d) replace the defective parts.

8.5 Improvement or replacement may be refused if impossible or disproportionally costly.

8.6 A repair or replacement does not extend the warranty period.

8.7 If defective parts are returned, transport costs and risk shall be borne by the Buyer unless otherwise agreed.
Return of repaired or replaced goods/parts from the Seller shall be at the Seller’s cost and risk unless otherwise agreed.

8.8 Warranty applies only for defects occurring under normal operating conditions and proper use.
It does not apply to defects caused by:
– improper installation by the Buyer or its agents,
– poor maintenance,
– improper or unauthorised repairs/alterations,
– normal wear and tear,
– previously stated handling errors of the umbrella system.

8.9 If goods are manufactured based on the Buyer’s design specifications, drawings or models, the Seller’s liability is limited to execution according to such specifications. The Seller is not obliged to verify the accuracy of materials provided by the Buyer.
The Buyer shall indemnify the Seller against third-party rights violations.
No warranty is provided for repair orders, modifications, conversions of old or third-party products, or delivery of used goods.

8.10 When using single-pane safety glass (ESG), technically unavoidable nickel-sulfide inclusions may cause spontaneous breakage. As the glass industry does not accept liability for such damage, these breakages are excluded from warranty. If the Buyer does not accept this, another glass quality must be selected.

9. Liability

9.1 It is expressly agreed that the Seller shall not be liable for damages (except bodily injury attributable to the Seller) unless gross negligence or intent is proven.
Liability for slight negligence, consequential losses, financial losses, lost savings, interest losses and third-party claims against the Buyer is excluded.

9.2 The purchase item provides only the level of safety that may be expected based on applicable regulations, operating instructions, the Seller’s handling instructions—including prescribed inspections—and other relevant guidance.

9.3 Condensation is a physical phenomenon and may occur not only in single-shell structures but also under conditions of high humidity, insufficient ventilation or large temperature differences. It does not constitute a manufacturing defect; hence the Seller assumes no liability for its occurrence or consequences.

9.4 The Seller shall only be liable for assembly errors if assembly is performed by the Seller itself.
For self-assembly by the Buyer, the Seller’s liability is limited to providing the relevant operating and installation instructions.
No liability shall be accepted for assembly errors or improper handling by the Buyer.
It is further agreed that all preparatory work required from the Buyer, particularly electrical connections for the umbrella system, must be carried out exclusively by licensed companies.
The Seller expressly excludes liability for improperly executed preparatory work.
The Buyer guarantees that all necessary electrical installations and connections have been professionally prepared.

10. Right of Withdrawal for Consumers

10.1 If the Buyer is a consumer under Austrian consumer protection law (KSchG), they have the right to withdraw from distance selling contracts within 14 days from receipt of the goods, or from the day of contract conclusion for service contracts, in accordance with §3 KSchG.
The withdrawal does not require a reason and must be declared in writing, by letter or email; timely dispatch is sufficient for meeting the deadline.

10.2 When exercising the right of withdrawal, the consumer must return the goods.

10.3 In case of withdrawal, all payments made by the consumer shall be refunded using the same payment method used for the original transaction. Refunds may be withheld until the goods have been returned.

10.4 The withdrawal right does not apply to customised products or goods manufactured according to the personal specifications of the consumer, or goods which, due to their nature, are inseparably mixed with other items after delivery.

10.5 If the Buyer is an entrepreneur, withdrawal is entirely excluded.

11. Jurisdiction, Applicable Law, Place of Performance, Miscellaneous

11.1 All disputes arising directly or indirectly from the contract shall fall under the exclusive jurisdiction of the competent Austrian court at the Seller’s registered office in Salzburg.
The Seller may, however, choose to bring the dispute before any other court competent for the Buyer.
For consumers, this jurisdiction applies only if the consumer has their residence, habitual residence or place of employment within that court district, or if the consumer resides abroad.

11.2 The contract shall be governed by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, this choice of law applies only to the extent permitted under EU law (Rome I Regulation).

11.3 The contractual, ordering and business language is German. In case foreign-language documents exist, the German version shall prevail.

11.4 The place of performance for delivery and payment shall be the registered office of the Seller, even if handover occurs at another agreed location.

11.5 If individual provisions of the contract, including these GTC, are or become invalid, the validity of the remaining provisions shall remain unaffected.
The invalid provision shall be replaced by a provision that most closely reflects the economic purpose of the invalid one.