General Terms and Conditions
The principles of these General Terms and Conditions of Business (referred to below as ‘AGB’) are conceived for legal transactions between Contractors as defined in § 1 of the UGB (Austrian Commercial Code). If, by way of exception, they are to be applied to legal transactions with consumers as defined in § 1 of the KSchG (Consumer Protection Act), they shall only apply to the extent that they do not contradict the provisions of this Act. These AGB shall apply unless the Contracting Parties have explicitly agreed otherwise in writing. Conditions of the Buyer to the contrary of or deviating from these AGB are not recognized. These AGB of the Vendor shall also apply if the Vendor renders the delivery to the Buyer without reservation in the knowledge of contradictory conditions of the Buyer or conditions deviating from these Conditions of Delivery. Agreements made verbally or on the telephone by field or office staff shall require written confirmation from management in order to be effective. The subsequent regulations concerning the delivery of goods shall also apply analogously for other services provided by the Vendor. These AGB shall also be valid for future transactions with the Buyer.
Quotations of the Vendor are provisional and without obligation. If the buyer does not immediately object to the conditions contained therein upon receipt of the sales confirmation, then a buyer‘s order becomes legally effective as soon as the seller transmits the sales confirmation via email or fax. Beginning at an order quantity of 100 m², the order from the buyer has to be accomplished in writing via email or fax together with transmission of the construction schedule. The Vendor is entitled to accept an order within 4 weeks by sending an order confirmation. If the order confirmation of the Vendor contains changes compared to the verbal or written order, these changes shall apply as recognized by the Buyer if it does not object to them within 24 hours. The buyer must secure the seller‘s agreement if the former wishes to withdraw from the contract after the sales confirmation has become binding. Moreover, the buyer has to pay a cancellation fee in the amount of €100.00 on a net merchandise value of up to € 1,000.00 and a cancellation fee of 10% of the contract value on a greater net merchandise value. The cancellation fee is calculated separately. The seller is not entitled to a cash discount deduction when the cancellation fee is paid. Custom-made products cannot be cancelled in principle.
Pricing – terms of payment
Unless specified otherwise in the order confirmation, prices shall apply ex works of the Vendor, duty unpaid, without packaging and without shipping. These are invoiced separately. As of an agreed net value of the goods, the deliveries shall be understood as being free to the address of the Buyer, but excluding any unloading or carrying. Express deliveries by rail and parcel service deliveries shall always be at the expense of the Buyer. Orders with a net order value of less than € 150.00 (excl. VAT) shall be furnished with a minor invoices surcharge of € 5.00. All prices are referred to at the time of the order confirmation and only apply, unless a separate written agreement is in place, to the quantities contained in the order confirmation. The Vendor reserves the right to increase the prices by a reasonable extent if costs increase after conclusion of the Contract, particularly due to the collective agreements or increases in the prices of materials. In the event that the Contract is concluded without a price being set, the sales price valid on the day of the delivery shall be invoiced. The statutory value added tax is not included in the price. This shall be indicated separately in the invoice at the legal rate on the day of invoicing. The Vendor is also entitled to transmit invoices to the Buyer in electronic form. The Buyer explicitly declares that it agrees to the transmission of invoices in electronic form by the Vendor. Unless specified otherwise in the order confirmation, invoices shall become due for payment without deduction at the time of delivery, but at the time of invoicing from the invoice date at the latest. In the case of special designs, the good is to be paid for in advance, and the Vendor is then only obligated to begin production when the purchase price has been received in full. If non-payment is not made after 8 days have passed since the order confirmation, the Vendor is no longer bound by the order. The Vendor is entitled to demand advance payments or a guarantee of the payment if doubts exist as to the willingness or ability of the Buyer to make the payment. Payments by bill or cheque are not accepted by the Vendor. If a plurality of accounts receivable exists, then the payments of the Buyer shall each be credited to the oldest account receivable. If outstanding debts have been transferred for pursuit externally (by a debt collection agency or lawyer), then any payments received shall firstly be used to cover any possible ancillary costs associated with the pursuit of the debt (default interest, dunning, debt collection and other charges). Remaining amounts shall be credited to the oldest accounts receivable for deliveries and services. The Buyer shall only be entitled to discounts if these have been explicitly agreed in writing. If there are any discountable invoices on the basis of a separate agreement, deductions for discounts shall only be accepted if payment is made within the set period, if the deductions conform to the agreement, and the Vendor has no other outstanding accounts receivable from the Buyer. The Buyer shall not be entitled to withhold payments due to warranty claims or other counter-claims not recognized by the Vendor. If the Buyer defaults on an agreed payment or other performance, the Vendor shall be entitled to insist upon fulfillment of the Contract, and to postpone performance of its own obligations until the outstanding payments have been made or other performance has been made, apply a reasonable extension of the date for delivery, demand payment in full of the outstanding purchase price, as of the due date, demand default interest in the amount of 8% above the primary rate of the Austrian banks, and demand reimbursement of all costs incurred in obtaining performance (payment) from the Buyer, in particular the costs of a debt collection agency or lawyer’s fees, or, after granting a reasonable additional period, withdraw from the Contract.
If the Vendor demands payment in full of the outstanding purchase price due to default of payment, and if the Buyer nevertheless fails to make payment of this debt or render other performance, then the Vendor shall be entitled to withdraw from the Contract by giving written notification. In this event, the Buyer shall be obliged, at the Vendor‘s request, to return to the Vendor any goods that have already been delivered and to reimburse to him the incurred depreciation in value of the goods, and reimburse to him all expenses incurred by the Vendor in executing the Contract. In addition to this, the Vendor shall charge a handling fee of 10% of the net order value. In the event that no goods have been delivered, the Vendor shall be entitled to provide the finished or partially finished parts to the Buyer and demand payment of the appropriate proportion of the purchase price for doing so.
Retention of title
The Vendor shall retain title to the object of purchase until the Buyer has completely fulfilled all of his obligations, including any interest, expenses and costs. In the event that the object of purchase is seized or otherwise attached, the Buyer shall be expected to assert the Vendor’s title and to notify the Vendor immediately in writing. The Buyer shall be entitled to resell the object of purchase in the due course of business. In the event that the goods are resold, however, the Buyer shall be obliged to retain title to the purchase goods until payment in full has been made. At this point, the Buyer shall assign to the Vendor the amount receivable from his customer up to the amount of the still outstanding purchase price. The Buyer undertakes, on the one hand, to notify his customers immediately in writing of this assignment upon conclusion of the resale and, on the other hand, to notify the Vendor of the name and address of the customer and of the amount of his account receivable from the customer. The Vendor shall be entitled to avail himself of the assignment at any time and to collect the debt himself. The Buyer undertakes to treat the object of purchase carefully and to insure it sufficiently at replacement value at his own expense against damage caused by fi re, water and theft. Executeing or transformation of the purchase object by the Buyer shall always be performed for the Vendor. If the purchase object is executeed together with other objects that do not belong to the Vendor, the Vendor shall acquire co-ownership of the new object in proportion of the value of the purchase object to the other executeed objects at the time of executeing. The same shall apply to the object created by executeing as applies to the objects of purchase delivered with reservation of title. We explicitly state that executeed goods also remain our property until they have been paid for.
Unless otherwise agreed, the periods for delivery shall apply ex works, be non-binding, and begin on the latest of the following dates: date of order confirmation; date of fulfilling all of the technical, commercial and financial conditions incumbent on the Buyer; date at which the Vendor receives a down payment to be paid before delivery of the goods or a letter of credit is opened. If there is no fixed delivery date for a binding order, then the seller has the right to draw on the currently warehoused merchandise for contracts with fixed delivery dates. Shipping takes place at the risk and the cost of the Buyer. The Vendor reserves the right to choose the nature and route of the shipping, excluding any liability. The Vendor is entitled to make part-deliveries as long as nothing to the contrary is explicitly agreed. The Buyer is obliged to accept part-deliveries and to pay within the framework of the agreed payment conditions. The Buyer must check the delivery immediately upon handover, although within 3 working days at the latest. The Buyer loses the right to invoke a failure of the delivery to comply with the Contract if it neglects to inspect the delivery or if it does not point out the failure to conform in writing, defining the details precisely, immediately after the time at which it could have recognized the failure by means of an ordinary inspection. Externally recognizable transport damage is to be pointed out immediately upon receipt, and the Vendor notified of the nature and extent of this damage immediately in writing. On site, the Buyer is obligated to Notes down the details of the nature and extent of the transport damage on the freight document or delivery Notes.
If shipment is delayed at the buyer‘s request, then he will be billed for the costs of storage accrued during storage in the amount of € 0.90/m2/month (with full pallets) or € 1.90/m2/month (with partial pallets) starting four weeks after notification of readiness to deliver. The storage fee is calculated separately. The seller is not entitled to a cash discount deduction when the storage fee is paid.
After the setting and fruitless expiry of a four-week period, the seller is also entitled to otherwise access the delivery item and to deliver to the buyer with an appropriately extended period. The seller is furthermore also entitled to withdraw from the contract after the setting and fruitless expiry of a reasonable period, especially when
- there is doubt concerning the customer‘s creditworthiness,
- the customer does not make the prepayment necessary for the contract to be sent,
- the customer has already failed to pay at least two months’ worth of the calculated storage costs, or
- Postponement of the shipment exceeds the validity of the respective calendar year‘s price list.
If the buyer agrees to a price adjustment in terms of the new price list, then the seller has the right to refrain from withdrawing from the contract.
In the event of later amendments to the Contract which could influence the time of delivery, the time of delivery is to be extended reasonably, unless this impacts special agreements relating to this time of delivery. If delivery is delayed due to the occurrence of unforeseen, extraordinary circumstances (interruption of operations, official action, war, blockade, riot, delay in delivery of essential raw and construction material, energy supply difficulties or force majeure, for example), regardless of whether these have occurred at the Vendor or a supplier, the delivery period shall be extended, if delivery or performance does not become impossible, by a reasonable period. If delivery or performance is rendered impossible by the aforementioned circumstances, the Vendor shall be released from the obligation to deliver. These provisions shall also apply in the event of strike or lockout. If, in this event, the delivery period is extended or the Vendor is released from the obligation to deliver, the buyer shall not be entitled to derive any claims for damages herefrom. If the obstruction persists longer than three months, the Buyer shall be entitled, after granting a reasonable additional period, to withdraw from the as yet unfulfilled part of the Contract. If the Vendor is guilty of a delay in delivery, the Buyer shall be entitled to demand performance or, after granting a reasonable additional period for delivery, to declare that it is withdrawing from the Contract. If the additional period granted by the Buyer is not observed due to the fault of the Vendor, the Buyer shall be entitled to withdraw from the Contract with regard to all as yet undelivered goods and all delivered goods that cannot be used appropriately alone and without the undelivered goods by giving written notification. In this event, the Buyer shall be entitled to reimbursement of payments made for the undelivered goods or for the unusable goods and, if the delay in delivery is due to gross negligence on the part of the Vendor, to reimbursement of justified expenses which it had to make until the annulment of the Contract and for the execution thereof. The Buyer shall be obliged to return any delivered and unusable goods to the Vendor. Other claims of the Buyer vis-à-vis the Vendor due to the Vendor‘s delay in delivery, particularly claims for damages due to non-performance, shall be explicitly excluded. If the Buyer fails to accept the goods delivered under the Contract at the place and time agreed in the Contract, the Vendor shall be entitled to demand performance or, after granting a period for acceptance, to withdraw from the contract. In this event, the Vendor shall be entitled to demand the damages incurred by it, including any additional expenses, from the Buyer. In this event, the risk of accidental perishing or accidental deterioration of the purchase goods shall pass to the Buyer at the date at which the Buyer fails to accept delivery. The Vendor shall be entitled to make partial and advance deliveries. We draw attention to the fact that our deliveries take place in compliance with the terms of business of our company exclusively; no regulations to the contrary whatsoever can be accepted. Should you not agree with this procedure, you have the option to cancel your order within 3 days after the purchase order date. After this time limit has expired, the order becomes binding.
Returns shall only be accepted within eight weeks as of the date of invoice. No returns shall be accepted after this date! Sales promotion products, special products and custom-made products may not generally be returned. Only faultless goods in undamaged original packaging shall be accepted as returns. Up to a net invoice value of goods of € 500.00, a € 50.00 handling charge shall be invoiced; beyond this, the handling charge shall be 10%. The sender shall always bear the shipping costs of return delivery.
Warranty and liability
In accordance with the following provisions, the Vendor shall give warranty for any faults impairing merchantability that are due to a fault in design, material or workmanship. Deviations in measurement and quality are admissible within the framework of the norms agreed or those in place in the country of the Vendor. No warranty is given for production- or materials-related deviations in colour nuances or grading of the good. This also applies to models of the good which are described as lower quality, such as “Secunda”, for example, when warranty is also excluded. The warranty obligation shall only exist for such faults that occur during a period of twenty-four months (warranty period) as of the date of passing of risk or, in the case of delivery with installation, as of the completion of assembly. The Buyer undertakes to notify any apparent faults detected at acceptance immediately in writing, describing the nature and extent of these faults in detail, and to have such faults confirmed by the deliverer. The invoice for the reclaimed delivery is to be presented to the Vendor. The following periods for complaints shall apply in the event of undamaged packaging but damaged contents: postal and parcel services, twenty-four hours as of acceptance; shipping companies and rail, seven days as of acceptance. In these cases, too, faults must be notified in writing, giving details of the nature and extent of the faults, and the invoice for the reclaimed delivery is to be presented. If the above periods for notification are not observed, the shipping company shall not be liable for damages. In the event of a complaint, the Buyer shall also be obliged to first accept the goods and to unload and store the goods with due care and at his own risk and cost. If the faults are to be remedied by the Vendor, the Vendor shall be obliged, at his option, to either remedy the faulty goods on site, have the faulty goods or the faulty parts returned for rectification, or replace the faulty parts. Rectification of faults shall not extend the warranty period. If the Vendor has the faulty goods or parts returned for rectification or replacement, the Buyer shall assume the costs and risk of shipment, unless otherwise agreed in writing. Return of the rectified or replaced goods or parts to the Buyer shall be at the Vendor‘s cost and risk, unless otherwise agreed. The faulty goods or parts replaced in accordance with this section shall be available to the Vendor. The Vendor shall only assume the costs of rectification of faults per-formed by the Buyer himself if he has given his consent hereto in writing. The Vendor shall only give warranty for such faults that occur under the agreed operating conditions and in the normal course of use. It shall not give warranty for any faults that occur due to incorrect set-up by the Buyer or its authorized representative, incorrect maintenance, incorrect repairs or repairs performed without the Vendor‘s written consent, or changes made by third parties, or due to normal wear and tear. The Vendor shall only give warranty for parts of the goods that he has purchased from third parties to the extent of the warranty claims due to him vis-à-vis the sub-contractor. If the Vendor manufactures goods on the basis of the Buyer‘s construction specifications, drawings or models, the Vendor‘s liability shall not include the correctness of the design, but rather the fact that execution of the goods was performed to the Buyer‘s specifications. In such cases, the Buyer undertakes to indemnify the Vendor against any violation of industrial property rights. The Vendor shall not give warranty for the acceptance of repair jobs in the event of modifications or conversions of all goods, including third-party goods, or in the event of delivery of used goods. Unless otherwise deriving from these provisions, all further claims by the Buyer, on whatever legal grounds, shall be excluded. The Vendor shall hence not be liable for any damage that is not incurred on the delivered goods themselves, also, particularly, not for loss of profit or other pecuniary loss of the Buyer. In any case, all warranty claims shall be limited to the purchase price to be paid by the Buyer. As of commencement of warranty, the Vendor shall assume no liability exceeding the liability specified in this section. He shall also not be liable for any faults originating before the date of the passing of risk. The object of purchase shall only offer the safety that may be expected on the basis of approval regulations, operating instructions, Vendor instructions concerning handling of the object of purchase, particularly with regard to any prescribed inspections and other instructions provided.
Other claims for damages
Unless otherwise deriving from the aforesaid, all claims for damages vis-à-vis the Vendor shall be excluded without regard for the legal nature of the claim asserted. This exclusion shall hence apply in particular to all claims for damages for injuries to persons, damage to property that is not the object of the Contract, other damage or loss of profit, unless the circumstances of the individual case prove gross negligence on the part of the Vendor. Liability for damages resulting from the Product Liability Act and product liability claims that may be derived from other provisions shall be explicitly excluded.
Plans, drawings and other documents of a similar nature, as well as brochures, catalogues, patterns and the same remain the intellectual property of the Vendor. Any utilization or duplication shall require the explicit written consent of the Vendor. In the event of their utilization without consent, the Vendor is entitled to assert a compensation fee equal to 25% of the estimated sum.
Place of jurisdiction, applicable law, place of performance
The venue for all disputes arising out of or in connection with this Contract is Graz. The place of delivery and payment shall be the Vendor‘s registered office, also if delivery takes place, as agreed, at a different place. The contractual relationship is subject to Austrian law, with the exception of the UNCITRAL uniform law on sale of goods (Convention on Contracts for the International Sale of Goods of 11.04.1980), whose validity is explicitly excluded.
The Buyer hereby gives its consent to its data being stored and executeed by the Vendor in electronic form. Furthermore, the Buyer declares that it consents to an enquiry being made to the Trade Credit Database (“Warenkreditevidenz der Creditreform”) or another appropriate information office. The Buyer also consents, in the event of a delay in its payment, to all its data at the Warenkreditevidenz being transmitted and made available to third parties by the Warenkreditevidenz.
If a provision of these AGB is declared void or legally ineffective, the remaining provisions shall remain unaffected by this, and are to be interpreted as if the Contract had been concluded without the invalid provision. The same applies to loopholes in the Contract. Any controversies relating to fulfillment of this Contract do not entitle the Buyer to suspend or delay due payments. The Buyer may only assign its rights arising out of the Contract after gaining the written consent of the Vendor.