General Terms of Delivery and Payment
- I. Scope
The delivery of goods and services and quotations by the Seller are exclusively subject to the following Terms and Conditions; conflicting or deviating terms made by the Buyer shall not be accepted, except with the Seller’s explicit written consent. The performance by the Seller in order to execute this contract shall thus not be considered as consent to any conflicting or deviant terms. These Terms and Conditions apply as outline agreement also for any future legal transactions between the Parties.
- II. Formation of contract
A contractual offer made by the Buyer always requires a written order confirmation. However, a binding contract shall also arise with the dispatch of the ordered goods. For any quotation made to the Seller, the offer shall be binding for an adequate period of time, however not less than 8 days after the receipt of the quotation by the Seller.
- III. Price
All prices quoted by the Seller are exclusive of VAT unless otherwise agreed in writing. In the event of a change in labour costs due to wage agreement regulations in the industry or due to company-specific agreements, or in the event of a change in other cost centres or in costs necessary for the performance of the contract, such as costs for materials, energy, transport, outsourced services, financing etc. the Seller shall be entitled to increase or lower the price accordingly. Item III shall not apply to “consumer transactions”.
- IV. Terms of payment, default interest
All claims of the Seller shall be paid in cash, concurrently upon delivery of the goods unless otherwise agreed in writing. Discounts may only be deducted with the Seller’s prior consent. In the event of default in payment, also of instalment payments, any agreed discount shall be void. Payments made by the Buyer shall only be deemed to have been made upon receipt of the full amount on the Seller’s business account. If the Buyer is overdue in making any payment to the Seller, the Seller shall be entitled – in his sole discretion – to claim either reimbursement for the actual damage or to charge a default interest rate of 4% above the base rate of the Austrian National Bank, the latter of which does not apply to consumer credit transactions.
- V. Cancellation
In the event of delayed acceptance (Item VII) or for other important reasons such as the filing of a petition in bankruptcy in respect of the Buyer or a petition in bankruptcy being dismissed for lack of fortune, as well as in the event of default in payment on the part of the Buyer, the Seller shall be entitled to cancel the contract, if it has not yet been entirely fulfilled by both Parties. In the event of cancellation for reasons attributable to the Buyer, the Seller shall be entitled to claim either a lump sum settlement for damages (15% of the gross billing amount) or reimbursement for the actual damage. If the Buyer is overdue in making any payment to the Seller, the Seller shall be released from all other performance or delivery obligations and shall be entitled to retain any outstanding goods or services, to require advance payment or securities, or to withdraw from the contract after granting a reasonable additional grace period. Should the Buyer unjustifiedly cancel the contract or demand its cancellation, the Seller shall be entitled to either insist on the performance of the contract or to accept its cancellation; in the latter case, the Buyer shall be obligated to pay, in the Seller’s discretion, either a lump sum settlement in the amount of 15% of the gross billing amount or reimbursement for the actual damage.
If the contract is formed by distance selling (Section 5a ff. Consumer Protection Act – Verbraucherschutzgesetz), the Buyer shall be entitled to withdraw from the contract within 7 working days, except Saturdays. This 7-day period begins on the day of arrival of the goods at the Buyer’s or, in case of services, on the day of concluding the contract. For the purpose of cancellation it suffices to send the cancellation notice before the end of this period. If the Buyer cancels the contract under this provision, he shall bear the cost for returning the goods; in the event of a credit purchase, the Buyer shall additionally bear the costs for the authentification of signatures and the fees for the granting of credit. No cancellation shall be possible for services due to be performed within 7 days upon concluding the contract.
- VI. Dunning costs/collection charges
The contract partner (Buyer) shall, in the event of a default in payment on his part, reimburse any and all dunning costs and collection charges incurred by the creditor as far as necessary for the appropriate action, and in particular agrees to the maximum remuneration for the collection institution involved as specified in the relevant directive of the BMWA (Federal Ministry for Economic Affairs) regarding the maximum rates payable to collection institutions. If the creditor is himself responsible for the dunning procedure, the debtor agrees to pay an amount of 10.90 euros per reminder sent, and another 3.63 euros every six months for keeping track of the debt relationship.
- VII. Delivery, transport, delayed acceptance
Seller’s sales prices are exclusive of delivery, assembly or installation costs. However, the Seller organises and provides these services upon request against extra payment. For transport and/or delivery, the Seller shall charge the costs actually incurred plus a reasonable surcharge for non-current costs, however no less than the freight and transport wages of the selected transport means as valid or common on the delivery date. Any assembly work carried out shall be billed according to the time spent, at an agreed hourly rate as customary in the trade. Should the Buyer fail to accept the goods within the agreed period (delayed acceptance), the Seller shall be entitled, upon the unsuccessful granting of an additional grace period, to either store the goods on his own premises (for which he shall charge a lump sum of 0.1% of the gross billing amount per each new calendar day), or to store the goods at the cost and peril of the Buyer in an authorized warehouse. In addition, Seller shall be entitled to either insist on performance or, upon the granting of an adequate additional grace period of no less than 2 weeks, to cancel the contract and to sell the goods for another purpose.
- VIII. Delivery period
The Seller shall not be obliged to perform until the Buyer has fulfilled all his obligations necessary for performance, in particular all technical and contractual details, preliminary work and preparation measures. The Seller shall be entitled to exceed the agreed deadlines and delivery dates by up to one week. Only after this period shall the Buyer be entitled to cancel the contract upon stating an adequate grace period.
- IX. Place of performance
The place of performance is our company headquarters.
- X. Minor changes in delivery
If the contract does not refer to a consumer transaction, any minor or other reasonable changes in our service or delivery obligation shall be deemed to have been agreed beforehand. This shall in particular apply to pertinent changes (e.g. in dimension, colour, wood or veneer appearance, grain or pattern etc.).
- XI. Warranty, obligation to inspect and notify defects
Warranty claims on the part of the Buyer shall be met, in our sole discretion, either by exchange, by repair within an adequate period of time, or by price reduction. The Buyer shall only be entitled to demand rescission (resolution) of the contract in case of material defects that cannot be remedied by exchange or repair and where price reduction is not a reasonable solution for the Buyer. Claims for damages made by the Buyer aiming at the remediation of the defect by way of repair or exchange may only be put forward if the Seller is in default in meeting the warranty claims. Warranty claims regarding movables must be put forth within a year from delivery of the goods.
If the Buyer claims the occurrence of a defect, he shall only be entitled to put forth any financial claims, in particular for warranty or damage, if he is able to demonstrate that the defect had already occurred at the time of delivery; this also applies for the first six months after delivery of the goods.
In addition, Section 377f HGB (Commercial Code) provides that the Buyer must inspect the goods immediately upon delivery, and within a maximum of 6 working days. Any detected defects shall be notified to the Seller in writing without delay, within a maximum of 3 working days upon their discovery, including information about the nature and extent of the defect. Hidden defects shall be notified in writing without delay, within a maximum of 3 working days after their discovery. Failure to notify in due time shall be considered as acceptance of the goods.
The warranty obligation of the Seller lapses at any rate with the expiration of the warranty period; any recourse sought by the Buyer beyond this point on the grounds of having fulfilled any warranty obligations himself shall be excluded in accordance with Section 933b ABGB (Civil Code).
None of the provisions of Item XI shall apply to consumer transactions.
- XII. Claims for damages
In the case of slight negligence, claims for damages shall be excluded. This shall not apply to personal injury and, in case of consumer transactions, to goods damaged during processing.
The Buyer shall have to demonstrate the occurrence of slight or gross negligence, unless in a consumer transaction. In all other transactions, claims for damages shall be prescribed three years after the passing of risk. The provisions contained in these Terms and Conditions or in other agreed terms on damages shall also be valid if the claim for damages is made in addition to or in lieu of a warranty claim.
Before the connection or transport of IT technical products and/or the installation of computer software, the Buyer shall save the existing data on the computer otherwise he shall be liable for any loss of data and any and all related damage.
- XIII. Product liability
Recovery claims pursuant to Section 12 Product Liability Act (Produkthaftungsgesetz) are excluded unless the person entitled to recovery demonstrates that the default is attributable to the Seller’s sphere and was at least caused by gross negligence.
- XIV. Retention of title and related claims
The Seller delivers all goods under the terms of a conditional sale and such goods shall remain the Seller’s property until full payment of the purchase price. The fact that title is being claimed shall only result in cancellation if explicitly declared so by the Seller. For returns, the Seller shall be entitled to invoice the freight and handling costs incurred. In the event of third parties appropriating the goods subject to retention of title – in particular by way of seizure – the Buyer shall communicate the Seller’s title to such goods and inform the Seller immediately. If the Buyer is a consumer or an entrepreneur whose business purpose does not cover the trading with goods purchased from the Seller, he shall not be allowed to avail of the goods subject to title until full payment of the purchase price has been made; in particular he may neither sell, encumber, give away or lend the goods to third parties. The Buyer shall bear the entire risk for the goods subject to retention of title, and in particular the risk of perishing, loss, or deterioration.
- XV. Assignment of claims
For deliveries made under retention of title, the Buyer herewith agrees to assign his third-party claims to the Seller on account of payment, as far as they arise out of the sale or processing of the Seller’s goods, until full payment of the Seller’s claims. The Buyer shall name his clients upon request and inform them of the assignment in a timely manner. The assignment shall be made visible to the client in the books, especially in the accounts receivables list and on delivery notes, invoices etc. If the Buyer is overdue in making any payments to the Seller, the incoming proceeds shall be separated and the Buyer retains them only on the Seller’s behalf. Any claims toward insurers shall be deemed to have been assigned to the Seller within the limits of Section 15 Insurance Contract Act (Versicherungsvertragsgesetz). Claims toward the Seller may not be assigned unless otherwise agreed in writing.
- XVI. Retention
If the contract does not refer to a consumer transaction, the Buyer shall not be entitled to retain the full, but only an adequate portion of the gross billing amount if the complaint has been justified, except for the case of reversing the transaction.
- XVII. Choice of forum, governing law
The contract shall be subject to Austrian law. The use of UN sales law is explicitly barred. The contract languages are German and English; in case of doubt regarding its interpretation, the German version shall prevail. The Parties agree on Austrian, domestic jurisdiction. If the transaction is not a consumer transaction, all disputes arising out of it shall be settled by the local court competent in the matter.
- XVIII. Data protection, change of address, copyright
The Buyer agrees that the Seller also stores and processes all personal data contained in the sales agreement electronically under the terms of this Agreement. At the same time the Buyer consents to receiving information material from the Seller by electronic mail.
The Buyer shall inform the Seller about any changes to his domicile or business address as long as the legal transaction forming the subject-matter of the contract has not been entirely fulfilled by both parties. In the event of failure to inform, statements shall be deemed to have been received when sent to the address last communicated. Plans, sketches or other technical documents as well as specimens, catalogues, brochures, illustrations and the like shall remain the intellectual property of the Seller; the Buyer shall not be entitled to utilize, sell or exploit such material in any way.
