General Terms and Conditions of Trade
Non-binding recommendation of trade association, published by the Austrian Chamber of Commerce, field trade, for the members of the Chamber of Commerce that are attributable to this field.
As of: 2003
Deliveries, activities and offers of our company are effected exclusively on the basis of these terms and conditions; we will not recognise terms and conditions of the customer contrary or deviant to our terms and conditions, if we have not explicitly agreed to their validity. Any acts in fulfilment of contractual obligations on our part are insofar not to be considered as acceptance to conditions deviating from our terms and conditions. These terms and conditions shall also be a basic agreement for all further legal transactions between the contracting parties.
An offer of contract on the part of a customer necessitates a confirmation of order. The sending of articles ordered by the customer also effects the conclusion of a contract. When offers are made to us, the offering party is bound by contract to its offer for an appropriate period, but in any case not less than 8 days from receipt of the offer.
Unless explicitly noted differently, all prices stated by us are excluding value added tax. In the event of changes in labour costs resulting from collective agreement regulations within the industry, internal work agreements or in the event of changes in other calculation-relevant cost centres or in costs necessary for performance, such as material, energy, transport, subcontracted work, financing etc., we are entitled to raise or abate prices accordingly. For consumer transactions, point III is not applicable.
IV. Terms of payment, late interest charges
Lacking a contradictory agreement, our claims are to be paid in cash concurrently against delivery of the goods. Deduction of discount necessitates a separate agreement. In the case of delay of payment, including the case of partial payments, any discount agreements become void. Payments of the client are not recognised as paid until the moment of receipt on our business account. In the case of delay of payment on the part of the customer, we are entitled to charge a compensation of the loss actually incurred or interest for default at the statutory rate. In the case of delay of payment, we are also entitled to charge compound interest starting on the day of delivery of goods.
V. Recession of contract
In the case of delayed acceptance (point VII.) or other important reasons such as insolvency of the customer or rejection of bankruptcy for lack of assets, as well as in the case of delay of payment on the part of the customer, we are entitled to rescind from the contract as long as it has not been fully performed by both contract partners. In the case of rescission of contract, we can – if due to default of the customer – charge liquidated compensation of 15% of the gross invoice amount or a compensation of the loss actually incurred. In the case of delay of payment on the part of the customer, we are released from all further performance or delivery obligations and are entitled to withhold outstanding deliveries or performances and to demand advance payment or sufficient security or, after setting an appropriate grace period, to rescind the contract. In the case the customer rescinds the contract or demands its cancellation without being entitled to do so, we have the right to choose between insisting on performance of the contract and accepting the rescission of the contract; in the latter case, the customer is obliged to pay either (by our choice) a liquidated compensation amounting to 15 % of the gross invoice amount or the compensation of the loss actually incurred. In the case of distance contracts (§§ 5a ff Consumer Protection Act), the customer can cancel the contract within a period of 7 business days, Saturdays do not count as business days. The cancellation period starts with the day on which the customer receives the goods or, in the case of services, with the day of conclusion of contract. It suffices to post the cancellation declaration within this period of time. In case the customer cancels the contract according to this provision, the consumer has to bear the costs of returning the goods; if credit was arranged for the contract, the consumer also has to bear the costs of a required authentification of signatures as well as the taxes (fees) for the granting of credit. In case, according to the agreement, the performance of the services starts within 7 business days starting from the conclusion of contract, it is not possible to rescind from the contract.
VI. Collection fees
In the case of delay, the contracting party (customer) undertakes to reimburse the creditor for any reminder and collection fees insofar as such fees are necessary for the appropriate prosecution. The customer undertakes in particular to reimburse at most the fees charged by the collection institute as far as they are covered by the BMwA-regulation governing maximum rates of payment chargeable by collection institutes. If the creditor runs the debt collection procedure himself, the debtor undertakes to pay the amount of € 10,90 per reminder as well as the amount of € 3,63 per half-year for keeping a record of the debt within the reminder system.
VII. Delivery, transport, default of acceptance
Our sales prices do not include costs for delivery, assembly or installation. We organise or perform these services by request and at extra cost. For transport and/or delivery, we charge the costs actually incurred including an appropriate surcharge for overhead costs, but not less than the normal freight and carriage charges for the selected form of transport, or those applying on the day of delivery. Installation work is charged based on the amount of time involved whereby the usual man-hour rate for the sector applies. If the customer does not accept the goods as agreed (default of acceptance), we are – after lapse of a set grace period – entitled to either store the goods (in this case, we charge a storage fee of 0,1 % of the gross invoice amount per calendar day) or – at customer’s risk and expense – to have the goods stored at an authorised commercial warehouse. At the same time, we are entitled to either insist on the fulfilment of the contract or, after setting an appropriate grace period of at least two weeks, to rescind from the contract and to use the goods for something else.
VIII. Delivery period
We are not obliged to perform our services before the customer has met all his obligations which are necessary for the fulfilment of the contract, in particular all technical and contractual details, work in advance and preparatory actions. We are entitled to exceed the agreed deadlines and delivery periods by up to one week. Only after the expiration of this deadline, the customer is entitled to rescind from the contract after first setting an appropriate grace period.
IX. Place of fulfilment
Place of fulfilment is the registered office of our company.
X. Minor service modifications
If the matter is not a consumer transaction, modifications of our service or delivery obligations that are of minor importance or that the customer may reasonably be expected to accept, shall count as agreed beforehand. This applies especially for deviations of material related matters (for example dimensions, colours, wood- and veneer pattern, grain and structure, etc.).
In cases of slight negligence, all compensation claims are excluded. This does not apply for personal injuries or in case of consumer transactions for damages to objects that have been accepted for processing. In cases where the transaction is not a consumer transaction, the injured party has to prove the existence of slight or gross negligence. If the matter is not a consumer transaction, the limitation period for compensation claims is three years, starting at transfer of risk. The provisions pertaining to compensation for damages contained in these terms and conditions or otherwise agreed also apply when the compensation claim is made in addition to or instead of a claim under warranty. Before a connection or transport of IT products or installation of computer programmes, the customer is obliged to adequately backup all data already existing on his computer equipment, otherwise he has to take full responsibility for lost data and all damages associated therewith.
XII. Product liability
Recourse claims according to § 12 Product Liability Act are excluded, unless the party entitled to recourse proves that the defect originated in our sphere and was the result of at least gross negligence.
XIII. Title retention and its assertion
All of our goods are delivered under retention of title and remain our property until payment has been made in full. Assertion of the title retention right only includes a rescission of the contract if it is declared explicitly. In the case of return of goods, we are entitled to charge transport and manipulation costs that incur. If third parties get a hold on goods subject to our retention of title right – in particular through seizure – the customer undertakes to indicate that the seized objects are our property and to inform us immediately. If the customer is a consumer or a businessman whose usual business activities do not include trading with the goods purchased from us, he is not entitled to dispose of the goods that are subject to our retention of title right until the open purchase price has been fully settled, in particular he is not entitled to sell, mortgage, give away or loan said goods. The customer carries the full risk for the goods subject to retention of title, in particular the risk of destruction, loss or impairment.
XIV. Assignment of claim
For deliveries under title retention, the customer herewith assigns its claims against third parties to us for payment, insofar as these arise through the sale or processing of our goods, until our claims have been fully settled. Upon demand, the customer has to name his buyers and has to inform them of the assignment in due time. The assignment has to be recorded in the business records, especially in the open item list and to be made evident for the buyer on delivery notes, invoices, etc. If the customer delays in making payments to us, sales proceeds received by it have to be kept separate and the customer possesses such proceeds solely in our name. If there are any claims against insurers, they shall herewith be assigned to us within the limits of § 15 Insurance Contract Act. Claims against us cannot be assigned without our prior explicit consent.
If the matter is not a consumer transaction and does not involve a recession of the contract, the customer is, in the case of a justified complaint, not entitled to withhold the full amount but only an appropriate portion of the gross invoice amount.
XVI. Place of jurisdiction, governing law
Austrian law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The contractual language is German. The contracting parties agree to Austrian, domestic jurisdiction. If the matter is not a consumer transaction, any disputes arising from this contract shall be exclusively settled by the competent court at the registered seat of our company.
The customer grants his approval for the fact that also the personal data contained in the contract of purchase are stored and processed automatically by us in the course of performing the contract. The customer is obliged to notify us in the case that his home or business address changes, as long as the contractual transaction has not been fully and mutually fulfilled. If the customer does not notify us, declarations are considered received if they are sent to the address that has last been notified. Plans, drafts or other technical documents remain our intellectual property, as well as prototypes, catalogues, brochures, images and the like; the customer receives no rights of use or exploitation whatsoever.