General Conditions of Sale and Delivery for the Trade (in the following referred to as GCSD)
Non-binding recommendation of the Association, submitted to the Kartellgericht [Restrictive Practices Court] according to § 32 KartellG [antitrust law] on 24 January 2002
Any deliveries, services and offers by our company are exclusively made on the basis of these GCSD, irrespective of the kind of legal transaction. All our declarations of intent under private law are to be interpreted based on these GCSD. We do not accept any customer regulations to the contrary of or deviating from our GCSD, unless we had explicitly agreed to their validity in writing. Any acts on our part that serve for performance of contract do therefore not constitute an approval of any contract conditions deviating from our GCSD. These General Terms and Conditions also apply as General Agreement for all other legal transactions between the contractual parties.
II. Conclusion of the contract
a) Our offers are non-binding and subject to confirmation. Any oral agreements, subsidiary agreements and similar arrangements deviating from these GCSD or any other of our written declarations of intent, especially those given by vendors, deliverers, etc. are non-binding for us. The content of brochures, advertising announcements, etc. used by us shall not become part of the contract, unless such content was expressly related to.
b) Each order requires an acknowledgement to conclude a contract. The dispatch or handing over of the goods ordered by the customer shall also provoke conclusion of a contract. If any offers are directed to us, the provider shall be bound to this offer for an adequate period of time of at least eight days from receipt of the offer. In case of consumer transactions, clause II. a) shall not apply.
Unless explicitly mentioned otherwise, all prices stated by us are without VAT. If the labour costs should change during the time between the conclusion of the contract and delivery as a result of collective agreement regulations within the industry or internal deals, or if other costs should change that are relevant for calculation or for services to be rendered, such as costs for materials, energy, transport, external works, financing, etc., we are entitled to increase or reduce prices correspondingly. In case of consumer transactions, clause III. shall not apply.
IV. Terms of payment, default interests
a) In the absence of any agreement to the contrary, our claims are to be settled in cash by matching payment with delivery of goods. Our invoices are due for payment from receipt of goods. Any discounts are inadmissible, unless specifically agreed otherwise. In case of delayed payment, also with instalments, any discount arrangements become ineffective. Payments made by the customer are deemed to be effected upon receipt on our business account.
b) In case of delayed payment, we are entitled from the due date to claim default interest in the amount of 4% above the secondary market yield/Bund acc. to the statistical monthly issue of the Austrian National Bank. We reserve the right for further claims, such as in particular the claim for higher interest rates from the title of damages. In case of credit transactions with consumers, clause IV. B) shall not apply.
V. Cancellation of contract
a) In addition to the general legal provisions, we are entitled to cancel the contract in case of default of acceptance (clause VII) or other important reasons, such as in particular institution of bankruptcy proceedings on the assets of a contractual partner, or dismissal of a petition of bankruptcy for lack of cost-covering assets. If the cancellation is a result of the customer’s fault, we may chose to claim lump sum damages of 15% of the gross invoice amount, or replacement of the actual damage.
b) In case of delayed payment by the customer, we are released from all other service and delivery obligations, and we are entitled to retains any outstanding deliveries or services, and to claim advance payments resp. sureties, or ? if necessary after determination of a reasonable period of grace ? to withdraw from the contract.
c) If the customer withdraws from the contract without being entitled to do so, or if he unjustifiably demands its cancellation, we have the option to insist on performance of the contract or agree to the cancellation of the contract. In the latter case, the customer is obligated to pay ? at our option ? lump sum damages in the amount of 15% of the gross invoice amount, or the actual damages.
VI. Dunning costs and collection expenses
In case of delayed payment, the customer shall compensate us for the accruing dunning costs in the lump sum of € 9.00 plus postage for each reminder, as well as an amount of € 3.70 for each half year for the evidence records of the obligation in dunning. In addition, all dunning and collection costs required for adequate legal pursuit are to be compensated to us, f. ex. the expenses for a debt collection agency, however, with the maximum remuneration specified in the regulation of the BMWA [Austrian Federal Ministry of Economics and Labour] on the maximum rates of remuneration for debt collection agencies. In case of consumer transactions, clause VI. sentence 2 shall not apply.
VII. Delivery, transport, default of acceptance
a) Our sales prices do not include any costs for delivery, assembly or installation. However, these services are rendered or organised on demand against extra payment. For any transport resp. delivery, the actually incurred costs including a reasonable additional charge for overhead expenses are charged, with a minimum of the freights and carriages for the selected type of transport that are in force on the day of delivery or that are customary. Any assembly works are charged according to expenditure of time, with an hourly rate that is customary in the trade is deemed to be agreed.
b) If the customer has not accepted the goods as agreed (default of acceptance), we are entitled to either place the goods in our stock while charging a storage fee of 0.1% of the gross invoice amount for each started calendar day, or transfer the goods to the stock of an authorised tradesperson at the customer’s expense and risk. At the same time, we are entitled to either insist on performance of the contract, or ? after determination of a reasonable period of grace ? to withdraw from the contract and to otherwise dispose of the goods. If the goods are perishable and if there is danger in delay, in case of default of acceptance we are entitled to sell the goods ourselves at the customer’s expense at a reasonable price without previous threat.
VIII. Transfer of risks
Irrespective of the legal provisions, the risk of destruction by accident or deterioration by accident always passes to the purchaser upon handover to the carrier, also in case of delivery free to destination.
IX. Date of delivery
a) We are obligated to render the service as soon as the customer has met all his obligations that are required for execution, in particular all technical and contractual details, preliminary works and preparation measures.
b) We have the right to exceed the agreed deadlines and delivery dates by up to one week. Only after expiry of this period, the customer may withdraw from the contract after determination of an adequate grace period.
X. Place of performance
The place of performance shall be the registered office of our company.
XI. Minor changes of service
Minor or other changes of our service resp. delivery obligation, which are reasonable for our customers, are deemed to be agreed in advance. This applies in particular for deviations as a result of the matter (f. ex. in dimensions, colours, wood and veneer structure, grain and structure, etc.) In case of consumer transactions, clause XI. shall not apply.
XII. Warranty, duty of inspection and notification of defects
a) In case of a remediable defect we will meet warranty claims of the customer at our own option either by exchange, repair within a reasonable time, or reduction of price. Any claims for damages of the customer that aim at rectification of the fault can only be asserted if we have defaulted in fulfilling the warranty claims.
b) For the purpose of § 377 f HGB [Commercial Code], the goods are to be inspected immediately upon receipt, however, within six working days at the latest. Any identified faults are to be communicated in writing without any delay, however, within three working days after their identification at the latest, and stating the kind and scope of defect. Concealed defects are to be notified in writing without any delay, however, within three working days after their identification at the latest. If a notification of defects is not submitted or is not submitted in time, the goods are considered to be approved. In case of consumer transactions, clause XII. A) and b) shall not apply.
a) In case of minor negligence, all claims for damages against us are excluded. The claimant is obligated to prove the existence of minor resp. gross negligence.
b) The limitation period of claims for damages is three years from transfer of risks. The provisions on damages contained in these GCSD or agreed otherwise will also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
c) Before connection or transport of EDP technical items resp. before installation of computer programmes, the customer is obligated to sufficiently back up the dataset already in place on the computer system. Otherwise he will have to account for any lost data and for all damages associated with that loss.
d) In case of consumer transactions, clause XIII. a) sentence 1 shall not apply for personal injuries and for damages to any items accepted for processing. In case of consumer transactions, clause XIII. a) sentence 2, b) sentence 1 shall not apply.
XIV. Product liability
Any claims for compensation for the purpose of § 12 Produkthaftungsgesetz (Product Liability Act) are excluded, unless the person entitled to compensation proves that the defect has been caused in our sphere and has been caused at least by gross negligence.
XV. Retention of title and its assertion
a) We will deliver all goods and items under retention of title, and they shall remain our property until full payment has been made.
b) Any reclaim resp. retraction of the item under retention of title only constitutes a withdrawal from the contract if this is explicitly declared. In case of retraction of goods, we are entitled ? irrespective of further claims ? to charge any incurred transport and handling costs.
c) Provided that the purchaser processes or treats the goods or items delivered by us before fulfilment of all our claims, this does not represent an acquisition of ownership. We acquire joint ownership of the new item resulting therefrom in the proportion of the value of the goods supplied by us to the other processed goods at the time of processing or treatment.
d) The goods being under retention of title must not be pledged nor assigned as security by the purchaser. In case of any seizures or other claims by third parties, the purchaser shall be required to assert our property right and to inform us without any delay.
e) Only a businessperson whose regular business operations include trade with the goods purchased from us may dispose of the goods under reservation until full settlement of the purchase price claim.
f) The client bears the full risk for the goods under reservation, in particular for the risk of destruction, loss or deterioration.
XVI. Assignment of claims
a) In case of delivery under retention of title, the customer assigns his claims against any third parties to us until final settlement of our claims, to the extent that these claims arise as a result of the sale or processing of our goods. If the customer is in default with his payments to us, the sales revenues received by him are to be separated and the customer only holds them on our behalf. Any claims against an insurance company have already been assigned to us within the limits of § 15 VersVG [Insurance Contract Act].
b) Claims against us must only be assigned with our express approval.
In case of justified complaints, with the exception of cases of reversed transaction, the customer shall not be entitled to retain the entire but only a reasonable part of the gross invoice amount. In case of consumer transactions clause XVII. shall not apply.
XVIII. Event of default
a) To the extent that the customer must meet his payment obligations in instalments, it shall be agreed that in case of delayed payment of even one instalment all outstanding part services become due immediately without any further determination of grace periods.
b) For consumer transactions, clause XVIII applies to the extent that we have completely rendered our service, even only one delinquent payment of the customer has been due for at least six weeks and if we have dunned the customer setting a grace period of a minimum of two weeks on pain of an event of default.
XIX. Choice of law, place of jurisdiction
Austrian law shall apply. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded. The contractual language shall be German. The contractual parties agree on an Austrian domestic jurisdiction. Any disputes arising from this contract shall be settled by the factually competent court at our company’s place of registered office. In case of consumer transactions clause XIX. shall not apply.
XX. Data protection, change of address and copyright
a) The customer agrees that the personal data included in the sales contract may be automatically stored and processed in fulfilment of this contract.
b) The customer is obligated to notify us about any changes of his place of residence resp. business address, as long as the legal transaction being the subject of this contract has not been fully fulfilled by both parties. If the customer fails to notify us, declarations are considered to be received if they are sent to the last known address.
c) Plans, drawings or other technical documents, as well as any samples, catalogues, brochures, illustrations, etc. shall always remain our intellectual property. The customer does not receive any usage or exploitation rights.
XXI. Severability clause
If individual provisions of these GCSD should become wholly or partly be or become invalid or inexecutable, this shall not affect the validity of the other provisions.