GENERAL TERMS AND CONDITIONS

OF METALL KOFLER GMBH (METALL KOFLER)- VERSION DECEMBER 2024

§ 1 - Scope of Application

1.1   These General Terms and Conditions (GTC) apply to all transactions between the customer and Metall Kofler, with the exception of webshop orders, for which separate General Terms and Conditions apply. Any GTC of the customer that deviate from these GTC or from amendments or additions confirmed in writing by Metall Kofler are hereby expressly excluded. Deviations from these GTC can only be agreed upon in written form.

1.2   These GTC shall also apply to all future contractual agreements with the customer until new GTC are issued by Metall Kofler, even if these are concluded without explicit reference to the GTC. The version of the GTC valid at the time of the conclusion of the contract shall apply.

 

§ 2 - Conclusion of Contract

2.1   Offers made by Metall Kofler are non-binding and subject to change. Contracts with the customer are only concluded upon the dispatch of a written order confirmation by Metall Kofler or upon delivery of the goods. The customer is bound to their contractual offer for fourteen days from its receipt by Metall Kofler.

2.2   If the order confirmation deviates from the customer's order, the customer must immediately, but no later than within seven calendar days of receiving the order confirmation, object in writing. Otherwise, the contract is concluded under the conditions stated in the order confirmation.

2.3   ndicated dimensions, weights, illustrations, descriptions, etc., are only approximate. Changes to the goods ordered by the customer, which are based on technical improvements or legal requirements (particularly laws and jurisprudence), are reserved during the delivery period, provided these changes are reasonable for the customer.

2.4   Illustrations, drawings, and other documents provided by Metall Kofler are copyright-protected. They may not be used by the customer for their own purposes, altered, or made accessible to third parties without the express consent of Metall Kofler.

2.5   Obvious errors, misprints, calculation, typographical, and computational errors are not binding for Metall Kofler and do not constitute a claim for damages.

2.6   Representations of goods by employees of Metall Kofler are not significant unless confirmed in writing by authorized representatives of Metall Kofler

2.7   Metall Kofler is entitled to engage third parties to fulfill the contract, provided Metall Kofler does not owe personal services.

 

§ 3- Customized Products and Services

3.1   The customer may commission Metall Kofler with the production of customized products. The customer must provide Metall Kofler with all information required for the customization. Before production begins, the customer will receive an approval drawing that defines the specific characteristics of the agreed customized product. The customer is obligated to review the approval drawing immediately upon receipt, but no later than within 14 days. If Metall Kofler does not receive feedback from the customer regarding the approval drawing within 14 days, production based on the approval drawing is deemed approved. By approving the drawing, the customer confirms the accuracy and completeness of the approval drawing.

3.2   Metall Kofler will inform the customer in cases of customized products or commissioned services (e.g., product engraving, labeling, balancing, regrinding of tools, repairs, or inspection of repairs) if it becomes apparent that the customization or service is unlikely to be successfully executed. Should the customer insist on execution despite this warning, they are obligated to pay the agreed compensation regardless of the outcome.

3.3   Requests for changes to customized products after approval are only possible in consultation with Metall Kofler. Metall Kofler reserves the right to adjust the agreed price based on the customer’s subsequent modification requests.

3.4   If Metall Kofler cannot perform a customization or service due to the customer’s lack of necessary cooperation (e.g., providing required information or documents), Metall Kofler will set a reasonable deadline for the customer to cooperate. If the customer fails to meet this deadline, Metall Kofler is released from its obligation, and the customer must pay the full agreed compensation. Metall Kofler is not required to deduct any savings that could have been achieved due to the lack of performance (exclusion of § 1168 para. 1, second sentence ABGB).

3.5   The customer is obligated to inspect the customized product immediately after completion and report any defects in writing within 14 days.

3.6   Due to production reasons, over- or under-deliveries may occur in the case of customized products. If the customer orders up to 10 units of a commissioned product, they agree to an over- or under-delivery of one unit. If the customer orders more than 10 units, they agree to an over- or under-delivery of up to 10%. The customer commits to accepting the actual production quantity at the agreed unit price and is not entitled to claim defects or reduce the purchase price.

3.7   If Metall Kofler is tasked with evaluating the feasibility or cost-effectiveness of repairing a product, the customer must bear the costs of this evaluation even if the repair cannot be performed or is ultimately not commissioned by the customer.

 

§ 4- Shipping, Deadlines, and Time Frames

4.1   The shipping of ordered goods is carried out at the customer’s expense and risk. Metall Kofler is free to choose the carrier and shipping method unless explicitly agreed otherwise with the customer. The risk transfers to the customer as soon as Metall Kofler hands over the shipment to the carrier. If shipping is delayed at the customer’s request, the risk transfers upon notification of readiness for dispatch.

4.2   Delivery dates or deadlines are only binding if confirmed in writing by Metall Kofler. Metall Kofler will make every effort to meet these deadlines.

4.3   Delivery delays caused by unforeseen or unavoidable events beyond Metall Kofler’s control (e.g., operational disruptions, strikes, public unrest, lockouts, complete or partial shutdown of the supplier’s operations, war, epidemics, delays in supplier deliveries, official orders, or force majeure) result in a reasonable extension of delivery deadlines and dates. If such events extend or exceed delivery deadlines or dates by more than twelve weeks, both parties are entitled to withdraw from the contract without any obligation for compensation. Metall Kofler will inform the customer of the existence of such an obstacle.

4.4   Non-compliance with deadlines or dates due to negligence entitles the customer to assert legally granted rights only if they have explicitly set a reasonable grace period of at least four weeks for Metall Kofler to rectify the issue.

4.5   Partial deliveries by Metall Kofler are permitted.

 

§ 5 - Prices and Payment

5.1   The prices of the goods are specified in the order. All prices are, unless otherwise agreed, quoted net ex warehouse, excluding packaging, shipping, and any transport insurance requested by the customer, which will be charged additionally.

5.2   Any shipping costs incurred will be stated separately in the order. If import or export duties are incurred during shipping, the customer is responsible for bearing these costs.

5.3   Metall Kofler will issue a proper invoice to the customer. Metall Kofler is entitled to send invoices to the customer in electronic form. The customer explicitly agrees to the receipt of invoices in electronic form.

5.4   Invoices are due for payment without any deductions within 14 days net from the invoice date, unless a separate agreement regarding payment terms has been made with the customer. The customer is automatically in default upon the expiry of the payment term, without the need for a reminder. Customers must raise justified objections to the invoice within one month; otherwise, the invoice is deemed accepted in terms of both its validity and amount. In cases where instalment payments are agreed upon, default on even a single instalment results in the loss of the instalment agreement.

5.5   Metall Kofler is entitled to request advance payments from the customer.

5.6   In the event of payment default, Metall Kofler is entitled to charge statutory default interest in accordance with § 456 UGB. If the payment term is exceeded, Metall Kofler reserves the right to charge reminder fees of EUR 40.00 net for reminders and all costs incurred for collection steps by third parties (legal fees or collection agency fees) in accordance with the applicable attorney tariff or the provisions of the Collection Fees Regulation. Metall Kofler may also charge the customer for all additional expenses incurred in connection with the outstanding liability.

5.7   Compliance with the agreed payment deadlines and terms is a fundamental condition for Metall Kofler's fulfilment of the contract.

5.8   Payments can only be made with debt-discharging effect directly to Metall Kofler.

5.9   The customer is only entitled to set-off rights in cases of Metall Kofler's insolvency or for claims that have been acknowledged in writing or legally established by a court.

5.10  Metall Kofler reserves the right, particularly in ongoing business relationships, to make the acceptance of customer orders and the provision of services dependent on minimum order values or to charge small quantity surcharges.

 

§ 6 - Reservation of Title

6.1   The goods ordered remain the property of Metall Kofler until full payment has been received.

6.2   The customer is only entitled to resell the goods prior to full payment after obtaining written consent from Metall Kofler and in accordance with its terms. The authorization to resell automatically expires if the customer is in payment default or suspends payments. The customer is not authorized to make any other dispositions over the reserved goods, particularly pledges or transfers by way of security, until full payment has been made. The customer must prevent third-party interference with Metall Kofler's ownership rights, including seizures of the reserved goods, and is obligated to point out Metall Kofler’s ownership. The customer must immediately inform Metall Kofler in writing of such incidents.

6.3   Metall Kofler is entitled to demand the immediate return of delivered goods that have not yet been fully paid for if the customer fails to meet their payment obligations punctually and in full; files for insolvency proceedings or insolvency proceedings are initiated against them; the initiation of insolvency proceedings is dismissed due to lack of assets; the customer effectively ceases payments; or approaches Metall Kofler for an out-of-court settlement.

6.4   In the event of resale prior to full payment of the goods (see § 6.2), the customer hereby assigns to Metall Kofler the purchase price claim they hold against the buyer, as well as all claims and ancillary rights arising from the resale. The customer must record this assignment in their accounts. At Metall Kofler's request, the customer must disclose the resale of the goods to third parties within seven days of the request for the purpose of payment to Metall Kofler and provide the necessary information and documents required to assert Metall Kofler's rights. Metall Kofler is entitled at any time to notify third-party debtors of the assignment.

6.5   The repossession of goods by Metall Kofler does not constitute a withdrawal from the contract unless explicitly stated in writing. Even in the case of repossession of goods sold under reservation of title, Metall Kofler retains the right to claim damages for non-performance. Until the reservation of title expires, the buyer is considered a fiduciary custodian of the goods sold under reservation of title. Any costs incurred by Metall Kofler in asserting its rights under the reservation of title are to be borne by the customer.

 

§ 7 -Warranty

7.1   Metall Kofler warrants that the goods, at the time of the transfer of risk (§ 4), conform to the agreed specifications and are free from material defects. The goods are suitable for the explicitly agreed use with the customer and possess the quality customary for goods of the same type.

7.2   The customer must inspect the packaging of the goods for external damage immediately upon receipt and report any such damage in writing to the carrier. The goods themselves must also be inspected immediately after receipt, and any visible defects must be reported to Metall Kofler in writing without delay, but no later than five business days after receipt. Defects that cannot be discovered through careful inspection or only become apparent later must be reported in writing to Metall Kofler immediately, but no later than five business days after discovery. The risk of the defect notification reaching Metall Kofler lies with the customer. If the customer fails to meet these inspection and notification obligations in a timely manner, the goods are considered accepted, and the customer can no longer assert any claims due to the defect (in particular, not for warranty, damages, or mistake). § 377 para. 5 UGB remains unaffected.

7.3   The warranty period is six months from the transfer of risk as per § 4. Warranty claims can only be asserted by the respective customer. The customer must prove that the defect already existed at the time of the transfer of risk; the presumption of defectiveness pursuant to § 924 ABGB is excluded.

7.4   If a defect exists, Metall Kofler is entitled to subsequent performance through rectification of the defect or delivery of defect-free goods (replacement). The choice between defect rectification and replacement lies with Metall Kofler. Metall Kofler’s right to refuse rectification or replacement if the legal conditions are met (e.g., § 932 para. 4 ABGB) remains unaffected.

7.5   The customer must give Metall Kofler the necessary time and opportunity to perform rectifications or replacements; otherwise, Metall Kofler is released from the warranty obligation.

7.6   Metall Kofler may require the customer to send the defective goods at Metall Kofler's expense to an address specified by Metall Kofler or, at Metall Kofler's discretion, to hold the defective goods ready for Metall Kofler or a third party commissioned by Metall Kofler to rectify the defect or replace the goods directly at the customer’s location.

7.7   Metall Kofler may refuse rectification or replacement as long as the customer has not fulfilled their payment obligations to the extent corresponding to the defect-free part of the delivered goods, provided the defect-free part is of interest to the customer (e.g., independently usable).

7.8   There is no warranty claim for minor defects. Defects in part of the delivery do not entitle the customer to object to the remaining delivery.

7.9   Normal wear and tear or customary use of the goods does not constitute a warranty claim. Customers are explicitly reminded of operating, usage, maintenance, and cleaning instructions, as well as transport and storage conditions. Metall Kofler assumes no warranty or liability for damages resulting from deviations from these instructions, improper operation, use, cleaning, maintenance, transport, or storage, or use under extraordinary external conditions. This exclusion of liability and warranty also applies in the event of unauthorized modifications to the goods.

7.10  The customer is only entitled to dissolve the contract if the defect is not minor and Metall Kofler’s subsequent performance fails, particularly if it is impossible, Metall Kofler does not achieve it within a reasonable period of at least four weeks, Metall Kofler refuses it, or Metall Kofler culpably delays it.

7.11  Metall Kofler assumes no warranty for compliance with specific regulations in the country of destination.

 

§ 8 -Liability and Damages

8.1   Claims for damages in cases of slight negligence are mutually excluded, except in the case of personal injury. The burden of proof for gross negligence or intent in causing damage lies with the customer. Liability for consequential damages, lost profits, and unrealized efficiency gains is excluded. The customer’s right to warranty remains unaffected in accordance with § 7.

8.2   Claims for damages by the customer can only be asserted in court within one year from the date the damage and the liable party became known, but no later than three years after the event giving rise to the claim.

8.3   Metall Kofler is not liable for damages incurred by the customer due to non-compliance with operating, usage, maintenance, and cleaning instructions or the communicated transport and storage conditions.

8.4   To the extent that Metall Kofler's liability is excluded or limited, this also applies to the personal liability of Metall Kofler's employees and subcontractors.

8.5   Liability under the Product Liability Act (PHG) remains unaffected by these provisions.

 

§ 9 - Intellectual Property and Prohibition of Imitation

9.1   The customer undertakes to distribute goods from Metall Kofler exclusively under the name and trademarks specified by Metall Kofler.

9.2   The customer agrees not to imitate (reproduce) or make available to third parties the goods distributed by Metall Kofler, in whole or in part, whether in identical or modified form. This obligation and the prohibition of imitation apply regardless of whether Metall Kofler can rely on applicable intellectual property rights.

9.3   Without the express consent of Metall Kofler, the customer may not make any changes to the goods. Metall Kofler may address unauthorized changes to the goods in breach of contract, particularly through copyright claims and/or by rescinding the contract and reclaiming the goods. Further claims remain reserved.

9.4   The customer agrees not to reproduce or provide to third parties any texts, sketches, drawings, images, photographs, cost estimates, or other content originating from or used by Metall Kofler, unless such materials are clearly intended by Metall Kofler for general distribution (e.g., promotional catalogs).

 

§ 10 - Data Protection

10.1  As part of contract conclusion, Metall Kofler stores and processes the customer’s personal data, including first and last name or company name, VAT identification number, title, address (postal address, email address, phone number, fax number), contact persons at the customer’s company and their roles and departments, the order and any associated documents or approval drawings, payment status, correspondence with the customer, and file notes (hereinafter collectively referred to as “personal data”). These personal data are processed solely for the purpose of contract fulfillment, as well as the production and delivery of the ordered goods, unless the customer has expressly consented to additional use. These data are lawfully collected in accordance with Art. 6 para. 1 lit. b of the General Data Protection Regulation (GDPR), as they are necessary to fulfill the contract between Metall Kofler and the customer. Without providing these personal data, delivery of the ordered goods is not possible. After delivery and the expiration of warranty and statutory liability periods, the collected data will be deleted unless another legal basis for further use exists (e.g., explicit consent from the customer, statutory retention periods). Personal data are only shared to the extent necessary for contract fulfillment. The specific contract is stored for the purpose of delivery and proof of contract conclusion.

10.2  f the customer is a natural person, they have the right to request information from Metall Kofler about the data stored about them. If the stored data are or become incorrect, the customer can request their correction. Additionally, if the legal requirements are met, the customer has the right to deletion (Art. 17 GDPR), restriction of processing (Art. 18 et seq. GDPR), and data portability (Art. 20 GDPR). A German version of the GDPR is available at: https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:32016R0679&from=DE.

10.3  Customers with questions about data processing can contact Metall Kofler at the following address: office@mkofler.at

10.4  If the customer is a natural person and believes that Metall Kofler is violating legal provisions while processing their personal data, they are entitled to file a complaint with the Austrian Data Protection Authority, Barichstraße 40-42, A-1030 Vienna, or with the supervisory authority in their country of residence.

 

§11 - Final Provisions

11.1  Any agreements that amend, supplement, or specify these GTC, as well as any special assurances and arrangements, must be made in writing. This also applies to an agreement to waive the written form requirement. Declarations by Metall Kofler’s employees are only binding if approved in writing by authorized representatives of Metall Kofler. All communications and declarations by the customer related to this contractual relationship must be made in writing.

11.2  The contractual language is German. The German version of these GTC is the authoritative version.

11.3  The contractual relationship between Metall Kofler and the customer is governed by the laws of the Republic of Austria, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict-of-law rules of international private law and Rome I Regulation.

11.4  For all disputes, the competent court in A-6020 Innsbruck, Austria, shall have exclusive jurisdiction. However, Metall Kofler reserves the right to sue the customer at their place of business.

11.5  The place of performance is A-6166 Fulpmes.

11.6  hould individual provisions of these GTC be or become wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. In such a case, the invalid provision shall be replaced by a legally valid provision that corresponds as closely as possible to the economic purpose of the invalid provision or the presumed intent of the contracting parties. The same applies if a provision proves impracticable for practical reasons.

 

Metall Kofler GmbH

Industriezone B14

6166 Fulpmes

Österreich

Tel: +43 5225 627 12

E-Mail: office@mkofler.at

Web: https://www.mkofler.at

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