GENERAL TERMS AND CONDITIONS
- Deliveries, services and offers are subject to these general terms and conditions. Any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale shall not be recognised unless their validity has been expressly agreed upon.
- In this respect, acts of contractual performance shall not be considered as consent to contractual conditions deviating from our general terms and conditions.
- These general terms and conditions constitute the basis for framework agreements and for all legal transactions between Metall Kofler Ges.m.b.H and its contractual partners for Storetec-Systems products.
2. Conclusion of agreements
- Our offers are non-binding. A contractual offer from a customer requires order confirmation. Dispatch of the goods ordered by the customer results in the conclusion of contract. If offers are submitted to us, then the offerer is bound to it for a period of 8 days from receipt of the offer.
- We are only obliged to perform the service when all technical details have been clarified and the customer has clearly fulfilled any constructional, technical and legal requirements for performance.
- Services that are not expressly included in the offer or in other contractual documents signed by us are not owed.
- If the services are performed on the basis of plans, floor plans and sketches or instructions provided by the customer, the customer guarantees for the correctness of the provided documents and instructions. There is no obligation on our part to verify and issue a warning with regard to these documents and instructions. Should the customer wish an inspection of the provided facilities, equipment, machines or documents, then such an inspection must be expressly agreed upon and the customer shall be charged an appropriate fee for this.
- All our prices are exclusive of turnover tax, unless otherwise expressly stated.
- We reserve the right to increase our prices accordingly, shall any change take place in terms of labour costs resulting from collective agreement regulations within the business sector or internal company regulations as well as in cases when there are changes in other cost centres relevant for the calculation or in costs necessary for performance - such as costs for materials, energy, transport, subcontracted works, financing, etc.
4. Cost estimates
- Cost estimates are only binding if they have been prepared in writing and expressly designated as binding; the preparation of a cost estimate does not oblige us to accept the order.
- Cost estimates are not binding; no warranty can be given for their correctness and completeness.
- Insofar as it is necessary for the provision of services, the customer is obliged to inform us in writing of all specifications and the intended area of application.
5. Insofar as it is necessary for the provision of services, the customer is obliged to inform us in writing of all specifications and the intended area of application.
- Unless otherwise agreed, our claims are to be paid in cash against delivery of the goods. Discount deductions require a separate agreement. In the event of default in payment, even with respect to partial payments, any discount agreements become invalid.
- The customer's payments shall only be recognized as settled at the time of receipt on our business account or acceptance of cash payment by us.
- If the customer is in default of payment, we are entitled to demand interest on arrears at a rate of 8 percentage points above the base interest rate.
6. Withdrawal from the contract
- In the case of default in acceptance (point 8) or other important reasons, such as in particular bankruptcy of the customer or rejection of bankruptcy for lack of assets, as well as in case of default of payment of the customer, we are entitled to withdraw from the contract provides that it has not yet been completely fulfilled by both parties.
- In the case of withdrawal from the contract due to customer's fault we are entitled to either; demand a flat-rate compensation of 10% of the gross invoice amount or compensation for the actual damage incurred.
- If the customer is in default of payment, we are released from any further services and delivery obligations and entitled to withhold any outstanding deliveries or services and demand advance payments or securities or withdraw from the contract after setting a reasonable grace period.
- Should the customer withdraw from the contract or request its cancellation without a legitimate reason, then we have the right to either insist on the fulfilment of the contract or agree to the cancellation of the contract; in the latter case, the customer is obliged to pay, at our discretion, a flat-rate compensation of 15% of the gross invoice amount or compensate for the damage actually incurred.
7. Reminder and collection charges
- In the event of default, the customer undertakes to reimburse the reminder and collection charges incurred by us, all costs of extrajudicial and judicial collection measures, in particular the costs of a collection agency or a lawyer.
8. Delivery, transport and default of acceptance
- Our sales prices do not include any costs for delivery, assembly or commissioning. However, these services can be provided or organized by us upon request and against separate payment. We shall invoice the costs actually incurred for transport or delivery, however not less than the freight costs applicable on the day of delivery or customary for the selected mode of transport. Assembly work shall be charged according to the time required for it, whereby an hourly rate of EUR 145.00 (basis 2012 plus sales tax at the statutory rate; subject to change) shall be deemed agreed.
- The customer shall consider the operating and commissioning instructions handed over on the occasion of the purchase, and shall in particular ensure that the prescribed maintenance work is carried out professionally.
- The customer undertakes to exempt us from liability for all disadvantages and damages resulting from improper handling, commissioning or storage of the goods delivered by us.
- If the customer has not accepted the delivered goods as agreed (default of acceptance), we are entitled, after unsuccessful grace period, either to store the goods on our premises and charge a storage fee of 0.1% of the gross invoice amount per each commenced calendar day, or to store them at the customer's expense and risk by authorised third party.
- At the same time, we are entitled either to insist on the fulfilment of the contract or to withdraw from the contract following a reasonable period of grace of at least 2 weeks, and use the goods for other purposes.
9. Delivery period
- We are only obliged to perform the service as soon as the customer has fulfilled all the obligations which are necessary for the performance, in particular all technical and contractual details, preliminary work and preparatory measures.
- If the agreed dates and delivery periods are exceeded by us, the customer is entitled to withdraw from the contract only after expiry of a reasonable period of grace.
10. Place of performance
The place of performance and the registered office of our company is Innsbruck (according to the commercial register).
11. Minor changes in services
Minor or other changes in our services or delivery obligations that are reasonable for the customer shall be deemed approved in advance. This applies in particular to deviations caused by the item itself (e.g. in dimensions, colours, plastics, metals, composition of non-ferrous metals, etc.).
12. Warranty, obligation of inspection and notification of defects
- Warranty claims of the customer are fulfilled by us in all cases primarily by replacement, repair within a reasonable period of time or finally by price reduction. The customer can only request cancellation of sale (cancellation of the contract) if the defect is substantial, cannot be remedied by replacement or repair and a price reduction is not reasonable for the customer. Claims for damages on the part of the customer, which are aimed at remedying the defect by means of improvement or replacement, can only be asserted if we are in default with the fulfilment of the warranty claims despite the qualified period of grace.
- Warranty claims must be asserted in court within one year of delivery of the item.
- If the customer claims the existence of a defect, then the claims resulting therefrom, in particular due to warranty or compensation for damages, can only be asserted if the customer proves that the defect already existed at the time of delivery of the goods; this also applies within the first six months after delivery of the goods.
- The customer is obliged to inspect the goods immediately after delivery, however within 6 working days at the latest. Any defects discovered in this process must be reported to us in writing without delay, within 3 working days after their discovery, indicating the type and scope of the defect.
- Hidden defects must be reported in writing without delay, within 3 days after their discovery. If a notification of defects has not been made or has not been made in time, the goods shall be deemed approved.
- Our warranty obligation expires in any case upon expiry of the warranty period; Any further recourse by the customer in accordance with § 933b ABGB (Austrian Civil Code) due to self-fulfilled warranty obligations is excluded.
- Warranty claims expire if our services have been modified, complemented or altered by third parties or by the customer himself or in the event of defective assembly by the customer.
- There is no warranty in the event of damage to the object of performance due to external, for example mechanical influences, wear parts or other parts that are subject to normal wear and tear.
- Furthermore, there is no warranty for unsuitable or improper use, normal wear and tear, failure to carry out maintenance work when recommended, incorrect or negligent handling, as well as the use of unsuitable and/or inadequate equipment.
13. Compensation for damage
- Outside the scope of the Product Liability Act, liability for damages to customers and/or third parties is only assumed when intent or gross negligence can be proven. Liability for slight negligence, consequential damage, indirect damage, incidental damage, loss of profit, pure financial loss and damage arising from third-party claims is excluded. In any case, our liability is limited to a damage amount of 50% of the net value of the goods delivered, whereby the delivery in causal connection with the damage incurred is decisive for the calculation.
- The limitation period with regard to the alleged claims for damages is two years from the transfer of risk.
- These provisions on compensation of damage shall also apply if the compensation claim is asserted in addition to or instead of a warranty claim.
14. Product liability
Recourse claims within the meaning of § 12 of the Product Liability Act are excluded, unless the party entitled to recourse proves that the fault was caused in the area of our competence and was at least grossly negligent.
15. Reservation of proprietary rights and their assertion
- All goods are delivered by us under retention of title and remain our property until full payment has been received. The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
- If goods are taken back, we are entitled to charge any transport and handling costs incurred. In the event of access by third parties to the reserved goods subject to retention of title - in particular through seizure - the customer is obliged to refer to our property and to inform us immediately.
- If the customer is not an entrepreneur whose regular business operations include trading with the goods purchased from us, he/she may not dispose of the goods subject to retention of title and in particular may not sell, pledge, donate or lend them, until the outstanding purchase price claim has been paid in full.
- The customer bears the full risk for the retained goods, in particular for the risk of destruction, loss or deterioration.
16. Assignment of claims / prohibition of assignment
- In the case of delivery under reservation of proprietary rights, the customer hereby assigns his/her claims against third parties to us on the account of payment, insofar as these claims arise from the sale or processing of our goods, until final payment of our claim.
- The customer must provide us with names of his/her contractors upon request and inform the latter of the cession in reasonable time. The assignment must be recorded in the business books, in particular in the open item list and made apparent to the customer on delivery notes, invoices etc.
- In the event the customer is in default of payment, any incoming sales revenues shall be separated and held on our behalf.
- Any claims against an insurer are already now assigned to us within the limits of § 15 of the German Insurance Contract Act.
- Claims against us may not be assigned without our explicit consent.
Even if the complaint is justified, the customer is not entitled to withhold the entire invoice amount, but only a reasonable part of the net invoice amount, except in cases of reverse transaction.
18. Applicable law and place of jurisdiction
- This Agreement shall be governed by Austrian law.
- The applicability of the UN Convention on Contracts for the International Sale of Goods and the reference standards is expressly excluded.
- The contract language is German.
- The contracting parties agree to Austrian, domestic jurisdiction. All disputes arising from this contract shall be settled by the competent court at our company's registered office with exclusive local jurisdiction.
Data protection, change of address and copyright
- The customer agrees that the personal data included in the purchase contract may also be automatically stored and processed by us in the fulfilment of this contract.
- The customer is obliged to notify us of any changes in his/her business address as long as the contractual legal transaction which is subject of the contract has not been completely fulfilled by both parties. If such notification is not given, declarations shall be considered as submitted even if they are sent to the customer's last known address.
- Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like always remain our intellectual property; the customer shall not be granted any rights of use or exploitation of any kind.
- Should any provision of these general terms and conditions (GTC) be wholly or partially invalid or become ineffective due to statutory provisions, the remaining provisions of these GTC shall remain in full force and effect. The Parties undertake to replace the ineffective provision with a valid provision of that sense and content which comes closest to the ineffective provision in economic terms.
- The customer understands and agrees that these General Terms and Conditions of Business shall be subject to modification and constitute the framework of the ongoing business relationship and become effective starting from the month following the notification, unless the customer objects within 4 weeks.