Terms and conditions for businesses

Download: Kolarz-T&Cs-Companies-EN.pdf
Download: Kolarz-AGB-Unternehmen-DE.pdf

1. General

1.1 These terms and conditions apply to all our services, unless expressly agreed otherwise in writing. These terms and conditions are part and parcel of every one of our offers and every contract agreed with us.

1.2 The purchaser agrees that our conditions are to be assumed, even where the purchaser's own terms and conditions are used, and also where the purchaser's conditions are not contradicted. Fulfilment of a contract on our part does not constitute agreement to any contractual conditions which deviate from our conditions.

1.3 Terms and conditions of any kind that contradict these conditions are effectively only if they have been agreed by us in writing.

2. Contract

2.1 Our offers are non-binding and do not imply any commitment to order acceptance.

2.2 A contract is only legally binding for us if the order has been confirmed in writing, or if we have actually fulfilled it. Agreement from our sales employees or agents is not binding. Equally, order fulfilment activities by sales employees or our agents do not imply order acceptance.

2.3 Substantially justified and reasonable changes to our service or delivery obligation, in particular reasonable delays to delivery times, are deemed to have been approved in advance.

2.4 All information and data on the goods and their appearance, in particular their colours, included in brochures, drawings, dimensional diagrams and descriptions are only approximate and non-binding. We reserve the right to make technical or design changes and adaptations. Colour deviations may occur in the individual goods (also in relation to their illustrations) due to the production process, and are not defects.

3. Prices

3.1 Our prices correspond to the currently valid price lists and the agreed delivery period. All price information in the price list is potentially subject to printing errors. If there is a delay in delivery for reasons outside our control, we reserve the right to increase costs.

3.2 All prices specified by us, unless otherwise stated, should be understood to be net prices, excluding all charges and taxes from our logistical centre in Müllendorf, excluding packaging, shipping, transport, insurance and disposal. All additional costs associated with a purchase contract shall be borne by the purchaser.

3.3 Should alterations to the costs emerge between the conclusion of the contract and the fulfilment of the services, such as labour costs and/or costs for procurement of the necessary materials, whether as a result of law, regulation, collective agreement, statues, recommendation by authorities, other official measures or changes in international market prices, the relevant prices will be raised or lowered accordingly, unless there are less than three months between the contract date and the fulfilment of the services.

4. Terms of payment

4.1 The place of jurisdiction for payments is our headquarters in Breitenfurt. Payments to us must be made on a debt-free basis, exclusively to an account designated by us or a person designated as authorized to collect the payments. The credit in the account designated by us is decisive as regards the punctuality of the payment.

4.2 If delays occur in the fulfilment of the services, we are entitled to invoice for the services rendered so far.

4.3 In the event of a delay in payment, the discounts granted to the buyer are not applicable.

4.4 If, between contract conclusion and payment, devaluation occurs in the invoiced currency, it is taken to be agreed that this devaluation is borne by the buyer.

4.5 In the case of payment default or inability to pay on the part of the buyer, we are entitled to declare our withdrawal from the contract without the application of any grace period. In such cases, we are entitled to reclaim the products already delivered, irrespective of the applicability of Item 7.

4.6 The offsetting of claims or the retention of payments for any reason by the purchaser is inadmissible unless explicitly agreed otherwise.

5. Delivery

5.1 The place of jurisdiction for delivery is our logistics centre in Müllendorf. The goods are made available to the purchaser in our product packaging, without being loaded onto the collecting vehicle. The goods will be provided by us - in the absence of an express agreement in writing - exclusively in transport packaging suited to trucks, in our usual packaging dimensions. Subsequent specifications from the purchaser regarding transport packaging will not be accepted. The collector is exclusively responsible for insuring the goods in the transport vehicle. The purchaser is responsible for procuring all supporting documents necessary for exporting and/or importing the goods and, where appropriate, transit through each country.

5.2 Delivery times are always non-binding, unless a specific date has been expressly agreed. The delivery period begins with the entry into force of the order. In the event of an agreed alteration to the order, we are entitled to specify a new delivery date. We are not liable for delivery delays outside our control. In such events, the purchaser waives the right to withdraw from the purchase agreement or to claim compensation. In all other cases, the purchaser is not entitled to withdraw from the contract without establishing a reasonable grace period. The obligation to deliver does not apply in cases of force majeure and other delays outside our control, even if these should occur at the supplier (e.g., fire, strike, embargo, lack of transport). In such cases, we shall be free to withdraw from the contract without any obligation to compensate. This also applies to subsequent unsuccessful deliveries, at our own discretion.

5.3 Packaging material will not be accepted and disposed of by us. The purchaser is responsible for adhering to the disposal regulations applicable in the destination country. Any costs which arise in relation to the disposal of the packaging and the goods must be borne by the purchaser.

6. Risk transfer and delay of acceptance

6.1 Regardless of the agreed place of jurisdiction and the agreed price, risks and benefits are transferred to the purchaser with our notification of readiness for shipment, or, in the absence of such a notification, on collection of the goods from our logistics centre in Müllendorf.

6.2 In the event of any delay in acceptance, we are also entitled - regardless of our other claims - to ship the goods at our discretion, in the name of the purchaser and at the purchaser's expense and risk, or to transfer the goods in any way to the name and account of the purchaser.

7. Retention of title

7.1The purchased item remains our property until the purchase price (including sales tax, interest on arrears and costs) has been fully paid.

7.2 In addition, ownership of all goods handed over to the buyer is reserved by by us until all claims from us have been met - including interest, expenses and costs

7.3 Until the retention of title exists, no sale, pledge, security transfer, relay or other transfer of the purchased item is permissible. In the case of our consent to these dispositions, the purchase price claim is already deemed to have been assigned to us and we are at all times entitled to inform the third-party debtor of this assignment. The purchaser is under the obligation to keep the purchased item in good condition during the period of the retention of title.

7.4 Reclaim of the goods by us is not considered a withdrawal from the contract. All of our rights arising from the legal transaction, including the right to demand compensation for default, shall be retained.

7.5 The purchaser is entitled, as long as he has not been in default of payment, to resell the goods delivered under reserve, in his or her normal course of business. The purchaser hereby assigns to us all claims against third parties arising from the resale in the amount of the respective invoice amount agreed between the purchaser and us. The purchaser shall remain entitled to collect these claims as long as he has not been in default with payment. However, the purchaser is obliged to provide us with all documentation and to inform us of the names of his customers, so that we are in a position to collect the claims ourselves. The purchaser is obliged to disclose the assignment to his customers.

8. Warranty

8.1 The warranty period is 6 months, beginning when the risk is transferred to the purchaser.

8.2 The purchased item must be checked by the purchaser immediately upon receipt. Immediately identifiable defects, reduced quantities or incorrect deliveries must be noted in detail upon receipt, either on the delivery note or freight note, otherwise they will not qualify. In the event that it is not possible to verify the goods immediately, this circumstance must be noted on the delivery note or freight note, otherwise no claims will qualify. The purchaser must examine the purchased item as soon as possible and notify any defects immediately, but at the latest within 5 working days after delivery of the purchased object, or in the case of hidden defects after the defect becomes identifiable, by means of a registered letter designating the nature and extent of the defect, otherwise the complaint will not qualify. If a complaint is not raised, or not raised in time, then the goods are considered to be approved. In these cases, payment of claims based on defects is excluded. In deviation from § 824 of the Austrian Civil Code (ABGB), the purchaser must prove that the defect already existed when the item was received.

8.3 Our warranty is limited to improvement or replacement of defective parts, or a price reduction. We are only obliged to remedy the defect if the purchaser has fully fulfilled his payment obligations. Assembly costs or other costs incurred will not be reimbursed.

8.4 The right of recourse in accordance with § 933b ABGB is statute-barred 2 years after transfer of the risk to the purchaser.

8.5 The provisions in Items 8.1 to 8.4 do not apply to consumer transactions.

9. Compensation

9.1 We are not liable for simple gross negligence. In addition, we are not liable for consequential damages or loss of profit. However, the following applies to consumers: we are not liable for slight negligence, except in cases of personal injury.

9.2 The prerequisite for damage claims against us is the full and prompt complaint following the damage becoming identifiable in accordance with Item 8.2. This does not apply to consumer contracts.

9.3 The purchaser can initially only demand improvement or exchange as compensation for damages; only if neither is possible, or if they involve unreasonable expense for us, can the purchaser demand immediate financial compensation.

9.4 The purchaser is responsible for demonstrating causation, illegality and fault.

9.5 Claims for compensation shall become statute-barred within 6 months of knowledge of damage and the injuring party, and in all cases 2 years after the risk has passed

10. Product liability

10.1 All reimbursement claims directed against us by the purchaser or a third party on the grounds of product liability are excluded. The purchaser guarantees to include this limitation of liability in all agreements with companies and to obligate them to transfer it to third parties, as well as to free us from all such liability towards the companies.

10.2 Compensation claims expire within five years of the date on which the goods were placed on the market. The purchase must transfer this deadline to his customers in legally binding fashion.

10.3 Claims for compensation exist only insofar as the purchaser provides proof that the defect occurred before the supplier placed the goods on the market.

10.4 We are also exempt from our liability under the Austrian Product Liability Act for any damages caused by failure to comply with assembly or usage instructions or safety instructions, or violation of legal or other standards or guidelines.

11. Jurisdiction and applicable law

11.1 For all disputes arising out of or in connection with a contractual relationship in which we are a contracting party, the sole jurisdiction is, at our discretion, either the competent local jurisdiction at the registered office of the purchaser or the competent local jurisdiction for Breitenfurt.

11.2 The exclusive applicability of Austrian law - with the exclusion of the UN Sales Convention - is agreed upon. The contract language is German.

12. Other

12.1 Providing these terms and conditions do not specify otherwise, the place of jurisdiction is our logistics centre in Müllendorf.

12.2 The purchaser's data will be processed automatically for the purpose of processing the contract, and is transmitted to third parties who have a business relationship with us. The purchaser hereby declares their consent to this. We will treat the data in accordance with to the provisions of the Data Protection Act.

12.3 If any provisions of these terms and conditions should be or become wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. In place of any invalid provision, the legally acceptable version which comes economically closest to the invalid provision is considered to be agreed.

12.4 All agreements, later amendments, additions, subsidiary agreements, etc., are valid only in written form. This also applies to any waiving of the requirement for the written form.

This edition 01.08.2011

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