General Terms and Conditions
of Zenker Teak Design GmbH
Linzer Straße 26
(Amended August 2015)
The below text has been machine-translated from the german version.
Please see the original text in case of questions.
1. Validity of the General Terms and Conditions
1.1 For between the Zenker Teak Design GmbH entered in the commercial register of the Landesgericht Linz as number FN 439402 f (hereinafter called "Supplier") and the business customer, buyer or principal (hereinafter also referred to as "Customer") concluded contracts, in particular contracts for work, contracts of sale or otherwise, commissioned services in particular advisory services or commissioning the respective customer or installation services are specified below Terms (hereinafter referred to as Terms & Conditions).
1.2 The customer submits to with signing the order confirmation of the validity of these Terms and Conditions. If the supplier with the customer in a long business relationship or issued the customer follow-up orders, these Conditions shall apply even if it is not specifically referred to their validity. Likewise, these conditions have connected all the execution of the service In addition to work and perquisites validity. The terms and conditions also apply for repeat business even if they do not separately written or oral agreement or an order or an order confirmation can be used. Verbal agreements with the supplier unfold only effective if they are confirmed in writing by the supplier.
1.3 Of these Conditions deviating or supplementary regulations, which are in the order confirmation of the supplier or in separately negotiated contracts, take precedence over the terms and conditions. Terms or the customer forms be part of the contract in any case, regardless of whether the supplier knew or has specifically objected to their validity.
2. Conclusion of Contract
2.1 Releases of suppliers are generally not binding, even if they contain prices, dates and other technical specifications shall be set; technical information or suggestions of the supplier are also no guarantee, as descriptions, samples or patterns which are shown in public statements of the manufacturer. The same applies if the supplier due to a customer's order issuing only a preliminary order confirmation.
2.2 The contract is concluded with the receipt of the order confirmation signed by the customer at the supplier. Possible after the conclusion of the contract was carried out amendments or supplements to the customer, develop themselves if they are not contradicted by the supplier to the Supplier no effect.
2.3 Any divergences between the undersigned by the customer order confirmation of his order, so in case of doubt, the order confirmation.
3.1 Does the writing, made by the customer order confirmation is not available, ex-works delivery shall be ex works (; in accordance with the Incoterms 2000) as agreed.
3.2 Agreed subcontracting implies that the delivery road is passable with heavy truck.
3.3 Goods shall be deemed delivered when it is not accessed for delivery after notification of dispatch by the supplier immediately.
3.4 The goods will be common in the industry packed. Packaging material will only be taken back or reimbursed to the extent agreed in writing.
3.5 The goods will be insured against damage in transit, transport losses or breakage only on written order of the customer and at his expense. The customer is obliged to take delivery at the handover immediately, but no longer than to examine within five business days. The customer loses the right to rely on a lack of delivery if he fails this immediate examination or if he may not realize immediately after the date on which he would in due consideration of a breach of contract, alleging in writing, specifying the lack of conformity ,
3.6 Externally visible transport damage immediately to reprimand upon receipt of the goods and immediately notify in writing the nature and extent of the supplier.
4. default of acceptance
4.1 If the customer is in default of acceptance (especially for non-acceptance after notification of dispatch), the goods will be stored at the expense and risk of the customer either at the supplier or a third party. If the storage to the supplier, the latter shall be entitled to charge a fee corresponding to that of a public warehouse. A liability of the supplier for the deterioration or destruction of stored goods with him hitting the supplier only if intent or gross negligence. This does not affect the rights of the supplier within the meaning of § 373 ff UGB.
4.2 If the customer completely or partially not from the goods, the supplier may (i) withdraw after setting a grace period of 14 days from the contract and / or (ii) claim damages for non-performance, in which the supplier is entitled, without damage and fault detection and waiving any judicial moderation right to demand 30% of the respective amount of order and beyond also replacement of the actual damages, including lost profits. The same applies when it comes from other, by the supplier due to reasons to terminate the contract.
5. Force majeure
5.1 Force majeure and other unforeseeable or beyond the control of supplier disabilities, such as labour disputes, political acting, traffic disruptions, disruptions in energy supply and the like, as well as from the supplier or from suppliers of the Supplier is not responsible for accidents exempt the supplier for the duration of their effects on the delivery obligation , even if they have occurred at upstream suppliers of the Supplier or its suppliers.
5.2 exceeds the disability period of two months or at its beginning already seen that the period of two months is exceeded, both the supplier and the customer are entitled to rescind the contract. The right of withdrawal of the customer is excluded, however, once the supplier notifies the customer by the removal of the cause and has announced the delivery within a reasonable period. If the above mentioned disabilities delivery impossible shall cease the delivery obligation of the supplier.
All delivery dates and deadlines is Circa times and apply these barring unforeseen circumstances and disabilities. If an agreed delivery date by more than 6 weeks have been exceeded, the supplier is in default and the customer must place a minimum of 6-week grace period. In subsequent delivery expiry of this, the customer can withdraw from the contract if he has notified the withdrawal with settlement of the subsequent delivery to the supplier. The term of delivery periods shall not begin before the date of receipt of the written confirmation of an order by the supplier. They shall be extended by such period as, is then necessary to clarify details or by submitting official approvals that are to be procured by the customer or restore; the same applies if the delivery of the payment of a deposit or of ensuring the payment by the customer was made conditional. If the supplier has not accepted the dispatch, the readiness for shipment is essential for the timely delivery.
7. Partial deliveries
The suppliers are, unless otherwise expressly agreed, partial deliveries that take the customer and have to be paid, permitted. The supplier is also entitled to deliver before the agreed delivery. The cancellation of the contract or any other termination of the contract for any reason whatsoever does not cancel the contract for the already executed part deliveries, unless the reason for the cancellation of the contract or the termination of the contract also covers the partial deliveries already executed.
8.1 The Supplier does not guarantee that the supply specified in the undersigned by the customer written confirmation quality meets.
8.2 Does the undersigned by the customer order confirmation for the quality of the goods is not available, an average, standard-compliant quality applies taking into account the practices at the manufacturing of the goods as agreed.
8.3 Goods descriptions in an advertisement or in other directed to an indefinite number of persons, public statements do not constitute a description of the quality of the goods.
8.4 Deviations in dimensions, weight or quality are permissible within the agreed or existing in the country of the supplier standards. The same applies to the usual tolerances when determining the quantities to mathematical principles.
8.5 For goods which are referred to as low quality, such as "Second Quality", the guarantee is restricted according to the properties that are to be expected according to the specific labelling of the goods.
8.6 For production and material deviations in the colour nuances can not be located.
8.7 The purchaser is entitled only with the express written consent of the supplier, returned goods. This will be credited in all cases with a maximum of 90% of the remuneration actually paid. The transport costs incurred shall be borne by the customer.
8.8 The warranty for the work done by the supplier deliveries shall be two years from the date of notification of readiness for shipment to the customer or dispatch from the date of handing over to the first carrier; This also applies if the shipment is made by the supplier. The regulations concerning the transfer of risk remain untouched under the Incoterms 2000, when the place of performance is determined by reference to Incoterms. A corrective action does not result in an extension of the warranty period.
8.9 The warranty is voided if altered, processing or improper handling of the delivered goods. For cost made by the customer himself corrective action, the supplier shall not bear responsibility.
8.10 The application of the special right of recourse according to § 933b ABGB is excluded.
The manufacturer 9. Explanations
9.1 Warranty statements by the manufacturer of the product justify, even if they are to pass by the supplier, only claims against the manufacturer. Such guarantees are not part of the warranty of the supplier nor establish via its warranty beyond or supplement warranty or guarantee.
9.2 The supplier is not liable for the accuracy of information on use and regular operation, insofar as these are contained in brochures, technical descriptions or other instructions; they fall within the responsibility of the manufacturer or importer.
10.1 The supplier is a breach of the contractually accepted or an existing obligation under the law only obliged to pay damages, if he is intent or gross negligence. The burden of proof lies with the customer; The same applies for the replacement of consequential damage.
10.2 Excluded claims for compensation for loss of profits or claims for compensation of expenses for business interruption, loss of production or indirect damages due to the delivery of non-conforming goods.
10.3 The completed between the parties does not contain any protection duties to third parties. This applies even if it is foreseeable that a third party recipient of the service is, or that a third party comes into contact with the goods.
10.4 The right to compensation expires in any case with the working or processing of the delivery or resale thereof without the supplier was given the opportunity to consider the lack of conformity. Any liability or recourse claims including any claims from consequential damages are also on amount limited to 50% of the agreed or made under the respective order fee, in any event, with EUR 20,000.00 and the statute of limitations within six months from the date of first perusal possibility of damage and the person liable to pay compensation.
11. Product liability
11.1 Excluded from the Point 10. limitations as are prescribed is not waivable liability for defective products, provided that injured a man who killed or is damaged to the health.
11.2 Liability for damage to property of a product defect, namely for all involved in the production, importing and marketing undertakings concerned will be excluded. The customer agrees to bind this disclaimer on his customers. Recourse claims in the sense of certain according to the preceding paragraph legal provisions are excluded, unless the claimant proves that the error was caused in the sphere of the supplier and has been at least gross negligence. The customer claims for damages against the supplier (in particular in accordance with § 12 PHG) are excluded.
12.1 The supplier's prices are, unless otherwise agreed, ex works without packaging, transport insurance, freight and installation.
12.2 Taxes, contract fees, export, import and implementation fees, customs duties and customs fees, official commission fees and the like shall be borne by the customer.
12.3 The Supplier's prices are compiled in accordance with standing in force at the time of order confirmation and material expenses wage; raise these between the date of signing and performing the contract, the supplier is entitled to roll over these increases on to customers. The same applies to other suppliers can not be influenced by the increases through taxes, duties or transport tariffs.
13.1 All prices are in Euro, exclusive of VAT. The Supplier's invoices are payable at the time of delivery, but not later than at the time of accounting for payment.
13.2 cash discount requires that all previous invoices except those which legitimate objection of the customer have been settled in full conflict. In the case of non-timely payment of a liability discount agreements lose their effectiveness.
13.3 Cheques and drafts are only accepted after written agreement and only on account of payment. Change control, discount, protest and collection charges shall be borne by the customer. For the timely submission and protesting the supplier is not responsible.
13.4 The supplier's employees are entitled to receive payments only with the express written authority to collect.
13.5 Incoming payments are first to interest, then to the oldest claim of the supplier against the customer into account.
13.6 Offsetting by the customer against counterclaims by the customer against the supplier's claims is not possible.
13.7 In case of default, without prejudice to further claims default interest in the amount of 8% above the base rate as agreed. In addition to the default interest, the supplier is entitled to claim compensation for other incurred by the delay damages and expenses, but in particular to make the costs of extrajudicial and judicial collection measures contends.
13.8 If payment of the customer, the supplier also has the right to demand immediate payment of the entire outstanding receivables; this right is the suppliers even if unfavorable circumstances it will be known about the solvency or the financial position of the customer after conclusion of the contract.
13.9 the customer a payment request does not comply despite setting a two-week period, the supplier is entitled, notwithstanding any other rights, take back the goods which are owned by the supplier, without this being equated to a withdrawal from the contract (redemption clause) or from the contract in whole or partly while respecting the rights of the suppliers, in particular the right to compensation for non-performance, to withdraw.
13:10 The customer is not entitled to withhold payments because of warranty claims or other, by the supplier not recognized counterclaims.
14. Retention of title
14.1 All goods and supplies remain until full payment property of the supplier. In addition, the supplier reserves until payment of all claims from the business relationship with the customer the ownership of his goods (even if these specific goods were paid) before; to the claims of the supplier shall also include any ancillary claims such as interest, costs and expenses claims.
14.2 If the demands made of the delivery in a current account, the reserved ownership secures each outstanding highest balance.
14.3 Transfers of customer bills or checks, the fuse goes out through the reserved property only when the Our Suppliers may include the bank credits from the redemption or Eskomptierung unlimited.
14.4 The retention of title right of the supplier extends in the case of processing, blending or mixing with other goods on the newly created goods; the processing, blending or mixing takes place in such case be free of charge for the supplier.
14.5 If the retention of title by any circumstances go out, then the supplier and customer are now agreed that the title will pass to the merchandise to the processing, blending or mixing at the supplier who accepts the transfer. The customer remains in this case the uncompensated custodian.
14.6 When processing with still standing in foreign property objects, the supplier acquires joint ownership of the new goods. The scope of this title shall follow from the ratio of the invoice value of the goods delivered by the supplier to the invoice value of the other goods. If the goods under retention of title (possibly after processing, mixing or blending) are resold by the customer, so assigns his purchase price claim in the place of retention of title. This purchase price claim from the resale is assigned to the time they are incurred to the supplier. An incoming money he acquires in the form of constructive possession by the client property. The fact of this assignment must inform thereof the customer noted in his books and on the outgoing invoices, as well as the recipient of the goods. The supplier has the right to gain knowledge through insight into the customers' accounts and in the open item list of the fulfillment of this obligation.
14.7 The customer has to insure the goods under retention of title against fire, theft and damage by third parties sufficient. He shall assign to the supplier the claims arising from the insurance contract and to notify the Insurer thereof. The grounds of contractual security interest over the standing in the reserved property goods is prohibited to the customer. Will the conditional merchandise owned by enforcement actions detected, the customer must inform the enforcement agent on the foreign ownership and to inform the supplier at the latest within 24 hours thereof.
14.8 If the bankruptcy proceedings over the customer's assets, the bankruptcy estate the sale of the conditional goods belonging is prohibited from the date of bankruptcy.
14.9 If the customer is in terms of the secured by the reservation fee in arrears, the supplier shall be entitled at any time to sit in the possession of the goods, even if the contract has not yet been resolved (withdrawal right).
14:10 If the retention of title or the assignment in advance of further sales proceeds after the substantive law of that place where there is supply, not effective, but allowed this law similar forms of control, this type of backup it is agreed. If the customer has to put on the effectiveness of these security relevant actions or make statements, he is obliged to such a procedure without a call the supplier.
14:11 The supplier is entitled at any time to suspend the fulfilment of its own obligations or to inhibit, if it turns out after the conclusion of the contract that the customer will not perform a substantial part of its obligations (i) due to a serious lack of his ability to perform the contract or (ii) due to a serious shortage of its creditworthiness or (iii) because of his conduct in preparing to perform or (iv) in the performance of the contract or of previous contracts.
15. Performance, Jurisdiction
15.1 The place of performance shall also be the place of delivery of the supplier for delivery and payment, if the delivery takes place in another place as agreed.
15.2 In the event of any disputes arising from these terms and conditions or a contract concluded with the supplier agreement or relating to the violation, termination or nullity of the Conditions or of the contract, including disputes concerning the existence or absence of objective conditions or a contract with the suppliers, the contracting parties agree to the exclusive jurisdiction of the factually responsible court in Linz, Austria. Regardless of the supplier is entitled to sue the customer at his discretion before after its headquarters or its branch factually competent court of law.
15.3 In all matters of interpretation of these Terms and Conditions or all completed by the supplier to the customer contracts and the fulfilment of the established in these rights and obligations is solely formal and material Austrian law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN - purchase right) and other conflict of law rules apply.
16. General and Severability
16.1 The customer gives his explicit consent that personal data of the customer are automatically stored in performance of the contract by the supplier and processed.
16.2 If any provision of these terms and conditions be ineffective, the remaining terms of the Conditions shall not be affected. Arising from the invalidity of one or more provisions or otherwise in the contract performance gaps, so commit the contracting parties, jointly to make a provision that comes as close as possible to the economic result of the invalid provision.