Terms and Conditions of Sale and Delivery of TZ Tischlerzentrum GesmbH for commercial consumers
Section 1: Validity of the General Terms and Conditions of Business
Business transactions of TZ Tischlerzentrum GesmbH, Neugasse 36 / A-2244 Spannberg, commercial register no. 224119m (hereinafter referred to as Transferor) are exclusively governed by the following General Terms and Conditions of Business. Our contractual partner is hereinafter referred to as “Contractual Partner”.
These General Terms and Conditions of Business are binding for all present and future business transactions with the Transferor even if they are not explicitly referred to.
Any regulations deviating from or supplementing these General Terms and Conditions of Business – in particular any general terms and conditions of business or purchase of contractual partners – do not become an integral part of the contract unless this is expressly confirmed in writing by the Transferor.
Any verbal ancillary agreements do not apply and these Terms and Conditions of Sale and Delivery can only be deviated from in writing.
The following provisions concerning the delivery for goods apply mutatis mutandis to services.
Any contrary contractual provisions cannot be considered.
Section 2: Offer, conclusion of the contract, cost estimate and purchase order
Offers placed by the Transferor are non-binding unless they are explicitly referred to as binding and signed. The order of the Contractual Partner is only deemed accepted with a signed order confirmation whereby a contract is deemed to have been concluded.
By accepting the offer of the Transferor or placing an order with the Transferor, the Contractual Partner expressly recognizes the seller’s Terms and Conditions of Sale and Delivery and waives the application of its own terms and conditions of purchase.
2.3. Cost estimate
A cost estimate is made by the Transferor to the best of its professional knowledge. However, no warranty is given for the correctness of such cost estimate. In case of cost increases of more than 10% upon placement of the order, the Transferor will contact the Contractual Partner immediately. In case of unavoidable cost overruns of less than 10%, a separate notification is not required and these costs can be invoiced offhand.
Cost estimates are made free of charge.
Purchase orders of the Contractual Partner must be confirmed in writing by the Transferor. The contract is only concluded upon written order confirmation by the Transferor whereby the written form requirement is also deemed complied with by means of telex (fax or email).
Section 3: Prices and terms and conditions of payment
Unless otherwise agreed, the prices apply ex works of the Transferor without packaging and loading. If supply with delivery is agreed, the prices are without unloading and without carrying.
The pricing is based on the wages, acquisition prices, exchange rate fluctuations and all other costs applicable on the day of placing the offer. Should the costs change until delivery, such changes will be in favour or at the expenditure of the Contractual Partner.
If the contract is concluded and the prices are still open, the applicable sales price at the day of delivery is charged.
The Transferor’s current price list is applicable until further notice.
All prices are stated in EUR.
If invoicing is effected in a foreign currency, the Contractual Partner bears the risk of currency parity.
3.5. Partial deliveries
Partial invoices are always admissible in case of partial deliveries. If partial payments are stipulated, default occurs if only one partial payment is not made in due time or in full. Upon occurrence of default, the complete outstanding remainder becomes immediately due for payment. In case of default, the Transferor is entitled to take the goods delivered subject to retention of title into custody without resigning from the purchase contract until the complete outstanding claim including any and all ancillary costs has been settled.
Section 4: Payment
The payments must be made according to the stipulated payment conditions. Unless other payment deadlines were agreed according to the written order confirmation of the contractor, the purchase price becomes due upon receipt of the order confirmation.
4.2. Deviating payment stipulations
If a payment date later than upon confirmation of the order is agreed, the Transferor reserves title to the delivered goods. As long as the retention of title is given, the Contractual Partner must immediately inform the Transferor in writing about any and all interventions of other creditors, in particular attachments and take all measures required for the defence of such interventions at its own expense. If the costs of defence of such creditor interventions cannot be recovered from these creditors, the Contractual Partner has an indemnification obligation.
If the goods are sold, this must be effected subject to retention of title. The Contractual Partner herewith assigns all claims to which it is entitled due to the resale towards its customers up to the amount of the purchase price which is still outstanding at that time to the Transferor. The Contractual Partner is obliged to inform its customers about the assignment upon resale completion and also immediately inform the Transferor about the name and address of its customer and the amount of the claim towards this customer. The Transferor is entitled to exercise the assignment at any time.
The Contractual Partner is not entitled to withhold payments on grounds of warranty claims or other counterclaims which are not recognised by the Contractual Partner.
If the Contractual Partner is in default with a stipulated payment or any other service in spite of a warning and a grace period of 8 days, the Transferor may demand the performance of the contract and
a) defer compliance with its own obligations until the outstanding payments or other services have been rendered
b) make use of a reasonable extension of the delivery period
c) declare the complete outstanding purchase price due
d) demand default interest in the amount of the interest charged by Austrian major banks for outstanding credits and the costs incurred with respect to the collection of its claims including pre-procedural costs in particular the dunning costs of a law firm or collection agency.
e) declare withdrawal from the contract by granting a reasonable grace period.
f) demand pre-payment before delivery for outstanding deliveries under existing contacts.
If the Contractual Partner has not rendered the payment or service owed upon expiry of the grace period, the Transferor may withdraw from the agreement in writing. Upon request of the Transferor, the Contractual Partner must then pay a penalty in the amount of 80% of the contract value as compensation for the goods which have already been produced and all justified expenses of the Transferor in connection with the performance of the contract. As regards goods which were not yet delivered, the Transferor may provide the ready or prepared parts to the Contractual Partner and demand the relevant proportion of the sales price in this connection.
In the event of payment upon maturity, default interest in the amount of 1% per month is charged.
Section 5: Place of performance
The place of performance is TZ Tischlerzentrum GesmbH, Neugasse 36 / A-2244 Spannberg. The Contractual Partner bears the costs and risks of the transport.
Section 6: Delivery and delivery periods
Unless otherwise agreed in writing, the delivery period begins with the latest of the following dates:
a) date of the order confirmation and receipt of payment
b) date of performance of the technical, commercial and financial obligations of the Contractual Partner
c) date on which the Transferor receives an advance payment due before delivery of the goods and/or a letter of credit has been opened.
The collection of reserved goods must be effected within 3 days upon provision of the goods. For the storage of goods upon expiry of this period, a fee of EUR 100.00 per day and per storage space are charged.
The Transferor may perform partial and pre-deliveries.
If the delivery is delayed due to a circumstance on the part of the Transferor like force majeure, fire, labour disputes etc., a reasonable extension of the delivery period will be granted.
If the Transferor has caused a delay in delivery, the Contractual partner may demand performance or withdraw from the contract by setting a reasonable remedial period, whereby – as regards the period – it must be considered that the Transferor cannot use parts which have already been prepared otherwise.
If the grace period under 6.4 was not complied with for reasons for which the Transferor is responsible, the Contractual Partner may withdraw by means of a written communication in view of all goods not yet delivered or for payments made for goods that cannot be used and if the delay in delivery is due to gross negligence of the Transferor, the Contractual Partner may also demand compensation of the reasonable expenses which were incurred until termination of the contract and for the performance of the contract which cannot be used any further. Goods which have already been delivered and cannot be used must be returned to the Transferor by the Contractual Partner at its own expense.
Claims of the Contractual Partner other than those specified above due to the default are excluded.
If the Contractual Partner does not accept the contractually provided goods at the contractually stipulated place or time and if the delay is not due to any action or omission of the Transferor, the Transferor may demand performance or impose a penalty in the amount of EUR 100 per day and storage space for each date of delay.
In case of truck deliveries, a possibility of access with heavy trucks is required. For deliveries with tail lift, solid ground is required. The packaging will be disposed of by the Contractual Partner.
Damages incurring during the transport or the shipping of the goods will not be borne by the Transferor if the goods were properly packed and provided.
6.10. Delivery periods
The specified delivery periods are deemed as delivery time ex works.
Section 7: Patterns, colours, material quality of the wood
Samplings (hand sheets and sample surfaces) are non-binding and only show the general appearance. Hand sheets and sample surfaces can never incorporate all characteristics and differences of colour, drawing, structure and fabric. The Transferor does not assume any warranty for differences of colour, turbidity, structures, drawings or the absence thereof or for natural errors as they do not constitute an impairment of the value and are not deemed as ground for complaint.
Section 8: Warranty and liability
The Transferor warrants that the delivered goods have the quality and standards agreed upon.
The warranty of the Transferor is limited to the replacement of demonstrably defective and improper goods. The Transferor must be informed about defective goods and the Contractual Partner must return such goods to the Transferor at its own expense.
Instead of replacing the defective goods, the Transferor may at its own discretion also offer a price reduction.
A warranty claim is only given if the goods are immediately examined for completeness and absence of defects and the defects are reported in writing.
The Contractual Partner is obliged to report any and all defects to the Transferor immediately but not later than within 8 days after acceptance of the goods and prior to the processing or consumption of the goods in writing and specified indicating the processing number.
In the event of notices of defect or complaints, the Contractual Partner must first of all accept the goods, unload them properly and store them.
A price reduction is only possible upon inspection of the goods complained about by the Transferor and the amount of the reduction will be determined by the Transferor.
In case of improper handling and processing of the goods of the Transferor by the Contractual Partners, any and all claims of the Contractual Partner are excluded.
If the goods were delivered in defective condition by the Transferor, any liability of the Transferor is in all cases limited to the purchase price of the defective part of the goods.
In case of a justified complaint, claims for loss of wages, lost profit, delayed readiness to move into residential and commercial rooms, claims for damages etc. are excluded unless the damage was caused in an intentional manner.
The Transferor is only liable for costs due to any remedial of defects performed by the Contractual Partner itself, in particular for the costs of any covering purchases if the Transferor has given its prior written consent in this connection.
It is explicitly deemed agreed that the Transferor does not have to pay damages to the Contractual Partner for any injury of persons, damages to goods which are not object of the contract, for any other damages and lost profit unless it turns out on a case-by-case basis that the contractor has acted in a grossly negligent manner. Any liability of the Transferor for damages due to the improper processing or unsuitable replacement of delivered goods is excluded.
A prerequisite for the Transferor’s warranty is the timely compliance with all obligations assumed by the Contractual Partner.
Section 9: Raw material situation
Any raw material situation of the preliminary supplier which prevents the Transferor from complying with the delivery obligation at the specified conditions must be immediately communicated to the Contractual Partner.
In this case, the Transferor may reduce the stipulated delivery quantities without any obligation to perform subsequent deliveries for the reduced amounts or any obligation of the Transferor to pay damages. Furthermore, the Contractual Partner is not entitled to withdraw from the contract.
Section 10: Product information
Verbal and written application-related notes and advices of the Transferor are non-binding, in particular with respect to any third-party property rights, and do not exempt the Contractual Partner from examining the products of the Transferor for suitability for the intended processes and purposes.
Section 11: Recourse claims
Recourse claims of the Contractual Partner must be asserted not later than 2 months after fulfilling its own warranty obligations towards the consumer. The right of recourse, however, expires 2 years after handover of the goods to the Contractual Partner by the Transferor.
Section 12: Claims for protection
If the Transferor becomes involved in legal disputes in connection with the violation of third-party property rights, the Transferor may demand reasonable advances on costs for covering the legal costs from the Contractual Partner – independent from the obligation to indemnify and hold harmless which is agreed above.
Section 13: Arbitration clause
If there is no convention on the execution of judicial decisions between the countries of establishments of the contractual parties at the time of conclusion of the contract and/or the time of bringing of the action, litigations arising out of or in connection with contracts concluded between the purchaser and seller including the issue of valid conclusion and the effects prior to and after signing of these contracts will be decided by a sole arbitrator.
Unless otherwise provided hereinafter, Sections 577 to 599 ZPO [Zivilprozessordnung = Austrian Code of Civil Procedure] apply.
The arbitrator must be a practising Austrian lawyer.
Vienna is the place of arbitration and German is the language of arbitration.
The arbitrator is obliged to send the draft of the award in advance to the parties to the dispute for an opinion.
Section 14: Place of performance and place of jurisdiction
The place of jurisdiction for all disputes arising directly or indirectly out of the contract is the Austrian Court with local jurisdiction for the company base of the Transferor.
These Terms and Conditions of Business are exclusively governed by Austrian law.
The company base of the Transferor is deemed as place of performance for delivery and payments even if the transfer is effected elsewhere as agreed.
For contracts which are also drawn up in another language apart from German, only the German version is relevant for the interpretation of the contractual provisions.
The application of the United Nations Convention on the International Sale of Goods (UNCITRAL Sales Law Agreement) is excluded by mutual agreement.
Section 15: Data protection
The Transferor’s staff members are bound by the confidentiality obligations under the Austrian Data Protection Act.
The Contractual Partner recognises that the data required for the ordering process (first name, family name, company, VAT ID, address, phone number, email address) are processed by the Contractual Partner for accounting purposes / payment transactions and customer evidence purposes of the Transferor. Apart from that, customer data will not be forwarded to third parties unless this is mandatory for the handling of the contract.
The Contractual Partner agrees to receive messages about products of the Transferor, current offers and other company-related information by means of advertising emails, in particular newsletters. This consent can be revoked by the Contractual partner at any time in writing.
Section 16: Severability Clause
Should any provision of these Terms and Conditions of Business turn out to be invalid later on, this shall not affect the validity of the remaining provisions and the invalid provision is deemed replaced by a legally valid regulation coming as close as possible to the spirit and purpose of the invalid provision and the complete Terms and Conditions of Business in good faith, common practice and the habits and practices in similar business transactions.
Amendments and additions to a contract are not valid unless made in writing. This also applies to any amendment of the written form requirement.
Any offsetting against the claims of the Transferor with counterclaims of whatever kind is excluded.
All terms and conditions which were previously stipulated between the parties or internal terms and conditions will cease to be valid.