Conditions of sale and delivery
Of the Kienzle1822 GmbH, 4600 Wels, Maria-Theresia-Strasse 41, Austria
FN 627022 t
From: January 2025
Validity
All of our legal transactions, deliveries, other services and offers are carried out exclusively on the basis of these terms and conditions. The customer expressly acknowledges that we are now objecting to any deviating regulations in an order or other business documents of the customer. These terms and conditions also apply as a framework agreement for all other legal transactions with the customer. The version valid at the time the contract is concluded is relevant.
the legal regulations or internal financial statements, as well as changes to other cost centers relevant to the calculation or costs necessary to provide the service, such as those for materials, energy, transport, external work, financing, etc., entitle us to increase the prices accordingly. For this reason, the entrepreneur has neither a right of withdrawal nor the right to assert that the basis of the contract has ceased to apply.
Conclusion of contract
Our offers and price lists are non-binding and subject to change. Contracts are only concluded through our written order confirmation or a fulfillment act carried out by us (e.g. delivery/shipping of the goods). All other agreements or additional agreements made later will only become effective with our written confirmation. Our employees are not authorized to make legally binding declarations on our behalf unless we have granted special powers of attorney disclosed to the customer.
All prices quoted by us are subject to change and, unless expressly stated otherwise, are in euros (€), exclusive of sales tax. Unless otherwise agreed in writing, all prices are ex delivery warehouse and do not include additional charges. Costs for packaging, shipping, customs and other services (assembly, installation, etc.) will be invoiced separately. Transport is carried out at the customer’s expense and risk. We are not obliged to take out transport insurance for the goods.
Any changes to wage costs due to collective agreements or legal regulations or internal agreements, as well as changes to other cost centers relevant to the calculation or costs necessary to provide the service, such as those for materials, energy, transport, external work, financing, etc., entitle us to increase the prices accordingly. For this reason, the entrepreneur has neither a right of withdrawal nor the right to assert that the basis of the contract has ceased to apply.
Delivery
Agreed delivery times begin when we send the order confirmation. However, the respective period does not begin until all technical or other information, documents, down payments or other services from the customer (hereinafter referred to as advance services) required to fulfill our obligations have been confirmed by us as having been received by us. In the event of delay in agreed advance services, the delivery period will be extended accordingly. The delivery deadline is met if the delivery item leaves our warehouse before the deadline expires or if we inform the customer that we are ready for delivery by then.
Promised delivery dates will be adhered to as best as possible, but are not binding. Delays in delivery do not entitle the customer to withdraw from the contract or to assert warranty, error and compensation claims. We are entitled to carry out and invoice partial or advance deliveries.
We reserve the right to choose the shipping method and route to the exclusion of any liability. In particular, there is no obligation to choose the cheapest mode of transport.
Packaging - including partial and/or pre-deliveries - is carried out in the usual commercial manner. Any packaging beyond this shall be borne by the customer.
Express and air freight surcharges are charged separately. Transport insurance is only taken out on behalf of and for the account of the customer.
Operational disruptions and events of force majeure as well as other events beyond our control, in particular delivery delays and the like on the part of our upstream suppliers, entitle us to either extend the deadlines accordingly or to withdraw from the contract due to the part that has not yet been fulfilled, excluding any legal claims, in particular warranty, error and compensation claims. This also applies if the events occur at a time when we are in default.
When we notify the customer that the goods are ready for dispatch, but at the latest when the delivery leaves our warehouse, in the case of direct delivery from our supplier's warehouse, the price and performance risk is transferred to the customer regardless of any separately agreed price regulations for the delivery. If the dispatch of goods ready for dispatch is not possible through no fault of our own, we are entitled to store the goods at the customer's expense and risk at our own discretion, whereby the delivery is deemed to have been made; In this case, we are particularly entitled to carry out storage ourselves at normal market prices or to store the goods ready for dispatch with third parties in the name and on account of the customer.
Terms of payment, default, prohibition of offsetting, foreign deliveries
Our invoices - including partial invoices - are due for payment net free of charges and deductions, in particular without any cash discounts, 10 days after the date of issue. Unless otherwise excluded, invoice complaints must be made in writing within 14 days of the invoice date. Bills of exchange or checks will only be accepted after a separate agreement. We reserve the right to dedicate incoming payments to any multiple claims at our discretion.
If the customer defaults on payment, we are released from all further service and delivery obligations and are entitled to withhold outstanding deliveries or services or to demand advance payments or securities.
Furthermore, the customer is obliged, regardless of fault, to pay default interest of 1% per month, whereby we are entitled to claim additional bank interest to the usual extent. The customer must also reimburse us for the reminder and collection costs incurred, and in particular undertakes to reimburse a maximum of the remuneration of the debt collection agency involved, which results from the BMwA's regulation on the maximum rates of remuneration due to the collection agency. If a reminder is issued by us, the customer undertakes to pay an amount of € 15.00 for each reminder issued.
If a significant deterioration in the customer's financial circumstances occurs after conclusion of the contract or if circumstances become known which, in our opinion, are likely to reduce the customer's creditworthiness, all claims will become due for payment immediately. In this case, further deliveries will only be made against advance payment.
The customer is not entitled to withhold payments. The customer only has the right to offset if his counterclaims have been legally established or have been recognized by us.
In the case of export transactions, the customer is solely obliged to ensure that the necessary export, customs and other permits and the like are obtained and maintained at their own expense. We do not provide any warranty or guarantee of any kind as to the permissibility of exporting the purchased goods. Furthermore, the customer must return all original export and customs documents and the like to us, otherwise he will be obliged to pay any VAT. In addition, for deliveries abroad, the opening of an irrevocable documentary letter of credit with a bank to be determined by us, which can be used upon presentation of the shipping documents or the shipping company's acceptance certificate, is a prerequisite for our delivery.
Retention of title
We reserve the right of ownership of all goods delivered by us until the purchase price or wages have been paid in full, including interest and additional charges, regardless of the legal basis - including from previous transactions. In the case of current invoices, the reserved property also serves as security for our balance claim. Unless we declare withdrawal from the contract - which we are unilaterally entitled to do - the assertion of the retention of title is generally not considered as withdrawal from the contract and does not cancel the customer's obligations, in particular with regard to payment of the fee.
The customer is entitled to pass on his expectant rights to the purchased item within the scope of our retention of title as part of his business operations, but not to pledge or assign the purchased item as security.
The customer must notify us immediately of any seizure or other impairment of property by third parties. The customer is obliged to bear the costs and measures to eliminate the interference, in particular the costs of intervention processes and the like.
The retention of title also extends to the products resulting from processing. When our goods are processed, combined or mixed with other materials, we acquire co-ownership of the resulting products in accordance with the value added shares.
The customer now assigns all claims from the sale of goods to which we have ownership rights - if necessary in the amount of our co-ownership share - for security and satisfaction. We accept this assignment. The customer is obliged to immediately inform us of the name and address of his customers, the inventory and amount of the claims resulting from the resale and to provide evidence of the assignment of claims to his respective buyer. Furthermore, the customer is obliged to indicate the assignment of this claim to us in an appropriate manner in his business books. We are entitled to inform the customer's buyer of the assignment at any time. Any assignment fees must be borne by the customer.
The buyer now transfers to us all amounts received through cash sales of goods to which we have ownership rights up to the amount of the claim we have against him up to that point in time from the delivery of these goods; We are already instructing the customer to keep these amounts separately and hold them for us.
If the customer does not meet his obligations or stops making payments, the entire remaining debt becomes due immediately, even if bills of exchange are due at a later date. In this case, we are entitled to immediately demand the return of the purchased item, excluding any right of retention. After taking back the purchased item, it is at our discretion to either sell the purchased item and credit the proceeds achieved, less 20% resale fees, to the customer's remaining obligations or to take back the purchased item at the invoice price, deducting any depreciation, and charge the customer rent at the usual rental price for the delivered products for the period of their possession.
Withdrawal from the contract
In the event of a delay in acceptance or other important reasons, such as, in particular, the customer's bankruptcy or rejection of bankruptcy due to lack of assets, as well as in the event of a delay in payment by the customer, we are entitled, without prejudice to any other claims whatsoever, to immediately withdraw from the contract or parts of it without setting a grace period. The withdrawal becomes legally effective through our unilateral declaration.
Warranty, Aliud delivery
Notifications of defects must be made in writing by the customer immediately upon receipt of the delivery, but at the latest within 5 days of delivery and before any treatment or processing, otherwise warranty and/or claims for damages and/or challenges to errors are excluded, but do not entitle the customer to withhold the invoice amounts or parts thereof.
For defects that could not be identified during the inspection during delivery, the warranty period is two years from delivery and is neither extended nor interrupted by attempts at improvement; it also applies to partial deliveries. Such defects must be asserted in writing within 5 days of discovery of the defect, otherwise warranty and/or compensation claims and/or error disputes are excluded, but do not entitle the holder to withhold the invoice amounts or parts thereof.
Deviations between the ordered goods and the delivered goods, such as incorrect dimensions or incorrect goods (aliud delivery), must be reported within 5 days of delivery and before any treatment or processing, even if the goods are not delivered directly to the customer. Otherwise, the goods are considered approved and cannot be taken back or exchanged by us.
Our advice, whether spoken or written, is non-binding and does not exempt our customers from testing our products themselves to determine their suitability and for the intended purpose. In the case of subsequent deliveries, we assume no guarantee that they will exactly match the initial delivery.
The customer must always prove that the delivered goods are defective at the time of handover; the legal presumption of § 924 ABGB is expressly excluded.
The warranty expires if the customer or third parties make changes or repairs to the item delivered without our written consent. In the event of a complaint, the customer is obliged to first accept the goods, unload them properly and store them.
For those goods that we have purchased from suppliers, we only provide warranty within the scope of the warranty claims to which we are entitled against the supplier. We only guarantee that the products we supply have the properties normally required for these products in the market. We only provide a guarantee for properties contained beyond this, particularly those contained in public statements - such as advertising and information included in the products - if these properties were guaranteed by us in writing when the order was placed.
It is up to us to choose whether we fulfill the warranty claims through replacement, improvement, price reduction or conversion.
Unless otherwise stipulated in a special agreement, the place of performance for our services to be provided under the title of the warranty is the headquarters of our company.
The assignment of warranty and compensation claims or the like - with the exception of pure monetary claims - is not permitted.
Damages
We are liable for damages caused to our customer in the course of business transactions to the maximum of the order value ordered from us and only in the event of our own gross negligence or gross negligence on the part of vicarious agents working for us, with the exception of personal injury, for which we are already liable in the event of slight negligence. Compensation for consequential damages, pure financial losses, lost profits and damages from third-party claims is excluded. The injured party must prove the existence of gross negligence. The application of Section 1298 ABGB (reversal of the burden of proof) is excluded. The customer must therefore always prove our fault.
Product Liability
If our customer is held liable based on the Austrian Product Liability Act or similar foreign regulations, he expressly waives any recourse against us, in particular within the meaning of Section 12 of the Austrian Product Liability Act or similar foreign regulations.
If our customer places the goods delivered by us on the market outside the European Economic Area, he undertakes to exclude the obligation to pay compensation to his customer in accordance with the Product Liability Act, provided that this is possible under the law applicable or agreed between him and the customer. In this case or if this exclusion obligation is omitted, the customer is obliged to indemnify and hold us harmless with regard to third-party claims arising from product liability.
Third party intellectual property rights
The customer guarantees that the contractual delivery or other services by us do not infringe any third-party property rights (patents, trademarks, design rights, copyrights, equipment, product names, know-how, territorial protection and rights of a similar nature, even if their granting has only been applied for). We are not obliged to check whether third-party intangible rights exist with regard to the goods to be manufactured or whether these are being violated. The customer must fully indemnify us and hold us harmless from any third-party claims in this regard.
Place of performance, choice of law, place of jurisdiction, severability clause
The place of fulfillment for all contractual obligations of our customer is our headquarters in Wels/Austria, regardless of any agreement regarding the place of delivery and the assumption of any transport costs or the place of payment.
Austrian substantive law applies exclusively to all legal transactions, in particular the contractual (supply) agreement and these General Terms and Conditions, with the exception of its reference norms, in particular those of international private law, insofar as these refer to the application of foreign law. If Austrian law provides for the application of special international standards that also apply in Austria - such as the UN Convention on Contracts for the International Sale of Goods - these do not apply. This also applies to questions about the formation or interpretation of the general terms and conditions and the contract.
The place of jurisdiction for all legal disputes that arise from or are related to this contractual relationship is exclusively the court with jurisdiction for Wels/Austria. However, we are entitled, at our discretion, to sue the customer at any other court that may have jurisdiction under national or international law.
The ineffectiveness of individual provisions of our terms and conditions does not affect the effectiveness of the remaining provisions of these terms and conditions. The contractual partners are obliged to agree on a new provision that comes closest to the purpose of the invalid provision.