1.1 These General Terms and Conditions shall apply between Rudolf Kirner ERKA Metallwarenfabrik GmbH and natural and legal persons (customers for short) for the legal transaction in question and also for all future transactions with business customers, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.2 The current version of our GTC, available on our homepage (http://www.erka-metall.at) at the time of conclusion of the contract, shall apply to business customers and shall also be sent to the customer.
1.3 We contract exclusively on the basis of our GTC, which the customer accepts with the order.
1.4 Terms and conditions of the customer or amendments or supplements to our GTC require our express consent - in writing for business customers - in order to be valid.
1.5 The customer's terms and conditions shall not be recognized even if we do not expressly object to them upon receipt.
2.1 Our offers are subject to change.
2.2 Cost estimates are provided without guarantee and are subject to a charge. Consumers shall be informed of the obligation to pay costs before the cost estimate is drawn up. A fee paid for the cost estimate shall be credited if an order is placed promptly on the basis of this cost estimate.
2.3 By ordering the desired object of purchase, the customer submits a binding offer to conclude a purchase or work contract.
2.4 Our written order confirmation shall be exclusively decisive for the acceptance of the offer and the scope of the delivery.
2.5 Promises, assurances and guarantees on our part or agreements deviating from these GTC in connection with the conclusion of the contract shall only become binding for business customers upon our written confirmation.
2.6 The customer undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge of Rudolf Kirner Erka Metallwarenfabrik GmbH, its production processes and, in particular, manufacturing technologies, which it has obtained from the business relationship.
3.1 Price quotations are not to be understood as all-inclusive prices.
3.2 The prices stated in our order confirmation are ultimately binding. We reserve the right to change prices up to the date of delivery/service, in particular in the event of an order deviating from the overall offer. In the absence of an agreement to the contrary, our claims are to be paid step by step against delivery of the goods / provision of the service.
3.3 Prices are quoted exclusive of the applicable statutory value added tax and ex works or ex warehouse. Packaging, transportation. Packaging, transportation and shipping costs as well as customs duties and insurance shall be borne by the entrepreneurial customer. These costs shall only be charged to consumers as customers if this has been agreed in an individual contract.
3.4 For additional services requested by the customer which are not covered by the original order, the customer shall be entitled to reasonable remuneration.
3.5 We are entitled of our own accord to adjust the contractually agreed fees if changes of at least 3% are made with regard to
a) wage costs by law, regulation, collective agreement, works agreements or
b) other cost factors necessary for the provision of services, such as material costs due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. since conclusion of the contract.
The adjustment shall be made to the extent that the actual production costs at the time of the conclusion of the contract change compared to those at the time of the actual provision of the service, provided that we are not in default.
3.6 The remuneration for continuing obligations shall be agreed as value-assured in accordance with the BKI 2015 (Building Cost and Construction Price Index) and the remuneration shall be adjusted accordingly. The starting point is the month in which the contract was concluded.
3.7 In the event of a change in costs for consumers as customers, the fee shall be adjusted in accordance with point 3.5. and in the case of continuing obligations in accordance with point 3.6. only in the case of individual contractual negotiations if the service is to be provided within two months of conclusion of the contract.
3.8 In the case of a net invoice value of less than EUR 100, we shall charge an additional packaging and freight charge of EUR 20.
3.9 In the event of unavoidable cost overruns of up to 15% after the order has been placed, a separate notification is not required and we are entitled to invoice these costs without further ado.
Cost estimates are subject to a charge.
The customer expressly agrees that his data may be transmitted exclusively for the purpose of creditor protection to the creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870 (KSV).
5.1 The delivery period shall commence on the latest of the following dates:
a) the date of our order confirmation, or
b) the date of fulfillment of all technical, commercial and other requirements incumbent on the Buyer; or
c) the date on which we as seller receive a down payment or security to be paid before delivery of the goods.
5.2 Our delivery time specification states the calendar week in which the goods are handed over to the carrier, who in turn requires a reasonable time for delivery. As the majority of our products are manufactured to order and periodically, the delivery dates are to be understood as approximate values and are not binding.
5.3 We shall not be liable for any delivery date overruns caused by upstream suppliers, unless there is intent or gross negligence on our part.
5.4 Deadlines and dates shall be postponed in the event of force majeure, strike or other comparable events beyond our control for the period during which the relevant event lasts. This shall not affect the customer's right to withdraw from the contract in the event of delays that make it unreasonable to be bound by the contract.
5.5 If the start of the performance of services or the performance is delayed or interrupted by circumstances attributable to the customer, performance deadlines shall be extended accordingly and agreed completion dates shall be postponed accordingly.
5.6 Delivery and completion dates shall only be binding for business customers if compliance with them has been agreed in writing.
5.7 In the event of a delay in the fulfillment of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period of at least 14 days. The grace period must be set in writing (by business customers by registered letter) with a simultaneous threat of withdrawal.
5.8 If it appears to be advantageous and economically sensible for speedy processing, we shall make partial deliveries, which are to be accepted by the customer.
5.9 In the case of initial orders, the delivery time may be extended by the time of the credit checks to be carried out first.
5.10. If delivery on call has been agreed, the goods shall be deemed to have been called off no later than 6 months after the order and shall be due for payment.
5.11. If the customer is in default of acceptance, we shall also be entitled to store the goods on our premises if we insist on fulfillment of the contract, for which we shall be entitled to a storage fee of EUR 10.00 net per product unit per calendar day or part thereof.
5.12. This shall not affect our right to demand payment for deliveries and services rendered and to withdraw from the contract after a reasonable grace period of 14 days.
6.1 The goods must be checked immediately upon receipt by the customer to ensure that they are intact and complete.
6.2 Externally recognizable transport damage must be reported to the carrier and us immediately upon acceptance of the goods and confirmed in writing by the carrier.
6.3 Hidden damage must be reported to us within 5 days of acceptance of the goods at the latest.
7.1 Section 7b KSchG shall apply to the transfer of risk when the goods are sent to the consumer. This shall also apply if the delivery is made as part of an installation or if the transport is carried out or organized by us.
7.2 The risk shall pass to the entrepreneurial customer as soon as we hold the object of purchase, the material or the work ready for collection at the factory or warehouse, deliver it ourselves or hand it over to a carrier.
7.3 The entrepreneurial customer must take out appropriate insurance against this risk. However, we undertake to take out transport insurance at the customer's expense upon written request.
7.4 The customer shall approve any customary mode of shipment.
7.5 If the customer is in default of acceptance for more than 2 weeks (refusal of acceptance, default in advance performance or otherwise) and if the customer has not remedied the circumstances attributable to him which delay or prevent the performance of the service despite setting a reasonable grace period, we may otherwise dispose of the equipment and materials specified for the performance of the service while the contract is still in force, provided that we can procure them within a reasonable period of time in the event of continuation of the performance of the service.
7.8 In the event of a justified withdrawal from the contract, we may demand a lump-sum compensation amounting to 20% of the order value plus VAT from the entrepreneurial customer without proof of the actual damage. The obligation to pay further damages shall remain unaffected by this.
8.1 The delivered goods shall remain our property until all claims against the customer have been settled in full.
8.2 In the event that the customer has processed and/or sold goods subject to retention of title and is in default of payment to us, he hereby assigns to us his claims against third parties arising from the resale. In this case, we are authorized to collect the assigned claims in our own name for the account of the customer. The assignment must be disclosed at our request and the customer is obliged to provide us with the necessary information and documents.
9.1 The contractual partner must notify us in writing of any defects immediately, at the latest within 7 days, otherwise the service shall also be deemed to have been approved in view of the defect.
9.2 No warranty claims can be derived from information in catalogs, brochures, advertising material and written or verbal statements that have not been included in the contract.
9.3 Recognized warranty claims entitle us to choose the type of warranty (improvement, replacement, price reduction or rescission).
Costs for replacement by third parties will not be recognized.
The statutory warranty periods shall apply, unless special warranty periods have been agreed for individual delivery items.
9.4 The following defects are not covered by the warranty in any case:
a. Non-compliance with the operating/installation/maintenance instructions or in the case of other than intended normal use
b. Usual and product-typical wear and tear (normal wear and tear - this includes light sources, LED lights, etc.), overuse
c. Defects caused by atmospheric discharges, current fluctuations, overvoltage and chemical influences.
d. Assembly/installation or repair by third parties, including the client
e. Use of materials or products in agreement with the client
f. Materials and products provided by the client,
g. Materials, products, working methods and constructions insofar as they were used on the express instructions of the client
h. Parts that we as the contractor have obtained from third parties, insofar as the third party has not granted us a guarantee
9.5 If the contractual partner carries out or has carried out disassembly, repair or other work on the product without our prior written consent, any warranty claim shall lapse.
9.6 All additional costs incurred in connection with the rectification of defects (e.g. for installation/dismantling, transportation, disposal, travel and travel time, travel/stay costs, but not limited to these) shall be borne by the buyer. For warranty work at the Buyer's premises or on construction sites, the necessary auxiliary staff, lifting equipment, scaffolding and small materials etc. shall be provided free of charge.
9.8 In the event of timely and justified notification of defects, we shall offer
rectification, reduction or conversion at our discretion free of charge. We shall have a reasonable period of two weeks to do so.
Further claims are excluded unless they are based on intent or gross negligence on our part.
9.9 The provisions of the statutory warranty shall apply. The warranty period for our services to business customers is one year from delivery.
9.10. Unless otherwise agreed (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken over the service into his power of disposal or has refused to take over the service without giving reasons.
9.11. If a joint handover is planned and the customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on this date.
Rectification of a defect alleged by the customer shall not constitute acknowledgement of the defect alleged by the customer.
9.12. The entrepreneurial customer shall grant us at least two attempts in writing to remedy the defect.
9.13. If the customer's allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in establishing the absence of defects or rectifying defects.
9.14. The entrepreneurial customer must always prove that the defect already existed at the time of delivery.
9.15. In order to remedy defects, the customer must make the system or equipment accessible to us without culpable delay and give us the opportunity to have it inspected by us or by experts appointed by us.
9.16. Defects in the delivery item which the entrepreneurial customer has discovered or should have discovered by inspection in the ordinary course of business after delivery must be reported to us in writing immediately, at the latest within 7 days of delivery. Hidden defects must also be reported in writing within this reasonable period from discovery.
9.17. Any use or processing of the defective object of performance, which threatens further damage or makes it difficult or impossible to determine the cause, must be stopped by the customer immediately, unless this is unreasonable.
If a complaint is not made in good time, the goods shall be deemed to have been approved.
9.18. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions.
9.19. The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on deviating actual circumstances from the information available to us at the time of performance because the customer does not fulfill his obligations to cooperate.
9.20. The defective delivery or parts thereof shall be returned to us by the entrepreneurial customer, if economically justifiable.
9.21. The costs for the return transport of the defective item to us shall be borne in full by the business customer.
9.22. The customer shall be obliged to enable us to determine the defect without delay.
9.23. The warranty shall be excluded if the customer's technical systems, such as supply lines, cabling, etc., are not in a technically flawless and operational condition or are not compatible with the delivered items, insofar as this circumstance is causal for the defect.
10.1 We shall only be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., in the case of financial losses in cases of intent or gross negligence.
10.2 Liability towards business customers shall be limited to the maximum liability amount of any liability insurance taken out by us.
10.3 This limitation shall also apply with regard to damage to an item that we have accepted for processing.
11.4 Claims for damages by business customers must be asserted in court within two years, otherwise they shall lapse.
10.5 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage caused by them to the customer without reference to a contract between them and the customer.
10.6 Our liability is excluded for damage caused by improper handling or storage, overuse, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, provided that this event was causal for the damage. Liability is also excluded for failure to carry out necessary maintenance, unless we have contractually assumed the obligation to carry out maintenance.
10.7 If and to the extent that the customer can claim insurance benefits for damage for which we are liable through his own insurance or insurance taken out in his favor (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability shall be limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium).
10.8 Those product characteristics are owed which can be expected from us, third-party manufacturers or importers with regard to the approval regulations, operating instructions and other product-related instructions and information (in particular also inspection and maintenance), taking into account the customer's knowledge and experience. The customer as reseller must take out adequate insurance for product liability claims and indemnify and hold us harmless with regard to recourse claims.
10.9 We shall only be liable for damages outside the scope of application of the Product Liability Act in the event of intent or gross negligence.
11.1 Unless otherwise agreed in detail, our invoices shall be paid promptly.
11.2 The customer shall only be entitled to set-off insofar as counterclaims have been established by a court or recognized by us.
11.3 Bills of exchange and check/bill of exchange procedures require a special agreement prior to the conclusion of the purchase.
11.4 In the event of default of payment for which we are responsible, we shall be entitled to charge the applicable percentage points above the base interest rate pursuant to § 456 UGB p.a. to entrepreneurs as customers. We charge an interest rate of 4% p.a. to consumers.
11.5 We reserve the right to assert further claims for damages caused by default.
11.6 If the entrepreneurial customer is in default of payment under other contractual relationships with us, we shall be entitled to suspend the fulfillment of our obligations under this contract until the customer has fulfilled them.
11.7 We shall then also be entitled to demand immediate payment of all claims for services already rendered from the current business relationship with the customer. This shall only apply to consumers as customers in the event that an overdue service is at least due and we have unsuccessfully reminded the customer under threat of this consequence, setting a grace period of at least one week.
11.8 If the payment deadline is exceeded, any remuneration granted (rebates, discounts, etc.) shall be forfeited and added to the invoice.
11.9 A cash discount deduction shall require a separate agreement.
12.1 If we agree to an exchange request by the customer, to which there is no legal claim, the customer shall bear all costs incurred. The condition for such an exchange is always that the goods returned at the customer's expense are in perfect condition.
12.2 Custom-made products and goods for which special prices have been granted shall be excluded from this right of return and exchange.
13.1 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the entrepreneurial customer shall be the court with local jurisdiction for our registered office.
13.2 The place of jurisdiction for consumers, provided they are domiciled in Germany, shall be the court in whose district the consumer has his habitual residence or place of employment.
14.1 Should individual parts of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining parts.
14.2 We, as well as the entrepreneurial customer, hereby jointly undertake - based on the horizon of honest contracting parties - to agree on a replacement provision that comes closest to the economic result of the invalid provision.
15.1 Austrian law shall apply
15.2 The application of the UNCITRAL Convention of the United Nations on Contracts for the International Sale of Goods (UN Sales Convention) is excluded.
15.3 The place of performance is the registered office of the company.
Unless expressly agreed otherwise in writing, the General Terms and Conditions of Rudolf Kirner ERKA Metallwarenfabrik GmbH shall apply.
The provisions of the Consumer Protection Act (KSchG) shall apply to all non-commercial customers.
Amendments and supplements as well as deviating order conditions of the customer shall only apply after our written confirmation.
Our offers are subject to change. The contract shall not be deemed concluded until a written order confirmation has been sent.
In the event of unavoidable cost overruns of up to 15% after the order has been placed, separate notification shall not be required and we shall be entitled to invoice these costs without further ado.
Cost estimates are subject to a charge. A fee paid for the cost estimate shall be credited if an order is placed on the basis of this cost estimate.
Our contractual partner also undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge gained from the business relationship.
Unless otherwise agreed in writing, prices are ex works or ex warehouse of Rudolf Kirner ERKA Metallwarenfabrik GmbH excluding VAT and ancillary costs.
In the case of a net invoice value of less than Euro 100,- we charge an additional € 20,- for packaging and freight costs. Prices shown are in EURO.
We reserve the right to change prices up to the date of delivery/service, in particular in the event of an order deviating from the total offer.
In the absence of any agreement to the contrary, our claims shall be paid concurrently with the handover of the goods / provision of the service.
A cash discount deduction requires a separate agreement.
The delivery period shall commence on the latest of the following dates:
a) the date of our order confirmation, or
b) the date of fulfillment of all technical, commercial and other requirements incumbent on the Buyer; or
c) the date on which we as seller receive a down payment or security to be paid before delivery of the goods.
Specified delivery dates are non-binding.
Obstacles of any kind, which are not within the sphere of influence of the company Rudolf Kirner ERKA Metallwarenfabrik GmbH and the
contractual partner, extend the execution deadlines accordingly.
Official and any third party approvals required for the execution of installations are to be obtained by the buyer, unless expressly agreed otherwise. If these are not obtained in good time, the delivery period shall be extended accordingly.
If delivery on call has been agreed, the goods shall be deemed to have been called 6 months after the order at the latest and shall be due for payment.
We are entitled to make partial or advance deliveries and also to invoice them.
Use and risk shall pass to the Buyer upon dispatch of the delivery ex works or ex warehouse, irrespective of the pricing agreed for the delivery (such as CMR clauses).
This shall also apply if the delivery is made as part of an assembly or if the transport is carried out or organized by us.
The contractual partner must notify us in writing of any defects immediately, at the latest within 7 days, otherwise the service shall be deemed to have been approved, even in view of the defect.
The existence of a defect must be proven by the recipient (contractual partner).
§ Section 924 ABGB shall not apply.
No warranty claims can be derived from information in catalogs, brochures, advertising material and written or verbal statements that have not been included in the contract.
Recognized warranty claims entitle ERKA to choose the type of warranty (improvement, replacement, price reduction or conversion).
Costs for replacement by third parties are not recognized.
The statutory warranty periods apply, unless special warranty periods are agreed for individual delivery items.
The warranty period for electronic and electrotechnical components is 12 months.
The following defects are not covered by the warranty in any case:
a. Non-compliance with the operating/installation/maintenance instructions or in the case of other than intended normal use
b. Usual and product-typical wear and tear (normal wear and tear - this includes light sources, LED lights, etc.), overuse
c. Defects caused by atmospheric discharges, current fluctuations, overvoltage and chemical influences.
d. Assembly/installation or repair by third parties, including the client
e. Use of materials or products in agreement with the client
f. Materials and products provided by the client,
g. Materials, products, working methods and constructions insofar as they were used on the express instructions of the client
h. Parts that we as the contractor have obtained from third parties, insofar as the third party has not granted us a guarantee
If the contractual partner carries out or has carried out disassembly, repair or other work on the product without our prior written consent, any warranty claim shall lapse.
All additional costs incurred in connection with the rectification of defects (e.g. for installation/dismantling, transportation, disposal, travel and travel time, travel/stay costs, but not limited to these) shall be borne by the buyer. For warranty work at the Buyer's premises or on construction sites, the necessary auxiliary personnel, lifting equipment, scaffolding and small materials, etc. shall be provided free of charge.
The company Rudolf Kirner ERKA Metallwarenfabrik GmbH shall only be liable for damages outside the scope of the Product Liability Act if intent or gross negligence can be proven.
Consequential damages and indirect costs will not be compensated.
If there are justified claims, the scope of liability shall in any case be limited to a maximum of 2 times the amount of our scope of delivery.
No liability shall be assumed for components not included in our scope of delivery or for the subsequent installation of our products in a complete system (which is not supplied by us).
Even if the contractual partner is in default of payment through no fault of his own, we shall be entitled to charge interest on arrears in the amount of 10% above the base interest rate per annum, as well as the reasonable costs incurred by us for appropriate collection.
Delivered goods remain our property until full payment has been made.
In the event of resale, the purchase price claim shall be deemed assigned to us without special agreement.
The Buyer shall not be entitled to withhold or offset payments due to warranty claims or other counterclaims.
A delay in delivery, which is due to gross negligence of the company Rudolf Kirner ERKA Metallwarenfabrik GmbH, is a prerequisite for the withdrawal of the buyer from the contract, unless a special provision has been made. The fault must be proven by the contractual partner.
Irrespective of its other rights, the company Rudolf Kirner ERKA Metallwarenfabrik GmbH is entitled to withdraw from the contract
a) if the execution of the delivery or service, the start or the continuation becomes impossible for reasons for which the buyer is responsible and is further delayed despite the setting of a grace period,
b) if concerns have arisen regarding the buyer's ability to pay and the buyer neither makes advance payment at our request nor provides suitable security prior to delivery, or
c) if an extension due to unforeseeable circumstances beyond the control of the parties, such as force majeure, amounts to more than half of the originally agreed delivery period, but at least 6 months.
If insolvency proceedings are instituted against the assets of one of the contracting parties, or if an application for the institution of insolvency proceedings is rejected for lack of sufficient assets, the other contracting party shall be entitled to withdraw from the contract without setting a grace period.
Notwithstanding the claims for damages of the company Rudolf Kirner ERKA Metallwarenfabrik GmbH including pre-litigation costs, in the event of withdrawal all services or partial services already rendered shall be settled and paid in accordance with the contract.
This shall also apply if the delivery or service has not yet been accepted by the buyer, as well as for preparatory actions performed by the Forster Group. The assertion of claims by the Purchaser due to laesio enormis, error and frustration of contract shall be excluded.
The place of performance for both parties to the contract shall be the registered office of Rudolf Kirner ERKA Metallwarenfabrik GmbH in Vienna or the place of delivery of the respective supplying plant or warehouse.
If we agree to an exchange requested by you, to which there is no legal entitlement, you shall bear all costs incurred. The condition for such an exchange is always that the goods returned at your risk are in perfect condition. We shall bear the costs for exchange deliveries at our instigation.
Should individual provisions of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended purpose.
The competent court at the headquarters of Rudolf Kirner ERKA Metallwarenfabrik GmbH shall have exclusive jurisdiction to decide on all disputes arising from the contract - including those concerning its existence or non-existence - and this agreement on jurisdiction shall be accepted when the order confirmation is sent.
The contract shall be governed by Austrian law to the exclusion of its conflict of law rules. The application of the UNCITRAL Convention of the United Nations on Contracts for the International Sale of Goods is excluded.