General Terms and Conditions

of Rechberger Gesellschaft m.b.H.,
FN 88875z, (version March/2018)

Address:
Rechberger Gesellschaft m.b.H.
Rechbergerstraße 1, 4020 Linz

T +43 732 6925-0
F +43 732 6925-7729
M info@rechberger.at

1. Scope of the General Terms and Conditions ("GTC")

1.1 For the contracts concluded between Rechberger Gesellschaft m.b.H., registered in the commercial register of the LG Linz under FN 88875z, and the purchaser of works, buyer, or client (hereinafter also referred to as "Supplier") and the purchaser of works, buyer, or client (hereinafter also referred to as "Customer"), in particular purchase contracts, contracts for work and services, or other commissioned services (commissioning, assembly, etc.), only the following General Terms and Conditions shall apply.

1.2 The customer submits to the applicability of these GTC. If the supplier has an ongoing business relationship with the customer, these GTC shall also apply even if their applicability is not specifically referred to. These GTC also apply to all ancillary work associated with the performance of the service. The GTC also apply to follow-up orders, even if they are not agreed separately orally or in writing. Oral agreements with the supplier shall only become effective if they are confirmed in writing by the supplier.

1.3 Regulations deviating from these Terms and Conditions, which are found in particular in the supplier's order confirmation or in separately negotiated contracts, shall take precedence over the Terms and Conditions. The customer's general terms and conditions or forms shall under no circumstances become part of the contract.

1.4 If the customer is a consumer within the meaning of § 1 para. 1 no. 2 of the KSchG, the mandatory provisions of the KSchG shall apply in place of the provision in the General Terms and Conditions. The remaining provisions of these General Terms and Conditions shall remain unaffected.

2. Conclusion of contract

2.1 Statements made by the Supplier - including at the Customer's request - are non-binding, even if they include prices, dates, and other technical specifications; technical information or suggested solutions provided by the Supplier are likewise without warranty, as are descriptions, samples, or specimens. The same applies if the Supplier issues only a provisional order confirmation on the basis of an order placed by the Customer.

2.2 The contract is concluded upon the supplier’s order confirmation sent to the customer or, if such confirmation is absent, upon execution of the delivery to the customer. In any case, the contract is also concluded without transmission of an order confirmation if the customer accepts the supplier’s offer in writing or signs the supplier’s written order form.

2.3 If the order confirmation signed by the Customer differs from his order, the order confirmation shall prevail in case of doubt.

3. Delivery

3.1 If the order confirmation does not contain any information, delivery ex works (ex works; in accordance with Incoterms) shall be deemed agreed.

3.2 Even if the Supplier contractually undertakes to deliver the goods, the place of performance remains the Supplier's plant or the delivery warehouse expressly named in the order confirmation.

3.3 Agreed delivery presupposes that the access road is passable by heavy goods vehicle. Even if the supplier undertakes the delivery in accordance with the agreement, the customer shall bear all transport and packaging costs (delivery charge).

3.4 The goods shall also be deemed delivered if, after notification by the supplier that the goods are ready for dispatch, they are not collected by the customer without delay within a period of 7 working days.

3.5 The goods are insured against transport damage and losses only on the customer's written instruction and at the customer's expense.

3.6 The customer is obliged to inspect the delivery for accuracy and completeness immediately upon handover, but no later than within 4 working days. The customer loses the right to rely on any non-conformity of the delivery if the customer fails to carry out the inspection or if the customer does not complain in writing about a non-conformity immediately after the time when the customer could have discovered it through proper inspection, stating the non-conformity precisely.

3.7 Transport damage that is externally visible must be reported immediately upon receipt of the goods, and the type and extent of the damage must be communicated to the supplier in writing without delay, or recorded in detail on the delivery or freight note on site and countersigned by the supplier to confirm the notice of defects.

3.8 The risk of accidental loss and accidental damage passes to the customer upon notification of readiness for dispatch or, as applicable, in accordance with the Incoterms clause applied.

3.9 Certain goods (such as doors or other bulky goods) are delivered to the customer on specially manufactured load carriers (special pallets, roll cages, etc.). These load carriers are the property of the supplier and are taken back by the supplier. These load carriers must be properly stored by the customer until collection by the supplier and handed over upon request. In the event of non-return or damage, the cost of these load carriers will be charged to the customer.

4. Default of Acceptance

4.1 The customer is obliged to accept delivery at the place of performance and, where applicable, in accordance with the Incoterms clause agreed in the contract. The assertion of claims due to delivery not in accordance with the contract or the fact that the customer was unable to inspect the delivery does not entitle the customer to refuse or postpone acceptance.

4.2 If the customer is in default of acceptance (in particular due to failure to take delivery after notification by the supplier that the goods are ready for dispatch), the goods shall be stored at the customer's expense and risk either (i) with the supplier or with a third party or (ii) dispatched to the customer. If storage takes place with the supplier, the supplier shall be entitled to charge a fee corresponding to that of a public warehouse. The supplier shall only be liable for deterioration or loss of goods stored with it in the event of intent or gross negligence. The supplier's rights pursuant to Sections 373 et seq. of the Austrian Commercial Code (UGB) shall remain unaffected.

4.3 If the Customer fails to accept the Goods in whole or in part, the Supplier may (i) withdraw from the contract after setting a grace period of 14 days and/or (ii) claim damages for non-performance, whereby the Supplier shall be entitled, without proof of damage or fault, to claim 30% of the respective order amount and, in addition, compensation for the actual damage incurred, including lost profit. The same applies if the contract is terminated for other reasons not attributable to the Supplier.

5. Force majeure

Force majeure and other unforeseeable impediments or impediments beyond the Supplier's control, such as labor disputes, traffic disruptions, etc., as well as accidents for which the Supplier or its upstream suppliers are not responsible, shall release the Supplier from the obligation to deliver for the duration of their effects, even if they occurred at one of the upstream suppliers; in such case, the Supplier shall not be liable for any consequences of default.

6. Delivery dates

6.1 All delivery dates and delivery periods are non-binding and are subject to unforeseeable events and obstacles. Delivery periods commence (i) upon receipt by the customer of the supplier’s order confirmation or (ii) if there is no order confirmation, upon notification of the supplier’s readiness for dispatch to the customer. If the supplier’s offer accepted by the customer, or the supplier’s written order form, or the order confirmation sent to the customer already specifies a delivery date instead of a delivery period, that date shall apply and shall take precedence over the provisions in (i) and (ii). If an agreed delivery date or an agreed delivery period is exceeded by more than 6 weeks, or if goods are delivered in a smaller quantity within this period, the supplier shall be in default and the customer shall set a subsequent delivery deadline of at least 6 weeks for the delayed goods. If this subsequent delivery deadline expires without result, the customer may withdraw from the contract if it has notified the withdrawal when setting the subsequent delivery deadline.

6.2 Delivery deadlines set in motion under Clause 6.1 shall be interrupted by the circumstances listed below and shall only continue after the reason for the interruption has ceased to exist: breach of the customer’s duty to cooperate or any other breach of contract by the customer arising from this or another contract, suspension, interruption, or delay by the upstream supplier in supplying the supplier, technical defects in production and transport facilities, and all cases of force majeure under Clause 5.

6.3 If one of the reasons referred to in point 6.2 lasts longer than two months, both the Supplier and the Customer shall be entitled to terminate the contract by unilateral written declaration. The Customer no longer has this right (i) if it is responsible for the interruption or (ii) if the Supplier notifies the Customer of the removal of the obstacle and has announced delivery within a reasonable period.

7. Partial deliveries

Unless expressly agreed otherwise, the supplier is permitted to make partial deliveries, which the customer must accept and pay for. Withdrawal from the contract or any other termination of the contract does not invalidate the contract concerning the partial deliveries already carried out, unless the reason for withdrawal from the contract or termination of the contract also applies to the partial deliveries already carried out.

8. Warranty

8.1 The Supplier warrants that the delivery conforms to the quality specified in the order confirmation.

8.2 If the order confirmation does not contain any information on the quality of the goods, or if delivery takes place without an order confirmation, the supplier warrants that the goods have the quality stated in the offer or in the supplier’s written order form; in the absence of both an offer and a written order form, that the goods have a quality or performance that is customary for goods of the same kind at the place of manufacture and that the customer may reasonably expect.

8.3 Product descriptions in an advertisement or in other public statements do not constitute a description of the quality of the goods. If the customer has received a sample, the goods are in accordance with the agreement if they correspond to the sample.

8.4 Deviations in dimensions, weight, or quality are permissible within the scope of the agreed standards or the standards existing in the supplier's country. The same applies to the usual tolerances in determining quantities according to arithmetic principles.

8.5 For goods that are designated as lower quality, such as "Seconds", the warranty is limited accordingly to the characteristics that are to be expected according to the special marking of the goods.

8.6 No warranty is given for production-related and material-related deviations in the color shades of the goods.
8.7 For determining conformity with the contract and the start of the warranty period, the time of delivery or acceptance in accordance with point 3 shall apply, or, in the case of dispatch, the time of handover to the first carrier; this also applies if dispatch is carried out by the supplier. The warranty period is 2 years, but by way of exception 6 months for used machines and 12 months for new machines, with machines meaning wood- or metal-processing machines. In any case, the warranty period for goods delivered to customers corresponds to the period granted by the manufacturer of the goods to the supplier and of which the customer was informed; remedying defects does not extend this period.

8.8 If a notice of defects is given in due time and the customer proves the non-conformity of the goods, the supplier shall be entitled, within a reasonable period, to remedy the non-conformity by eliminating the defect in the delivery (rectification) or by replacement delivery (replacement). Travel costs shall also not be reimbursed by the supplier even if they arise for the customer in connection with a warranty claim. This applies both in cases in which the supplier carries out the rectification or replacement of the goods and also when the customer carries out these measures himself/herself, even if justified. If rectification or replacement is impossible or involves a disproportionately high effort for the supplier, the customer may only demand rescission of the contract. Any claim for reduction of the price is excluded. The supplier is entitled to several attempts at rectification. The customer is only entitled to return goods with the supplier's written permission. In all cases, a credit note shall be issued for a maximum of 90% of the effective amount paid. The customer shall bear the transport costs incurred as well as the transport risk.

8.9 If the Supplier is responsible for the non-conformity, the Customer may claim damages only in the form of rectification or replacement. If such rectification of the delivery or replacement is impossible or involves disproportionate expense, the Customer may claim monetary damages only if the Supplier is itself guilty of intent or gross negligence. Compensation for consequential damage caused by defects is also permitted only under this restriction.

8.10 The warranty claim expires in the event of modification, processing, or improper handling of the delivered goods. The supplier is not liable for costs of remedying defects carried out by the customer himself or by a third party commissioned by him without the supplier's prior written consent, which must be obtained in advance.

8.11 The application of the special right of recourse pursuant to § 933b ABGB is excluded.

9. Manufacturer's declarations

9.1 Manufacturer's warranty statements for the goods, even if they are passed on by the supplier, establish claims only against the manufacturer.

9.2 The Supplier shall not be liable for the accuracy of information concerning handling, operation and use insofar as such information is contained in brochures, technical descriptions or other instructions; these fall within the area of responsibility of the manufacturer or the importer, in the case of the importer, provided that the Supplier is not also the importer itself.

10. Compensation for damages

10.1 The Supplier shall be liable for damages for a breach of a contractual obligation assumed or an obligation existing under law only if the Supplier is guilty of intent or gross negligence. The Customer bears the burden of proving this; the same applies to compensation for consequential damages arising from defects.

10.2 Claims for compensation for lost profit as well as claims for compensation for expenses for business interruption, production downtime or indirect damages due to the delivery of goods in breach of contract are excluded.

10.3 The contract concluded between the parties contains no duties of protection in favour of third parties. This also applies if it is foreseeable that a third party is the recipient of the performance or that a third party comes into contact with the goods.

10.4 The claim for damages shall in any case expire upon the processing or reprocessing of the delivery or its resale, without the supplier having been given the opportunity to examine the non-conformity with the contract. Any claims for liability or recourse, including any claims arising from consequential damages caused by defects, against the supplier shall furthermore be limited in amount to 50% of the remuneration agreed or paid with the supplier under the respective order, but in any case to € 20,000.00, and shall become time-barred within six months from the time when the damage and the identity of the liable party could first have been ascertained.

10.5 To the extent that the Supplier provides technical information or acts in an advisory capacity and such information or advice does not form part of the scope of services owed by it under the contractually agreed scope of performance, this shall be provided free of charge and to the exclusion of any liability.

11. Product liability

11.1 Excluded from the limitations provided for under point 10 is the non-waivable liability for defective products, insofar as this results in injury to a person, death of a person, or damage to a person's health.

11.2 Liability for property damage arising from a product defect, for all companies involved in manufacture, import and distribution, is excluded. The customer undertakes to pass on this exclusion of liability to its purchasers. Claims for recourse within the meaning of the statutory provisions determined in the preceding paragraph are excluded unless the person entitled to recourse proves that the defect was caused within the supplier’s sphere and was at least attributable to gross negligence. The customer’s claims for recourse against the supplier (in particular under Section 12 PHG) are excluded.

12. Prices and Payment Terms

12.1 Unless otherwise agreed, the Supplier’s prices are ex works or ex the delivery warehouse named in the quotation, in the Supplier’s written order form, or in the order confirmation sent to the Customer, excluding packaging, transport insurance, freight and assembly costs. All prices are in euros, excluding statutory value-added tax. Deliveries and services not included in the prices will be charged according to actual material and time expended. For the delivery of very small quantities, surcharges will be charged to compensate for the additional expense.

12.2 The supplier reserves the right to demand from the customer - even before the delivery is carried out - down payments or advance payments.

12.3 Taxes, contract fees, export and import duties, as well as processing fees, customs duties and customs expenses, official commission fees and the like shall be borne by the customer.

12.4 The Supplier's prices are based on the wage and material expenses applicable at the time of order confirmation; if these increase between the time of conclusion of the contract and execution of the order, the Supplier is entitled to (i) pass on these increases to the Customer or (ii) withdraw from the contract. The same applies to other increases beyond the Supplier's control due to taxes, customs duties, or transportation tariffs.

12.5 All prices are based on the time of the offer transmitted by the supplier to the customer or the time of signature of the written order form by the customer. In the absence of an offer or a written order form or the order confirmation transmitted by the supplier to the customer, or in the absence of an order confirmation, the price that was valid at the end of the preceding month before delivery shall apply.

12.6 If delivery is to be made more than two months after the conclusion of the contract or if delivery takes place later than two months after the conclusion of the contract for reasons for which the supplier is not responsible (that is, in particular, for the reasons stated in clause 5), the supplier may demand the price shown in the price list at that time instead of the price originally determined. The supplier shall be entitled to an adjustment of the price up to delivery (i) in the event of a change in exchange rates and (ii) in the event of additional costs caused by incomplete loading, aggravation or obstruction of the carriage and transport conditions and (iii) in the event of a change in the transport route due to circumstances for which the supplier is not responsible, and (iv) in the event of a change in freight charges, taxes, customs duties and fees, insofar as the supplier has effected the dispatch (clause 3) itself. The price shall be adjusted in accordance with the change in these cost components and in proportion to their share of the price.

12.7 Payments may be made with debt-discharging effect only to the payment office(s) stated in the invoice; payments to agents or delivery personnel do not release the customer from its payment obligation. The supplier's invoices are due for payment at the time of delivery, but in any case upon receipt of the invoice, without deduction. Payment becomes due irrespective of whether the customer had the opportunity to inspect the delivery or whether it asserts defects and damage to the delivery. If delivery is made in parts, the supplier is entitled to issue partial invoices. The supplier has the right to demand advance payments or security for payment.

12.8 Discounts are only granted to the customer if they have been expressly agreed in writing. Discounts on already paid partial invoices shall lapse in the event of default on further partial invoices or the final invoice.

12.9 If there is more than one due claim, payments made by the customer shall be credited to the oldest claim in each case. With respect to the individual claims, the costs associated with collection of the claim shall be repaid first, then the interest and lastly the principal amount. Any different designation of the payment by the customer shall be ineffective.

12.10 In the event of a delay in payment for which the customer is responsible, default interest in the amount of 9.2% above the base interest rate shall be paid. In addition, the supplier shall be entitled to demand termination of the contract in whole or in part.

12.11 The Customer is not entitled, without the Supplier's written consent, to discharge its payment obligation by set-off against other claims or to withhold payment for any reason whatsoever.

13. Retention of title

13.1 All goods and deliveries remain the property of the supplier until they have been paid for in full. In addition, the supplier retains ownership of its goods until all claims arising from the business relationship have been paid (even if these specific goods have been paid for); the claims also include all ancillary claims.

13.2 If the claims arising from the delivery are included in a running account, the retained title shall secure the highest outstanding balance in each case.

13.3 If the retention of title expires, ownership of the goods passes to the supplier upon processing, mixing, or blending, who accepts the transfer of ownership. In this case, the customer remains a gratuitous custodian.

13.4 If goods subject to retention of title are resold by the customer, his claim to payment of the purchase price shall take the place of the retained title. This claim is assigned to the supplier at the time it arises. He acquires ownership of incoming funds in the form of a constitutum possessorium through the customer. The customer shall note this assignment in his books and on the outgoing invoices, and shall also inform the recipient of the goods thereof.

13.5 The Customer shall insure the goods subject to retention of title adequately against fire, theft, damage by third parties, flooding, as well as mudslides, or shall be liable for the damage. The Customer shall assign to the Supplier the claim arising from the insurance contract and shall notify the insurer thereof. The creation of contractual security interests in the goods subject to retention of title is prohibited to the Customer. If the goods subject to retention of title are affected by enforcement measures, the Customer shall point out the third-party ownership to the enforcement authority and inform the Supplier thereof no later than within 24 hours.

13.6 If the customer is in default of payment in respect of the remuneration secured by the retention of title, the supplier shall be entitled at any time to take possession of the reserved goods, even if the contract has not yet been terminated (right of repossession).

14. Vouchers

Vouchers can be redeemed at all Austrian branches. It is agreed between the supplier and the customer that vouchers can only be used once. A cash settlement is not possible. Vouchers are valid for 3 years from the date of issue. Vouchers submitted late will expire.

15. Credits

Credit notes are created with computer assistance and provided with consecutive numbers and a date. It is agreed that credit notes are valid for 3 years from the date of issue. Credit notes submitted late shall expire.

16. Place of performance, place of jurisdiction, applicable law

16.1 The place of performance for delivery and payment shall be the supplier's place of business, even if handover takes place at another location in accordance with the agreement.

16.2 In the event of disputes arising from these GTC or from a contract concluded with the Supplier, or relating to the breach, termination, or nullity of the GTC or the contract, including disputes concerning the existence or non-existence of these GTC or of a contract with the Supplier, the contracting parties agree on the exclusive jurisdiction of the court of competent subject-matter jurisdiction in Linz, Austria. Irrespective of this, the Supplier shall be entitled, at its discretion, to sue the Customer before the court of competent subject-matter jurisdiction at the Customer's registered office or place of business.

16.3 All questions concerning the interpretation of these Terms and Conditions or of all contracts concluded by the Supplier with the Customer shall be governed exclusively by formal and substantive Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and other conflict-of-law rules.

17. Privacy Policy + Newsletter

We take the protection of our customers' data very seriously. For all data protection information, we refer you to our privacy policy, available at https://www.rechberger.at/datenschutz.
To subscribe to our newsletter, consent is required—provided no business relationship exists—and this can be given by clicking the corresponding checkbox. This consent can be revoked at any time in writing by email, fax, online form, or letter sent to the contact details listed in the heading of the General Terms and Conditions.

18. General

18.1 Should individual provisions of these Terms and Conditions be invalid, this shall not affect the remaining content of the Terms and Conditions. If any gaps arise, the parties to the contract undertake to agree on a provision that comes as close as possible in economic effect to the invalid provision.

18.2 The assignment of the Customer's claims requires the Supplier's written consent to be effective. The Supplier, for its part, is entitled to assign its claims.

18.3 Actions or omissions of the manufacturer, the upstream supplier, or the carrier shall not be attributable to the Supplier.

18.4 The Customer grants consent that an inquiry may be made to the Warenkreditevidenz of the Kreditschutzverband von 1870. Furthermore, the Customer agrees that in the event of payment default, all data of the Warenkreditevidenz shall be transmitted and made accessible by it to third parties.

18.5 Plans, sketches and other technical documents as well as brochures, catalogues, images, samples and similar items remain the intellectual property of the supplier. This also applies if they are available online. Any use, reproduction, publication or distribution requires the supplier's express prior written consent. If this consent is missing and even one of the stated forms of use occurs, the supplier is entitled to demand a one-time amount of 25% of the planning or manufacturing costs or the total estimate, regardless of whether the infringed work is a work under the Copyright Act (UrhG) or not.