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. Validity 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 Linz Regional Court under FN 88875z (hereinafter also referred to as "Supplier"), and the client, purchaser, or commissioning party (hereinafter also referred to as "Customer"), in particular contracts of sale, contracts for work, or other commissioned services (commissioning, installations, etc.), only the following GTC shall apply.

1.2 The Customer submits to the validity of these General Terms and Conditions. If the Supplier has an ongoing business relationship with the Customer, these General Terms and Conditions shall also apply if their validity is not specifically pointed out. Likewise, these General Terms and Conditions shall apply to all ancillary work associated with the performance of the service. The General Terms and Conditions also apply to follow-up orders, including when they are not separately agreed orally or in writing. Oral agreements with the Supplier shall only become effective if they are confirmed in writing by the Supplier.

1.3 Provisions deviating from these Terms and Conditions, in particular those contained 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 Section 1 (1) (2) of the KSchG, the mandatory provisions of the KSchG shall take the place of the provision in the GTC. The remaining provisions of these GTC shall remain unaffected by this.

2. Conclusion of Contract

2.1 The Supplier's notices - also at the Customer's request - are non-binding, even if they state prices, dates, and other technical specifications; technical information or proposed solutions provided by the Supplier are also without warranty, as are descriptions, samples, or specimens. The same applies if the Supplier issues only a preliminary 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 not provided, 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 contains no information, ex works delivery (ex works; in accordance with the Incoterms) shall be deemed agreed.

3.2 Even if the Supplier contractually assumes responsibility for the delivery of 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 requires that the access road can be used by heavy goods vehicles. Even if the supplier undertakes the delivery as agreed, the customer shall bear all transport and packaging costs (delivery charge).

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

3.5 The goods will only be insured against transport damage and loss on the customer's written instruction and at the customer's expense.

3.6 The customer is obligated to inspect the delivery for correctness and completeness immediately upon handover, but no later than within 4 business days. The customer loses the right to rely on a non-conformity of the delivery if he omits the inspection or if he does not report a non-conformity in writing without undue delay after the time at which he could have recognized it in the course of proper inspection, stating it precisely.

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

3.8 The risk of accidental loss and accidental damage passes to the customer with the notification of readiness for shipment or, according to the applicable Incoterms clause, upon application of the clause.

3.9 Certain goods (such as doors or other bulky goods) are delivered to the customer on specially manufactured loading equipment (special pallets, roll containers, etc.). These loading equipment remain the property of the supplier and are taken back by the supplier. These loading equipment are to be kept in safe custody by the customer until collection by the supplier and handed over upon request. In the event of non-return or damage, the costs of this loading equipment 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 contrary to the Contract or the fact that the Customer was unable to inspect the delivery do 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 of the supplier's readiness 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) shipped 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 the goods stored with it in the event of intent or gross negligence. The supplier's rights pursuant to §§ 373 et seq. UGB remain unaffected.

4.3 If the customer does not 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 is entitled, without proof of damage or fault, to claim 30% of the respective order value and, in addition, compensation for the actual damage incurred, including lost profit. The same applies if the contract is terminated for other reasons for which the supplier is not responsible.

5. Force Majeure

Force majeure and other unforeseeable hindrances or hindrances beyond the Supplier's control, such as industrial action, traffic disruptions, etc., as well as accidents for which neither the Supplier nor its upstream suppliers are 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 subject to any consequences of delay.

6. Delivery dates

6.1 All delivery dates and delivery periods are non-binding and are subject to unforeseen events and obstacles. The running of delivery periods begins (i) upon receipt by the customer of the supplier’s order confirmation or (ii) in the absence of an order confirmation, upon the supplier’s notification of readiness for dispatch to the customer. If the supplier’s offer accepted by the customer or the supplier’s written order document or the order confirmation sent to the customer already states a delivery date instead of a delivery period, that delivery 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 period of at least 6 weeks for the delayed goods. If this subsequent delivery period elapses fruitlessly, the customer may withdraw from the contract if it has notified the withdrawal while setting the subsequent delivery period.

6.2 Delivery deadlines set in motion under clause 6.1 shall be interrupted by the circumstances listed below and shall resume only after the reason for the interruption has ceased to exist: breach of the customer’s duty to cooperate or other breaches of contract by the customer under this or any other contract, suspension, interruption or default of the supplier’s upstream supplier in delivering to 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 mentioned 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 does not have this right any longer (i) if it is responsible for the interruption or (ii) if the Supplier has informed 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 cancel the contract for partial deliveries already performed, unless the reason for withdrawal from the contract or termination of the contract also applies to the partial deliveries already performed.

8. Warranty

8.1 The supplier warrants that the delivery corresponds to the quality specified in the order confirmation.

8.2 If the order confirmation contains no 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 supplier’s quotation or written order form; if there is neither a quotation nor a written order form, the supplier warrants that the goods have a quality or performance customary for goods of the same kind at the place of manufacture and that the customer can reasonably be expected to anticipate.

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, then 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 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 designated as inferior quality, such as "Second Choice", the warranty is correspondingly limited to the characteristics to be expected according to the special marking of the goods.

8.6 No warranty is provided for production- and material-related deviations in the colour shades of the goods.
8.7 For determining conformity with the contract and the commencement 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 the dispatch is carried out by the supplier. The warranty period is 2 years, but by way of derogation 6 months for used machines and 12 months for new machines, whereby machines are understood to mean wood- or metalworking 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 shall not result in an extension of that period.

8.8 If a timely notice of defects has been given and the customer has proven that the goods are non-conforming, the supplier is entitled, within a reasonable period, to remedy the non-conformity by repairing the defect in the delivery (rectification) or by replacement delivery (replacement). Travel costs shall also not be reimbursed by the supplier if they are incurred by the customer in connection with a warranty claim. This applies both in cases where the supplier carries out the rectification or replacement of the goods and where the customer carries out these measures himself or herself, even if justified. If rectification or replacement is impossible or would involve disproportionately high expense for the supplier, the customer may only demand rescission of the contract. Any claim for price reduction is excluded. The supplier is entitled to make several attempts at rectification. The customer is only entitled to return goods with the supplier's written approval. In all cases, a credit note shall be issued for no more than 90% of the amount actually 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 effort, the Customer may claim monetary damages only if the Supplier is itself guilty of intent or gross negligence. Compensation for consequential damage caused by the defect is also permissible only under this restriction.

8.10 The warranty claim expires in the event of alteration, processing, or improper handling of the delivered goods. The supplier is not liable for the costs of remedying defects carried out by the customer itself or by a third party commissioned by it 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 Section 933b of the Austrian Civil Code is excluded.

9. Manufacturer's declarations

9.1 Warranty statements by the manufacturer of the goods, even if passed on by the supplier, give rise only to claims 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 shall fall within the responsibility of the manufacturer or the importer, in the case of the importer, provided that the Supplier is not also the importer itself.

10. Damages

10.1 The Supplier shall be liable for damages only in the event of a breach of a contractual obligation undertaken or a statutory obligation existing under the law if it is attributable to intent or gross negligence. The burden of proof for this lies with the Customer; the same applies to compensation for consequential damage caused by defects.

10.2 Claims for compensation for loss of profit as well as claims for compensation for expenses due to business interruption, production downtime, or indirect damages resulting from the delivery of goods that do not conform to the contract are excluded.

10.3 The contract concluded between the parties does not contain any 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 will come into contact with the goods.

10.4 The claim for damages shall in any case lapse upon processing or further processing of the delivery or its resale, without the supplier having been given the opportunity to examine the non-conformity. Any liability or recourse claims, including any claims for consequential damages due to defects against the supplier, are furthermore limited in amount to 50% of the remuneration agreed or paid in connection with the respective order with the supplier, but in any case to € 20,000.00, and shall become time-barred within six months from the time when the damage and the person liable for compensation could first have been known.

10.5 To the extent that the Supplier provides technical information or acts in an advisory capacity, and such information or advice do not form part of the scope of performance owed by it under the contractually agreed scope of services, this is done 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, provided that a person is injured, killed, or harmed in their health as a result.

11.2 Liability for property damage resulting 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 buyers as well. Recourse claims within the meaning of the statutory provisions determined in the preceding paragraph are excluded, unless the party entitled to recourse proves that the defect was caused within the supplier's sphere and was at least grossly negligent. The customer's recourse claims against the supplier (in particular under § 12 PHG) are excluded.

12. Prices and Payment Terms

12.1 Unless otherwise agreed, the supplier's prices are ex works or from the delivery warehouse specified in the offer, in the supplier's written order form, or in the order confirmation sent to the customer, excluding packaging, transport insurance, freight, and installation costs. All prices are in euros, exclusive of statutory VAT. Deliveries and services not included in the prices will be charged according to actual material and time expenditure. For the delivery of very small quantities, surcharges will be charged to compensate for the additional effort.

12.2 The Supplier reserves the right to demand down payments or advance payments from the Customer, even before the delivery is carried out.

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

12.4 The Supplier's prices are calculated on the basis of wage and material costs in force at the time of order confirmation; if these increase between the time of contract conclusion and order fulfillment, the Supplier shall be entitled to (i) pass on these increases to the customer or (ii) withdraw from the contract. The same applies in the case of other increases beyond the Supplier's control due to taxes, customs duties, or transport tariffs.

12.5 All prices are based on the time of the offer transmitted by the supplier to the customer or the time of the customer’s signing of the written order form. 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 previous month before delivery shall apply.

12.6 If delivery is to take place 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 (in particular for the reasons stated in point 5), the supplier may demand the price stated in the price list at that time instead of the originally agreed price. The supplier is 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, complication or obstruction of the freight 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 arranged the shipment (point 3) himself. The adjustment of the price shall be made 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 discharging effect only to the payment office(s) specified in the invoice; payments to representatives or carriers do not release the customer from its obligation to pay. The supplier's invoices are due for payment, without deduction, at the time of delivery, but in any case upon receipt of the invoice. Due date occurs regardless of whether the customer had an opportunity to inspect the delivery or whether the customer asserts defects or damage in 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 Cash discounts are only granted to the customer if they have been expressly agreed in writing. Cash discount reductions from partial invoices already paid shall lapse in the event of default on further partial invoices or the final invoice.

12.9 If there are multiple due claims, 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 paid first, then the interest, and finally the principal. Any different designation of the payment by the customer shall be invalid.

12.10 In the event of payment default for which the customer is responsible, default interest at a rate of 9.2% above the base interest rate shall be payable. In addition, the supplier is 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 offsetting it 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, until all claims arising from the business relationship have been paid, the supplier reserves title to its goods (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 current account, the retained title secures the highest outstanding balance at any given time.

13.3 If the retention of title expires, ownership of the goods shall pass to the supplier, who accepts the transfer of ownership, upon processing, mixing, or commingling. In this case, the customer shall remain the gratuitous custodian.

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

13.5 The Customer must adequately insure the goods subject to retention of title against fire, theft, damage by third parties, flooding, and mudslides, or be liable for the damage. The Customer must assign to the Supplier the claim under the insurance contract and notify the insurer thereof. The Customer is prohibited from creating contractual security rights over the goods subject to retention of title. If the goods subject to retention of title are seized by enforcement measures, the Customer must 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 defaults on payment of the remuneration secured by the retention of title, the supplier is entitled at any time to take possession of the goods subject to retention of title, even if the contract has not yet been terminated (right of repossession).

14. Vouchers

Vouchers can be redeemed in all Austrian branches. It is agreed between the supplier and the customer that vouchers can only be used once. Cash redemption 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 assigned 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 registered office, 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, dissolution, or invalidity 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 subject-matter jurisdiction in Linz, Austria. Regardless of this, the Supplier is entitled, at its discretion, to sue the Customer before the court of general jurisdiction having subject-matter jurisdiction at the Customer’s registered office or branch.

16.3 Austrian law, both procedural and substantive, shall apply exclusively to all questions of interpretation of these Terms and Conditions or all contracts concluded by the Supplier with the Customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and other conflict-of-law rules.

17. Data Protection + Newsletter

We take the protection of our customers' data very seriously. For all data protection information, please refer 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 granted by clicking the corresponding checkbox. This consent can be revoked at any time in writing by email, fax, online form, or letter to the contact details stated in the header of the Terms and Conditions.

18. General

18.1 If individual provisions of these Terms and Conditions are invalid, this shall not affect the remaining content of the Terms and Conditions. If gaps arise, the contracting parties undertake to make an arrangement that comes as close as possible in economic terms 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 gives his consent that an inquiry may be made to the trade credit register of the Kreditschutzverband von 1870. Furthermore, he agrees that, in the event of his default in payment, all data from the trade credit register will 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 the like 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 lacking and even one of the aforementioned types of use is present, the Supplier is entitled to demand a one-time amount of 25% of the planning or production costs or the amount of the cost estimate, regardless of whether the infringed work is a work within the meaning of the Copyright Act (UrhG) or not.