Terms of service
These General Terms and Conditions (GTC) are an integral part of the delivery agreement concluded between you (hereinafter “ Client ”) and XY GmbH (hereinafter “ Contractor ”) (hereinafter “ Agreement ”)”). All other deliveries, services and offers by the contractor are also made exclusively in accordance with these terms and conditions. Changes and additions to these terms and conditions as well as conflicting or supplementary conditions – in particular general terms and conditions – of the client are not recognized by the contractor, unless there is an express written confirmation by the contractor. In the event that these terms and conditions compete with those of the client, these general terms and conditions take precedence.
The version valid at the time of the conclusion of the contract is decisive. However, the contractor reserves the right to make changes to the general terms and conditions, so that the then current general terms and conditions are authoritative for subsequent orders.
These general terms and conditions also apply to all future contractual relationships, even if this is not expressly indicated in additional contracts.
Contractor and client are jointly referred to as the contractual parties or individually as the contractual partner.
2. Offers, subsidiary agreements
Unless otherwise stated, all offers made by the contractor are non-binding and subject to change with regard to all of the data provided, including the price. Information contained on the homepage, in catalogs, brochures, product descriptions, cost estimates, etc. is only binding if it is referred to in the order confirmation. Illustrations, information on quantities, dimensions and designs, appearance, prices and conditions in brochures, catalogs and the like are only examples.
The quantities, dimensions and execution details given in the respective order confirmations, the prices and conditions are to be checked by the contractual partner immediately after receipt of the order confirmation. If the order confirmation contains changes to the order, these are deemed to have been approved by the client, unless the client contradicts them in writing within five calendar days after the order confirmation has been sent. Cost estimates are only binding if they have been drawn up in writing and expressly designated as binding.
3. Contract initiation and conclusion
Agreements, sales, orders and contracts with the contractor must be made in writing and are only concluded with the contractor’s written (order) confirmation. Written or electronic declarations on the part of the contractor or invoices are deemed to have been received by the contract partner if they are sent by post with an address of the contract partner known to the contractor, have been sent by fax to a fax number of the contract partner known to the contractor or if they are called up by the contract partner under normal circumstances can.
The contractual partner agrees that all business documents, invoices etc. are electronically created and sent to him.
4. Prices, terms of payment
All prices quoted are net prices and do not include statutory sales tax. Unless otherwise specified in the contract, the contractor considers himself bound to the prices for four (4) weeks. Payments by the client must be made free of charges and deductions.
The client can only offset or withhold amounts due in cases in which the client’s claims have either been acknowledged in writing by the contractor or have been finally confirmed by a court. Unless otherwise agreed, payments made by the client are non-refundable.
In the event of default in payment, the client must reimburse the contractor for the appropriate and necessary costs incurred as a result of the default in payment, such as expenses for reminders in the amount of EUR 20 per reminder, collection attempts, storage costs and any judicial or extrajudicial legal fees. The default interest is 9.2% above the base rate per annum.
Invoices are due within ten (10) days of the invoice date without deduction. In the event of default of payment, the contractor reserves the right to assign, sell or hand over the claims against the client to factoring companies for collection. The associated costs, such as dunning and collection charges, are borne by the client. The contractor is entitled to send invoices to the client in electronic form. The client expressly agrees to the sending of invoices in electronic form by the contractor.
Flat rate / remuneration agreements must be expressly designated as such and in writing in order to be effective. As a result, the services are by no means flat-rate (fake flat-rate price). Changes to the service content are not included in this flat rate.
If the terms of payment are not adhered to, or if the contractor becomes aware of circumstances that are likely to reduce the customer’s creditworthiness, all claims are due immediately. The contractor is then entitled to carry out outstanding deliveries or other contractual services only against prepayment and to withdraw from the contract after setting a deadline and to assert claims for damages.
The exact prices for the services and deliveries of the contractor can be found in the price list attached to the offer, the order confirmation or the contract. The prices quoted are “ex works” in the warehouse of the contractor in Parndorf, Austria.
All goods and items delivered by the contractor remain the property of the contractor until all services provided by the contractor have been paid for in full.
5. Cancellation of the contract
In the event of default by the contractor, the customer may only withdraw from the contract after setting a sufficient grace period by means of a registered letter. Delay in minor or insignificant (partial) services does not entitle to withdraw.
If the client is in arrears with an obligation or obligation, especially when fulfilling incidental, partial or other payment obligations or cooperative activities, which make the execution of the order impossible or significantly hinder it, the contractor is entitled to withdraw immediately. This does not affect statutory rights of withdrawal.
If the contractor is entitled to withdraw from the contract, then he retains the right to the entire agreed fee, also in the event of unjustified withdrawal by the client. Furthermore, § 1168 ABGB applies; If the client is justified in withdrawing from the contract, the contractor must pay for the services.
The contractor is also entitled to withdraw from the contract for other important reasons, such as in particular the client’s insolvency or bankruptcy rejection due to lack of assets, provided that it has not yet been fully fulfilled by both sides.
6. Data acquisition
The contractor will process personal data in accordance with the applicable provisions of the Data Protection Act.
The client expressly agrees that the contractor processes the client’s personal data, insofar as this is necessary: a) for the performance of the contractor’s services (invoicing, or other services), or b) for the purposes of client registration, or other services that are made available under the contract subject to these terms and conditions.
The client hereby agrees that the client’s personal data may be processed. The contractor is authorized to commission subcontractors to process personal data.
The contractor transfers the obligations of the contractor as a processor towards the client in accordance with the stipulations in this document to the subcontractors and obliges them to comply with all relevant data protection regulations.
7. Service periods and dates, delivery, shipping costs, transport and transfer of risk
Delivery times are non-binding and do not begin before all technical and other construction details have been submitted, an agreed down payment has been paid and / or all details of the construction have been fully clarified. Only in the event of a delay in performance for which the contractor is responsible is the client free to withdraw from the contract by setting a grace period, which, however, may not be less than two weeks and must be in writing; Any other claims or claims of any kind beyond this, in particular claims for damages, are excluded, unless the contractor is guilty of gross negligence or willful misconduct in the delay in performance.
Performance dates and deadlines are only binding if they have been expressly agreed as such in writing. Otherwise, the contractor must provide the services within a reasonable period.
The additional costs incurred due to delays are to be borne by the client if the circumstances causing the delay are attributable to his sphere.
Operational disruptions of all kinds at the client’s or its suppliers, natural events, strikes and other unforeseeable or unpredictable circumstances entitle the contractor to extend the delivery period or to cancel the contract in whole or in part, to the exclusion of all warranty, error avoidance and damage claims. This also applies if the events occur at a time at which the contractor is in default.
Complaints about partial deliveries do not entitle the client to reject the remaining deliveries.
Unilateral changes in performance by the contractor, such as technically required changes in production as well as deviations in dimensions, weights, colors and patterns, are reasonable for the customer if they are objectively justified. This also applies to subsequent deliveries.
With a minimum order value of EUR 5,000.00 per order in trade (retail and wholesale, sales partners), delivery in Vienna (1st – 23rd district) is free of shipping costs; Outside of Vienna there are shipping costs depending on the shipping location, which are regulated in the contract.
With a minimum order value of EUR 1,000.00 per order in the catering sector, delivery in Vienna (1st – 23rd district) is free of shipping costs; Outside of Vienna there are shipping costs depending on the shipping location, which are regulated in the contract.
The guarantee is primarily provided by improving or replacing the services within a reasonable period. The contractor has the right to choose in this regard. If an improvement or an exchange is not possible or only involves disproportionate effort, an appropriate price reduction is to be granted. A right of conversion exists only in the case of irreparable defects that hinder the use of the object of performance.
The customer’s claim to warranty expires six (6) months after the respective (partial) service has been provided. The reversal of the burden of proof according to § 924 ABGB is excluded.
With regard to all services of the contractor or his third parties, the client has the duty to examine and notify in accordance with §§ 377, 378 UGB. Notices of defects and complaints of any kind are to be reported in writing immediately, describing the defect as precisely as possible, in the event of any other loss of warranty and compensation claims. Verbal, telephone or not immediate notifications of defects and complaints will not be considered. Notices of defects and complaints that are not made within 14 days of (part) handover / (part) delivery are in any case delayed. The client bears the risk of delay and loss for notices of defects and complaints.
The limitation period for these claims is six (6) months after the first delivery. Claims according to § 933b ABGB also expire after six (6) months.
All other claims by the client are excluded.
Declarations of the contractor designated as “guarantee” represent only statutory (extended) warranty commitments and not guarantee commitments within the meaning of § 880 a ABGB.
Any further compensation is completely excluded in the case of slight negligence.
No warranty or liability claims can be derived from information in catalogs, brochures, product descriptions, advertising material and other written or oral statements that have not been expressly included in the contract.
9. Liability, compensation
In all cases of contractual and non-contractual liability, the contractor pays damages only in the event of willful intent, gross negligence and the lack of a quality for which the contractor has assumed a guarantee. The burden of proof that the contractor acted willfully or with gross negligence lies with the client. The liability of the contractor for all claims of the client is limited to the contract value per case of damage in connection with the contract, regardless of the legal basis. The contractor does not assume any liability for lost profit, expected but not realized savings, damage from third party claims against the client, indirect damage and consequential damage as well as damage to recorded data.The limitations of liability do not apply to liability for personal injury.
A limitation period of one (1) year applies to all claims against the contractor for damages or reimbursement of wasted expenses in the case of contractual and non-contractual liability. This does not apply to liability for intent or gross negligence or for personal injury. The limitation period begins with knowledge of the damage and the damaging party.
The contractor’s liability does not apply if the damage incurred is also or exclusively due to incorrect or incomplete information or documents provided by the client or if the client did not adequately support the contractor in any other way in carrying out his order or even in the Prevented implementation.
The above limitations of liability also apply to claims against employees, subcontractors or other authorized representatives of the contractor.
If claims against a third party involved in fulfilling the order are assigned to the client, the contractor is only liable for negligence in the selection of the third party.
The client expressly waives the right to contest the contract due to errors or shortening of more than half ( laesio enormis ).
10. Final provisions
For all legal disputes arising from this contract as well as any agreements in connection with this contract, the exclusive jurisdiction of the relevant court in Vienna, Inner City, applies.
The place of performance for delivery and payment as well as for all obligations of the client towards the contractor is the place of business of the contractor, even if the delivery of the goods or the provision of services takes place at a different location as agreed. This contract is subject exclusively to Austrian law to the exclusion of national and international conflict of laws rules and to the exclusion of the UN sales law.
Oral side agreements do not exist and would be ineffective. Any additions or changes to the contract must be made in writing; the same applies to any departure from this written form requirement.
In the event that individual provisions of these General Terms and Conditions are and / or become ineffective, this does not affect the effectiveness of the remaining provisions and the contracts concluded on the basis of them. The ineffective one is to be replaced by an effective provision that comes closest to its meaning and economic purpose.