Karl Niedersüss GmbH Stadtplatz 20, 4150 Rohrbach for business transactions
For the business relation between the company Karl Niedersüss GmbH, registered under FN 89896 a, Stadtplatz 20, 4150 Rohrbach (hereinafter referred to as “seller” or “we”) and natural individuals for whom this business is part of the operation of a company (hereinafter referred to as “customer”), the following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively in their respective valid version. The General Terms and Conditions are available at www.k-n.at; we do not recognize any other customer terms or conditions or conditions deviating from our GTC. Fulfilment of a contract on our part shall not, in this respect, be considered as consent to contractual conditions deviating from our GTC. These GTC shall also be considered as a general agreement to all existing and future contractual relationships between the contracting parties, even if no express reference is made to the GTC. In any case, with the receipt of a delivery by the customer, our GTC are accepted by the customer. Verbal agreements of the contracting parties are replaced by the written contract.
II. Conclusion of a Contract
Bids whether in writing, verbally or by telephone, are always non binding and require a written confirmation by us to be valid. A tender to contract (order) of a customer requires an order confirmation by us. Shipping goods ordered by the customer shall also effect the conclusion of a contract. Offers and cost estimates shall only be provided in writing. Oral cost estimates shall have no legal significance. Unless otherwise agreed, offers and cost estimates are subject to payment. Offers and cost estimates are generated on the basis of the information provided by the customer, without any guarantee for completeness or correctness. If details in written order confirmations issued by us deviate from the catalogue, brochure or other details, those in the order confirmation shall be binding.
III. Price, terms of payment
If not otherwise expressly agreed upon, all prices specified by us are to be understood to be in euros and exclusive value added tax. In addition to the listed prices, we charge shipping costs for delivery.
Without a contrary written agreement, our invoices shall be paid in cash upon transfer of the goods, by advance payment or by cash on delivery within 14 days. Discount deductions require a separate written agreement. In the event of default in payment by the customer, we shall be entitled to charge interest at the rate of 10% p.a. for the period from the accrual date until receipt of payment. Agreements on discounts lose their validity from the date of default of payment. Furthermore, all reminder or collection fees and ancillary charges incurred in connection with the outstanding debt shall be paid at the same time as the principal debt. The customer has a right to offset only if his counterclaims are legally established, undisputed or recognized by us in writing.
IV. Cancellation of a contract
In the case of default in acceptance (Point V) or for other substantial reasons, in particular, bankruptcy of the customer or rejection of a petition in bankruptcy on grounds of insufficient assets, or arrears in payment by the customer, we shall have the right to withdraw from the contract insofar as it has not yet been fully performed by both parties. In the event of a withdrawal where the customer is at fault, at our discretion we may demand a fixed rate of compensation for damages of 15% of the gross invoice amount or compensation for losses actually incurred. The same applies if the customer- without being entitled to do so – withdraws from the contract without just cause. We shall be released from all further obligations to perform and deliver if the customer is in arrears with payment and shall have the right to hold back outstanding deliveries or services and to demand payments in advance and/or deposits, or to withdraw from the contract after setting a reasonable grace period.
V. Delivery, Transport, Default in acceptance, Bearing of risk
If payment in advance has been agreed, delivery shall be made after receipt of the amount invoiced. We are entitled to make partial deliveries, in which case each partial delivery shall be treated as an independent delivery. In all cases the customer bears the risk as soon as the goods leave our warehouse, even if we were responsible for shipment of the goods to the customer; the same is valid for goods placed at the disposal of the customer and not called up, or if the delivery is postponed by the customer.
Normal packaging suitable for the shipment of the goods is provided. Our sales prices do not include shipping costs. However, if required and at our discretion, these services can be performed or organised by us against separate payment. In this case transport and/or delivery shall be charged at cost plus a surcharge at an appropriate rate, but not less than the normal freight and carriage charges for the selected method of transport, or the rates applying on the day of delivery. If thereby a special type of transport is agreed upon (express delivery, special packaging, specific means of transport, specific transport company etc.), these services are furnished and/or organised by us against separate payment of the resulting extra costs. If the customer does not require a special type of shipment, we will make the selection. The customer expressly declares itself in agreement with a shipment by train, forwarding agent, freighter or postal delivery. There is no change to the bearing of risk regulation specified above if the shipment takes place via our own vans or trucks. If the place of delivery or performance is abroad the customer is obliged, at its own expense, to clear the goods through customs, pay the duty and, if necessary, provide insurance. At the same time the customer is obliged, at its own expense, to obtain all appropriate legal permits and approvals that are necessary for the export of the goods from Austria and the import of the goods into the foreign state as well as to make all appropriate declarations.
In the event the customer has not accepted the goods as agreed (default in acceptance) we shall, after failure to meet an extended grace period, have the right to either store the goods on our premises and charge a storage fee of 0.1% of the gross invoice amount per full or partial calendar day or to have the goods stored by an authorized business at the cost and risk of the customer. At the same time we shall have the right either to insist on discharge of the contract or, after setting a reasonable grace period of at least 2 weeks, to withdraw from the contract and use the goods elsewhere.
VI. Term of Delivery
We shall not be obligated to perform the contract until after the customer has fulfilled all its obligations that are necessary for the performance of the contract, in particular all technical and contractual details, work in advance and preparatory actions.
We shall have the right to exceed the agreed upon dates and terms of delivery by up to one week. Only after the elapse of this period may the customer withdraw from the contract after first setting a reasonable extended grace period of at least four weeks. In so far as, through gross culpability, we are responsible for lack of compliance with the terms of delivery, the
claim of the customer is limited to the damage caused by default up to 5% of the invoice amount of the delivery and performance affected by the delay. Claims of any kind over and above this amount are excluded. If the ordered product is not available because we are not supplied with this product or parts thereof by our supplier without any fault on our part, we may withdraw from the contract. In this case, the seller will inform the customer immediately and, if necessary, propose the delivery of a comparable product. If no comparable product is available or if the customer does not wish a comparable product to be delivered, the seller will immediately refund to the customer any consideration already paid. We are not responsible for delays in delivery and/or performance due to force majeure or due to events that make it significantly more difficult or impossible or impractical for us to perform (such as strikes, lockouts, official orders); this also applies in the event that such delays in delivery or performance do not occur at our own site but at the site of our suppliers or subcontractors.
VII. Minor Changes in Performance
With regard to natural product supplied by us, minor changes to our performance and/or delivery obligations that can be reasonably expected by our customers are regarded beforehand as authorized. This shall especially apply for deviations of a material nature (e.g. in dimensions, colours and structure, etc.). The saddle care instructions found in your Guarantee card.
VIII. Warranty, Obligation to Inspect and Register Complaints
We shall meet all warranty claims by the customer, at our discretion, either through replacement, repair within a reasonable time period, or price reduction. The customer is obliged to have the goods returned to us at his own expense and to collect them again at his own expense. The claim for consequential damages, in particular loss of profit, etc., is excluded. The customer may demand cancellation of the transaction (annulment of contract) only if the defect can be considered major and cannot be remedied through replacement or repair, and the customer cannot reasonably be expected to accept a price reduction. Warranty claims that concern moveable objects shall be legally asserted within one year from date of delivery. We shall not be liable for errors, malfunctions or damage caused by improper operation on behalf of the customer or third parties attributable to the customer.
If the customer claims that a defect exists, the assertion of claims resulting therefrom, in particular claims under warranty or claims for damages shall only be possible if the customer proves that the defect existed at the time of delivery of the goods; this shall also apply within the first six months after delivery of the goods. The customer shall inspect the delivery made by us immediately after delivery with regard to completeness and any defects. Any defects in the goods delivered by us shall be notified to us by the customer immediately upon receipt of the goods by registered letter or by a note on the delivery note/waybill. Hidden defects shall be notified in writing without undue delay, but no later than 3 working days after their discovery. The customer shall specify the respective concrete defects and describe them as precisely as possible; an unsubstantiated assertion of unspecified defects shall not satisfy the customer’s obligation to give notice of defects. If the customer does not comply with his obligation to inspect and give notice of defects immediately after receipt of the goods, the goods delivered by us shall be deemed to have been provided free of defects or to have been accepted with any defects. The customer therefore loses any rights he may have under warranty, compensation for damages and error. Our warranty obligation expires in any case with the expiry of the one-year warranty period. If, after a notice of defect has been given, it turns out that the defects or deficiencies alleged towards us are not defects or deficiencies within the meaning of warranty law, but result from faulty or improper use on the part of the customer or other circumstances attributable to the customer’s sphere of influence, we may charge the customer an appropriate fee (including any expenses incurred) for the investigation or examination of the defects or deficiencies complained of.
The shift in the burden of proof according to § 924 ABGB at our expense is excluded. The existence of the defect at the time of delivery, the time of discovery of the defect and the timeliness of the notice of defect must be proven by the customer.
IX. Compensation for Damages and Product Liability
For damages resulting from injury to life, body or health, we are liable according to the legal regulations. For other damages we are only liable for intent and gross negligence. Liability under the Product Liability Act shall remain unaffected by the above provisions. Claims for damages are limited to the amount of the order value excluding taxes. Compensation for loss of profit as well as damages to the customer’s mere assets by us is excluded in any case. Any claim for damages shall lapse six months after the customer has become aware of the damage and the damaging party, but no later than one year after handover. The assertion of claims on the grounds of laesio enormis, error or lapse of the basis of business for the customer is excluded.
X. Reservation of Title and Assignment of Claims
All goods are delivered by us under reservation of title and shall remain our property until payment has been made in full. In the event of goods being recovered, we shall have the right to charge for any transport and handling expenses.
In the event of delivery under reservation of title, the customer shall immediately assign its claims against third parties to us until final settlement of our open claims, insofar as these claims against third parties arise through the sale or processing of our goods.
Claims against us may not be assigned without our explicit written agreement.
XI. Applicable Law, Jurisdiction
Austrian law shall apply. Application of the Convention on the International Sale of Goods and Austrian International Private Law shall be expressly excluded. Place of fulfilment is A-4150 Rohrbach-Berg. The contractual language shall be German. The contracting parties agree to Austrian domestic jurisdiction. The court of competent jurisdiction at the registered office of our company shall be exclusively responsible for ruling on all disputes arising from this contract. We are, however, also entitled to raise complaints against customers at their place of residence or registered place of business.
XII. Copyright; Salvatory clause
Samples, catalogues, brochures, illustrations and the like always remain our intellectual property; the customer shall not be granted utilization or exploitation rights of any kind whatsoever. Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. In such a case, the invalid provision shall be replaced by a valid provision which comes closest to the meaning and purpose in order to achieve the intended economic