General Terms and Conditions
1.1. The following general terms and conditions (subsequently shortened to “T&Cs”) will apply to all deliveries, services, purchases and bids (subsequently shortened to “services”) by Rudolf Koller Ges.m.b.H., Commercial register number 36250i, Brünner Straße 313-315, 1210 Vienna, as well as its subsidiary at Rudolf-Koller-Straße 1, 3902 Vitis (subsequently shortened to “Koller”). Services by Koller are provided exclusively based on these T&Cs. Any conflicting customer or supplier T&Cs will not be acknowledged, unless Koller has expressly granted written consent. In this respect contract fulfilment negotiations by Koller do not apply as consent to contract conditions which differ from these T&Cs. These T&Cs apply in particular as a framework agreement for all additional legal transactions between Koller and the other contract party; this also applies in the event that the T&Cs are not explicitly referred to again in subsequent cases.
2. Contract conclusion
2.1. Sales bids by Koller are non-binding. A sales bid requires written acceptance of an order or an order confirmation. If Koller dispatches the goods ordered by the customer this effectuates contract conclusion. However, if bids are made to Koller, then the bidder is bound by a period of at least 10 days from verifiable receipt of the bid. Acceptance of a bid made to Koller requires a written acceptance declaration by Koller in all cases.
3.1. Provided that nothing has been expressly noted to the contrary, all prices stated by Koller are understood as being exclusive of statutory VAT.
3.2. If costs change, in particular such as wage costs on account of collectively agreed regulations in the industry or internal deals, or other costs for calculating the relevant cost centres or costs necessary for service provision such as those for materials, power, transport, foreign work, financing etc., then Koller is entitled to increase or reduce the prices accordingly. Point 3.2. here does not apply to consumer business transactions.
4. Payment terms, default interest
4.1. In the absence of any other agreement, payments due to Koller from Austrian contract partners are due for payment at the time the goods are handed over and as soon as the invoice has been received, free of expenses and deductions. For foreign contract partners, in the absence of any other agreement, a third of the total price is due as a pre-payment at the time of the order and the remainder by means of an irrevocable confirmed letter of credit from a leading bank with its head office in the European Union, or in ready cash at the time the goods are handed over. Discount deductions require a separate written agreement. In the event of payment default, with part payments too, any discount agreements cease to apply. Customer payments are not valid as paid until the date they are irrevocably and unreservedly received into the Koller business account.
4.2. If the customer is in payment default Koller is entitled either to request compensation for the actual loss or default interest at the statutory level, but of at least 8 % per annum. In the event of payment default by the customer, Koller is also entitled to request compound interest from the date the goods are handed over. For consumer business transactions the default interest is 8 % per annum.
4.3. In the event of default any payments made by the customer will first of all be offset against interest and costs, then against the capital amount.
5. Contract cancellation
5.1. Upon acceptance default or for other significant just cause, in particular such as customer insolvency or dismissal of any such proceedings due to lack of assets, as well as payment default by the customer, Koller is entitled to withdraw from the contract provided that the contract has not yet been fulfilled in its entirety by both contract parties. In the event of cancellation Koller can choose to request lump-sum compensation irrespective of negligence of 15 % of the gross invoice amount, or replacement of the actual damages incurred; the payment is due within 7 days of the first request from Koller.
5.2. Upon payment default by the customer Koller is released from all further service and delivery obligations and entitled to take back any outstanding deliveries or services and to request pre-payments or securities or to withdraw from the contract, after setting an appropriate deadline period whereby14 days is deemed appropriate in all cases.
5.3. If the customer – without being entitled to do so – withdraws from the contract or if he requests its annulment, then Koller can choose to insist on fulfilment of the contract or can agree explicitly to annulment of the contract in writing; in the latter case the customer is obliged, depending on what Koller chooses, to pay either lump-sum compensation irrespective of negligence for a sum of 15 % of the gross invoice amount or the actual damages incurred within 7 days from request by Koller.
5.4. For long-distance contract deals the consumer can withdraw from the contract within 14 days in accordance with statutory regulations. The deadline period begins on the date the consumer receives the goods or on the date of contract conclusion for services. It is sufficient to send the declaration of withdrawal within this period. If the consumer withdraws from the contract the consumer must bear the costs of returning the goods. For individual services no withdrawal is possible under statutory regulations.
6. Reminder and collection expenses
6.1. In the event of default the customer (debtor) is obliged to reimburse reminder and collection expenses incurred by Koller (creditor), insofar as they are necessary for the purposes of prosecution, whereby the customer must in particular reimburse the fees of any collection agency engaged, which are taken from the corresponding regulations on the maximum rates charged by collection agencies. Insofar as Koller undertakes the reminder process itself the debtor is obliged to pay an amount of at least 40.00 EUR for each reminder issued in accordance with the applicable law relating to payment default.
7. Delivery, transport, acceptance default
7.1. In the absence of any other agreement the Koller sales prices do not include any costs for delivery, assembly or installation. However, if the customer wishes these services can be provided or organised by Koller in return for a separate payment. For this the actual costs for the transport or delivery together with an appropriate overhead expenses surcharge of at least the normal freight and haulage costs for the type of transport selected in force on the date of delivery will be invoiced. Assembly work will be calculated based on the hours used, whereby the agreed man hour rate will apply. Each hour started will be invoiced. If no man hour rate has been agreed, the standard industry man hour rate will apply, however being at least EUR 56.00 plus statutory VAT. Travel costs for assembly within Austria will be charged at a lump-sum amount of EUR 240.00 plus statutory VAT. For deployment outside Austria a quote will be submitted before order acceptance.
7.2. If the customer has not accepted the goods as agreed (acceptance default), after setting an unsuccessful period of extra grace of seven days Koller is entitled either to store the goods at its premises for which a storage fee of 0.1% of the gross invoice amount will be invoiced for each day or part thereof, or to have them stored by a trade professional authorised to do so at the customer’s costs and risk. At the same time Koller is entitled either to insist on contract fulfilment or to withdraw from the contract after setting an appropriate period of grace of at least 14 days, and to turn the goods to account elsewhere. In the event of withdrawal from the contract Point 5 of these T&Cs applies in particular.
8. Delivery period
8.1. Koller is only obliged to carry out service provision once the customer has complied with all of his obligations which are necessary for execution, and in particular has fulfilled all technical and contractual details, preliminary works and preparation measures. The customer must explain to Koller about any circumstances which could potentially hinder service execution.
8.2. Koller is entitled to exceed the dates and delivery periods agreed in writing by up to 2 weeks. The customer can only withdraw from the contract after expiry of an appropriately set period of grace, but which is at least 14 days.
9. Place of fulfilment
9.1. The place of fulfilment and payment is the registered office of Koller. Risk and accident transfer to the customer upon handover to the first haulage contractor. In the event of acceptance default, this will be once Koller has informed of readiness for dispatch. Transport is done at the customer’s risk.
10. Minor service changes
10.1. Where a consumer business transaction is not involved minor changes to the service or delivery obligation or other changes which are reasonable for the customer apply as approved beforehand.
11. Compensation, warranty, guarantee
11.1. All compensation claims are excluded in cases of slight and gross negligence. This does not apply for personal injury and with consumer business transactions and for damage in the processing of items accepted. Insofar as a consumer business transaction is not involved, the period of limitation is six months from notification of the incident of damage and the injuring party and the maximum compensation is EUR 20,000.00. The absolute period of limitation is five years after the incident of damage. In cases of product liability the liability is limited to the sum of EUR 1,500,000.00.
11.2. Before connection or transport of computing and technical products the customer is obliged to secure all data appropriately beforehand. Koller takes no responsibility for lost data.
11.3. Where consumer business transactions are not involved, the warranty period is six months following handover of the goods. Where nothing to the contrary has been individually agreed for brand-new goods, a guarantee of one (1) year following handover of the goods applies. During the guarantee period all fault rectifications are done within the guarantee period at Koller’s cost irrespective of the time the fault occurs. No guarantee is given for goods which are not brand-new or goods which are older than (1) one year. The guarantee expires if the goods have been changed, installed or converted, or if seals have been broken. Defects must be notified in writing immediately following handover of the goods. Hidden defects must be notified in writing immediately after they become evident for the first time. In the event of repairs there is no guarantee on the repaired goods. In the event of repair the guarantee rights only relate to any spare parts used. Recourse to Koller through the guarantee chain is excluded.
12. Product liability
12.1. Recourse claims in the sense of the product liability law are excluded, unless the person entitled to recourse can prove that the fault comes under Koller’s remit and that there was gross negligence at least.
13. Retention of title
13.1. All goods are delivered by Koller under retention of title and remain the property of Koller until full payment. When enforcing retention of title, withdrawal from the contract is only possible if this has been expressly declared in writing. In the event of default Koller is entitled to enforce the retention of title and the customer waives the right to make any sort of objection which may hinder this. If goods are taken back Koller is entitled to charge for any transport and handling expenses. Depreciation of the goods will be borne by the customer. With third party access to the goods subject to retention of title – in particular due to seizure – the customer is obliged to point out that they are owned by Koller and to inform Koller of the seizure immediately. If the customer is a consumer or small businessperson whose normal business operation includes trading with the goods acquired by Koller, the customer may not take possession of the goods subject to retention of title until full settlement of the outstanding purchase price payment due, and in particular cannot sell them, pledge them, give them away or loan them. The customer bears the full risk for the goods subject to retention of title, in particular the risk of ruin, loss or deterioration. The customer is obliged to adequately insure the goods subject to retention of title against elementary events and theft at his cost. Evidence of the insurance must be shown to us on first request and claims under the insurance policy must be ceded to Koller.
14. Assignment of claims
14.1. With delivery subject to retention of title the customer immediately assigns his payments due from third parties to Koller on account, insofar as any such exist due to sale or processing of the goods, until final payment of Koller’s outstanding payments due. The customer must tell Koller on request the name of his client and inform the latter of the cession promptly. The cession must be recorded in the business books, and made visible to the client on the open item lists and on delivery notes, invoices etc. in particular.
14.2. If the customer is in default with his payments to Koller then sales revenue received by him must be used to settle these and is held by the customer solely in Koller’s name. Any claims against an insurer must now be assigned to us within the statutory limits.
14.3. Payments due to us may not be assigned without our explicit written consent.
15.1. Where a consumer business transaction is not involved, with justifiable claims the customer is not entitled to retain all or only an adequate proportion of the gross invoice amount except in cases of rescinded transactions.
16. Choice of law and jurisdiction
16.1. Austrian law applies exclusively. The application of international private law, international reference norms and the UN Convention on Contracts for the International Sale of Goods is excluded. The contract language is German. The contract parties agree on the exclusive jurisdiction of the functional court responsible for the registered office of Koller in Austria.
17. Data protection, change of address and copyright
17.1. The customer gives his consent that the personal data included in the contract for fulfilment of the contract can be supported, saved and processed by Koller’s automated systems. In particular, Koller can forward this data for advertising purposes.
17.2. The customer is obliged to inform Koller of changes to his home or business address, insofar as the legal transaction being the object of the contract has not been completely fulfilled by both sides. If this information is omitted, declarations are then considered as being received if they have been sent to the last known address.
17.3. Plans, sketches or other technical documents always remain the intellectual property of Koller and the same applies to samples, catalogues, brochures, illustrations and suchlike; the customer gains no kind of usufructuary right or exploitation rights over them whatsoever.
18.1. Koller reserves the right to change the current T&Cs at any time. The customer will be notified of changes in an appropriate form. The T&Cs are applicable in their respectively valid version.
18.2. Should individual provisions of these T&Cs be or become wholly or partly invalid the validity of the remaining provisions will not be affected by this. Should individual provisions of this contract become wholly or partly invalid or lose their validity at a subsequent date, then the validity of the remainder of the contract will remain unaffected. The parties must replace the invalid regulation by a valid one which corresponds as far as possible with the commercial aim of the invalid regulation. The same applies for any potential loopholes in the contract.
Status May 2015