General Terms and Conditions of Lengheim Consulting and Development GmbH
You can also find the general terms and conditions here for download.
1. Definitions, Validity
A consumer is a consumer within the meaning of the Consumer Protection Act (Federal Law Gazette 1979/140 in the current version) and is therefore a natural or legal person who is not an entrepreneur.
Entrepreneurs are natural or legal persons or partnerships with legal capacity, for which the present contract is part of the operation of their company. Companies are any long-term organizations of independent economic activity, even if they are not aimed at profit. Customers are both consumers and entrepreneurs.
APPLICATION:
All of our legal transactions, deliveries, other services (including ancillary services such as suggestions and advice) and offers are based exclusively on these terms and conditions.
The customer expressly acknowledges that we are already objecting to all deviating regulations in an order or in other business documents of the customer. Deviating conditions of the customer are not recognized by us and only apply if we confirm them in writing, even if we do not expressly contradict them again in individual cases. These terms and conditions apply as a framework agreement for all further legal transactions with the customer.
These terms and conditions are also made generally known by posting them on the Internet at http://www.kawatech.at, so that they can be acknowledged in a reasonable manner.
2. Conclusion of contract
We deliver products according to customers' orders. Information from us in catalogues, brochures, price lists, etc. can only be seen as guidelines which do not release the customer from the need for detailed planning and calculation.
Our offers and price lists are non-binding and subject to change.
Contracts only come into effect through our written order confirmation or through a fulfillment action taken by us (e.g. delivery/dispatch of the goods). All other agreements or ancillary agreements, including those made later, only become effective with our written confirmation. Our employees are not authorized to make legally binding declarations on our behalf, unless we have granted special powers of attorney that have been disclosed to the customer. Verbal agreements, assurances, etc., including those of our sales representatives, sales partners or other employees, require our written confirmation to be legally effective. The contractual partner is obliged to check our confirmations. If he does not object within one week of receipt, he will expressly recognize our confirmation as correct.
Consignments for viewing and selection as part of orders are deemed to have been approved by the customer if they are not returned within 14 days (receipt by us).
(Technical) information in our documents are only approximate values, unless they are expressly guaranteed as binding. We reserve the right to make design or production-related changes and deviations. We can correct mere spelling and calculation errors in offers, order confirmations or invoices at any time. The documents and information on weight, dimensions, price, performance and the like contained in catalogues, brochures and price lists, etc. are only relevant if they are expressly referred to in the order confirmation.
All documents provided to the customer, in particular cost estimates, drafts, models, calculations and the like, remain our property. The customer is not entitled to make these documents accessible to third parties. These documents must be returned to us immediately upon request. Business mail printed out by data processing systems (e.g. order confirmations, invoices, credit notes, account statements, payment reminders) is legally binding even without a signature.
3. Prices
All prices quoted by us are non-binding and, unless expressly stated otherwise, are in euros (€), excluding sales tax ex warehouse 2213 Bockfliess and 1230 Vienna. Unless otherwise agreed in writing, cost estimates are made without guarantee for their correctness. Billing is based on the prices applicable on the day of delivery, regardless of the date of the order.
All prices quoted by us or agreed with a consumer correspond to the current calculation at the time the contract was concluded and are valid for 2 months in any case. For orders for which no prices have been agreed, our prices valid on the day of delivery apply.
Any changes in wage costs due to collective agreements or legal regulations or internal agreements, as well as changes in other cost centers relevant to the calculation or necessary for the provision of services, such as those for materials, energy, transport, external work, financing, etc., entitle us to the prices accordingly in relation to an entrepreneur to increase. For this reason, the entrepreneur has neither a right of withdrawal nor the assertion of the omission of the business basis. In the absence of any other written agreement, all prices do not include ancillary expenses.
Costs for packaging, shipping and other services from the place of performance (our company's registered office and warehouse 2213 Bockfliess and 1230 Vienna) will be invoiced separately. The transport takes place at the expense and risk of the customer. We are not obliged to take out transport insurance for the goods.
4. Delivery/Service
Unless expressly agreed otherwise in writing, delivery is made ex works, ie at the expense and risk of the contractual partner. We are permitted to make advance and partial deliveries; we are entitled to issue partial invoices for partial services.
The place of performance/performance is the place of dispatch or warehouse dispatch place, even in the case of delivery “free destination” or “free domicile”.
If delivery by us has been expressly agreed, the customer has to ensure free and safe access with a truck of at least 5 t with a crane or loading board wall (height 5 m) to the unloading area and for the careful storage of our goods, in particular with regard to theft, Moisture damage, damage etc. to worry about. In the case of heavy (over 50 kg in weight) and unwieldy products, the customer must provide suitable helpers for unloading. If the customer does not comply with the obligation to accept the goods at the agreed delivery address, we are entitled to unload the goods there. We only have to pay damages in the case of intent and gross negligence.
The delivery address is always the address of the customer. If the customer wants a different delivery address, we have the right to pass on the additional costs (mileage allowance, etc.) to the customer.
The contractual partner must store the goods separately from goods from other suppliers and identify them as our goods.
Unless otherwise agreed, the delivery period begins at the latest of the following times:
a) Date of receipt of our order confirmation;
b) Date of fulfillment of all technical, commercial and financial requirements to be agreed upon by the customer;
c) Date on which we have received an advance payment to be made and/or any agreed payment security has been given.
Agreed delivery dates will be adhered to as best as possible, but are not binding. Delays in delivery do not entitle the customer to withdraw from the contract or to assert warranty claims, avoidance claims based on error, or claims for damages. The delivery period is met if the readiness for delivery has been communicated by the end of the period or the delivery item has left our company or the company of our supplier.
Labor disputes or unforeseen events, official measures, traffic disruptions, operational disruptions, etc. release us from our obligation to perform for the duration of their effects or in the event of impossibility.
Delivery periods apply subject to correct and timely delivery by our sub-suppliers.
If we are responsible for a delay in delivery, the customer can demand performance from us or set us a reasonable period of at least 3 weeks to make up for our entire service under threat of withdrawal. We only have to pay damages in the case of intent and gross negligence. We are entitled to the agreed payment for partial deliveries not covered by the withdrawal.
If the customer violates his/her obligations to cooperate (e.g. by not calling in time or if the customer does not accept the contractually provided goods at the contractually agreed place and at the contractually agreed time), we can either demand performance or withdraw from the contract after setting a grace period. In both cases we are entitled to full compensation. The customer is not entitled to postpone the delivery period or delivery date for any reason whatsoever without our written consent. If the customer declares that he will only accept the delivery or partial delivery at a later point in time than agreed, we have the right to either withdraw from the contract or to insist on the fulfillment of the contract if the customer is contractually obligated to pay. In both cases, the customer is obliged to pay full compensation including storage costs. If we agree to a postponement of the delivery period or date, we are entitled to adjust our dates and prices accordingly, even in the case of a fixed price agreement.
If a contractual penalty (penalty) has been expressly agreed in writing, this is limited to a maximum of 10% of the total net order value.
5. Damage in transit
Claims for damages resulting from transport damage can only be asserted against the carrier involved.
Obvious damage or shortages during delivery are to be reported by the customer immediately upon delivery by making a corresponding note on the delivery note or bill of lading (if necessary, railway official statement of facts) and the delivery agent must confirm this with a signature, otherwise all claims will no longer apply.
If the customer accepts a consignment that is obviously damaged on the freight route, reduced by loss or that arrives late, he has entered into the contract of carriage and must assert his claims against the carrier or forwarding agent himself.
If the customer claims against us because of properly certified transport damage, we must be notified of this in writing immediately after receipt of the goods. Claims against third parties from transport damage are to be assigned to us upon request.
6. Terms of payment, default, prohibition on offsetting, deliveries abroad
Our invoices - including partial invoices - are due for payment net 30 days after the date of issue, free of expenses and deductions, in particular without discount deduction.
Bills of exchange or checks are only accepted after separate agreement.
We reserve the right to dedicate incoming payments to any multiple claims at our discretion. If the customer defaults in payment, we are released from all further service and delivery obligations and are entitled to withhold outstanding deliveries or services or to demand advance payments or securities. Furthermore, regardless of fault on the part of the customer, the customer is obliged to pay default interest of 1% per month, whereby we are entitled to claim bank interest in excess of this to the usual extent. In addition, the customer must reimburse us for the reminder and collection fees incurred, whereby he undertakes in particular to reimburse the fees of the collection agency involved at most, which result from the VO of the BMWA on the maximum rates of the collection agencies. If a reminder is issued by us, the customer undertakes to pay an amount of € 15.00 per reminder. If, after conclusion of the contract, there is a significant deterioration in the customer's financial situation or if circumstances become known which, in our opinion, are likely to reduce the customer's creditworthiness, all claims become due for payment immediately. In this case, further deliveries will only be made against advance payment. The entrepreneur only has the right to offset if his counterclaims have been legally established or have been recognized by us. The consumer has a right to set-off only in the event of our insolvency or for counterclaims that are legally related to the liability of the consumer, which have been determined by a court or recognized by us. The entrepreneur is not entitled to withhold payments. In the case of export transactions, the customer is exclusively obliged to ensure that the necessary export, customs and other permits and the like are obtained and maintained at his own expense. We do not give any kind of warranty or guarantee for the permissibility of the export of the purchased goods. Furthermore, the customer must return all export and customs documents and the like in the original to us, otherwise he is obliged to pay any VAT. In addition, in the case of deliveries abroad, the opening of an irrevocable documentary credit with a bank to be determined by us, usable upon presentation of the shipping documents or forwarding agency acceptance certificate, is a prerequisite for our delivery.
We reserve the right of ownership to all goods delivered by us until the purchase price or wages including interest and additional charges have been paid in full, regardless of the legal reason - including from previous transactions. In the case of a current account, the retention of title also serves as security for our balance claim. The assertion of the retention of title is generally not considered a withdrawal from the contract and does not cancel the customer's obligations, in particular to pay the fee, unless we declare a withdrawal from the contract - which we are unilaterally entitled to do. The customer is authorized to pass on his existing right to retain ownership of the object of purchase within the scope of his business operations, but not to pledge or transfer ownership of the object of purchase by way of security. The customer must inform us immediately of any seizure or other impairment of property by third parties. The customer is obliged to bear the costs and measures to eliminate the intervention, in particular the costs of intervention processes and the like.
The retention of title also extends to the products resulting from processing. If our goods are processed, combined or mixed with other materials, we acquire co-ownership of the resulting products in accordance with the proportion of value added. The customer hereby assigns all claims from the sale of goods to which we have ownership rights - if necessary in the amount of our co-ownership share - for security and satisfaction. We accept this assignment. The customer is obliged to inform us immediately of the name and address of his customers, the existence and the amount of the claims resulting from the resale and to inform his respective customer of the assignment of claims in a verifiable manner. Furthermore, the customer is obliged to make the assignment of these claims evident to us in a suitable manner in his business books. We are entitled at any time to inform the customer's buyer of the assignment. All amounts received from cash sales of goods to which we have property rights are already assigned to us by the buyer up to the amount of the claim we are entitled to against him up to this point in time from the delivery of these goods; we are already instructing the customer to keep these amounts separate and to hold them for us. If the customer does not meet his obligations or stops making payments, the entire remaining debt becomes due immediately, even if there are bills of exchange with a later due date. In this case, we are entitled to immediately demand the return of the purchased item to the exclusion of any right of retention. After taking back the object of purchase, it is at our discretion to either sell the object of purchase and credit the customer with the proceeds less 20% resale expenses to his existing obligations or to take back the object of purchase at the invoice price less any depreciation and leave it to the customer for the time it is in his possession to charge a rent for the delivered products at the usual rental price.
7. Warranty, Compensation, Product Liability
Common provisions for consumers and entrepreneurs: The warranty expires if the customer himself or third parties make changes to the delivered item without our written consent. In the event of a complaint, the customer is obliged to first accept the goods, unload them properly and store them.
We are liable for damage caused to our customer in the course of business transactions up to the maximum of the order value ordered from us and only in the event of our own intent or gross negligence or in the case of intent and gross negligence on the part of our vicarious agents, with the exception of personal injury, for which we are already liable in the event of slight negligence be liable. Compensation for consequential damage, purely financial damage, lost profit and damage from third-party claims is excluded. The assignment of warranty and damage claims or the like - with the exception of pure monetary claims - is not permitted.
In the case of a subsequent delivery, we assume no liability for the exact correspondence with the first delivery. Instructions given in brochures, instructions for use or other product information must be strictly followed by the customer in order to avoid any damage. You are expressly warned of any use that goes beyond the defined areas of application. A reference to DIN standards basically represents a more detailed description of the goods by us and does not constitute a guarantee unless a guarantee has been expressly agreed in writing.
The following also applies to transactions with entrepreneurs:
Complaints about defects are to be made in writing by the customer immediately after receipt of the delivery, but no later than 8 days from delivery and before any processing or processing, otherwise warranty claims and/or claims for damages and/or contesting errors are excluded, but do not entitle the customer to withhold the goods Invoice amounts or parts thereof. For defects that could not be identified during the inspection at the time of delivery, the warranty period is six months from delivery and is neither extended nor interrupted by attempts at improvement; it also applies to partial deliveries. Such defects are to be asserted in writing within 8 days of discovery of the defect, otherwise warranty and/or claims for damages and/or avoidance of error are excluded, but do not entitle the customer to withhold the invoice amounts or parts thereof.
Any deviations between the ordered goods and the delivered goods, such as incorrect dimensions or wrong goods (aliud delivery), must be asserted by the entrepreneur within 7 calendar days of delivery and before any treatment or processing, even if the goods are not sent directly to the customer is delivered. Otherwise the goods are considered approved and cannot be taken back or exchanged by us.
The entrepreneur must always prove the defectiveness of the delivered goods at the time of handover, the legal presumption of § 924 ABGB is expressly excluded. For those goods that we have obtained from sub-suppliers, we only provide a guarantee within the scope of the warranty claims we are entitled to against the supplier. With the products we deliver, we only guarantee that they have the properties that are usually required for these products in the market. We only provide a guarantee for properties that go beyond this, such as those contained in public statements - such as advertising and in the information attached to the products - if these properties have been guaranteed by us in writing when the order was placed.
It is up to us whether we will fulfill the warranty claims through exchange, improvement, price reduction or conversion. The assignment of warranty and damage claims or the like - with the exception of pure monetary claims - is not permitted. If the customer resells the delivered goods, all claims arising from the title of the warranty shall lapse, the right of recourse according to § 933 b ABGB is excluded. We have no obligation to check and/or warn of the materials, data and printing devices provided by the customer. In particular, we do not check the correctness of the stored data in the case of data carriers provided. We accept no liability whatsoever for direct or indirect damage caused by errors in such data and materials. Should the entrepreneur himself be held liable on the basis of the Austrian Product Liability Act or similar foreign provisions, he expressly waives any recourse against us, in particular within the meaning of Section 12 of the Austrian Product Liability Act or similar foreign provisions. If the entrepreneur puts the goods delivered by us on the market outside of the European Economic Area, he undertakes to exclude the obligation to compensate his customer under the Product Liability Act, provided this is possible under the law applicable or agreed between him and the customer. In this case or if this exclusion obligation is omitted, the customer is obliged to indemnify and hold us harmless with regard to third-party claims arising from product liability.
Any liability on our part is limited to the insured sum of our liability insurance.
8. Return of delivered goods
Delivered defect-free goods will only be taken back in special cases and with our express prior written consent. The return is carriage paid for us and at the risk and expense of the contractual partner. The credit for returned goods received in perfect condition is calculated according to the invoice amount and the corresponding value of the model/goods at the time of return, less the expenses incurred by us, but at least a share of 10%. In the case of returns to our pre-suppliers, the contractual partner must also bear the costs and risk incurred as a result. A return of custom-made products or goods specially procured at the request of the contractual partner is excluded without a corresponding legal obligation.
9. Contract adjustment, contract withdrawal
In the event of unforeseen events, insofar as they significantly change the economic importance or the content of the service or have a significant impact on our operations, and in the event that it subsequently becomes apparent that execution is impossible, the contract will be adjusted appropriately. If this is not economically justifiable, we have the right to withdraw from the contract in whole or in part. If we want to make use of this right of withdrawal, we must inform the customer immediately after recognizing the scope of the event, even if an extension of the delivery period was initially agreed with the customer. In the event of default of acceptance or other important reasons, such as in particular bankruptcy of the customer or rejection of bankruptcy for lack of assets, as well as default in payment by the customer, we are entitled to withdraw from the contract immediately without setting a grace period, without prejudice to any other claims. The withdrawal becomes legally effective through our unilateral declaration.
10. Place of performance, choice of law, place of jurisdiction, severability clause:
The place of performance for all contractual obligations of the contractual partners is our warehouse in 2213 Bockfliess and 1230 Vienna, regardless of any agreement on the place of delivery and the assumption of any transport costs or the place of payment. This agreement is exclusively subject to Austrian substantive law. The conflict of law rules of international private law and the UN Sales Convention (CISG) are hereby expressly excluded. For consumers, this choice of law only applies insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.
The place of jurisdiction for all legal disputes arising from the present contractual relationship or in connection with it is exclusively the competent court for Vienna/Austria for our customers. However, we are entitled, at our discretion, to sue the customer at any other court that may have jurisdiction under national or international law. For consumers, this place of jurisdiction is only agreed if the customer has his domicile, habitual abode or place of employment in this district or if the customer lives abroad. The contract language is German. The invalidity of individual provisions of our terms and conditions does not affect the validity of the remaining provisions of these terms and conditions. The contractual partners are obliged to agree on a new provision that comes as close as possible to the purpose of the invalid provision.
11. Data Protection, Change of Address, Copyright
The customer gives his consent that the personal data contained in the contract (with) be stored and processed by us automatically in fulfillment of this contract. The customer is obliged to notify us of changes to his residential or business address verifiably, without being asked and immediately, as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification is omitted, declarations to the customer are also deemed to have been received if they were sent to the address last known to us. It is up to the customer to prove receipt of his change notification in individual cases.
Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like always remain our intellectual property; the customer does not receive or acquire any rights whatsoever, such as rights of use or exploitation. The customer is prohibited from passing on documents of any kind and the know-how gained from them to third parties - in any way whatsoever - and from using them outside of the business relationship with us (Lengheim Consulting and Development GmbH). After the end of the business relationship with us, the customer is obliged to return all documents received or, if a return is not possible, to destroy them.