GENERAL TERMS AND CONDITIONS
General information
The following general terms and conditions of business and delivery apply to all customer orders accepted and executed by AUTCUT GmbH. By placing an order and accepting the delivery, the customer acknowledges these terms and conditions as binding. Any conflicting terms and conditions of the customer that contradict our general terms and conditions of business and delivery are hereby expressly rejected. Deviating contractual conditions shall only become effective for us if they have been expressly acknowledged by us in writing in advance.
Offer and conclusion of contract
Offers / cost estimates are generally provided in writing and are non-binding. The preparation of an offer / cost estimate does not oblige us to accept the order and to carry out the services listed therein. Prices in catalogs, brochures, circulars, advertisements, illustrations, price lists or on websites are only binding if they are expressly referred to in the offer. Offer prices and conditions are generally valid for a period of 3 months from the date of the offer. The contract is deemed to be concluded when a written order confirmation or the ordered delivery has been sent by us after receipt of the order.
Delivery periods and dates
Delivery periods are always non-binding for us. Fixed delivery dates and commitments can only be given in exceptional cases and require a separate agreement. Agreed delivery periods shall be extended, without prejudice to our rights arising from the customer’s default, by the period during which the customer fails to meet its obligations to us under this or any other contract or is in default. The delivery period shall be deemed to have been met with the notification of readiness for dispatch, even if dispatch cannot take place or cannot take place on time through no fault of our own or of the supplying plant / producer. Goods reported ready for dispatch but not immediately called off shall be stored at the customer’s expense and risk at our own discretion and invoiced as delivered. If the customer does not accept the goods or service provided in accordance with the contract at the agreed place or at the agreed time, and if the delay is not our fault, we can either demand fulfillment or withdraw from the contract by setting a grace period for acceptance. In the event of exceeding a delivery period, we cannot be held liable in any way for any damage or loss of profit incurred. Provided that the delivery is divisible, we are entitled to carry out partial or preliminary deliveries.
Acceptance | Handover
Use and risk shall pass to the customer upon dispatch of the delivery from the factory. In the case of services / partial services, the risk shall pass to the customer at the place of performance upon provision of the service. If plant components manufactured or delivered by us are put into operation before acceptance, this shall be deemed to be acceptance of these plant components by the customer and shall also commence the running of any periods.
Prices
All our prices are exclusive of VAT ex works, without packaging or loading or delivery. The prices listed in the offer / cost estimate are prices of the day whose date the offer / cost estimate bears. If the order deviates from the offer / cost estimate, we reserve the right to make corresponding price changes in the event of acceptance of the order. The same applies to price increases as a result of general price and wage increases. We are entitled to charge the corresponding costs for the return and disposal of packaging material.
Defects | Warranty
The customer must inspect the delivery upon acceptance and report any obvious defects immediately. Complaints due to incomplete or incorrect delivery as well as other defects must be reported to us in writing immediately, but no later than 7 days after acceptance of the goods. The warranty period is 24 months and begins at the time of the transfer of risk. The presumption according to § 924 ABGB is excluded. The right of recourse according to § 933b ABGB is not granted to the customer. The warranty expires if the goods have been changed by third parties or by processing and the defect is causally related to the change. The warranty also expires if the customer does not comply with regulations regarding the treatment of the delivery item, does not observe installation requirements and conditions of use, overstresses parts or treats the delivery item incorrectly or negligently or does not inform us about the future use or the area of application of the delivered / created goods or services. Wearing parts only have the service life corresponding to the respective state of the art. In the event of a justified complaint, we will take back the goods / object of performance and we are free to issue a credit note or make a replacement delivery. A further right of withdrawal or return exists only with express written agreement. If the customer exercises an expressly agreed right of withdrawal for goods already delivered, he has to pay
10% of the net invoice amount of the goods to be returned to cover the expenses. Material that has already been processed, as well as material that has been manufactured exclusively for the customer, will not be taken back.
Liability | Compensation
We shall only be liable for damage to the customer’s property that occurs directly in the course of the performance of the service and that was caused by us through gross negligence or intent. Liability for slight negligence is also excluded, as is compensation for consequential damage and financial losses, unrealized savings, loss of interest and damage arising from claims by third parties against the customer. The existence of intent and negligence must be proven to us. In any case, our liability is limited in amount to the invoice value of the delivered goods. Any claim for damages can only be asserted in court within 6 months after the person or persons entitled to claim become aware of the damage, but at the latest within three years from the occurrence of the (primary) damage after the event giving rise to the claim, unless mandatory limitation periods are stipulated otherwise in statutory provisions.
Retention of title
We reserve title to all goods delivered, assembled or otherwise handed over by us until all claims, including future claims, in particular also from balance claims from current accounts, to which we are entitled against the customer for whatever legal reason, have been fulfilled. In the event of default in payment by the customer, we are entitled to make use of the agreed retention of title and to collect the goods without this being equivalent to a withdrawal from the contract. In the event of processing or combination with other goods or objects not belonging to us by the customer or by third parties on his behalf, our right of ownership to the newly created goods or objects (systems) shall remain in place or the customer shall transfer to us the right of ownership to which he is entitled to the new stock or the new item. Any pledging or transfer of ownership as security of these goods in favor of third parties is excluded without our consent. The customer is obliged to regard all goods delivered by us as our property until payment of the invoice amounts, regardless of whether they have been processed into another item, and to store them properly. We are entitled to enter the customer’s storage and business premises or other premises (including apartments) at any time to protect our rights. In the event of the exercise of our rights, in particular the exercise of the right of repossession due to the agreed retention of title, the customer waives the right to bring an action for disturbance of possession as well as to raise the objections that the reserved goods are necessary to maintain the business, furthermore to any compensation or loss of profit. All costs incurred as a result shall be borne by the customer alone.
Payment
Unless otherwise agreed in writing, our invoices are due and payable net upon handover. If the payment deadline is exceeded, we are entitled to charge default interest of 1% per month for the period from the due date to the date of receipt of payment. We have no obligation to send reminders. If we send reminders voluntarily, we are entitled to EUR 10.00 reminder costs per reminder letter. The customer further undertakes to pay all judicial and extrajudicial collection and legal prosecution costs caused by his default in payment, in particular collection costs and lawyers’ fees. Payments with debt-discharging effect for the customer can only be made to our announced bank accounts, unless the debt collector is able to prove himself by a written power of attorney from the management (e.g. lawyer, collection agency).
Offsetting | Retention
An offsetting of alleged counterclaims of the customer against our claims is excluded. A retention of the purchase price or remuneration in the event of justified claims for improvement is only permissible to the extent of the expenses necessary for the improvement.
Place of performance and jurisdiction
The place of performance for delivery and payment is 2120 Obersdorf. All disputes arising from this contract or relating to its violation, dissolution or nullity shall be decided exclusively by the District Court of Mistelbach. We are also entitled to sue at the customer’s general place of jurisdiction.
Applicable law
Austrian law shall apply to the exclusion of conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
Final provisions
Ancillary agreements, amendments and supplements must be in writing to be effective. This also applies to the waiver of the formal requirement. Should individual provisions or essential components of the terms and conditions be or become wholly or partially ineffective or incomplete, this shall not affect the effectiveness of the remaining provisions. In place of the ineffective provisions or gap, a provision shall apply by way of substitution as the parties would have agreed in knowledge of the ineffectiveness or gap to achieve the (economically) same result.