1. Whereas Clauses
Holler Tore GmbH accepts, sells, and delivers purchase orders exclusively on the basis of the present Terms and Conditions of Sale and Delivery, which shall therefore form an integral part of the contractual and/or business relationship with the customer. The following conditions shall apply to all supplies and services provided by Holler Tore GmbH, or by a subcontractor nominated by Holler Tore GmbH within the scope of a purchase order. Any amendments or supplements to this contractual agreement that have been made orally shall not be effective unless confirmed by Holler Tore GmbH in writing. Any terms and conditions of the customer are expressly excluded for the present transaction and the entire business relationship and therefore do not have any legal effect whatsoever. Should any individual provisions of these Terms and Conditions of Sale and Delivery of Holler Tore GmbH become ineffective, this shall not affect the remaining terms and conditions. Any information regarding prices, weights, dimensions, or technical specifications, etc. contained in the documentation of Holler Tore GmbH shall in each case be binding only if agreed in writing as being expressively binding.
2. Delivery of Goods
Delivery shall take place at the expense and risk of the customer. Holler Tore GmbH shall be entitled to carry out and to charge for partial or preliminary deliveries. The customer must bring any complaints regarding transport damage to the notice of the transport company and of Holler Tore GmbH in writing immediately upon receipt of the goods, but at the latest within eight days. Any storage measures and storage costs that have to be taken/are incurred due to reasons attributable to the customer, shall be borne by the latter, and delivery shall be considered to have taken place as soon as these storage measures begin. Objectively justified and reasonable changes to the supply and service obligations of Holler Tore GmbH, in particular, reasonable delays in delivery, shall be deemed to have been approved in advance by the
customer. If no firm bargain has been agreed, the delivery dates communicated shall be regarded as merely approximate. Any events of Force majeure or other unforeseeable impediments within the sphere of Holler Tore GmbH or its sub-suppliers shall release Holler Tore GmbH from meeting the agreed delivery time. If Holler Tore GmbH exceeds a delivery period that it has accepted as binding, the customer may withdraw from the contract exclusively after granting a respite of six weeks by registered letter or, in the case of special-order goods, by granting a respite of eight weeks. The customer shall be obliged to pick up the goods stored at Holler Tore GmbH immediately after receiving Holler Tore GmbH’s notification, failure by the customer to do so shall entail storage and handling costs chargeable by Holler Tore GmbH and payable by the customer within 10 days from receiving the relevant payment request. Operational and traffic disruptions and incorrect sub-supplier deliveries shall also be regarded as events of Force majeure and shall release Holler Tore GmbH from its delivery obligation for the duration of the impediment or, at Holler Tore GmbH's discretion, even ultimately, without the customer having any right of claim on account of the withdrawal of Holler Tore GmbH. Holler Tore GmbH shall be free to select the type of dispatch of the goods and the means of transport. The exclusive place of performance for all services, supplies, rectification of defects and payment shall be Holler Tore GmbH’s registered office.
3. Offer and Price Information
Unless explicitly stated otherwise, the offers of Holler Tore GmbH, whether made in writing, orally or by telephone, shall be valid ex warehouse. A purchase contract shall not be deemed to have been concluded unless Holler Tore GmbH either forwards a written order confirmation or delivers the items ordered within the acceptance period. The acceptance period shall generally be four weeks. All offers are non-binding and subject to change. There shall be no obligation on the part of Holler Tore GmbH to accept orders.
4. Manufacturing Tolerances and Clearances
No liability is assumed for the quantities stated in offers. Holler Tore GmbH reserves the right to deviate from specifications given in brochures, illustrations and samples regarding colour, dimensions, weights, and quality. Unless deviations are, in particular minor and objectively justified, and therefore reasonably acceptable to the customer, Holler Tore GmbH may diverge from the supplies or services on order only if this has been negotiated in detail with the customer. The right to make technical changes is expressly reserved.
5. Cost Estimates
Cost estimates are made to the best of our technical knowledge; however, no liability can be assumed for their accuracy. The costs, if any, for the preparation of a cost estimate will be charged to the customer. All cost estimates must be made in writing; unless otherwise stated in these estimates, Holler Tore GmbH shall be bound by these estimates for four weeks.
6. Debt Collection, Reminder and Collection Fees
In the event of a default in payment, the customer must refund to Holler Tore GmbH all pre-litigation costs incurred by Holler Tore GmbH, such as lawyer's fees and costs of collection agencies, to the extent that these costs are associated with legal proceedings resulting from late payment. If Holler Tore GmbH itself handles the reminder procedures, the customer undertakes to pay an amount of EUR 30.00 for each reminder, in addition to the usual interest and costs. Any further damage, in particular damage caused as a result of non-payment that leads to relatively higher interest for any credit costs for Holler Tore GmbH, is to be compensated by the customer, irrespective of the fault for late payment.
7. Guarantees, Warranties, and Liabilities
For all products delivered to companies in the meaning of the Austrian commercial law, the warranty shall be limited to one year from the date of delivery/acceptance of the goods. If the goods delivered are defective, the customer shall at first only be entitled to demand that the goods be rectified or replaced, unless rectification or replacement is impossible or involves a disproportionate effort on the part of Holler Tore GmbH compared with other remedies. Whether this is the case also depends on the value of the defect-free goods, the severity of the defect and the inconveniences associated with other remedies for the customer. Holler Tore GmbH undertakes to carry out the rectification and replacement after return of the goods by the customer (a send & return performance is considered agreed as handling of the warranty claim in this regard, the place of performance being the registered office of Holler Tore GmbH) within a reasonable period of time and after approval by Holler Tore GmbH, with the respective non-binding delivery period being deemed to have been agreed as reasonable period. Holler Tore GmbH shall not replace the customer's own expenses for the relevant handling, return, disassembly or reassembly and the like. If neither rectification nor replacement are possible or would involve a disproportionate effort on the part of Holler Tore GmbH, the customer shall be entitled to a reasonable price reduction or, unless the defect is a minor defect, to rescission. The same applies when Holler Tore GmbH declines rectification or replacement or does not carry out the rectification or replacement within a reasonable period of time; when these remedies are associated with considerable inconveniences on the part of Holler Tore GmbH, and these remedies are unreasonable for Holler Tore GmbH for major reasons. It is understood that the customer must assert its warranty claims relating to movable and immovable property in terms of Article 933 of the Austrian General Civil Code in court within six months from the first occurrence of the defect, on pain of forfeiture. In addition, Holler Tore GmbH grants a coating guarantee (Holler Tore GmbH coating guarantee) of 15 years for profile parts (no aluminium cast parts), but only under the following conditions: 1. Maintenance must be carried out in a verifiable manner in such a way that the item under guarantee is cleaned at least twice per year by personnel trained and authorised by Holler Tore GmbH and is then impregnated with an impregnating agent. 2. No improper treatment by the customer or by third parties must take place. 3. The guaranteed product must not be in contact with salts, calciferous water or similar thawing agents, acids or alkalis. 4. In addition, there must be no impact due to force majeure (mechanical damage). The guarantee exclusively covers replacement of the material expenditure for the repair, any own expenditure by the customer or a third party not being compensated. Notwithstanding its rights, the customer shall be obliged to have the properties of the contractual object ordered by it explicitly confirmed in writing, otherwise these properties shall be deemed not to have been agreed. The usually expected product properties are those stated by manufacturers, as well as those properties that can be attributed to the product when used in a proper and correct manner, as well as the properties based on the applicable Austrian standard (Ö-Norm). Regarding the surface coating, the applicability of the Austrian standard EN 12206-1 is expressly agreed. Adjustment work on doors or gates when the foundation is not continuous shall not constitute a defect. Notwithstanding its rights, upon delivery of goods by Holler Tore GmbH, the customer shall be obliged to visually check their conformity with the purchase order without delay, as well as to check the goods for consistency with any specified product descriptions and batch numbers.
Except in case of personal injury, any claims for damages asserted by the customer shall be excluded unless the damage was caused intentionally or through gross negligence on the part of Holler Tore GmbH, or a person for whom Holler Tore GmbH is responsible. The liability for grossly negligent or intentional conduct shall be limited to the amount of twice the net amount of the goods, except towards consumers. In the event of a non-compliance with the terms and conditions of Holler Tore GmbH regarding installation, commissioning, and operation, etc., any compensation for damages shall be excluded. The customer shall immediately inform Holler Tore GmbH of the occurrence of any damage. Any technical information provided by Holler Tore GmbH shall be without engagement and, as far as information other than the specifications provided by the manufacturer is concerned, must be confirmed in writing by Holler Tore GmbH, the basis of this being the information that the customer has provided to Holler Tore GmbH, which Holler Tore GmbH assumes to be correct on pain of exclusion of liability. Except in cases of personal injuries, claims for damages asserted by the customer due to a delay in delivery or to withdrawal from the contract are excluded, provided that Holler Tore GmbH or a person for whom Holler Tore GmbH is responsible has caused the damage neither intentionally nor through gross negligence.
8. Terms of Payment
Invoicing shall take place, as far as possible, immediately after delivery. Payments shall be due after invoicing without any deduction and free of charges. For partial invoices, the payment terms specified for the total order shall apply mutatis mutandis. For orders comprising several units, Holler Tore GmbH shall be entitled to invoice each individual unit or service upon delivery. The customer must not withhold payments because of incomplete deliveries, guarantee or warranty claims or complaints. Customer payments received by Holler Tore GmbH shall first and foremost cover any compound interest and interest amounts as well as subsidiary expenses, pre-litigation costs, such as costs for a lawyer and debt collection agencies consulted, then the outstanding capital, starting with the longest outstanding amount. In case of a default in payment, it is agreed that default interest at the rate of 14% p. a. will be charged by Holler Tore GmbH, to be calculated quarterly. If partial payments have been expressly agreed and the customer is in arrears with two instalments, this shall be deemed a failure to meet the payment term and all outstanding amounts shall become due for payment immediately. Should the customer be in default of payment to the extent that Holler Tore GmbH has to bring an action even for just one outstanding invoice, it is agreed that all pending invoices issued by Holler Tore GmbH to the customer shall be due for immediate payment, and any discounts or reductions on the invoices shall become void. In case of non-compliance with the payment terms issued by Holler Tore GmbH as well as reasonable concerns regarding the customer's ability to pay (that is, already in case of a delay in making payments), Holler Tore GmbH, may, invoking a plea of uncertainty, retain any outstanding deliveries or services or demand advance payments and/or guarantees or withdraw from the contract without granting a respite.
9. Retention of Title
The goods delivered shall remain the unrestricted property of Holler Tore GmbH until payment to Holler Tore GmbH of all debts resulting from the delivery (including interest payments and costs). Pledging and transfer by the customer by way of security before full payment shall be deemed to be excluded. If the customer does not properly fulfil its obligations arising from the contract concluded, Holler Tore GmbH shall be entitled at any time to retrieve its property at the expense of the customer, and the customer expressly undertakes to surrender the same. Should the goods delivered be pledged or confiscated while they are still in the property of Holler Tore GmbH, the customer undertakes to notify Holler Tore GmbH in writing within three days and to provide Holler Tore GmbH with all the information necessary for the enforcement of its property right. If third parties take hold of or assert claims regarding the goods to which Holler Tore GmbH’s retention title still applies, the customer undertakes to make clear that these goods are the property of Holler Tore GmbH. Assertion of the retention title by Holler Tore GmbH shall not constitute withdrawal from the contract by Holler Tore GmbH. Deliveries carried out for a particular construction project, even if they have been ordered, delivered, and invoiced in sections/parts, shall be regarded as one uniform order. In the event of a default in payment, as well as in the event of reasonable concerns regarding the customer's solvency (that is, already in case of a delay in payments), Holler Tore GmbH shall be entitled to collect the goods that are subject to retention of title, without withdrawing from the contract. In the case of taking back goods, the customer must reimburse Holler Tore GmbH for any costs of transport and handling arising in this respect.
10. Product Liability
Recourse claims as specified in Article 12 of the Austrian Product Liability Act are excluded, unless the party entitled to recourse proves that the fault was caused within the sphere of Holler Tore GmbH and at least by gross negligence. If the customer is not a consumer in terms of the Austrian Buyer Protection Act (KSchG), liability for material damage resulting from a product defect is excluded in accordance with Article 8 of the Austrian Product Liability Act, and this also applies for all companies involved in the production, import and sale. In such a case, the customer undertakes to impose this exclusion of liability also upon its own buyers. If imported goods are sold, Holler Tore GmbH undertakes to inform the customer of the preceding seller within two weeks upon written request
11. Applicable Law and Place of Jurisdiction
For any disputes, the jurisdiction of the district court in 8430 Leibnitz shall be agreed. This contract shall be governed by the laws of Austria. Any legal disputes arising from this contract shall be exclusively settled according to the laws of Austria, excluding the norms of the UNCITRAL Convention of the United Nations or the UN Convention on Contracts for the International Sale of Goods as well as the International Private Law. Standards referring to international law shall be applied as if the contract had been concluded between Austrian nationals.
12. Assignment of Claims
In case of a delivery under retention of title, the customer shall assign to Holler Tore GmbH any claims that it has against third parties, if these arise from the sale or processing of our goods, until final payment of all our outstanding amounts. This assignment is to be made evident to the customer in the accounting records, delivery notes, invoices, etc. If the customer is in default of payment to Holler Tore GmbH, its incoming sales proceeds must be separated, and the customer shall only have or hold such proceeds on behalf of Holler Tore GmbH. Any claims against an insurance company must be assigned to Holler Tore GmbH already at this point in time within the limits of the applicable Insurance Act and the related conditions. The customer must not offset any claims it may have against Holler Tore GmbH with any claims of Holler Tore GmbH, unless these counterclaims have been expressly acknowledged in writing by Holler Tore GmbH.
For the performance of the contract, the customer agrees to the automatic storage and processing by Holler Tore GmbH of the personal data contained in the purchase contract. The customer shall be obliged to notify Holler Tore GmbH of any changes to its residential or business address as long as the contract has not been mutually fulfilled. If this information is not provided, any statements shall be deemed to have been received if they have been sent to the address last notified.
14. Final Provisions
The above provisions shall apply to the sale of goods to consumers in terms of the Austrian Consumer Protection Act only to the extent that the Consumer Protection Act does not contain other mandatory provisions. Any events of Force majeure or other unforeseeable impediments within the sphere of Holler Tore GmbH shall release Holler Tore GmbH from compliance with the obligations agreed for the duration of the event of Force majeure. The customer shall expressly refrain from contesting the agreed terms of sale and payment for whatever reason, including that for reduction by more than half of the true value as well as due to error.
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