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General Terms and Conditions (GTC)
General Terms and Conditions (GTC)
1. General and scope
1.1. These General Terms and Conditions (“GTC”) apply to all deliveries and services of K & W Drive Systems, KNOPF & WALLISCH Getriebe und Motoren Vertriebs-GesmbH (“K&W” or “We”). The following contractual and business terms shall apply to the legal relationship between the contractual partner (“you”) and K&W in the specified order:
a) the offer underlying the respective individual contract;
b) the terms of delivery and prices;
c) any further contractual and business terms and conditions of third parties (in particular of manufacturers/producers) to which express reference is made;
d) these general terms and conditions.
1.2. Notwithstanding the above order, unless expressly agreed otherwise in writing, these GTC shall apply exclusively. This means that no other general terms and conditions apply. This shall also apply in the event that the contractual partner bases the conclusion of the transaction on its own GTC or if the validity is generally in doubt. K&W expressly objects to any other GTC of the contractual partner, even if K&W is aware of them.
1.3. Your orders will only be accepted and executed on the basis of the following conditions. The version valid at the time of the conclusion of the contract shall be authoritative. In the case of an ongoing business relationship, these terms and conditions shall also form part of the contract even if they are not expressly mentioned in the individual contract.
1.4. You will be notified of any changes to these GTC and they will be deemed to have been agreed unless you object to them within 14 days (the significance of your silence will be explicitly pointed out to you in the notification).
1.5. You hereby expressly acknowledge that these GTC are legally binding and have become part of the contract.
2. Conclusion of contract, obligation to deliver and partial invalidity
2.1. Our offers are always subject to change. No valid contract is concluded before we have expressly accepted your order.
2.2. The possible ineffectiveness/invalidity/voidness of individual provisions of these GTC shall not affect the validity of the remaining provisions. In such a case, K&W and the other party undertake to replace this provision with a provision that is legally effective and valid and corresponds in its economic effect to the replaced provision – to the extent possible and legally permissible.
2.3. Verbal agreements and amendments to these terms and conditions must be made in writing in order to be valid; this also applies to any waiver of the written clause.
3. Delivery, dates and deadlines
3.1. K&W shall be entitled to make partial deliveries and provide partial services at any time.
3.2. The agreed delivery dates and deadlines are only indicative unless they have been expressly designated as binding in writing. The delivery time assessed for the delivery begins to run at the earliest from receipt of the information finally fixed in all commercial and technical respects. Subsequent requests for changes and additions shall extend the delivery time appropriately.
3.3. After exceeding a non-binding delivery date or a non-binding delivery period, the Contractual Partner may request K&W in writing to deliver. K&W shall be in default of delivery at the earliest upon receipt of this request.
3.4. The contracting party shall accept minor overruns of binding delivery dates or deadlines without the consequences of a delay in delivery arising as a result.
3.5. Should K&W be in default of delivery, the contractual partner may adhere to the fulfillment of the contract or withdraw from the contract by granting a reasonable grace period in writing. If K&W has already provided partial services, the contractual partner shall only be entitled to withdraw from the contract with regard to partial services that are still outstanding.
3.6. If, during an ongoing delay, delivery becomes impossible by chance, K&W shall not be liable if the damage would have occurred even if delivery had been made on time.
3.7. Delivery is always made for the account and at the risk of the recipient ex warehouse Vienna. All costs for transport and transport insurance from Vienna to the place of installation shall be borne by the contracting party.
3.8. In the event of force majeure or disruption of operations through no fault of our own (including those of our business partners), which temporarily prevent us from meeting the agreed dates and deadlines, these delivery dates and deadlines shall be extended by the duration of the disruption of performance caused by these circumstances.
4. Prices
4.1. All prices are subject to change. Unless otherwise stated in the offer, all prices are in Euro and exclusive of VAT.
4.2. Unless otherwise agreed in writing, the prices quoted are always ex our warehouse in Vienna, excluding packaging, which will be charged at cost price. Any transport costs, such as in particular freight and insurance charges, customs duties, fees or levies, shall be borne by the contractual partner.
4.3. Prices for services (service, etc.) are always calculated at those rates that are in force on the day of performance. The same applies to the travel expenses and accommodation costs of our technicians, instructors and fitters.
5. Right of withdrawal, restitution of the delivery
5.1. Force majeure, strikes, natural disasters, transport blockades and similar events shall release us from the agreed delivery period or delivery obligation. This shall also apply in the event that after the conclusion of the contract K&W becomes aware of circumstances under which the provision of the main and ancillary services of the contractual partner are no longer deemed to be assured. Irrespective of this, we are entitled to an unconditional and immediate right of withdrawal in this case.
5.2. In the event of non-compliance with material contractual obligations by the contractual partner (such as default in payment), K&W shall be entitled to demand the return of deliveries already made from the contractual partner or to insist on performance of the contract. In this case, the return shall be at the risk and expense of the contracting party. Any claims for damages as well as claims in connection with the retention of title shall remain unaffected.
6. Warranty, guarantee, notice of defects
6.1. The warranty and guarantee regulations described here under item 6 of these GTC do not apply insofar as products are concerned that were only delivered by K&W and manufactured by other business partners (in particular brand-new machines, devices and apparatus) and for which the warranty and guarantee conditions specified by the manufacturer/producer apply. K&W will only handle the warranty and guarantee process. The question of whether a warranty or guarantee case has occurred at all is again based on the manufacturer’s provisions. In all other cases, i.e. in all cases in which the warranty and guarantee conditions of manufacturers/producers do not apply conclusively, the warranty and guarantee provisions shall apply as under 6.2. – 6.7. described.
6.2. The contracting party shall immediately inspect the delivery at the agreed place of acceptance for any obvious defects. If the contractual partner expressly or tacitly waives the inspection, it shall generally be assumed that K&W has delivered the goods properly. Complaints regarding the quality of our deliveries will only be accepted if they have been made to us in writing within 14 days of receipt of the goods at the place of delivery. The notice of defects must be sufficiently substantiated and supported by appropriate evidence. Hidden defects must be reported immediately after detection in the manner specified above.
6.3. Minor technical changes and deviations from drawings and catalogs shall be deemed approved in advance.
6.4. All additional expenses, such as transport costs or any customs handling costs, etc., shall be borne by the contracting party.
6.5. Any warranty period shall be a maximum of 12 months from acceptance. The existence of defects must be proven by the contractual partner. § 924 ABGB and § 933b ABGB shall not apply.
6.6. In case of justified defects, the warranty is limited to improvement, new delivery or supplement of what is missing. Several rework and replacement deliveries are permissible. Claims for conversion and price reduction are excluded. The warranty expires if the contractual partner or a third party not authorized by K&W has made changes or repairs to the product. In the event of improvement, new delivery or supplementary delivery of what is missing, the period for asserting claims shall not begin to run again.
7. Terms of payment, default and offsetting prohibition
7.1. The terms of payment, such as in particular the due date and method of payment, are shown in the order confirmation or invoice. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfillment of the contract.
7.2. Bank transfers are not considered payment until the amount is received in the account designated by us. Bills of exchange and checks shall only be accepted upon written agreement, on account of payment only, and shall exclude any discount deduction. Discount interest and all bank charges shall be borne exclusively by the contracting party.
7.3. We expressly reserve the right to demand a deposit for orders placed by the contractual partners.
7.4. In the event of default in payment by the contractual partner, K&W shall be entitled, at its own discretion, to demand compensation for the damage actually incurred or default interest at the statutory rate. For entrepreneurs, this is 9.2% p.a. above the prime rate. This claim also includes compound interest. In addition, in the event of default in payment, the contractual partner undertakes to reimburse the court and out-of-court costs as well as the dunning and collection expenses necessary for appropriate legal action. In any case, this shall include a lump sum of EUR 40 as compensation for operating costs pursuant to Section 458 UGB. The assertion of further rights and claims shall remain unaffected. In the event of a delay in payment by the other party, K&W shall not be obliged to render its own performance for as long as such delay continues. Furthermore, in the event of default, K&W shall be entitled to demand immediate payment of all outstanding claims and/or advance payment or the provision of security.
7.5. The contractual partner is not permitted to offset any disputed or not legally established counterclaims without our express consent. Likewise, the contractual partner is not permitted to exercise a right of retention without a legally binding title or on the basis of claims from other legal transactions.
8. Property right
8.1. The delivered machines, devices and apparatuses, as well as accessories and spare parts remain our unrestricted property until full payment has been made.
8.2. The retention of title also serves to secure our claims arising from the ongoing business relationship until settlement of any claims to which we are entitled in connection with the purchase.
8.3. The pledging of the delivery item by the contractual partner prior to full payment shall be deemed excluded unless we declare our consent to this in writing prior to the execution of the pledge.
8.4. As long as the contracting party has not become the owner, it shall be obliged to provide for adequate safekeeping of the delivered goods and, insofar as is reasonable, to insure them adequately. In any case, the contractual partner shall bear the risk of destruction, loss or deterioration of the delivery item.
9. Fulfillment and shipping
9.1. The delivery shall be deemed to be fulfilled when the delivery items have been handed over to the forwarding agent or the transport company.
9.2. In principle, the contractual partner is obliged to take over the goods at the agreed conditions. In the event of non-acceptance, we may exercise our statutory rights arising from default of acceptance.
9.3. With regard to packaging, the conditions stated in point 4.2 apply. The packaging we put on the market is licensed under ARA number10651.
9.4. Any claims for compensation arising from visible transport damage must be raised by the contractual partner immediately upon receipt of the goods from the transport company or carrier and the expedient preservation of evidence must be carried out against the carrier or forwarder. Other complaints must be made to us directly after receipt of the goods.
9.5. Insurances of any kind shall only be effected by order and at the expense of the contractual partner to the extent requested by him.
9.6. Storage measures and the associated costs that become necessary due to the fault of the contractual partner shall be borne by the contractual partner. The delivery items shall be deemed to have been duly delivered.
10. Liability
10.1. As far as in the respective offer (point 1.1. a.) or in contractual and business conditions of third parties (item 1.1. b.) nothing to the contrary is regulated, the contracting party shall be liable without limitation for compensation for all damage culpably caused by it. He is not liable for slight negligence. Limitations of liability do not apply to compensation for personal injury.
10.2. As far as in the respective offer (see point 1.1. a.) or in contractual and business conditions of third parties (item 1.1. b.) nothing to the contrary is regulated, we shall be liable for compensation for damage culpably caused by us. We are not liable for slight negligence. In the event of gross negligence, the amount of liability shall be limited to the value of the delivery concerned. Limitations of liability do not apply to compensation for personal injury. Claims for damages shall in any case only cover the mere repair of the damage. We shall not be liable for indirect damages, loss of profit, loss of interest, failure to make savings, other consequential damages and damages from third-party claims.
10.3. The contractual partner must provide evidence that any damage incurred by it is attributable to our fault. The contractual partner must also provide proof that he is not at fault for any damage incurred by us. This applies to all forms of fault (slight/gross negligence, intent).
10.4. Claims for damages must be asserted in court at the latest within six months of knowledge of the damage and the damaging party, otherwise they will be forfeited.
10.5. In the case of contracts for work and materials, we shall not be liable if, despite fulfillment of the warning obligations, the contractual partner insists on a certain implementation.
11. Data protection
11.1. Both K&W and the Contractual Partner are obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (DSGVO) and any other statutory confidentiality obligations.
11.2. K&W processes the personal data required for the purpose of fulfilling the contract. The detailed data protection information according to Art 13 ff DSGVO can be found on our homepage at: http://www.kwds.at/footer/datenschutz
12. Place of performance, place of jurisdiction, choice of law and contract language
12.1. The place of performance for delivery and for payment shall be Vienna.
12.2. For the resolution of all disputes arising directly or indirectly from the contract itself or from the contractual relationship, it is agreed that the competent court in Vienna shall have jurisdiction.
12.3. This Agreement shall be governed by Austrian substantive law, excluding the conflict of law rules of private international law (e.g. IPRG, Rome I Regulation) and the UN Sales Convention.
12.4. The contract language is German. For the interpretation of individual provisions, the German version of the GTC shall primarily be consulted.
13. Miscellaneous
13.1. The assignment of individual rights and obligations arising from these GTC and the contract shall only be permitted with the express written consent of the other contracting party.
K & W Drive Systems, KNOPF & WALLISCH Getriebe und Motorenvertriebs-GesmbH
Forchheimergasse 32
AT – 1230 Vienna
T +43 1 869 4301
E office@kwds.at
www.kwds.at
Valid from: 19.04.2022