General Terms and Conditions of Sale and Delivery
KRUCH Railway Innovations GmbH & Co. KG
(hereinafter referred to as KRUCH),
1230 Vienna, Pfarrgasse 87
(FN [Business Register Number] 462469 b of the Business Register of Commercial Court Vienna)
These Terms and Conditions of Sale and Delivery shall apply to all, including future, contracts, deliveries and other services, unless they are amended or excluded upon our express written consent. We expressly object to the purchaser`s terms and conditions of purchase. They shall not be accepted either if we do not expressly object to them again after receipt. Our terms and conditions shall definitely be deemed accepted if and when our delivery or service is received.
These Terms and Conditions of Sale and Delivery shall only apply to customers who are consumers as defined in the Austrian Consumer Protection Act [Konsumentenschutzgesetz/KSchG] to the extent that mandatory statutory provisions do not provide otherwise.
Modifications of or amendments to these Terms and Conditions of Sale and Delivery shall be agreed in writing in order to be valid.
2. Offers and conclusion of contracts
Offers and cost estimates shall be non-binding.
A contract between KRUCH and the customer shall be deemed concluded after receipt of the purchase order by KRUCH sending a written acknowledgment of order to the customer or by delivery of the goods or provision of the service.
KRUCH shall be free to reject purchase orders without giving any reasons and without having to reimburse any expenses incurred by or to compensate the customer for any damage suffered.
KRUCH is entitled to only accept parts of purchase orders placed by the customer if delivery/rendering of that/those part(s) is acceptable for the customer, and KRUCH will notify the customer thereof in the acknowledgement of order. In the case of delivery/rendering of part(s) the customer will only have to pay the price for the goods delivered/services rendered.
3. Information; Prices
Any and all information, including but not limited to prices, quantities, descriptions/specifications, illustrations, data, etc. shall be non-binding and subject to errors, including printing and typographical errors, if any.
All prices stated are based on the current cost of material, energy and wages and, unless stated otherwise, they shall be deemed net prices ex works exclusive of statutory value added tax and shipping, packaging and COD costs.
If the order is executed quite some time after it was placed or if a master agreement on regular supply or processing exists and if the prices change during such period, in particular due to an increase in taxes, charges, customs duties, raw material prices, wages subject to collective bargaining agreements or energy costs, KRUCH shall be entitled to raise the prices accordingly at the time of delivery.
Additional costs resulting from unsuitable materials provided by the customer will be charged separately by us.
4. Delivery periods; Delivery
Delivery periods advised shall be non-binding, however, KRUCH shall observe the same as precisely as possible subject to the following provisions.
A delivery period advised shall commence on the date of our acknowledgement of order, provided that all commercial and technical issues have been clarified by then and that the customer has fulfilled all of his duties, e.g. provision of the necessary official certificates or permits or a down payment. Otherwise the advised delivery period shall only commence after all prerequisites stated above have been fulfilled.
Observance of the delivery period shall also be subject to the condition that we are supplied correctly and timely. If a delay is to be expected, KRUCH shall notify the customer thereof as soon as possible.
An advised delivery period shall be deemed met if by the end of that period the delivery item has left our works or if the purchaser has been notified that the goods are ready for shipping.
KRUCH shall be entitled to effect delivery by instalments, where reasonable. Short shipments or excess deliveries of up to 10% of the agreed quantity shall be permitted.
5. Shipping; Passing of risks; Acceptance
The contracts concluded with KRUCH shall be deemed fulfilled by delivery of the goods on the premises or by delivery to the carrier.
Unless agreed otherwise KRUCH shall determine the transport route and the means of transport without any responsibility for choosing the most economical or fastest route.
The risk of damage to or loss of goods shall pass upon delivery of the goods to the purchaser or carrier but in any case when the goods leave KRUCH`s premises, even if the delivery is effected to the purchaser freight paid. The delivered goods shall be checked for transport damage immediately upon delivery and any damage noticed shall be documented. KRUCH shall reasonably support the purchaser in asserting claims vis-à-vis the carrier, if any.
If the goods are ready for shipping and if shipping or acceptance is delayed for reasons which KRUCH has not caused by at least gross negligence, the risk shall pass to the purchaser upon receipt of the notice of readiness for shipping.
6. Terms of payment
The purchase price shall be paid within the agreed payment period without any deduction unless expressly agreed otherwise in writing. If the payment period is not observed, the purchaser shall pay default interest at a rate of 8% p.a. above the base interest rate unless KRUCH suffers more damage, e.g. because we have to take out a loan, in which case the purchaser shall compensate us for the same.
We reserve the right to effect delivery only against down payment or advance payment of the total price or COD.
If circumstances arise which reduce the purchaser`s credit standing, we shall be entitled to rescind the contract if the purchaser is not willing to furnish sufficient collateral security or refuses to pay the total price in advance. In that case the purchaser shall have no claims vis-à-vis KRUCH.
7. Setoff; Right to withhold payment
The purchaser shall only be entitled to offset counterclaims alleged by him against claims of ours if his counterclaim has been ascertained by court in a non-appealable manner, accepted by KRUCH or is legally related to KRUCH`s claim.
The purchaser shall, in principle, have no right to withhold payment unless mandatory statutory provisions provide for such a right.
8. Retention of title
KRUCH shall retain unrestricted title to delivered goods until full payment of the gross purchase price plus all default interest, ancillary charges and costs of legal action, if any. The purchaser shall not forward or pledge goods which have not been fully paid for yet to third parties without KRUCH`s express prior written consent.
If goods are attached by a creditor of the purchaser or if insolvency proceedings are opened over the purchaser`s assets, the purchaser shall be obliged to immediately notify KRUCH thereof in writing and include all relevant data. In the case of any violation of the obligations stated in this paragraph the purchaser shall indemnify and hold harmless KRUCH from and against all losses and expenses caused by such violation.
9. Packaging; Return delivery of refined goods
In general, the goods to be refined by KRUCH shall be delivered and returned in the customer`s own packaging or transport containers.
If the purchaser does not provide suitable packaging material for return delivery, KRUCH shall be entitled to properly pack the goods for return delivery at the purchaser`s cost.
The purchaser shall immediately inspect the goods handed over/delivered or services rendered to him for defects and notify any defects in writing within a reasonable period of five (5) working days; otherwise all warranty claims, claims for damages on account of such defect and on account of mistake shall be lost. In the case of justified notifications of defects KRUCH shall at its option be entitled to repair the defects by improvement or replacement. If repair of defects is impossible or unreasonable or if KRUCH is unable to deliver equivalent goods that are free from defects/provide sound services, the purchaser shall be entitled to a price reduction or, if the defects are not merely minor defects, to cancel the contract. The statutory provisions of the Austrian General Civil Code [ABGB] and of the KSchG shall apply to purchasers who are consumers as defined in the KSchG.
11. Damages and liability
KRUCH shall only be liable for direct damage (except for personal injuries), including damage due to performance or non-performance of the contract, torts or omissions or defects if caused by gross negligence or wilful intent. Any liability of KRUCH for indirect damage, incidental damage or other damage shall be excluded in any case.
Unless otherwise provided by mandatory statutory provisions any claims for damages of the purchaser shall be limited to the order value.
Product liability claims shall not be affected hereby.
12. Collection, processing and use of personal data of the purchaser
The purchaser agrees that data on him stated in his purchase order/in the purchase contract may be used, stored and processed for the purposes of data processing, bookkeeping and customer documentation. Such data will exclusively be used to fulfil statutory requirements and for order and payment processing. Such data may only be passed on to third parties if absolutely necessary to perform the contract, if the purchaser has given his consent or if disclosure is required by mandatory statutory provisions.
The purchaser agrees to be informed about current products and services of KRUCH via e-mail; this consent may be revoked by the purchaser in writing at any time.
13. Place of performance; Place of jurisdiction
The place of performance for delivery and payment shall be KRUCH`s registered office; the place of jurisdiction for all disputes shall be the court in Vienna having jurisdiction over commercial matters, however, we may also resort to any other court having jurisdiction over the purchaser. Austrian substantive law shall be applicable and the conflict of laws rules and UN Sales Law shall be excluded.
14. Consumer transactions
If a consumer transaction as defined in the KSchG is concluded on the basis of these GTC, the GTC shall apply in accordance with the provisions of the KSchG and ABGB. If any provisions of these GTC are in conflict with mandatory provisions of the KSchG, the relevant statutory consumer protection provisions shall apply; the validity of the remaining provisions of these GTC shall not be affected thereby.
15. Foreign customers
The provisions of these GTC shall, in principle, apply to customers whose purchase order is to be exported from Austria to another country, however, subject to the following conditions:
- the customer shall state his VAT number on the purchase order; if he fails to do so or if no taxation treaty exists KRUCH will invoice Austrian VAT and the customer shall pay the invoice amount including VAT;
- the customer shall bear all costs, taxes, charges and expenses related to export from Austria, transportation and import into the country of destination;
- in the case of shipments to be cleared by customs, the customer shall be solely responsible for customs clearance and shall also bear the related costs;
- if a certification is required for products purchased by the customer, the customer shall be solely responsible for obtaining the certificate and shall also bear the related costs. If necessary, KRUCH shall provide the customer with any product data and information that may be required to obtain the certificate against reimbursement of the additional expenses incurred;
- if an export licence is required for exporting goods, the customer shall obtain such licence at his cost or reimburse KRUCH the costs and expenses incurred in connection therewith;
- delivery to the customer and passing of risks shall be EXW (ex works) in accordance with the Incoterms 2010.
16. Severability clause
If any provisions of the contract with the purchaser including these General Terms and Conditions are or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected thereby. The regulation which is ineffective in whole or in part shall be replaced by a regulation which comes as close as possible to the commercial purpose of the ineffective regulation.