General Terms and Conditions of Purchase
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)
1.Formation of Contract
The following terms and condition of purchase shall apply exclusively to our orders. It shall be assumed that placing an order means agreement with our terms and condition of purchase, overriding any general terms and conditions of sale and delivery contained in the seller’s offer or order confirmation for performing the present order, even if these have not been rejected by us. The seller’s terms and conditions of sale and delivery shall therefore only be binding on us to the extent that we accept these in writing and shall only apply just this once to the respective transaction.
2. Order Confirmation
We shall only be bound by our order as long as the order is confirmed within a reasonable period of time. If the order recipient demonstrably begins carrying out the order within fourteen days, starting from the date of the order, the order shall be deemed accepted without reservation even if no order confirmation has been issued.
3. Offers and Estimates
Any offers or estimates sent to us are binding and free of charge unless otherwise expressly agreed. Any offers submitted to us are binding for the offerer for 10 weeks from receipt thereof.
4.Protection of Plans and Documents / Non-Disclosure
Plans, drawings and other documents such as brochures, catalogues, samples, presentations, etc. provided by us remain our intellectual property. Any use, in particular the passing on, reproduction, publishing and making available, including just the copying of extracts from them, requires our express written consent.
All documents specified above may be claimed back by us at any time, and must always be returned to us without delay and unprompted when the order, assignment or contract does not come into fruition.
As for the rest, the seller / our contracting partner undertakes to treat the know-how made available to them in the course of the business relationship confidentially vis-à-vis third parties.
If the seller / our contracting partner prepares documents or services and makes them available to us and these are protected by law, including copyrights, they shall grant us an unlimited, but not exclusive right of use for these works and/or such a right is deemed agreed in the event of a contract being formed, for lack of other agreements to the contrary.
For lack of other express agreements, the prices that we are given are including all charges and additional costs and transportation costs. The prices stated in our orders are binding. Agreed prices or prices on which the contract is based shall also be viewed as fixed prices. We do not accept escalation clauses and other clauses of a similar nature unless these have been specifically negotiated.
6.Transport and Assumption of Risk
The goods purchased by us are deemed to be an obligation to be performed at our place of business. This means that the seller bears the costs and the risk associated with the transport/shipment. The risk of loss or damage shall not transfer us until the goods are duly handed over at the destination and the order has been accepted.
The use of a forwarding agent to send the goods requires our prior written consent. We must be notified without undue delay when the shipment has been dispatched. A packing slip or delivery note stating our order number must be enclosed with the shipment. We will only bear the costs of transport insurance if this has been expressly agreed in writing. A minimum of two invoices as customs documents and certificates of origin must be included with the freight documents for cross-border shipments. Any shipments which we are unable to accept as a result of non-compliance with shipping, customs clearance or documentation regulations shall be stored at the expense and risk of the seller / our contracting partner until the transactions can be handled properly once proper documents have been received. All risks, damages and costs resulting from non-compliance with the shipping, customs clearance or documentation regulations shall be borne by the seller / our contracting partner. Date on which the invoice is due and the period allowed for payment shall be postponed accordingly until the missing papers or documents have been completed or presented.
Depending on the specific requirements of the goods and/or the method of shipment, the seller is required to ensure the appropriate packaging is used for the goods to arrive at their destination safely. The costs of packaging are included in the prices of the order. Costs attributable to damage inflicted to the goods as a result of defective packaging shall in any case be borne by the seller.
8.Place of Performance
For lack of other express agreements, the place of performance for both our service and the consideration is the registered office of our company with its business address at Pfarrgasse 87, 1230 Vienna, Austria.
The agreed delivery dates are binding. The only exception to this is a delay in delivery due to force majeure.
The delivery period defined by us is calculated from the date of the order. If delivery is not made at all or in its entirety within this delivery period, we shall be entitled to withdraw from the contract without granting a grace period and without prejudice to our right to assert claims for damages. If the seller becomes aware that they shall be unable to make the delivery at all or in part within the stipulated period, they must notify us thereof without undue delay in writing, stating the reasons and the expected duration of the delivery delay.
In the absence of any official declarations, our findings shall be decisive for determining the quantity delivered.
A contractual penalty shall be payable in the event of delayed performance irrespective of fault and which shall not be viewed as a forfeit. The amount shall be equal to one percent of the total order volume for each day of the delay. Any damages that exceed the contractual penalty shall also be compensated for.
We have the right to withdraw from the contract without giving reasons. In such cases, the seller shall only be reimbursed for any expenses demonstrably incurred up to the date of cancellation.
12.Unilateral Performance Changes
Changes to our performance requirement and/or purchase order that are justified from an objective point of view and reasonable have to be tolerated by the seller / our contracting partner insofar as this does not result in a change to the price and/or fee exceeding 10 % of the order amount.
13.Warranty and Damages
Disclaimers of liability on the part of our contracting partner, in particular from the title of warranty or compensation for damages, will not be accepted unless they were negotiated expressly with us in the individual case.
If any defects arise, we shall be free to choose between having the goods replaced or repaired or having the price reduced, if there is no right of rescission and we exercise this right.
Notwithstanding our other rights under the warranty, we shall be entitled to remedy defects and damage at the expense of the seller in urgent cases or if the seller does not fulfil their obligations in a timely fashion.
In cases of repair or replacement, we have the right to withhold the entire payment until complete performance of the service/delivery to be carried out.
For defects in the delivery or goods, which also include the absence of warranted properties, the warranty period of the seller / our contracting partner shall last for two years after acceptance, unless otherwise agreed in writing in individual cases.
The warranty period shall start again from the beginning when replacements are issued.
In all other respects, deviations from the statutory provisions – regarding damages or warranty - such as changes in the distribution of the burden of proof, shortening of time limits, etc. require our express written consent in each individual case to be effective.
We do not accept the exclusion of the right of recourse under section 933b of the Austrian Civil Code (ABGB).
We can claim hidden defects for a period of up to three years after accepting the goods. In the case of goods that usually remain in their packaging until being used, defects that only become visible when they are removed from the packaging are considered hidden defects. The seller / our contracting partner shall not object to the defect on the grounds of late notification.
14.Notice of Defects
The obligation to inspect defective deliveries of goods is waived expressly under section 377 of the Austrian Business Code (UGB).
We do not accept our right to assert a recourse claim under section 12 of the Product Liability Act (PHG) being excluded. The seller / our contracting partner shall indemnify and hold us harmless for any claims for damages or product liability claims brought against us in connection with the goods.
We do not recognise a ban on netting arrangements; we shall be entitled to net any claims we may have against the seller / our contracting partner.
17.Right of Retention
In case of justified complaints, we have the right to withhold the entire payment that is still outstanding.
Any and all agreements, subsequent changes, amendments, ancillary agreements, etc. require the written form in order to be valid, and therefore also require an original signature or a secure electronic signature.
Any declarations, notifications, etc. addressed to us must be done so in writing in order to have legal force, this includes using an original signature or a secure electronic signature.
19.Choice of Law
These terms and conditions of purchase and their validity, interpretation and fulfilment shall be governed by Austrian law, excluding the rules on conflicts of law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
The court with subject-matter jurisdiction for 1010 Vienna, Austria shall be responsible for ruling on all disputes arising from these terms and conditions of purchase. We also have the right to take legal action at the general place of jurisdiction of the seller / our contracting partner.
Should any part of these terms and conditions of purchase be void or contestable, this shall not affect the validity of any other provision herein. Instead of the legally void part, a provision shall be deemed stipulated which in a legally permissible manner comes closest to what the contracting parties would have stipulated had they been aware of the ineffectiveness. The same shall apply in that case that the terms and conditions have a loophole.