TERMS AND CONDITIONS
§1 Scope of validity
(1) The following general terms of sale apply to all business rela- tionships between HARALD LENZ GmbH, Rotkogelstrasse 54a, A-9431 St. Stefan/Lav., Commercial Register Klagenfurt FN (Re- gister No.) FN 273781w, (hereinafter called “Vendor“) and its customers. The version valid at the time of the conclusion of the contract is applicable.
(2) Customers are:
– Consumers as defined by the Consumer Protection Law (either an individual or a single entity) not entrepreneurs or
– Entrepreneurs (Contractors), whether natural persons or entities having legal personality, legally responsible private companies, operating within the framework of their activities. An entrepreneur is defined as every organization of independent economic activi- ty designed for continued operation, even if it is not for profit.
Hereafter, if necessary, consumers and entrepreneurs will be re- ferred separately, otherwise the following provisions apply to all customers.
(3) Even if acknowledged, variant, opposing or supplementary general business conditions will not become an integral part of the contract, unless their validity is expressly agreed to.
§2 Conclusion of Contract
(1) All vendor’s offers are without obligation and subject to con- firmation.
(2) A contract is then concluded when the vendor issues a confir- mation of order or makes a delivery after receiving a written or- der from the client which represents a binding offer. The confir- mation of receipt does not however constitute a binding accep- tance of the order.
(3) For consumers the vendor reserves the right to accept the or- der within one week; for contractors the vendor reserves the right to accept the order within a suitable acceptance period. The Vendor reserves the right to decline an order, for example upon evaluation of the customer’s creditworthiness.
(4) Specific client’s instructions, i.e. with regard to meetings, dis- counts or the like, in the context of the order confirmation shall not be binding until explicitly agreed by the Vendor.
(5) The Vendor is entitled to create catalogues on- and offline, to publish any other sales documents, lists and drawings, as well as weights and measurements with the utmost care, but reserves the right to subsequently correct any obvious errors.
(6) The Vendor shall expressly agree with any changes or additi- ons to the order made by the customer after the conclusion of the contract and reserves the right to indemnification.
(7) We reserve the right to partial or non-performance of a contract with entrepreneurs in case of incorrect or improper deli- veries by our suppliers. In this case, the Vendor under takes to in- form the Contractor without delay and any compensation will be reimbursed immediately.
§3 Reservation of title
(1) The Vendor shall retain title to all objects delivered by him un- til complete payment of the purchase price plus any interest or charges arising.
(2) The Customer must treat the supplied products with due care for the duration of the retention of title and must perform necessa- ry maintenance and inspection at his own expense. The customer is obliged to notify the Vendor immediately in writing on any sei- zure of the goods by a third party, such as levy of execution and any damage or loss or extraordinary loss of value of the goods. The same applies to any change in ownership of the goods or any change of the customer’s address. The customer is liable to pay compensation for any damage or costs caused by a breach of the above obligations or by not intervening adequately against access to the goods by third parties.
(3) In order to inspect the goods which are delivered under the retention of title the Customer shall provide the Vendor with the access to his premises. If the customer violates the contract, in particular by delays in payment, the Vendor is hereby entitled to withdraw from the contract and to reclaim the goods. This shall also apply if the Customer breaches obligations according to par. 2 to such an extent that the adherence to the contract beco- mes unacceptable for the Vendor.
(4) The Contractor is entitled to resell to third parties the goods which are delivered under the retention of title as part of its nor-
mal business activity. Upon conclusion of a contract the Contrac- tor shall assign to the Vendor any receivables arising from the resale of the goods to third parties. The Contractor must endorse the assignment in his own account books and invoices. After the transfer the Contractor is authorized for the collection of the de- mands. The Vendor reserves the right to collect the receivables himself in case the Contractor does not meet his payment obliga- tions. In this case the Contractor undertakes to provide the Ven- dor with all documents and data necessary to collect receivables.
(5) In cases where the purchased goods are processed, combi- ned or mixed by the Contractor with other items that are his own property or the property of a third party, he must act in the name and on behalf of the Vendor. The Vendor acquires a co-ow- nership share corresponding to the ratio of the value of his goods to the value of the goods supplied by the Vendor himself. If co- ownership can not be established, paragraph 4 shall apply mu- tatis mutandis.
(6) If the Vendor and the Customer agreed on foreign law accor- ding to which the reservation of title is no longer effective, so the existing securities deriving from the other law shall be deemed as agreed upon. To the extent the cooperation of the customer shall be required, he must take all necessary measures that are requi- red for substantiating and upholding such rights.
§4 Prices and Terms of Payment
(1) The prices and the delivery terms stated in our order confirmati- on shall apply. The Vendor adds to all prices quoted including all extra expenses the legally-applicable value added tax. The Custo- mer agrees to receiving the invoice electronically. The gross price will be reported on the invoice. Should costs increase by the time of delivery, they can be recalculated on a pro rata basis. Unless otherwise agreed, for the Contractor the prices stated for supplies shall apply net ex works.
(2) The Customer is committed to paying the invoice amount within 14 days with no deductions after the date of the invoice. Payments shall be made free of charge to the Vendor’s payment office in the agreed upon currency (EURO unless otherwise stated). Differing terms and conditions of payment have to be agreed to in writing by the Vendor. In case of delays in payment by the Customer we shall be entitled to charge an annual rate of interest of 5 % for Consumer and 8 % for Contractor above the base interest rate for the duration of the delay. Furthermore, the Contractor undertakes to reimburse any amount paid or expenditure arising from the collection of receivable, e.g. the dunning fees and collection char- ges incurred for any necessary legal measures, reference is made to the provisions under § 458 of the Austrian Business Enterprise Code (UGB). The Consumer undertakes to pay a flat rate of EUR 15,00 for the collection of receivables.
(3) The Vendor may accept bills of exchange as well; however, he is not obliged to. If paying by cheque or bill of exchange payment shall only be deemed effected after the account has been credited. After the debt has become due discounting and collection charges are to be paid immediately by the person on whom the letter of credit is drawn.
(4) Consumers shall be entitled to a right of set-off in case of the Vendor‘s inability to pay or provided that their counter claims are
legally related to the debt or provided that the counter claims have been judicially determined, or are uncontested and ack- nowledged by the Vendor. The Contractor shall only be entitled to a right of set-off or retention provided that his counter claims have been judicially determined, or are uncontested and ack- nowledged by the Vendor. The retention of payments by the Contractor for counter claims shall be excluded.
(5) All and any claims shall become due immediately, should the Customer default payment or if the Vendor becomes aware of cir- cumstances suitable to reduce the Customer’s creditworthiness or of any information suggesting that granting a credit to the Custo- mer may not be totally free of risk. In this case the Vendor shall be entitled to make/render any outstanding deliveries/services only against advance payment or to withdraw from the contract after setting a reasonable extension period. For the purposes of this provision, the aforementioned circumstances include substan- tial degradation of financial situations by the Customer, suspensi- on of payments, delay in payments or even liquidation whereas information include news and information transmission about the- se or similar circumstances.
(6) Should the time of payment be dependent on the completion of the assembly or due before the commissioning and should this deadline be delayed without the Vendor being at fault, payment shall be made, notwithstanding that, no later than 6 weeks after notification of delivery readiness or after delivery.
(7) If delivery is made into a non-EU country, the Vendor explicit- ly reserves the right to additionally charge the legally applicable VAT in case the Customer fails to provide the proof of export in proper form.
(8) Unless otherwise explicitly stated, all Vendor’s credit notes are valid for 36 months after date.
§5 Delivery and Transfer of Risk
(1) As far as the scope of delivery is concerned, the Vendor re- serves the right to change the design and equipment of the goods delivered according to the technical progress or in compli- ance with legal or official requirements. Series-produced furniture will be sold by sample or illustration. There is no legal claim to the delivery of display items, unless not otherwise agreed to in the contract. Any minor and reasonable deviations in colour, shape, design and grain are not a reason for rejection. The same applies to used textiles.
(2) Unless otherwise agreed in writing with the Vendor, the terms and dates of delivery are provided to the Customer as an ex- ample only and are not binding. The delivery terms and dates will begin from the date of the order confirmation, however not before a total clarification of all details of the contract and the procurement of required technical information, e.g. plans, drawings, and not before the fulfilment of all other requirements of the customer or before the receiving of a deposit payment or a guarantee that the customer will be required to pay. Delivery terms and dates are understood to be ex works. If the goods fail to be delivered or dispatched at the
agreed time for reasons not attributable to the Vendor, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch. In the case of self-collection by the customer, the Vendor will inform the customer about the time when the goods are ready for collec- tion and about the pickup period.
(3) The Vendor shall have the right to make partial or advance deliveries and to settle payments.
(4) Should the Customer not request immediately delivery of tho- se goods which have been notified to him as ready for dispatch or should he not take receipt of the goods ready for collection in due time, within four weeks have elapsed after the notification that the goods are ready for transportation or after the pick-up deadline has expired, the Vendor is entitled to either store the goods at the expenses and at the risk of the buyer, whereby a
storage fee of 3% of the gross invoiced amount will be charged per month (plus the legally applicable VAT) and to insist on the fulfilment of the contract, or to withdraw from the contract and sell the goods on the open market without further communication to the Customer. In this case the Customer shall be obliged to pay a conventional penalty amounting to 30 % of the net price plus value-added taxes due to the increased costs which may ari- se as well as for possible minimum proceeds. The conventional penalty falls due for payment upon cancellation of the agreement whereas the paid deposit amounts will be credited against the contract penalty. The right of the Vendor to assert further da- mages shall remain unaffected.
(5) Failing express agreement, the Vendor’s warehouse shall be the place of performance for the delivery. In case of a delivery ex works or if the customer is in default of acceptance the risk of accidental loss or deterioration of the delivery items shall pass to the customer. When handing over the goods to the forwarding agent or the carrier, or any other person or company charged with transporting the goods, however, the risk is transferred to the buyer.
(6) Visible damage or defects caused during transport must be notified immediately upon receipt by the Customer to the forwar- ding agent or the carrier or any other person or company char- ged with transporting the goods and acknowledged by the latter. Damage or defects caused during transport not visible from the outside must be notified within 7 days after receipt to the forwar- ding agent or the carrier or any other person or company char- ged with transporting the goods. In case the Vendor has, contra- ry to par. 5, in its order confirmation explicitly confirmed a place of performance other than the Vendor’s factory or warehouse, any transport damage must also be notified to the Vendor within 4 days after receipt. If the Customer fails to do so, no damage or defect caused during transport can be claimed with the Vendor.
§6 Further Delivery Conditions
(1) If the Vendor is responsible for the non-fulfillment of a delivery date expressly confirmed, as far as Customers satisfactorily prove that they have suffered damage there from, they shall be entitled to claim compensation for delayed delivery at 0.5% of the purchase price up to a total of 5% of the net contract value of the deliveries affected by the delay.
(2) If the Vendor’s performance is delayed in case of an agreed penalty and due to a delay in delivering purchased parts of the sub-suppliers despite his binding confirmation of delivery date, the penalty shall come into effect at any later date by the period by which the delivery is delayed. Furthermore, a penalty shall be- come invalid, if deposits are not paid in due time or if a perfor- mance is delayed because of the Customer’s behavior.
(3) In case of circumstances which are unforeseeable or not de- pendent on a party’s will, as for events of force majeure on the part of the Vendor or of his Sub-supplier, the Vendor is entitled to
postpone the delivery and/ or service around the duration to an adequate initial period. These circumstances include primarily, but are not limited to armed conflicts, orders by public authori- ties, transport and customs delay, transport damages, shortage of energy or raw materials, strike and lock-out.
(4) On an expressively written demand by the Customer and at the discretion of the Vendor, product samples from the Vendor’s product range may be made available to the Customer four weeks free of charge. When sample goods are delivered, invoi- cing shall be made on the terms which are laid down in these general terms and conditions. If the goods are returned in the ori- ginal packaging in due time, a credit note shall be issued against the invoice. If the return is not carried out in due time, the goods are deemed to be accepted. This also applies in case the returned goods bear traces of use and montage or show any changes or signs of damage.
(1) In the case of material defects, the Consumer has the right to choose between the rectification of such defects and replacement delivery. The Vendor may refuse to offer such remedy, if it is im- possible or if, in relation to other remedies, it would require a dis- proportionate effort. If changes are not possible or feasible, the Consumer has the right to choose whether to reduce payments or, provided that defects are not minor, to rescind the contract. For consumers the legal requirements for warranty cover a period of 2 years from delivery of the goods.
(2) For entrepreneurs the period of warranty is 1 year as of the delivery of the goods.
(3) Vendor’s warranty obligation towards Customers shall only apply to defects that appear when observing the applicable ope- rating conditions and putting the item to normal use. In particular, this does not apply to defects resulting from any circumstances for which the client or third parties are responsible, including any non-observance of maintenance instructions. For wear and tear or minor defects of the paintwork as well as for those goods which have been subject to repairs without prior consultation with the Vendor any warranty is excluded. Any warranty obligation of the Vendor shall come into effect only if a required installation was carried out by a duly skilled professional. For parts that the Vendor purchased from its sub-suppliers upon the instructions of the company or its representatives and contrary to the Vendor’s recommendation, the Vendor is liable only to the extent that he is entitled to bring forward guarantee claims against the sub-supp- lier. If an order or a service is carried out by the Vendor accor- ding to design specifications, drawings or models, that were made available by the company, the vendor’s liability does not extend to the correctness of design and only to the conformity of
the design to the customer’s specifications. The Vendor is herein not obliged to examine the information provided by the compa- ny. Light devices and electronic and other parts subject to wear as well as used products shall not be covered by the warranty. Similarly, the Vendor shall not accept any warranty, when accep- ting repair jobs or reworking or modifying old as well as third- party goods.
(4) If the Customer is an entrepreneur, he is obliged to examine the delivered goods with regards to defects within a reasonable time and shall report obvious defects to the Vendor in writing wit- hin a week of receiving the goods; otherwise the assertion of warranty is excluded. Hidden faults must be reported within a week of discovery. However, the entrepreneur bears the full bur- den of proof that all the conditions for a claim are met, especial- ly for the defect itself, for the point in time when the defect is esta- blished and that the defect is reported in time. In the event of faulty goods, the Vendor shall initially redeem the guarantee towards contractors for those defects covered by the Vendor’s warrant obligations and by choosing to offer either to rectify the fault or provide a replacement. The Vendor shall be given the time necessary to examine and remedy the defects or supply re- placement parts or equipment, as applicable. The costs and risks of transporting the tool to and from the repair centre, must be borne by the entrepreneur. For the correction of defects on the customer’s premises, any travel costs is borne by the entrepre- neur. Any removal of a defect or other warranty remedy shall not result in a renewal of the warranty period. Vendor shall only re- fund costs for remedying a defect, undertaken by the entrepre- neur himself or by a third party, if the Vendor has given his writ- ten consent.
(1) Outside of the scope of product liability law, Vendor’s liabili- ty is limited to malicious intent or gross negligence.
(2) Liability for slight negligence, compensation for consequential and financial losses, savings not achieved, loss of profits, losses of interest, and for damages resulting from claims made by third parties against the entrepreneur are ruled out.
(1) Should the Vendor fall behind with deliveries through gross culpability, the Customer is entitled to declare by a registered let- ter addressed to the Vendor its withdrawal from the contract after expiry of a reasonable period of grace of 30 days set by him in writing.
(2) Entrepreneurs and Consumers, provided that for the latter no further legal right of withdrawal applies, are entitled to terminate the contract with the Vendor’s explicit consent. In this case the Customer is obliged to pay a compensation of 20% of the can- celled order amount. Withdrawal is excluded for trade goods and if a customized product (including customized cuts) was ma- nufactured by the Vendor for the Customer. The right to assert a claim for actual damage in a larger amount is reserved.
(3) Without prejudice to the legal rights of rescission in complian- ce with § 3 par. 3, § 4 par. 5 and § 5 par. 4 laid down in the- se General Terms and Conditions, the Vendor shall be entitled to rescind the contract in particular (a) if either, after the conclusion of the contract, some circumstances occur whereby the fulfilment of the contract is no longer cost-effective or even impossible un- der the terms agreed upon, or (b) in case the delivery, for rea- sons that are the responsibility of the Customer, cannot be carri- ed out or is further delayed even after a reasonable period of grace set by the Vendor. The Vendor reserves the right to claim further damages.
§10 Planing Services, Industrial PropertyRights and Copyright
(1) Whenever goods are supplied by the Vendor according to plans, drawings, models, analytical specifications, or any other customer information and this infringes on third-party rights, espe- cially industrial property rights, Customer undertakes to indemnify and hold harmless the Vendor.
(2) The Vendor’s website design, all documents and sales infor- mation made available on-and/or offline, such as catalogues, brochures, documents and drawings as well as offers, projects, and any other technical document, e.g. plans, models remain the property of the Vendor. The Vendor is entitled to ask to return documents. Any processing, copying, circulation and/or public reproduction other than for private use shall be deemed illegal and prohibited.
(3) The Vendor reserves the right – in case the customer does not place an order – to subsequent invoice costs for rendered plan- ning services, due to the current applicable hourly rates.
(4) The Vendor is not liable for the content of any possible exter- nal website which can be reached via links from this website or which refer to this website.
§11 Data Protection
(1) The Customer hereby agrees that the information provided by him in this contract be collected, processed, saved and used only for purposes of accounting, credit assessment and customer records. The data are used by the Vendor to ensure compliance with statutory provisions, for the processing of payment transac- tions and for advertising purposes. The customer has the right to free information over his stored personal data as well as to ac- cess, correction or deletion of inaccurate or illegally stored data.
§12 Final provisions
(1) Austrian law is applicable. The provisions of UN purchasing law shall not be applicable. This does not apply to a Consumer if it would deprive him of relative protections granted by manda- tory legal provisions under the laws of the State where he has his permanent residence.
(2) For all disputes arising from legal transactions, which are di- rectly or indirectly subject to these General Terms and Conditi- ons, the Austrian court in Klagenfurt having local and subject-mat- ter jurisdiction for the Vendor is agreed upon. For Consumers, this is applicable only if they have their residence, usual place of living or place of employment in this area in Austria. In all instan- ces, however, we reserve the right to claim for damages at the general place of jurisdiction of the Customer.
(3) In case individual regulations of this contract with the custom- er, including these General Terms and Conditions, are or beco- me ineffective, in full or in parts thereof, the effectiveness of the remaining regulations shall not be affected. In this event the par-
ties are obliged to replace a completely or partially invalid provi- sion with one that most closely corresponds to the intended pur- pose of the original provision.
(4) Unless expressly stipulated otherwise, the place of perfor- mance for the obligations to deliver and/or to perform shall be the shipping address or place of use requested by the Customer. Upon conclusion of the contract the customer must provide the re- levant data required in the contract accurately and correctly. Where the information supplied by the Customer is incomplete, unclear or incorrect, the latter shall be liable for any cost and ex- pense incurred to the Vendor and arising there from. Moreover, in the event of compensation, the customer undertakes to imme- diately and fully inform the Vendor in writing of any changes of his name, address or place of residence. If this communication is omitted then declarations are deemed as closed in the event they are sent to the customer’s last known address.