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General terms and conditions
Herde & Öfen » General terms and conditions

TERMS AND CONDITIONS
 
 
1. General:

The following terms and conditions shall apply e x c l u s i v e l y to all legal transactions with Lohberger Heiz-u. Kochgeräte GmbH except when an agreement in writing has been made with a customer to the contrary. Orders will only be accepted upon written confirmation by LOHBERGER. Quotations and tenders thus remain non-binding. Type and scope of delivery are determined exclusively by confirmation of order in writing. Verbal agreements only come into effect subject to our confirmation in writing.
Customer terms to the contrary only apply subject to our acknowledgement in writing. The validity of the unaffected terms and conditions is not affected, should individual customer agreements be entered into which deviate from these conditions. In the event of Lohberger Heiz- u. Kochgeräte GmbH being the client (buyer), the acceptance or alternatively the implementation of the order may be considered as acknowledgement of our terms and conditions. Single clauses of our terms and conditions which are invalid or become invalid are to be replaced by regulations on the basis of these terms and conditions and legal requirements, which are in accordance with the purpose of contract. The validity of the remaining clauses will not be affected.
Notice in writing sent to the customer by post is considered binding in as far as it has been sent to the last known address of the customer. This also applies when the envelope is treated as undeliverable. Delivery is considered effected when a printout or signed copy of the posted document emanating from the dispatch is in our possession. Customer rights with regard to transactions with us are not transferable.
Deviations from these conditions are only valid as far as they are explicitly stated in the written confirmation of order. Cancellation, amendments or appendices to the customer contract must be in writing and signed by both parties to the contract.  This is also required when departing from the formal requirements.

2. Quotation:

Diagrams and information in our business documents, catalogues and prospectuses etc. are only approximate. They are only binding when expressly stated in writing. We reserve the right to make changes to model designs, construction or their fitments. All quotation documents, including drawings, sketches etc. are to be sent back to us without delay if no order will be placed. The customer is not authorized to photograph or copy the same. A breach of this obligation requires the customer to pay a contract penalty of 10% of the quotation price.
Customer requirements not included in the original quotation (basic quotation) require a new quotation from us. We are only bound to carry out the additional requirements when the new quotation has been accepted. This is also required in case of subsequent changes to the original quotation. In this case, we reserve the right to re-quote the entire project including the original quotation.

3. Prices:

Our prices are ex-factory. The costs of dispatch or transport, packaging, freight, postal charges, insurance for transport, installation, connection and commissioning are not included in the prices. All prices listed in our terms and conditions are net prices. Prices apply respectively in accordance with the price lists on the day of delivery. We are authorized to adjust service prices for projects requiring a longer time for implementation in accordance with our prevailing hourly rates.

4. Payments:

Invoices are to be paid within 10 days as from date of invoice and without deduction. Delayed payments incur interest on arrears of at least 9.2% above the prevailing base rate of the Austrian National Bank plus an arrears fee of 40.00 Euros per reminder. Delay in payment or justified doubts as to the credit-worthiness of the customer entitle us to withdraw from the terms of delivery which have not yet been carried out or to demand advance payment. For deliveries amounting to more than 10,000 Euros, 1/3 of the order value is to be paid upon receipt of confirmation of order.
If bills of exchange have been accepted, payment will be considered as effected only upon encashment. This also applies to checks expressly accepted by us. Accruing costs are also borne by the purchaser.
Should the delivery of goods not take place for reasons due to the customer, the payment deadline will not be extended. In this case the payment deadline starts when we notify our willingness to deliver.
Customer payments are first of all charged to accounts not applying to current items of delivery and only afterwards to accounts applying to current items of delivery. In addition, charges are made first of all for interest, interest on arrears and only then for capital (this is particularly also the case regarding our retention of title).
If the customer does not pay the invoice or any one of several outstanding invoices on time, an acceleration clause becomes applicable in relation to our total outstanding accounts, whereby the total outstanding accounts become due immediately, independent of whether payment targets were granted concerning single part payments by agreement or by acceptance of bills of exchange.
Payments may not be withheld due to warranty claims or the offsetting of customer counterclaims or rather counterclaims which have not been expressly acknowledged by us. At all events, possible right of retention regarding customer claims is limited to the coverage capital required for the repair of defects and must be based on the contractual relationship.
Should the customer run into payment difficulties (loss of assets, non coverage of payments, consequent protest of bills or checks, attachment, settlements, bankruptcy etc) the total amount of invoice of the items of delivery plus possible further outstanding amounts must be paid immediately, without it becoming necessary for us to declare the customer in default. In these cases, we are entitled to take back the delivered goods at the expense of the customer at any time, and to utilize these in the best way possible without allowing the customer release from his liability regarding compliance with the contract or claims for compensation due to not fulfilling the contract.  We are entitled to withdraw from a contract before delivery has been effected if we have good reason to doubt the customer’s ability to pay. The same applies upon receipt of detrimental information regarding the credit-worthiness of a customer from a reliable source. In the case of new customers, we reserve the right to deliver per cash on delivery.
In case of default the customer is further required to pay the expenses necessary for an adequate prosecution or enforcement of payment, in particular expenses connected with demand for payment and all accruing costs, expenses, cash expenditure, in particular accruing legal expenses in accordance with the tariff for extra-judicial legal default action as amendment to the autonomous tariff of the Higher Austrian Bar Association in Linz owing to delay of payment. Irrespective of possible administrative acts and/or statements to the contrary, we are also entitled, upon submission of an attachment order or enforcement, to use incoming amounts of money firstly to cover expenses regarding demands for payment, legal costs etc. and subsequently for interest and major amounts at our own discretion.

5. Retention of Title:

The items of delivery remain in our possession until the purchase price (costs for work and labor), including all additional expenses and bills of exchange or checks which have been taken in payment, has been fully paid. The acceptance of checks or bills of exchange does not affect the stipulated retention of title. Retention of title with regard to the items of delivery also applies to outstanding payments from other deliveries and thus will be in effect until all accounts on the part of the customer, independent of the delivery concerned, have been fully paid. The customer is liable for all goods in his possession where payments are outstanding, irrespective of the time of delivery and part payments which may have been effected in the meantime. Following breach of contract on the part of the customer, we are entitled to take back all goods located in customer warehouses on and off the premises pending payment of our total outstanding accounts, and if necessary, demand the customer’s cession of his right to release goods to a third party.
Where retained products have been manufactured with those of a third party, we secure joint ownership of the newly manufactured products. This also applies appropriately where retained products are combined or mixed with products of a third party or a customer. The degree of percentage of joint ownership is determined according to the value of the retained products in relation to the value of the other products. The new products resulting from having been manufactured, combined or mixed are regarded as retained products as far as they are in our possession or joint possession.
The customer is obliged to take care of the retained goods and to insure appropriately against all common risks, in particular fire, theft and damage caused by water. He is to attest to insurance coverage upon request. The customer is requested to store the retained goods separately and to mark them as our property.
Claims by the customer against third parties due to loss or damage to the retained goods, in particular insurance and compensation claims, are hereby assigned to us. The customer shall obtain the authorizations necessary for assignation from the parties liable for such claims.
In the event that, at the time of redemption, our prices have been reduced by comparison with the prices ruling on the date of delivery, the prices on the date of redemption shall apply.
Until recalled, the customer is authorized to sell the goods in the context of an orderly business transaction. The authority to sell the goods in an orderly business transaction lapses upon the customer’s bankruptcy or an application to open bankruptcy, compensation or restructuring proceedings in connection with the asset. In this case the customer is obliged to release the goods (retained goods) to us on first demand. Recall in the sense of the above regulation or the demand by us for release of the retained goods do not signify cancellation of the contract. The customer herewith assigns accounts receivable from the resale of the retained goods to us. We will not collect the assigned accounts receivable provided that the customer meets his payment obligations. However, the customer is obliged to disclose the third party debtor to us on demand and to make the debtor aware of this assignation. The customer is further obliged to note this assignation in his accounting records. The customer is authorized to continue to collect accounts receivable from third party debtors provided that he meets his payment obligations and that no indication to the contrary is issued by us. Pledging of the retained goods, their transfer by way of security or transfer of the accounts receivable are not permissible. Retention of title also remains in force if individual accounts receivable are included on an open invoice and the account balance has been agreed and acknowledged, unless the account has been settled. The customer must give immediate notice of his bankruptcy and at the same time provide a list of the existing goods subject to retention of title and a list of accounts receivable from third party debtors from the resale of the retained goods. The customer is only entitled to defer payment on the purchase price of goods subject to retention of title on their resale on condition that he simultaneously notifies the secondary buyer of the cession of security and notes the said cession in his accounts.

6. Delivery Time:

The quoted delivery time is not binding. If a delivery time (delivery date) has been bindingly agreed, we only come into default if the customer has agreed in writing to an extension period of at least 8 weeks. The customer only has the right to withdrawal in the event of delayed delivery if we are unable to make a binding promise of delivery during the extension period. No claims for compensation may be derived from delivery delays. Any incidence of force majeure, shortage of raw materials, unforeseen difficulties, including those caused by the nature of the manufacturing process, delivery delays by sub-contractors, reduction of operations, official measures or other unforeseen obstacles to production or delivery, including strike or lockout at our own or our sub-suppliers’ premises, entitle us to exceed delivery times or to withdraw from the contract, in whole or in part.
We reserve the right to part deliveries, without the customer having claim to subsequent delivery or compensation other than in case of malicious intent or gross negligence.
In the event of a delay in acceptance by the customer and after granting an extension period of 30 days at the most, we have the right to withdraw from the contract or to claim compensation. If preconditions for delivery to be met by the customer are not contractually fulfilled, delivery periods do not commence and all agreements concerning non-performance or other contract penalties lapse. In the event of delays arising during the execution of a project or contract which are not our responsibility, we are to be notified of such by the customer in writing without delay. Delivery times are invalid in this case. On-site modifications and supplementary wishes for modification by the purchaser can only be considered after the order acknowledgement if manufacturing has not yet been started. An additional price and extension to the delivery time are associated with this in all cases.
In the event that it is not possible to manufacture the order in the foreseeable future, for technical reasons related to the process or other reasons outside of our control, we are entitled to demand full payment from the customer for the expenditure incurred in accordance with the contract until this point in time. Furthermore, we are also entitled in this case to announce our withdrawal from the contract if it is not possible to resolve the problems which have arisen within a reasonable period of time.

7. Shipment and Packaging:

Shipment is for the account of the customer unless otherwise agreed. The customer must pay or pre-pay the transport costs immediately at our request.
The customer’s shipping instructions are only binding on us if we have confirmed them in writing. We are only obliged to arrange transport insurance at the customer’s written request and at his cost. Unless otherwise agreed, packaging is charged to the customer at cost. Packaging is non-returnable. We take decisions concerning the appropriate packaging and the form of shipment in accordance with our best discretion. Part deliveries are permissible.

8. Transfer and Acceptance of Risk:

In the case of delivery or installation, risk is transferred to the customer when the consignment, ready for operation, has left our premises, even if carriage paid delivery has been agreed. This also applies if we carry out the transport or our transportation resources are used and we pay the costs of transport. The best possible care is taken in packing. Shipment is made at our discretion. All liability for transport damage is excluded other than in the case of malicious intent or gross negligence. For the rest, general Austrian terms and conditions for freight forwarding apply in respect of transport damage. Installation, mounting and trial operation of goods delivered by us is subject to a special regulation to be agreed separately. The above applies in regard to the transfer of risk.
If shipment or delivery is delayed at the customer’s written request, the risk in both cases is transferred to the customer for the duration of the delay from the date of availability for dispatch; however, we are obliged to insure the consignment against transport and/or fire damage at his request and cost. If acceptance of the work is to be carried out then such acceptance is informal. The work is deemed to be accepted on commissioning at the latest. If shipment or delivery is delayed at the request of the customer, we are entitled to charge the customer with the costs arising due to storage, commencing one month after notice of availability for dispatch, as a minimum storage fees in the amount of 1% of the invoice sum for each month commenced. Other claims by us are not affected thereby.

9. Assembly and Commissioning:

At the request of the customer we undertake the installation and commissioning of the goods and equipment delivered by us against payment of travel and accommodation expenses and the costs of labor and materials at the respectively prevailing prices. Travel and waiting time are charge as working time. In the case of a flat rate for mounting costs, the minimum charge is 6% of the net amount of the total delivery related to the order in question. Mounting by us includes the one-time placement of the equipment onto installation-ready floors, sub-bases or bearing walls prepared on site, on time and in accordance with our instructions. The joining of the technical connections to the equipment is the responsibility of the customer. Modifications or supplementary work requested by the purchaser are charged in all cases in accordance with the actual costs of material and labor and the respectively prevailing hourly rates.
Necessary official approvals for installations and the operation of plant are to be arranged by the customer. Specialists from the customer must be present during all works for the purposes of supervision.

10. Guarantee:

The object of the contract is a product which is serviceable in the sense of our brochures and specifications contained in other business documentation.
The customer is obliged to inspect the product immediately upon delivery and to notify identifiable defects in writing without delay. We are only liable for defects which are indicated to us within the proper time period and in the proper form. *
Unless otherwise expressly agreed, we are not general contractors for a complete project and accordingly are not liable for the functioning of the overall project (plant) or for the overall coordination; rather we only accept liability that the part of the plant provided by us is state-of-the-art and serviceable in accordance with paragraph 1 of this section of the contract. The type and dimensions of the product are approved by the customer upon the execution of a drawing or sketch or similar of the product to be delivered by us. It is the exclusive responsibility of the customer to ensure that flues, pipes, smoke extract ducts etc. are operating correctly and in accordance with provisions laid down by the fire authorities.
The place of fulfilment of the guarantee is our domicile or operating location. Expenses and travel costs in relation to the fulfilment of guarantee claims are therefore to be paid by the customer. *
We provide a guarantee for identifiable and hidden defects or the failure of guaranteed characteristics. In accordance with § 932 Clause 2 of the Austrian Civil Code (ABGB), we have the right to choose whether a defect is removed by improvement or replacement of the defective object.
All other claims, on whatever legal basis, especially relating to conversion or price reduction, are excluded.*
The legal guarantee period for moving parts is reduced to 6 months. For material defects this begins from the date of delivery or part delivery. *
As far as defects to manufactured or material parts which were not manufactured by us are concerned, our duty of guarantee is limited to claims to which we are legally entitled due to respective agreements with the manufacturer or supplier. Other claims by the customer in this case are excluded. *
We are only obliged to rectify defects or supply replacements within the context of the accepted guarantee if the customer has fulfilled his own contractual obligations. *
Guarantee claims by the customer lapse in any case if the customer has tampered with the product without having agreed this with us in advance and being in possession of our written approval. This also applies if the customer has modified the product or handled or used it in an improper manner. No guarantee is given for used products. *
Presumption of defectiveness according to § 924 of the Austrian Civil Code (ABGB) is ceded.

11. Industrial Property Rights:

We guarantee that our goods and services and their use do not violate any patent (patent application) or other industrial property rights of third parties. If a third party claims violation of a patent or industrial property rights the customer is obliged to:

a) notify us of the claim immediately in writing or by fax;
b) authorize us to take action to defend the claim and to direct litigation;
c) grant to us the necessary powers of attorney and to afford us every desired support to the best of his ability;
d) authorize us to carry out modifications to the goods and services, which we consider to be necessary and reasonable, at any time.

The customer guarantees that the plans, drawings, samples and other documents provided by him, and their use, do not violate any patent (patent application) or other industrial property rights of third parties. The customer must indemnify us from all claims in this regard.

12. Return of Goods:

In principle, goods which were properly delivered by us are not returnable. If return against credit is agreed, the shipment is to be accompanied by a return advice note containing the following details: item number, description of item, invoice number and date on which the original delivery took place.
Return shipments must be carriage free. Return does not provide entitlement to reclaim the invoice amount. Rather, the  customer is to await the issue of a credit note by us. In the case of a contractually agreed return we charge a processing fee in the amount of 3% of the value of the goods for the inspection of the returned goods. Any agreed return of goods is in all cases subject to the goods being undamaged and free from defects. The customer must bear the cost of any necessary repair work.

13. Product Liability and Compensation:

Claims for compensation of whatever type outside the area of application of product liability law (non-fulfilment damages, damages due to delay, consequential loss due to defect, damages due to contract liability and liability in tort), as well as  claims for recourse of whatever type, especially those according to § 933 b of Austrian Civil Code (ABGB), are excluded, unless the circumstances giving rise to the damage were caused by us intentionally or due to gross negligence (in the case of consumer businesses this regulation does not apply to personal damages).
If damage occurs during the commissioning of a plant on which other companies are also involved in addition to us, this damage may only be assigned to us if we are unquestionably established to be the perpetrator. This also applies correspondingly if we are the only professional expert, especially if the customer did not take all possible measures to exclude the possibility of damage events.

14. Intellectual Property Rights and Secrecy:

In so far as we have carried out developments under contract from the customer we are entitled to pass these developments on to other persons even if the customer has borne the cost of these developments.
Unless otherwise agreed, the cession to the customer of knowledge gained from developments takes place exclusively in the form of a licence. We reserve all rights to our developments, especially intellectual property rights. Quotations and all related documentation prepared by us (drawings, sketches etc.) remain our property and must be treated confidentially by the customer as business secrets. Transfer to third parties is not permissible. In the event of transgression the customer must pay a contract penalty of 10% of the order amount.

15. Application of Industry Sector Terms and Conditions, Austrian Standards and the sequence of application in the case of disputes:

The following are to be applied to the present contractual relationship (in the following sequence in the case of disputes):
The written agreement by means of which the contract has come into existence, including any product performance and service specifications.
These terms and conditions.
The relevant terms and conditions of business of the trade association in our industry sector.
The Austrian Standards with pre-standardized contract content for individual specialist sectors.
The relevant Austrian Standards with pre-standardized general contract content, especially Austrian Standards A 2o6o and B 221o.

16. Applicable Law, Place of Fulfilment and Court of Jurisdiction:

Austrian material law applies. Applicability of the “UNKaufrecht” (United Nation Convention on Contracts for the International Sale of Goods (CISG)) is excluded. The contract language is German. Place of fulfilment is the domicile of our Company.
The local court at the domicile of our Company is exclusively responsible for objectively resolving all disputes arising from this contract.

17. Ultimate Customer (Consumer) Transactions:


If the customer is a consumer (ultimate customer) the above terms and conditions do not apply in so far as they contradict  the compulsory terms and conditions of consumer protection law. This applies especially to terms and conditions in this document marked with an asterisk *.
In respect to consumers it is pointed out that in addition to any possibly reduced guarantee period the legal guarantee period of 2 years remains open to the consumer in any case, unless a permissible reduction has been arranged in the individual case.