Walch GmbH General Conditions of Business


  • 1. Area of validity
    The following General Conditions of Business apply to all business relationships between our company and the customer. Our contractual partner agrees that if general conditions of business are applied by him, in case of doubt our conditions shall be used as a starting point, even if the contractual partner's conditions are not contradicted.

  • 2. Consumer business
    Consumer business as defined by these General Conditions of Business is legal business with a customer for whom the business is not part of the business of his company (§1KschG).

  • 3. Alternative conditions
    If the basic business is not consumer business, any conditions which deviate from the written content of the contract (constituent parts of the contract) must be available in written form, at least in the form of written order confirmations, in order to be legally effective.

  • 4. Agreements by employees
    In accordance with the consumer protection act, while our company can be bound by agreements made by employees of our company, in the interest of an undisputed transaction of business, attention is drawn to the fact that employees of our company are forbidden to make agreements which deviate from these conditions.

  • 5. Cost proposals
    If the basic business is not consumer business and nothing has been agreed to the contrary, a cost proposal must basically be in writing, non-binding and against payment. This payment will be deducted from the order total on placement of the order. Simple verbal cost estimates are non-binding and not subject to payment.

  • 6. Intellectual property
    Drawings, sketches and other technical documents such as brochures, catalogues, samples and the like shall remain the intellectual property of our company. Any utilisation, copying or dissemination requires the express agreement of our company. In the event of utilisation without agreement, our company shall be entitled to claim a compensation fee (as in the case of creative works as defined by the Copyright Act) amounting to 25% of the planning and manufacturing costs even if a creative work as defined by the Copyright Act is not involved. All the documents listed above can be recalled by us at any time and must be returned to us without delay and without prompting if the order is not placed. Our contractual partner is also obliged to maintain secrecy with respect to third parties for knowledge which he has acquired as a result of the business relationship.

  • 7. Quotations
    If the basic business is not consumer business, quotations shall only be binding when they are made in writing. Information contained in catalogues, brochures, product descriptions etc. shall only be binding when reference is made thereto in our order confirmation. Illustrations, quantities, dimension and design information, appearance, prices and conditions in brochures, catalogues and the like are only by way of example.

  • 8. Acceptance of quotation/Conclusion of contract
    A contract shall be effected with acceptance of the quotation by the customer. A quotation produced by our company can basically only be accepted with regard to the total scope offered. If the basic business is not consumer business, variations therefrom must be made in writing. Parts of the order which are amicably agreed to be open must be specified in the order confirmation. Contracts and orders with us shall only become effective with our written order confirmation. Written or electronic declarations on our part or invoices shall be deemed to be sent to the contractual partner if they are posted to an address of the contractual partner that is known to us, sent by telefax to a fax number of the contractual partner which is known to us, or sent to an e-mail address which is known to us.

  • 9. Withdrawal
    Subject to other statutory rights of withdrawal, a customer can only withdraw from his declaration of intent to enter into a contract or from the contract itself if the basic business is consumer business and the customer has not handed over his declaration of willingness to enter into a contract either in the offices permanently used by our company for its business purposes or on a stand at an exhibition or market used by the company for said purpose, and the customer himself has not initiated the business connection for the purpose of concluding this contract. This withdrawal can be declared up until the time that the contract comes into effect or thereafter within one week. The period shall begin with the handing over of a document to the customer which contains at least the name and address of our company, the information necessary for identifying the contract, and instructions relating to the right of withdrawal, but no earlier than the point at which the contract comes into effect. If the customer has not been informed in writing of his right to withdraw, then the right to withdraw shall expire no later than one month after complete fulfilment of the contract by both contractual partners. Withdrawal
    must be declared in writing. It shall be sufficient when the consumer returns to the company or to its agent that has participated in the contractual negotiations a document containing his clarification of the contract or that of the company with a comment which
    lets it be known that the consumer declines the coming into effect or the continuance of the contract. It shall be sufficient when the declaration is sent within one month of the contract coming into effect.

  • 10. Cancellation charges
    In the case of a cancellation by the customer and irrespective of the lodging of a claim for damages or compensation over and above this in accordance with § 1168 ABGB (Austrian General Civil Code), our company shall be entitled to demand a cancellation charge of 10 percent of the order total and 30 percent of the order total in the case of a special design after manufacturing has commenced. In the case of written withdrawal at the appropriate time in accordance with § 3 KschG (Employment Protection Act) (see Clause 9), expenses shall be paid by the customer in accordance with the provisions of § 4 KschG.

  • 11. Price changes
    Unless expressly agreed to the contrary, prices are ex-works, without packaging, without insurance and shipping costs, and in the case of consumers including Value Added Tax. The stated or agreed contractor's prices represent the current costing situation. If wages should change due to collective bargaining regulations in the industry, or other items of cost in the estimate that are relevant to the calculation or
    costs which are necessary for providing the service and over which we have no control, such as those for materials, energy, transportation, subcontracting, and financing, should change, the contractor shall respectively be entitled or obliged to increase or reduce the prices accordingly. In the case of consumers, this entitlement to adjust prices shall not apply until the expiry of 2 months after the conclusion of the contract, unless this right has been expressly negotiated.

  • 12. Goods provided by the customer
    Our company shall be entitled to invoice an amount of 10 percent of its own purchase price or the purchase price of similar goods for material provided by the customer.

  • 13. Repairs
    Our company must draw the customer's attention to the uneconomic viability of a repair if the customer does not expressly insist on reinstatement at any price. If it only becomes clear in the course of carrying out a repair that the item is unsuitable for reinstatement and this could not have been foreseen by our company on conclusion of the contract in spite of its specialist knowledge, then our company must advise the customer of this without delay. In this case, the customer must pay the costs that have accumulated up to this time or, if he insists and this is still technically possible, the costs for assembly of dismantled items.

  • 14. Minor changes to products and services
    Changes to the agreed products and services or deviations shall be deemed reasonable to the customer if they are minor and objectively justified. Objectively justified changes in particular include changes caused by materials, e.g. in the case of dimensions, colours, wood and veneer pattern, grain and structure etc.

  • 15. Dimensions provided by the customer
    If drawings or dimensional information are provided by the customer, then he shall be liable for their correctness unless actual measurements have been agreed. We shall not be obliged to check the provided documents (plans, drawings, sample calculations,
    technical descriptions, official approvals, etc.) for correctness, suitability and compatibility with the products and services ordered.
    If an instruction by the customer is shown to be incorrect, then our company will advise the customer of this immediately
    and seek appropriate guidance. We shall not be liable for negative consequences resulting from the apparent or concealed unsuitability of documents, data or incorrect instructions provided by the customer. The customer shall bear the costs that have accumulated up to this point. If guidance is not received or is not received within a reasonable period, then the customer shall bear the consequences of delay.

  • 16. Installation
    As a basic principle, products to be delivered ex-works are deemed to be ordered without installation. Additional work, overtime and night working that is requested and other additional costs must be paid separately in accordance with the collectively or statutorily agreed premium rate.

  • 17. Customer's obligation to co-operate
    Our company shall only be obliged to provide the products and services when the customer has fulfilled all his obligations which are necessary for execution, in particular has fulfilled all technical and contractual details. The service of handling and moving door and window frames etc., the erection of any scaffolding that may be required and possible masonry work must be provided by the customer unless it is expressly listed as being included in the price. The necessary light and power must likewise be provided by the customer. The carpenter/joiner is not authorised to carry out work outside his trade (e.g. gas, water and electrical connections must be made by the trades authorised to do so). Whether the product characteristics of the product CE certified as well as the drawing examples to the country-specific regulations and applicable standards of the mounting location is to clarify and ensure by the customer.

  • 18. Communication with authorities and third parties
    The customer must arrange the consent of third parties, provide reports to authorities and obtain approvals at his own expense.

  • 19. Place of fulfilment
    If no particular place of delivery is agreed (see, for example, Clause 22.), the place of fulfilment shall be the headquarters of our company.

  • 20. Shipping
    If "ex-works" delivery is agreed but the customer requires transportation of the contractual works in his name and at his cost to a defined place, then he must specify the method of transportation. In the absence of a particular order, transportation by rail, post, haulage contractor or freight carrier will be assumed. Our company shall be deemed to have carried out its obligation to deliver on handover to the latter and, if the basic business is not consumer business, must only fulfil obligations under the warranty at the place of handover to the carrier.

  • 21. Delivery dates/Default of acceptance
    Unless in exceptional cases fixed dates have been agreed, the given delivery dates shall be deemed to be provisional dates. If the customer is not present at this time or has not carried out the appropriate measures and preparations for the delivery to be made (unloading facilities, hard standing, guaranteed access, etc.), then the customer shall be deemed to be in default of acceptance. All risks and costs, such as bank charges, transport costs and storage costs at reasonable prices, will be borne by the customer from this time. This shall also apply in the case of part deliveries.

  • 22. Part deliveries
    The customer is obliged to accept part deliveries providing that this is reasonable and that full delivery has not been agreed.

  • 23. Late delivery
    If an agreed delivery date is exceeded by our company by more than two weeks, then the customer must grant our company a reasonable additional period of grace of at least two weeks. The customer can only withdraw from the contract in writing when this period has expired. Indemnity claims by the customer due to late delivery are excluded.

  • 24. Transfer of risk
    All risks, including those of accidental loss, shall pass to the customer at the time of fulfilment (transfer of risk). In the case of ex-works delivery, the time of fulfilment shall be deemed to be the receipt of notification of readiness for delivery plus a reasonable time for collection of no more than two weeks; in other cases default of acceptance as defined by Clause 23. Unloading shall be solely a matter for the customer who must supply suitable unloading equipment and the necessary labour force.

  • 25. Retention of title
    All items that have been shall remain the property of our company until receipt of full payment of all invoice amounts, including all incidental charges such as interest and operating costs. Installation or assembly of our goods which is connected with a loss of
    conditional sale, can only be carried out after previous approval of Walch GmbH. In the event of late payment by the customer, our company shall be entitled to take back the goods where title has been retained without this being equated to a withdrawal from the contract.

  • 26. Disposition and access to goods where title has been retained
    Distraint or other statutory disposition of the goods where title has been retained is prohibited without the agreement of our company. Access by third parties to the goods where title has been retained (distraint or other orders of court or official decrees etc.) must be reported to our company immediately. The customer must take all measures to prevent access. He must bear the costs associated with this and must indemnify our company if he has instigated this access by third parties.

  • 27. Insurance of goods where title has been retained
    In the case of invoice amounts of over €5,000 and payment terms of more than 50 days, the customer shall be obliged to insure the goods where title has been retained to the invoice amount against all risks for the new value for the duration of the retention of title. Future claims against the insurer are hereby assigned to our company.

  • 28. Payment
    Payment shall basically be in cash without discount. Cash discounts require a separate agreement. In the case of late payment, including part payments, any discount agreements shall become void in their entirety. Client's payments shall only be deemed to be made when they have been received in our business account. In the case of payment by bill of exchange, cheque and the like, our company's account will only be
    settled on their redemption; usual bank charges will be charged to the customer. If the customer does not take the product by the agreed date - that is he is in acceptance default, the agreed payments become due immediately.

  • 29. Reminder and collection fees
    In case of delay with his contractual obligations, the customer shall undertake to recompense our company for the appropriate legal pursuit of necessary reminder and collection fees as long as these are in a reasonable proportion to the account presented. In particular, the customer shall undertake to recompense as a maximum the payments made to the collection agency involved arising from the ordinance of the Federal Minister of Economic Affairs relating to the maximum rates of payment due to collection agencies. Furthermore, the customer shall undertake to pay an amount of € 12 for each reminder and an amount of € 4 every six months for maintaining evidence of the
    contractual obligations in the debt collection process. In addition, in subsidiary company business, each further claim, in particular including the disadvantage that correspondingly higher interest is incurred on any loan accounts held by the contractor as a consequence of non-payment, is to be recompensed, irrespective of responsibility for late payments, if the client does not make use of his right to 8 percentage points above the base interest rate per annum as a flat rate contractual penalty (see above).

  • 30. Interest for default
    In the event of late payment - including where no fault is involved - subject to the assertion of any claim over and above this, an interest rate of 8 percent above the currently applicable base interest rate of the European Central Bank will be charged as recompense for the credit charges incurred by our company. For consumer business, the interest rate for default will be five percentage points above the base interest rate. In the case of credit business with consumers, the interest rate for default shall amount to the interest rate agreed for contractual payments plus 5 percentage points per annum. The entitlement to reminder and collection fees remains unaffected in this
    respect and shall apply in addition. (See Clause 33.)

  • 31. Allocation of payments
    Unallocated payments will be allocated firstly to any costs (in particular in accordance with Clause 33), then to interest, in particular in accordance with Clause 34, and finally to the main account.

  • 32. Missed payments
    If the customer fails to meet his payments and his insurance obligations, discontinues his payments, or if insolvency or composition proceedings with respect to his assets are opened, then the whole of the outstanding debt shall become due for payment. In the case of consumer business, this shall only apply if our company itself has already provided the goods and services, at least one outstanding payment by the customer has been due for at least six weeks and our company has unsuccessfully reminded the customer on pain of default and granted an additional period of grace of at least two weeks.

  • 33. Compensation of counterclaims
    Compensation of counterclaims by the customer are excluded.

  • 34. Warranty
    The recipient is liable for immediate examination of the delivered goods without undue delay. Visible defects, missing goods, wrong deliveries and other claims which are not presented in writing indicating the reasons to Walch GmbH within 7 days after receiving
    the goods at the latest and without prejudice to other legal provisions cannot be considered. If the defect is not notified or not notified in time or not notified in writing, then the goods or works shall be deemed to be approved. Every usage or division of the original goods, which change the designated use other than the purpose intended by the distributor, exclude every entitlement concerning defects of the goods or the packing. Cost assumptions which result from processing of claimed goods have to be assumed by the customer. Claims under the warranty or claims for compensation and the right of appeal on account of an error are excluded in these cases. Claims under the warranty or claims for damages shall also be void if the parts affected by the defect have been modified by the customer or a third party. The warranty period is 6 months for moving items and 18 months for fixed items. Contrary to the rule of assumption of § 924 ABGB, the customer must provide evidence of a defect at the time of handover. Our company shall have the choice between rectifying and replacing the item. Right of recourse in accordance with § 933b ABGB is excluded. Any further claims especially on reduction in expenses or claims of all kind are excluded. Claims, complaints or disagreements do not hold up the liability of proper payment of due invoice amounts. Further obligations of the trader according to §§ 377 et seq. UGB stay untouched.

  • 35. Wearing parts
    Wearing parts only have a life corresponding to the respective state of the art.

  • 36. Characteristics of the delivery items
    If the basic business is not consumer business, it is deemed to be agreed that the delivery items only provide the level of safety which can be expected based on Austrian standards, operating manuals, specifications of the purpose of the delivery relating to the handling of the delivery items (e.g. instructions for use and care) and necessary maintenance, in particular with regard to the specified inspections and other given information.

  • 37. Time for rectification or replacement
    Times relating to replacement and rectification must be agreed in the individual case. However, if the customer is not present at this time or if he makes it difficult or impossible to carry out rectification and replacement by acting independently, then the customer must provide reasonable payment for any further attempt at rectification.

  • 38. Liability for damage
    Claims for damages in the event of slight negligence are excluded; this shall not apply to personal injury. In the case of consumer business, this shall not apply to damage to an item which has been accepted for processing. For all other consumer business, the shifting of the burden of proof of § 1298 ABGB is excluded and claims for compensation shall expire six months from the knowledge of the damage and the originator of the damage, and in any case 10 years after providing the goods or services. The stipulations relating to claims for damages contained in these Conditions of Business or otherwise agreed shall also apply if the claim for damages is lodged as well as or instead of a warranty claim.

  • 39. Product liability
    Product liability claims which can be derived from regulations other than the Product Liability Act are excluded. Any demands for regress which contractual partners or third parties address to us under the heading "Product liability" as defined by the Product Liability Act are excluded.

  • 40. Changes of address
    The contractual partners must inform one another without delay of changes of address. If one party fails to do so, then his last known address shall apply for all deliveries. Expenses for determining an address shall be borne by the defaulting party.

  • 41. Court of jurisdiction
    The court of jurisdiction for disputes arising from the contractual relationship based on these General Conditions of Business is agreed to be the responsible court for the (main) headquarters of our company. In the case of consumer business, this shall apply for complaints by our company against a consumer only if the customer has his domicile, his usual residence or his place of business in the area of jurisdiction of this court at the time of concluding the contract. As well as the court of jurisdiction defined in the first sentence, all other legal courts of jurisdiction shall apply for complaints by the consumer against our company.

  • 42. Severability clause
    If individual stipulations of these "General Conditions of Business" are revoked, all other stipulations shall retain their validity.

 

 

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