General Terms and Conditions

of gottschligg GmbH

(Status 2018-06)

I. Scope of application

 

1. These General Terms and Conditions of Contract (hereinafter also referred to as ‘GTC’) apply to and in connection with all contracts (including adjustments and amendments) between gottschligg GmbH (hereinafter also referred to as ‘gottschligg’) and a contractual partner (hereinafter also referred to as ‘contractual partner’). The GTC as amended shall also apply to all agreements subsequently concluded between the contracting parties without the need for a separate declaration or agreement.

 

2. Deviating terms and conditions of the contractual partner are only binding for gottschligg if they are expressly recognised in writing (e.g. fax or e-mail). Acts of fulfilment of the contract do not constitute (implied) consent. These GTC also apply if gottschligg performs or accepts services in the knowledge of conflicting business relationships of the contractual partner.

 

II. Offer / Contract conclusion

 

1. All offers made by gottschligg are non-binding, unless expressly stated otherwise in writing.
2. The documents belonging to the offer, in particular illustrations, drawings, plans, descriptions, materials, cost estimates and other documents provided to the contractual partner, remain the property of gottschligg, including the existing copyrights to the content. They may not be made accessible to third parties without the written consent of gottschligg.
3. If a declaration made by gottschligg (in writing) contains an error that is recognisable to a bona fide recipient of the declaration, gottschligg is entitled to correct the declaration informally at any time. The declaration only becomes legally effective in the corrected form.
4. The conclusion of the contract and all (future) legal obligations only become binding upon written declaration by gottschligg (e.g. fax or e-mail). This also applies to any waiver of this written form requirement.
5. Components of the contract are in the following order: (i) individual contract; (ii) gottschligg’s General Terms and Conditions as amended from time to time; (iii) industry-specific practices (company customs) (iv) the dispositive law (ABGB; UGB, etc).

 

III. Estimate of costs

 

To the extent permitted by law, cost estimates are chargeable unless otherwise agreed. The contractual partner confirms that he has been expressly informed by gottschligg of the chargeable nature of the cost estimate. A cost estimate by gottschligg does not guarantee its accuracy.

 

IV. Performance by gottschligg

 

1. If gottschligg acts as a supplier, the delivery dates to be met are not fixed dates. The delivery period begins as soon as the contractual partner has fulfilled all contractual obligations that are prerequisites for delivery. gottschligg is entitled to make partial deliveries and the contractual partner has agreed to these partial deliveries upon conclusion of the contract.
2. To the extent permitted by law, the performance period of gottschligg will be extended by the duration of the force majeure in the event of force majeure or unavoidable events. Cases of force majeure or equivalent to force majeure are in particular strikes, official measures, traffic disruptions, energy supply difficulties and other unforeseeable disruptions of companies or their agents or suppliers. If delivery becomes impossible due to such an event, gottschligg’s obligation to perform automatically expires. gottschligg undertakes to inform the contractual partner immediately in the aforementioned cases.
3. If gottschligg’s obligation to deliver cannot be met by the agreed delivery date, gottschligg is entitled to fulfil the contract within a reasonable grace period. A period of 8 weeks is to be considered reasonable in any case.

 

V. Service to gottschligg

 

1. If the delivery is made to gottschligg, the delivery dates to be met are fixed dates. The delivery period to gottschligg begins on the day the contract is signed (conclusion of contract).
2. If the agreed delivery date cannot be met, gottschligg is entitled to withdraw from the contract in accordance with point X.
3. If gottschligg requires a special sub-supplier, the contract partner is obliged to use this sub-supplier.

 

VI. Place of fulfilment / transfer of risk

 

1. Unless otherwise agreed in individual cases, the place of fulfilment for all services to and from gottschligg is gottschligg’s factory or warehouse in 2345 Brunn am Gebirge (= place of fulfilment). The subject matter of the contract must be handed over to the responsible person in charge of the client during business hours at the place of fulfilment. The person in charge is not authorised to make declarations about the correctness of the contractual items.
2. At the time of fulfilment of all services owed by gottschligg, the risk of loss of or damage to the work is transferred to the contractual partner (transfer of risk). gottschligg fulfils its obligations at the factory or warehouse in 2345 Brunn am Gebirge (= place of fulfilment), unless otherwise agreed in individual cases.

 

VII. Shipping

 

1. Unless otherwise agreed in individual cases, gottschligg is not responsible for the loading or dispatch of the contractual object owed in the case of performance by gottschligg. If shipment is expressly agreed in writing, the contractual partner bears the risk of loss or damage from the time the contractual object leaves gottschligg’s factory or warehouse. This also applies if the goods are dispatched by gottschligg vehicles.
2. If gottschligg takes back the contractual object as a gesture of goodwill, the contractual partner bears the risk of damage or loss of the contractual object until the contractual object is received by gottschligg or the receiving centre designated by gottschligg.
3. If services are rendered to gottschligg, the contracting party is responsible for the shipment (including unloading and loading), unless otherwise agreed in individual cases, and bears the associated costs. Shipment (including unloading and loading) is at the risk and expense of the contracting party. The contractual partner undertakes to take out appropriate transport insurance at his own expense.

 

VIII. Prices

 

The contractual partner’s prices include all ancillary costs, such as costs for packaging, packing, loading, insurance, duties (including VAT), etc.

 

IX. Due date / set-off

 

1. A discount must be agreed in writing in each individual case, whereby the discount period shall commence on the day of invoicing or handover. A discount may only be deducted if there is no other claim against the contractual partner that is already due. In the event of (partial) default, all discount and other rebate agreements are automatically cancelled.
2. An amount to be paid by gottschligg only becomes due when the contractual object is handed over to gottschligg in accordance with the contract. The fee to be paid by gottschligg is due for payment within 30 days after proper invoicing (§ 11 UStG) by the contract partner.
3. If the contract partner does not comply with the agreed payment terms, gottschligg is entitled to make subsequent deliveries dependent on the immediate payment of the purchase price (advance payment).
4. gottschligg is unilaterally entitled to set-off. The contract partner is only entitled to set-off if the claim has been recognised by gottschligg or has been legally established, or if gottschligg has agreed to the set-off in writing.

 

X. Delays

 

1. If the contracting partner is expected to be in default, gottschligg must be informed immediately in writing (including the reasons and expected duration of the delay).
2. If the contracting party is in default with its obligation to perform (e.g. agreed partial delivery or (pro rata) payment) or if there are justified concerns about the contracting party’s ability to perform, gottschligg is entitled to postpone further (partial) deliveries or agreed partial payments until the contracting party has performed properly and to demand advance payments or security. In addition, gottschligg may withdraw from the contract in such cases.
3. If the contracting party is in default of performance (delivery) – which also includes partial delivery – gottschligg is entitled to withdraw from the entire contract either immediately or by setting a reasonable grace period, which in no case must exceed 14 days. Alternatively, gottschligg may also insist on fulfilment. In this case, the contracting party is liable to gottschligg and third parties for any damage caused as a result.
4. Furthermore, gottschligg is entitled to demand a penalty of EUR 1,000.00 per day up to a maximum of 10% of the contract amount in the event of delay in performance by the contracting party. The contractual penalty is payable regardless of fault.

 

5. If gottschligg is in default, the contracting party is only entitled to withdraw from the contract if gottschligg is still in default after setting a reasonable grace period of at least 8 weeks.
6. The contracting party undertakes to accept gottschligg’s performance. If the contracting party is in default of acceptance, the risk is transferred to the contracting party and gottschligg is entitled to store the subject matter of the contract at the contracting party’s expense. After setting a grace period of two weeks, gottschligg may withdraw from the contract, sell the subject matter of the contract and demand compensation.

 

 

XI. Interest for delay

 

1. If a contractual partner is in default of payment, it shall owe default interest in accordance with § 456 UGB.
2. In addition to the default interest, gottschligg is entitled to compensation for all damages caused by the contractual partner to gottschligg.

 

 

XII. Cancellation of contract for good cause

 

gottschligg is entitled to withdraw from the contract in whole or in part for good cause. Good cause exists in particular if (i) an application to open insolvency proceedings against the assets of the contracting party is rejected due to lack of assets; (ii) the contracting party has repeatedly breached the contract (e.g. payment terms) or (iii) it is unreasonable for gottschligg to adhere to the contract due to circumstances on the part of the contracting party.

 

 

XIII. Warranty obligation

 

1. gottschligg owes the delivery of the service owed in accordance with the express, written terms and conditions and the usually assumed characteristics. gottschligg is in any case not obliged to insure or clear deliveries. As gottschligg also supplies natural products (e.g. wood), natural colour, structure and other characteristics within a natural product (e.g. type of wood) do not constitute a defect. Minor deviations in quantity also do not constitute a defect.

 

2. gottschligg reserves the right to fulfil the contractual partner’s warranty claims at its own discretion by improvement, replacement or price reduction. In the event of a significant, irreparable defect, as well as in other mandatory legal cases, the contractual partner has the right to cancellation of the contract. The contractual partner shall bear the burden of proof that the defect was present at the time of delivery. The warranty period is 6 months from handover.
3. gottschligg does not provide compensation for expenses incurred by the contractual partner in connection with the rectification of defects.
4. The contractual object delivered by gottschligg must be inspected immediately after delivery. Defects discovered on the basis of a careful inspection must be reported in writing immediately, but at the latest within 10 days of delivery, stating the nature and extent of the defect. If a notification of defects is not made or not made in good time, the subject matter of the contract shall be deemed to have been approved. The assertion of any claims based on defects for whatever legal reason (e.g. § 932, 933a ABGB) is excluded in this case.

 

 

XIV. Warranty rights

 

1. The contractual partner guarantees that the contractual object handed over has the stipulated and usually assumed properties. In particular, the subject matter of the contract must correspond to any samples, specimens and public statements made by the transferor or the manufacturer.

 

2. gottschligg is not obliged to give notice of defects in accordance with § 377 f UGB and can choose at its own discretion between the warranty remedies of improvement, replacement, price reduction and, in the case of minor defects, cancellation. In the case of improvement or replacement, gottschligg is entitled to withhold the entire payment until the goods have been properly handed over. Maximum liability limits or amendments to the rules on the burden of proof of the dispositive law are only effective vis-à-vis gottschligg if they have been negotiated in detail in writing.
3. In urgent cases, gottschligg is entitled to rectify defects itself or have them rectified by a third party at the expense of the contracting party without setting a grace period, after notifying the contracting party, without thereby diminishing gottschligg’s claims. In the event of imminent danger, gottschligg may also remedy the defect without prior notification of the contracting party.

 

XV. Reservation of proprietary rights

 

1. All contractual items delivered by gottschligg remain the property of gottschligg until full payment has been made. If the subject matter of the contract is processed, mixed or combined, gottschligg acquires sole ownership of the newly created item.

 

2. A resale of the contractual items subject to retention of title is only permitted if gottschligg has been notified in good time in advance, stating the name or company name and the exact (business) address of the buyer, and gottschligg has agreed to such a resale in writing. In this case, the contract partner undertakes to immediately assign the purchase price claim against the third party to gottschligg by way of security. gottschligg is authorised to inform the third party of this assignment at any time. In the case of assignment by way of security, the contractual partner is obliged to inform the third party (debtor) of the assignment by way of security and to note the assignment in the third party’s business records, if applicable.

 

3. In the event of cancellation of the contract, the contractual partner is obliged to return the contractual object subject to retention of title to gottschligg at his own expense.

 

 

XVI. Liability and compensation

 

1. The contractual partner is only entitled to claims for damages – with the exception of personal injury – if gottschligg has acted wilfully or with gross negligence. There is no liability for cases of force majeure or unavoidable events. Cases of force majeure, or equivalent to force majeure, are in particular strikes, official measures, traffic disruptions, energy supply difficulties and other unforeseeable disruptions of companies or their assistants. Liability for indirect damage, consequential damage and loss of profit is excluded.

 

2. The burden of proof for culpability lies with the contractual partner. This applies in particular to the existence of gross negligence. Claims for compensation expire 6 months after knowledge of the damage and damaging party, but in any case 3 years after the provision of services by gottschligg.

 

3. gottschligg’s liability to pay compensation in the event of slightly negligent damage is limited to 5% of the amount of the fee, but not more than EUR 50,000.

 

XVII. Communication via E-Mail

 

1. All messages sent to gottschligg by email must be sent to the following address: office@gottschligg.com. Messages are deemed to have been delivered upon receipt in the ‘mailbox’ of this address. If receipt is not possible for technical or operational reasons beyond gottschligg’s control, the message is deemed not to have been delivered for the duration of the technical fault. Please note that unencrypted communication by e-mail is neither secure nor confidential.

 

2. gottschligg assumes no comprehensive liability for damages or disadvantages that occur due to a misdirected, incorrect or defective e-mail originating from a gottschligg address.

 

XVIII. Industrial property rights/ Customer protection

 

1. gottschligg warrants that (i) the contracting party, (ii) its employees or (iii) the subcontractors commissioned by the contracting party do not infringe any property rights of gottschligg or third party property rights in the course of the agreed provision of services. In the event of a breach of duty, the contracting party undertakes to indemnify and hold gottschligg harmless for all disadvantages. In addition, gottschligg is entitled to demand a penalty of EUR 5,000.00 in the event of a breach of this provision. gottschligg expressly reserves the right to claim further damages.

 

2. The contractual partner undertakes not to enter into any contractual relationships with customers of gottschligg for the duration of the contract and for a period of one year after termination of the contract in order to entice them away. gottschligg is entitled to demand a penalty of EUR 50,000.00 in the event of a breach of this provision. gottschligg expressly reserves the right to claim further damages.

 

XIX. Final clauses

 

1. The exclusive place of jurisdiction for all disputes arising directly or indirectly from this contract or from future contracts between the contracting parties, including the question of its valid conclusion, is the court with subject-matter jurisdiction for the registered office of gottschligg. gottschligg reserves the right, however, to bring an action at the general place of jurisdiction of the contracting party.

 

2. The contract and all future contracts shall be governed by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law.

 

3. If services are provided by gottschligg to an entrepreneur, the application of § 934 ABGB and avoidance on the grounds of error is excluded in favour of gottschligg.

 

4. Should a provision of these GTC or of the contract with the contractual partner be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes as close as possible to the (economic) meaning and purpose of the invalid provision.