[Terms and Conditions]
Terms and Conditions of
[As of December 1st, 2018]
1.1 These terms and conditions apply between us (Messerschmiede Hangler) and natural and legal persons (customer for short) for the legal transaction in question and for corporate customers also for all future transactions, even if there is no express reference to them in individual cases, in particular for future supplementary or follow-up orders was taken.
1.2 The version of our terms and conditions that is current at the time the contract is concluded applies to business customers, which can be accessed on our homepage ( https://www.messerschmiede-hangler.at/allgemeine-geschaeftsbedingungen ) and these were also transmitted to the customer.
1.3 We only contract on the basis of our terms and conditions.
1.4. The customer's terms and conditions, or changes or additions to our terms and conditions, require our express consent - written in relation to business customers - in order to be valid.
1.5. The customer's terms and conditions are not recognized even if we do not expressly contradict them upon receipt.
2. Offer / conclusion of contract
2.1 Our offers are non-binding.
2.2 Promises, assurances and guarantees on our part or agreements that deviate from these terms and conditions in connection with the conclusion of the contract are only binding for corporate customers upon our written confirmation.
2.3 The customer has information about our products and services that are not attributable to us in catalogs, price lists, brochures, advertisements on exhibition stands, circulars, advertising mailings or other media (information material) - provided that the customer bases his decision on the commissioning - present us. In this case we can comment on their correctness. If the customer breaches this obligation, such information is non-binding, unless it has been expressly declared as part of the contract for corporate customers in writing.
2.4 Cost estimates are made without guarantee and can be paid. In this case, consumers are advised of the obligation to pay before the cost estimate is prepared. If all the services included in the cost estimate are commissioned, the invoice in question will be credited with the fee for the cost estimate.
3.1 Prices are generally not to be understood as a flat rate.
3.2 For services ordered by the customer that are not covered in the original order, there is a right to appropriate remuneration.
3.3 Prices are plus the applicable statutory sales tax and are ex warehouse. Packaging, transportation. Loading and shipping costs as well as customs and insurance are borne by the business customer. These costs will only be charged to consumers as customers if this has been negotiated in an individual contract. We are only obliged to take back packaging if expressly agreed.
3.4 The customer has to arrange for the proper and environmentally friendly disposal of old material. If we are commissioned to do this separately, this is to be remunerated appropriately by the customer to the extent agreed for this in the absence of a fee agreement.
3.5. We are entitled, as well as obliged at the request of the customer, to adjust the contractually agreed fees if changes of at least 3% with regard to (a) wage costs due to law, ordinance, collective agreement, works agreements or (b) other Provision of necessary cost factors such as material costs based on recommendations of the joint commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. have occurred since the conclusion of the contract. The adjustment takes place to the extent to which the actual production costs change at the time of the conclusion of the contract compared to those at the time of the actual service provision, provided we are not in default.
3.6 The remuneration in the case of continuing obligations is agreed as value-secured according to the VPI 2010 and this results in an adjustment of the remuneration. The starting point is the month in which the contract was concluded.
3.7 For consumers as customers, if the costs change, the fee will be adjusted in accordance with point 3.5 and, in the case of continuing obligations in accordance with point 3.6, only if the service is to be provided within two months of the conclusion of the contract.
3.8 When calculating according to the length dimension, the greatest length is taken as a basis, both for diagonally cut and notched profiles and for curved profiles and raw material cross-sections such as Damascus steel blocks. The offsetting according to weight is carried out by weighing. If weighing is not possible, the commercial weight is decisive. The commercial weight is to be used for sectional steel and profiles.
4. Goods provided
4.1 If devices or other materials are provided by the customer, we are entitled to charge the customer a surcharge of 15% of the value of the devices or materials provided in order to cover any additional costs and risks.
4.2 Devices and other materials provided by the customer are not covered by the warranty.
4.3 The quality and operational readiness of materials provided is the responsibility of the customer. In particular, no guarantee can be given for the quality of the handle material, steel or other materials provided.
5.1. One third of the fee is due upon conclusion of the contract and the remainder after completion of the service unless this has been expressly agreed otherwise in writing.
5.2 The entitlement to a discount deduction requires an express agreement in writing with corporate customers.
5.3 Payment dedications made by the customer on transfer receipts are not binding for us.
5.4. With regard to entrepreneurs as customers, we are entitled, in accordance with Section 456 of the UGB, to charge 9.2% points above the base rate in the event of default in payment. We charge an interest rate of 4% for consumers.
5.5. We reserve the right to assert further damage caused by delay, but only if this is negotiated in detail against consumers as customers.
5.6 If the business customer is in default of payment in the context of other contractual relationships with us, we are entitled to suspend the fulfillment of our obligations from this contract until the customer has fulfilled them.
5.7. We are then also entitled to make all claims for services already rendered from the ongoing business relationship with the customer due. This for consumers as customers only in the event that a backward service has been due for at least six weeks and we have unsuccessfully warned the customer under threat of this consequence by setting a grace period of at least two weeks.
5.8 The customer is only entitled to set-off if counterclaims have been determined by a court or have been recognized by us. Consumers as customers are also entitled to set-off if counterclaims are legally related to the customer's payment obligation, as well as in the event of our company's insolvency.
5.9 If the payment deadline is exceeded, any payments made (discounts, deductions, etc.) expire and are added to the invoice.
5.10. For reminders that are necessary and appropriate for collection, the customer undertakes to pay reminder fees per reminder in the amount of € 17.50 if this is in reasonable proportion to the claim made.
6. Credit check
6.1 The customer expressly agrees that his data may be sent to the state-privileged creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvency Protection Association for Employees (ISA) and Kreditschutzverband von 1870 (KSV) for the sole purpose of protecting creditors. may be transmitted.
7. Customer's duty to cooperate
7.1 Our obligation to perform the service begins at the earliest as soon as the customer has created all the technical and legal prerequisites for the performance that were described in the contract or in information provided to the customer before the contract was concluded or the customer should have known due to relevant specialist knowledge or experience.
7.2 In particular, the customer must provide the necessary information about the desired materials, shape and purpose of the knife before the start of the performance.
7.3 If the customer does not comply with this obligation to cooperate, our performance will not be defective, solely with regard to the incomplete performance due to incorrect customer information.
7.4. The customer must arrange for the necessary third-party approvals as well as reports and approvals by authorities at his own expense. We refer to this in the context of the conclusion of the contract, unless the customer has waived it or the entrepreneurial customer had to have such knowledge due to training or experience.
7.5 The customer is responsible for ensuring that the necessary technical and legal prerequisites for the work to be produced or the object of purchase are given, which were described in the contract or in information provided to the customer before the contract was concluded or which the customer should have known due to relevant specialist knowledge or experience.
7.6. The customer has to provide us with lockable rooms free of charge for the stay of the workers as well as for the storage of tools and materials for the duration of the performance, provided that work on site is necessary.
7.7. Order-related details of the necessary information can be requested from us.
7.8. The customer is not entitled to assign claims and rights from the contractual relationship without our written consent.
8. Performance execution
8.1 We are only obliged to consider subsequent change and expansion requests by the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.
8.2. Objectively justified minor changes to our performance that can be reasonably expected of the business customer are deemed to have been approved in advance.
8.3 If, for whatever reason, the order is changed or supplemented after the order has been placed, the delivery / service period is extended by an appropriate period.
8.4.If the customer requests a performance within a shorter period of time after conclusion of the contract, this constitutes a change in the contract. This may result in overtime and / or additional costs due to the acceleration of the procurement of materials, and the remuneration increases appropriately in relation to the necessary additional expenditure.
8.5 Objectively justified partial deliveries and services (e.g. order size, work progress, etc.) are permissible and can be invoiced separately.
9. Performance deadlines and dates
9.1 Deadlines and dates are postponed in the event of force majeure, strikes, unforeseeable delays by our suppliers that are not our fault or other comparable events that are beyond our control during the period during which the relevant event continues. This does not affect the customer's right to withdraw from the contract in the event of delays that make a commitment to the contract unreasonable.
9.2. If the start of the performance or the performance is delayed or interrupted by circumstances attributable to the customer, in particular due to a breach of the duty to cooperate in these terms and conditions, the performance deadlines will be extended accordingly and agreed completion dates postponed accordingly.
9.3. We are entitled to charge 1% of the invoice amount for each commenced month of the delay in performance for the storage of materials and equipment and the like in our company, whereby the customer's obligation to pay as well as his obligation to accept remains unaffected.
9.4 Delivery and completion dates are only binding for corporate customers if compliance with them has been promised in writing.
9.5 In the event of delay in the fulfillment of the contract by us, the customer has the right to withdraw from the contract after setting a reasonable grace period. The period of grace must be set in writing (by corporate customers by registered letter) with a simultaneous threat of withdrawal.
10. Note on the limitation of the scope of services
10.1. In the context of custom-made products with provided material, damage (a) to this material can arise as a result of undetectable conditions or material defects (b) during the work. We are only responsible for such damage if we are responsible for causing it.
10.2. In the case of anodized and coated materials, differences in color nuances cannot be ruled out.
10.3. Protective coatings last three months.
11.1. § 7b KSchG applies to the transfer of risk when the goods are sent to the consumer.
11.2. The risk is transferred to the business customer as soon as we have the object of purchase, the material or the work ready for collection in the factory or warehouse, deliver it ourselves or hand it over to a carrier.
11.3. The entrepreneurial customer will take out appropriate insurance against this risk. We undertake to take out transport insurance at the customer's written request at the customer's expense. The customer approves any standard shipping method.
12. Delay in acceptance
12.1. If the customer is in default of acceptance for more than 6 weeks (refusal of acceptance, default in advance services or otherwise) and the customer has not taken care of the elimination of the circumstances attributable to him, which delay or prevent the performance of the service, despite the setting of a reasonable grace period, we are allowed to do so if the contract is in force otherwise dispose of the materials and products specified for the performance of the service, provided that, in the event of the performance of the service being continued, we will subsequently procure these within a period appropriate to the respective circumstances.
12.2. If the customer defaults on acceptance, we are also entitled to store the goods with us if the contract is to be fulfilled, for which we are entitled to a storage fee of 8% pa.
12.3. This does not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable grace period.
12.4. In the event of a justified withdrawal from the contract, we may demand flat-rate compensation of 33% of the order value plus VAT without proof of the actual damage from the business customer. The obligation to pay damages by an entrepreneurial customer is independent of fault.
13. Retention of title
13.1. The goods delivered or otherwise handed over by us remain our property until they have been paid for in full.
13.2. A resale is only permitted if we have been informed in good time beforehand, stating the name and address of the buyer, and if we agree to the sale. In the event of our approval, the purchase price claim of the entrepreneurial customer is already now deemed to be assigned to us.
13.3. The client has to note this assignment in his books and on his invoices until the payment or purchase price has been paid in full and notify his debtors of this. Upon request, he must provide the contractor with all documents and information that are required to assert the assigned claims and claims.
13.4. If the customer is in default of payment, we are entitled to demand the return of the reserved goods if a reasonable grace period is set. We are only allowed to exercise this right towards consumers as customers if at least one outstanding performance by the consumer has been due for at least six weeks and we have issued an unsuccessful warning, threatening this legal consequence and setting a grace period of at least two weeks.
13.5. The customer must inform us immediately about his assets or the seizure of our reserved goods before bankruptcy is opened.
13.6. The customer declares his express consent that we may enter the location of the reserved goods in order to assert our retention of title.
13.7. The customer bears the necessary costs that are appropriate for appropriate legal prosecution.
13.8. The assertion of the retention of title only constitutes a withdrawal from the contract if this is expressly declared.
13.9. We are allowed to dispose of the retained goods that have been taken back in the hands of entrepreneurial customers in the best possible way.
14. Third party property rights
14.1. If the customer brings intellectual creations or documents and if third party property rights are asserted with regard to such creations, we are entitled to cease the production of the delivery item at the risk of the customer until the rights of third parties have been clarified, and to compensate for the necessary and appropriate expended by us To claim costs, unless the unjustification of the claims is obvious.
14.2. The customer indemnifies and holds us harmless in this regard.
14.3. We are entitled to demand reasonable advances on costs from corporate customers for any process costs.
14.4. For delivery items that we manufacture according to customer documents (construction details, drawings, models or other specifications, etc.), the customer only guarantees that the manufacture of these delivery items does not infringe third party property rights.
14.5. If third-party property rights are nevertheless asserted, we are entitled to discontinue the manufacture of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the unjustification of the claims is evident.
14.6. We can also claim the reimbursement of necessary and useful costs incurred by us from the customer.
15. Our Intellectual Property
15.1. Plans, sketches, cost estimates and other documents provided by us or created through our contribution remain our intellectual property.
15.2. The use of such documents outside of the intended use, in particular the passing on, duplication, publication and making available, including copying only in extracts, requires our express consent.
15.3. The customer further undertakes to keep the knowledge gained from the business relationship confidential to third parties.
15.4. If we have handed over items to the customer in the context of contract initiation, conclusion and processing that were not owed in the context of the performance of the service (e.g. color, material samples, model or prototypes, etc.), these must be returned to us within 14 days. If the customer does not comply with a corresponding request in due time, we are entitled to demand flat-rate compensation for damages amounting to 100% of the value of the item handed over from the customer without proof of the actual damage. In the case of an entrepreneur, the obligation to pay compensation is independent of fault.
16.1. The provisions on statutory warranty apply. The warranty period for our services for corporate customers is one year from delivery.
16.2. Unless otherwise agreed (e.g. formal acceptance), the time of handover is the time of completion, at the latest when the customer has taken over the service or has refused to take over the service without giving reasons.
16.3. If a joint handover is planned and the customer does not attend the handover date communicated to him, the handover is deemed to have taken place on that day.
16.4. Rectifying a defect alleged by the customer does not constitute acknowledgment of this defect alleged by the customer.
16.5. The entrepreneurial customer must allow us at least two attempts to remedy defects.
16.6. If the customer's allegations of defects are unjustified, the customer is obliged to reimburse us for the expenses incurred to determine the absence of defects or to remedy the defect.
16.7. The entrepreneurial customer always has to prove that the defect already existed at the time of delivery.
16.8. In order to remedy defects, the customer must make the system or the devices accessible to us without culpable delay and give us the opportunity for an assessment by us or by experts appointed by us.
16.9. Defects in the delivery item that the business customer has discovered or should have discovered through an inspection in the normal course of business after delivery must be reported to us in writing immediately, at the latest 14 days after delivery. Hidden defects must also be reported within this reasonable period of time from their discovery.
16.10. Any use or processing of the defective object of performance, which threatens further damage or makes it difficult or impossible to ascertain the cause, must be stopped by the customer immediately, unless this is unreasonable.
11/16 If a complaint is not made in good time, the goods are considered approved.
16.12. If the customer's allegations of defects are unjustified, he is obliged to reimburse us for the expenses incurred to determine the absence of defects or to remedy the defect.
16.13. Any use or processing of the defective delivery item that threatens further damage or makes it difficult or impossible to remedy the cause must be stopped by the customer immediately, unless this is unreasonable.
16.14. We can avert a request for change through improvement or a reasonable price reduction, provided that it is not a material and irreparable defect.
16.15. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications provided by the customer, we only guarantee that they are carried out in accordance with the conditions.
16.16. The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on actual circumstances deviating from the information available to us at the time the service is provided, because the customer does not meet his obligations to cooperate.
16.17. The defective delivery or samples thereof are to be returned to us by the corporate customer, provided that this is economically justifiable.
16.18. The cost of returning the defective item to us is entirely borne by the business customer.
16.19. It is the customer's responsibility to enable us to identify the defect immediately.
17.1. Due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., we are only liable for financial loss in cases of intent or gross negligence.
17.2. Liability towards business customers is limited to the maximum amount of liability insurance we may have taken out.
17.3. This limitation also applies to damage to an item that we have accepted for processing. However, this only applies to consumers if this has been negotiated in an individual contract.
17.4. Claims for damages by corporate customers must be asserted in court within two years, otherwise expiry.
17.5. The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage that they cause to the customer without reference to a contract with the customer.
17.6. Our liability is excluded for damage caused by improper handling or storage, overuse, non-compliance with operating and installation instructions, incorrect assembly, use, maintenance, repairs by the customer or third parties not authorized by us, or natural wear and tear, provided this event is causal for the damage was. There is also an exclusion of liability for failure to perform necessary maintenance or oiling the products.
17.7. If and to the extent that the customer can claim insurance benefits for damage for which we are liable through his own insurance or damage insurance taken out in his favor (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of the insurance benefit and our liability is limited to the disadvantages that arise for the customer through the use of this insurance (e.g. higher insurance premium).
17.8. Those product properties are owed that can be expected from us, third party manufacturers or importers by the customer with regard to the approval regulations, operating instructions and other product-related instructions and information (in particular also control and maintenance), taking into account his knowledge and experience. As a reseller, the customer has to take out adequate insurance for product liability claims and to hold us harmless with regard to recourse claims.
18. Severability Clause
18.1. Should individual parts of these terms and conditions be ineffective, this shall not affect the validity of the remaining parts.
18.2. We, as well as the corporate customer, already jointly undertake - based on the horizon of honest contracting parties - to make a replacement regulation that comes as close as possible to the economic result of the ineffective condition.
19.1. Austrian law applies.
19.2. The UN sales law is excluded.
19.3. The place of performance is the company's registered office (8112 Gratwein).
19.4. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the corporate customer is the local court responsible for our headquarters. The place of jurisdiction for consumers, if they are domiciled in Germany, is the court in whose district the consumer has his habitual residence or place of employment.
19.5. The customer must notify us immediately in writing of any changes to his name, company, address, legal form or other relevant information.
[ The End ]
Terms and conditions of the cutlery shop Hangler
Last updated on January 26th, 2020 and unchanged in terms of content from the version valid from December 1st, 2018