Terms and conditions
SALES AND SHIPMENT TERMS AND CONDITIONS
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1. General
1.1. The terms and conditions of sale and shipment as detailed below
are valid for all business relationships (such as purchasing
agreements, contracts of work and labour, fitting agreements, etc.)
between VOGLAUER MOBELWERK Gschwandtner & Zwilling GmbH & Co
KG, hereinafter referred to as VOGLAUER, and its customers. Customers
accept these terms as binding upon them by placing an order or closing
a contract with VOGLAUER. Deviating, conflicting or amending General
Terms, whether known to VOGLAUER or not, cannot become part of any
contract with VOGLAUER except by express written acceptance. Inasmuch
as conditions deviating from these terms and conditions of sale and
shipment are agreed to in writing as part of a contract, the
stipulations of the contract have priority.
1.2. VOGLAUER closes contracts strictly only with registered companies.
Should in exceptional cases a customer be a consumer in the sense of
consumer protection laws, such customers have the obligation to notify
VOGLAUER of that fact. Otherwise, such customers will be held liable.
These terms and conditions of sale and shipment will be valid for
business with consumers only as far as they are in compliance with
imperative stipulations of consumer protection laws.
2. Proposal, Prices
2.1. All prices quoted by VOGLAUER in proposals and price lists are
non-binding and net prices except if and where it is clearly indicated
that VAT is included. Prices quoted by VOGLAUER are free buyer's
address, fitting excluded. VAT will be calculated separately on the
basis of the legal provisions valid on the day of delivery or
performance of services. VOGLAUER reserves the right to perform
technical and other changes within reason. Purchase orders without
prices will be processed using the applicable list prices valid the day
of arrival of the order.
2.2. If goods or services are delivered later than the agreed date for
reasons other than late delivery culpably caused by VOGLAUER, VOGLAUER
has the right to raise the prices accordingly. Such price correction
will take into account changes of labour costs according to collective
treaties and actual costs for performance such as costs of material,
energy, transport, financing of external services, etc. between agreed
and actual delivery dates.
2.3. Export deliveries will always be charged and payable in Euros. In
cases where payment is expressly agreed in a different currency,
invoicing will be on the basis of the exchange rate valid on the date
of order acknowledgement by VOGLAUER. For this calculation, only
exchange rates calculated by Austrian banks will be relevant.
3. Order Acceptance, Subject Matter of Orders
3.1. Purchase orders issued to VOGLAUER will result in a contractual
relationship only by written order acknowledgement or delivery of goods
or of an invoice by VOGLAUER. Customers have the obligation to provide
comprehensive and correct documentation required for the production of
the goods (measurements, blueprints, etc.) with the purchase order.
Additional costs possibly inflicted by deviation of the actual
situation from the documents or blueprints provided by customers as
well as additional costs resulting from late provision of such
documents will be carried by the customer. Changes to accepted orders
will only be possible by written consent.
3.2. If at the time of order placement the ordered goods are not fully
specified in all detail (especially technically), a preliminary order
acknowledgement will be issued. Customers have the obligation to
deliver further detail (actual measurements, etc.) in such time as to
allow delivery on time. Upon delivery of the details, a final order
acknowledgement will be issued which determines the subject matter of
the contract in a binding fashion unless customers send their dissent
in writing immediately. If so, the delivery contract will remain valid
as by the preliminary order acknowledgement. In case of changes to an
order communicated after a preliminary order acknowledgement has been
issued, the prices will be adapted to a possibly precursory estimate.
4. Shipment, Delivery
4.1.Unless agreed otherwise, delivery will be free customer's address.
Transport insurance will be closed only if expressly requested by the
customer. Costs arising from this will be carried by the customer.
Unless agreed otherwise in writing, peril of price will be transferred
to the customer at the time of shipment of the goods, or in case of
late acceptance by the customer, at the time of readiness for shipment
by VOGLAUER.
4.2. Unless agreed otherwise in writing, the choice of the place of
shipment and the way and means of transport is in VOGLAUER's best
discretion, without acceptance of any liability for cheapest or fastest
transport. Delivery dates will in any event be non-binding unless
expressly agreed to the contrary.
4.3. As a matter of principle, the agreed delivery periods are counted
from the date of order acknowledgement. If VOGLAUER is at that time
(start of lead time) not in possession of the documentation required
for production such as especially actual room measurements, lead time
starts at the date of receipt by VOGLAUER of the last document
required. Customers have the obligation to provide such documentation
in a timely manner. Delivery dates (lead times) will be extended by
fitting delays not caused by VOGLAUER. In case a down payment is to be
made by the customer, the lead-time will not be counted before the day
of its receipt by VOGLAUER.
4.4. If acceptance of the delivered goods by the customer is delayed,
whether culpably or otherwise, VOGLAUER has the right to ask a storage
charge to an amount customary in the place; Furthermore, VOGLAUER has
the right to withdraw from the delivery contract, upon which the
customer has to pay the difference between the agreed price and the
expectable revenue from realisation of the deliverable goods. In case
of included fitting, customers have the obligation to accept the
contractual items immediately after completion in a visit. If
acceptance is denied, the purchased goods are deemed accepted.
4.5. In case that VOGLAUER fails to meet delivery dates by more than 3
weeks, customers have the right to withdraw from the contract after a
reasonable period of grace. If such delay is due to operational reasons
VOGLAUER cannot prevent with due diligence of a scrupulent merchant
(especially strike, disruption, raw material shortage, etc.), customers
will be entitled to withdraw from the contract after a two-month delay
after a reasonable period of grace.
5. Withdrawal from Contract
5.1. If a customer fails to fulfil contractual obligations in full or
in part, VOGLAUER has the right to withdraw from the contract. The
right to withdraw from the contract can be declared for only part(s) of
the goods to be delivered. In such cases, VOGLAUER has the obligation
to deliver the part of the shipment which is not affected by the
withdrawal and customer has the obligation to make payment for that
part.
5.2. If VOGLAUER withdraws from a contract for reasons for which the
customer is answerable without necessarily being culpable, or if
customer withdraws from a contract without being entitled to do so,
customer has the obligation to cover the costs of preparatory efforts
by VOGLAUER (material purchased, special services, labour expenditure,
etc.). VOGLAUER has the choice between the right to charge a lump sum
of 25 % of the total amount of the contract without provision of
specific evidence for individual efforts. Custom designs already
produced by VOGLAUER must be paid for in full minus fitting and
shipment costs.
6. Fitting
6.1. In cases where fitting is part of the agreement, customer has the
obligation to provide for orderly vehicle access all the way to the
rooms to be furnished. Where means of transportation such as cranes and
lifts exist, these will be provided for use by VOGLAUER or its
subcontractors free of charge.
6.2. Customer accepts liability for storage of the delivered goods on
the construction site. This specifically includes theft-protected and
dry storage on the construction site.
6.3. Customer will make all necessary provisions so that fitting can be
performed without delay; specifically that assembly fitters not be
hampered by other craftspeople. Also, the fitting areas of the rooms to
be furnished must be heated, clean and sufficiently lighted where
required and electric power is to be provided. Costs for electricity
and water will be carried by the customer. Carpeted floors must be made
slippery-proof and sufficiently covered to prevent soiling and damage
by the customer.
6.4. If fitting includes connections with objects owned by the customer
or third parties (e.g. Fastening to walls by drilling or chiselling),
customer will warn VOGLAUER of perilous locations prior to the
commencement of such work, specifically the exact location of electric
cables, gas and water pipes and other supply systems will be
communicated.
6.5. VOGLAUER has no obligation to inspect the properties of walls or
objects to which VOGLAUER parts will be connected. Customer, on the
other hand, has the obligation to notify VOGLAUER of properties of
walls or objects possibly impairing simple and problem-free fitting.
Any additional work and expense resulting from unpredicted properties
of walls and objects will be charged to the customer.
6.6. Additional costs for overtime authorized and fitting delays caused
by the customer as well as work not included in the order
acknowledgement or work caused by inadequate environment will be
charged separately. This will also be the case if VOGLAUER has offered
fitting for a lump sum or for free as a discount.
6.7. Customer will at their own costs take care of cleaning of the
rooms after fitting. Lack of contractual stipulations to the contrary,
fitting services offered by VOGLAUER do not include fitting and
connecting of electric equipment of any kind and lighting appliances.
Unless agreed otherwise, such work is to be performed by authorized
craftsmen at customer's own expense. Packaging material will be
disposed of by the customer at his or her own expense.
7. Notification of Defects
Upon delivery, customers must immediately inspect the goods for
possible defects. Incomplete or wrong shipments as well as complaints
for recognisable defects will be directed to VOGLAUER in writing
immediately upon receipt of the goods, non-recognisable defects
immediately upon their discovery. The notification must indicate
clearly the kind and extent of the alleged defect. In case of late
notification of defects and errors, the shipment will be considered
approved, in which case warranty claims are ruled out.
8. Warranty
VOGLAUER provides warranty for the delivered goods for a period of one
year from the shipment date. For electric implements and lighting
appliances delivered by VOGLAUER, the warranty period will be six
months.
In cases of justified and timely notification of defects, VOGLAUER
will, reasonably taking into account customer's interest, provide
warranty by improvement, price reduction or replacement (exchange) or
take back the goods refunding the purchase price. The choice of the
warranty method is VOGLAUER's. If VOGLAUER fails to meet warranty
obligations within reasonable time, customer has the right to a
reasonable price reduction or to withdraw from the contract. Activities
started by VOGLAUER due to unjustified notifications of defect are
considered purchase orders, and customers have the obligation to pay
for the services rendered thereunder.
Excluded from the warranty are specifically:
- Goods provided by the customer;
- Damages resulting from deficiencies of the environment (e.g. faulty walls,
construction material moisture, construction deficiencies, etc.);
- Compatibility of material used by VOGLAUER with other parts and properties
of the rooms to furnish, such as other furnishing, lighting colours, heating,
etc.;
- Deformation and crevices of massive wood used;
- Function of the delivered goods and suitability of the material used if the
design has been made by the customer or his agent (e.g. architect);
- Minor deviations of hues and surface or veneer structures of the delivered
goods;
9. Exclusions from Liability
9.1. VOGLAUER can be held liable for damages outside of the
applicability of the product liability law only in cases of intent or
gross negligence. Liability for slight negligence is foreclosed, as is
compensation for consequential damage and financial loss, failure to
realise savings or profit, losses from interest and damages from third
party claims against the customer.
9.2. Within the applicability of the product liability law, VOGLAUER
will be liable for personal damage and for material damage suffered by
consumers. VOGLAUER will not be liable for material damage suffered by
companies. Regress by the customer as defined in ยง 933b ABGB (Austrian
General Law) is excluded. Claims for damages are in any event limited
to a three-year period, counted from shipment.
9.3. The parties to a contract also mutually renounce all claims for
any damages covered by an insurance held by the damaged party. This
renunciation will not extend to damages inflicted by intent or gross
negligence or if the insurer would be exempt from indemnification as a
consequence of such renunciation.
9.4. Locking mechanisms or safe deposits provided by VOGLAUER will not
constitute theft or break-in protection so that claims for damages
resulting from these are excluded. A possibly required anti-theft
device will therefore be acquired by the customer at his or her own
cost and risk; VOGLAUER will not be held liable for locked items.
10. Payment
10.1. Invoices for the delivery of goods will be sent by email and are
payable according to the stipulations of the individual contract.
Unless stipulated otherwise, the customer will pay one third of the
total amount quoted in the order acknowledgement as a down payment
promptly upon order placement, one third two weeks prior to readiness
for shipment and the remaining amount immediately upon receipt of the
final invoice without discount. As far as there is no written agreement
between the parties to a contract with regards to terms of payment, the
amounts invoiced are payable directly upon receipt of the invoices
without discounts. Bills of exchange or cheques will be accepted only
on the grounds of separate written agreement and solely as payment.
Discount and exchange expenses will be payable immediately by the
customer. The customer recognises that VOGLAUER field staff are not
entitled to collect payment.
10.2. In case of delayed payment, interest for delay amounting to 8 %
above the then current base-lending rate will be charged. Set-off by
the customer is ruled out except with receivables accepted in writing
by VOGLAUER or ascertained in a legally binding manner.
10.3. If a customer cannot continue orderly business operations or
forced sale of collaterals is in progress, if an act of protest is
ongoing or delay or stop of payments is prevailing or if the customer
has filed in or out of courts for a settlement system or bankruptcy has
been declared, whether successful ort not, VOGLAUER has the right to
declare all outstanding bills from the business relationship due
immediately, even if bills of exchange or cheques have been accepted or
payment by instalments has been agreed. This also applies if and when
the customer is late with payment or other circumstances indicate
towards a questionable creditability. Furthermore, VOGLAUER has in the
above-mentioned cases the right to demand advance payment or
securities, realise securities provided or withdraw from the contract,
claiming damages for default of performance.
10.4. Customers do not have the right to withhold payment due to
alleged deficiencies, except if such deficiencies and the withholdable
amounts have been accepted in writing by VOGLAUER or ascertained by a
legal court. Any cession of customer receivables against VOGLAUER to
third parties as well as any cession of rights and obligations of the
closed contract is prohibited without prior written consent by VOGLAUER.
11. Reservation of Property Rights
11.1.The goods delivered remain the sole property of VOGLAUER until
fulfilment of all obligations of the customer, specifically full
payment of the purchase price including all side costs and interest,
dues, fees, etc
11.2. Goods delivered for a particular building project, even if
ordered, delivered and invoiced in tranches, are considered one
coherent order. In such cases the reservation of property rights to all
goods delivered will expire only when all payments resulting from the
contracts therein have been made in full.
11.3. The customer has the right to sell goods delivered under this
reservation of property rights only if they are dedicated goods for
resale or after the reservation of property rights has expired or
VOGLAUER expressly authorizes such sale. In case of resale of goods,
the customer will cede all claims resulting from such sale to VOGLAUER.
The customer has the obligation to make such cession recognizable by
corresponding entries in his or her books and to disclose to VOGLAUER
upon request the names of the debtors as well as to precisely specify
the cessated receivables. The cession will be accepted by VOGLAUER. Any
dues or taxes related to such cession are to be carried by the
customer, who will indemnify VOGLAUER of claims resulting thereof.
VOGLAUER retains the right to disclose the cession and to realise the
receivables cessated directly.
11.4. The customer has the obligation to sufficiently cover the
reserved goods by insurance against common risks such as elementary
events and to provide proof of such cover to VOGLAUER upon request. The
customer hereby cesses given insurance claims to VOGLAUER. The customer
also has the obligation to store the goods according to instructions
given by VOGLAUER and to the state of the art. The customer has the
obligation to tend to the goods during the reservation of property
rights.
11.5. The customer will immediately notify VOGLAUER of access to the
goods under reservation of VOGLAUER property rights by third parties
(execution or listing for execution, other court orders or enactments).
The customer will support and assist VOGLAUER in legal attempts to
protect VOGLAUER's rights to the property and carry all associated
costs if the customer has inflicted the threat to reserved VOGLAUER
property.
11.6. In case of connection or mingling of reserved VOGLAUER property
with other goods, VOGLAUER will gain joint ownership in the resulting
goods proportionally to the value of the reserved property with respect
to the value of the other goods at the time of connection or mingling.
In case of sale of the resulting matter, the customer will cede the
aliquot sales price in the sense of the stipulation above to VOGLAUER.
12. Intellectual Property
Trade marks, representations and the associated sketches, plans and
descriptions are the intellectual property of VOGLAUER and must not be
copied or disclosed to third parties without prior written consent by
VOGLAUER.
13. Advertising
It is accepted that objects furnished by VOGLAUER may be used by
VOGLAUER for purposes of advertising (reference lists, brochures, press
releases, etc.) quoting customer names and using pictures of the
furnished objects. The customer grants VOGLAUER the right to take
pictures of the furnished objects.
14. Force Majeure
Events of force majeure affecting VOGLAUER or any of VOGLAUER's
suppliers constitute the right for VOGLAUER to suspend deliveries for
the duration of the hampering circumstances plus a reasonable lead-time
without such suspension constituting a delay or the right for customers
to fully or partially withdraw from the contract.
Events of force majeure are, among other things: All effects of the
forces of nature such as earthquake, lightning, frost, storm, flood;
furthermore, war, legal action, enactments by local authorities,
detention, transport disruption, export, import or transit bans,
international payment restrictions, raw material shortage and power
loss; furthermore, operational disruptions such as explosion, fire,
strike, sabotage and all other events which could not be prevented
other than by unreasonably high costs or means not economically
justifiable.
15. Data Privacy Assent
The customer expressly agrees that collection, processing and use of
personal data provided by the customer be used by VOGLAUER for
marketing purposes by installation of a customer data base and related
activities. This assent specifically includes information transfer for
purposes of advertising by fax, letter, email or any other method. This
assent can be withdrawn by customers at all times with immediate effect
for the future.
16. Final Provisions
16.1. All contracts closed by and with VOGLAUER as well as these terms
and conditions are governed exclusively by Austrian law with the
exclusion of the relegation norms and the UN convention on contract for
the international sale of goods. All disputes arising directly or
indirectly from contracts with VOGLAUER will be regulated at the
appropriate court in the city of Salzburg, Austria. Place of
performance for delivery and payment will be the principal office of
VOGLAUER.
16.2. In case one or more of the stipulations herein or in a contract
become invalid in full or in part, validity of the remaining
stipulations will remain untouched. Fully or partly invalid
stipulations will be considered replaced by provisions whose economical
success approximates closest the original stipulation(s).
16.3. All changes or amendments of contracts between VOGLAUER and
customers must be in writing, including the agreement to waive this
stipulation. All declarations by VOGLAUER will only be legally binding
if they are issued in writing by staff of the VOGLAUER principal office
at Abtenau, Austria.