SALES AND SHIPMENT TERMS AND CONDITIONS
1.1. The following terms of sale and delivery, hereinafter referred to as “GTC”, apply to all business relationships (such as purchase contracts, work contracts, planning orders etc.) between VOGLAUER Gschwandtner & Zwilling GmbH, Voglauer hotel concept business division, hereinafter referred to as “VOGLAUER”, and customers. By placing an order or entering into a contract with VOGLAUER, the customers accepts these as binding. Deviations, contradictions or supplementary general terms and conditions will not be binding on this contract, even when they are known about at the time, unless they are expressly agreed in writing. If conditions which deviate from these GTC are agreed in writing, these additional considerations shall apply.
1.2. VOGLAUER generally only enters into contracts with companies, which is why the GTC were designed for legal transactions between companies. If, in exceptional cases, they are also used as a basis for legal transactions with consumers, they shall only apply insofar as they do not violate mandatory provisions of consumer protection law.
2. Offers, prices
2.1. All prices quoted by VOGLAUER in offers and price lists are subject to change and are net prices, unless it is expressly stated that statutory value added tax is included. Value added tax shall be charged separately in accordance with the statutory provisions applicable on the day of delivery or performance. VOGLAUER reserves the right to make technical and other reasonable changes. If a customer’s order does not contain any price information, VOGLAUER’s price lists applicable on the day the order is received shall apply to this order.
2.2. Export deliveries are generally charged in euros and must also be paid in euros. If another currency is expressly agreed, VOGLAUER will invoice on the basis of the exchange rate to the Euro on the day that the order is confirmed. The rates calculated by the Austrian banks are applied for this purpose.
2.3. Export deliveries are generally charged in Euro and are also payable in Euro. If another currency has been explicitly agreed, VOGLAUER will invoice on the basis of the Euro exchange rate of the day on which the order has been confirmed. For such invoicing the exchange rates as calculated by Austrian banks only shall apply.
3. Order acceptance, order basis
3.1. If an order is placed with VOGLAUER, a contract is only entered into when VOGLAUER confirms the order in writing or delivers the goods or sends the invoice. The customer is obliged to provide all required documents completely and correctly when placing the order. Any additional costs due to discrepancies between the actual circumstances and the documents or plans provided by the customer as well as additional costs due to late delivery of the documents are to be borne by the customer. Changes may only be made to the order after acceptance by mutual agreement and in writing.
3.2. If at the time of the order being placed, the ordered goods are not fully specified in detail (especially their technical design), a preliminary order confirmation will be issued. The customer is obliged to provide sufficient details of the order in a timely manner (notification of actual measurements) to ensure that agreed delivery times can be met. Upon the provision of details a final order acknowledgement is issued by which the subject matter of the contract becomes binding, unless the customer expresses immediately dissent in writing. Should this happen, the delivery contract remains valid, in accordance with the preliminary order confirmation. If an order is changed after a preliminary order confirmation, prices will be adjusted in accordance with a preceding cost estimate if need be.
4. Shipping, delivery
4.1. Unless otherwise agreed, the delivery of goods is free of charge. The goods are unloaded from the arriving means of transport and made available to the contracting party at the place designated for unloading, i.e. either in the loading dock or consignment area. Transport insurance shall only be arranged at the customer’s explicit request. Any resulting costs shall solely be borne by the customer. If not specified otherwise in writing, the risk of price is passed to the customer upon the dispatch of the goods, in the event of a delay in acceptance caused by the customer, after VOGLAUER’s notification of readiness of dispatch.
4.2. The selection of the place of delivery and of the route and means of transport is made by VOGLAUER, in the absence of any written agreement to the contrary, to the best of their judgment, and without liability for the cheapest and fastest transport. Specified delivery times are not binding, unless otherwise expressly agreed in writing.
4.3. The agreed delivery period will generally commence on the day of the order confirmation. If at this moment in time (starting point of the period) the documentation required for production, such as in particular actual measurements, has not been made available to VOGLAUER, the course of the delivery period shall commence on the day where the final documentation required for production has been received by VOGLAUER. The customer is obliged to transmit such documentation promptly. Delivery dates (delivery deadlines) shall be extended by installation delays not caused by VOGLAUER. Should the customer have to make an advance payment, then the delivery period shall not start before the day before the advance payment has been received.
4.4. Should the customer be in delay of acceptance of the delivery item – even if not at fault himself – VOGLAUER has the right to raise the usual storage charge; in addition, VOGLAUER is entitled to withdraw from the delivery contract and the customer is obliged to pay the difference between the agreed price and the expectable revenue from the realisation of the deliverable goods. In cases where installation is part of the agreement, the customer is obliged to accept the contractual items after completion of the installation after a site inspection of the contractual goods. In the case of refusal of acceptance by the customer, the object of purchase shall be considered as accepted.
4.5. Should VOGLAUER fail to meet delivery dates by more than 3 weeks, customers have the right to withdraw from the contract after a reasonable period of grace has been set. If the non-observance of any delivery date is caused by operational reasons which could not have been avoided by VOGLAUER, even while observing the diligence of a prudent business (including, without limitation, strikes, breakdown, lack of raw materials, etc.), the customer is only entitled to withdraw from the contract after the delivery time of 2 months has been exceeded, after having agreed a further reasonable period for delivery.
4.6. To ensure an efficient and reasonable delivery to the contracting party by VOGLAUER, the parties shall agree that for delivery and unloading the standards for unloading, as issued by the Future Initiative Furniture Logistics (ZIMLOG) in their current version, shall apply. These are available for downloading online under www.dcc-moebel.org/zimlog.html or can be sent in text form to the contracting party on request.
4.7. VOGLAUER is entitled to deliver in excess or below the contracted quantity. In the case of a delivery carried out to the extent as described above, the contracting party is not entitled to refuse acceptance.
4.8. If in individual cases, a contractual penalty has been agreed between the supplier and the contracting party, this can only be enforced if upon accepting the goods the contracting party has expressed their reservation in writing.
4.9. A contractual penalty provision must be sent directly to the supplier. Suppliers’ employees, drivers or any other third parties are not entitled to accept any contractual penalty provision.
5. Withdrawal from contract
5.1. If the customer does not fulfil their contractual obligations or does not meet them in full, VOGLAUER is entitled to withdraw from the contract. The right to withdraw from the contract can also be exercised with regard to a part of the delivery item. In such a case VOGLAUER is obliged to deliver the part of the delivery item not affected by the withdrawal and the customer is obliged to pay for this part.
5.2. If VOGLAUER exercises its right of withdrawal for reasons for which the customer is responsible, even if the customer is not at fault, or if the customer withdraws from the contract without being entitled to do so, the customer must pay for the advance services corresponding to the proportionate order value which have already been rendered within the scope of contract performance (e.g. planning services, procurement of materials, special services, work expenses and the like). VOGLAUER is entitled to claim a lump sum for preliminary work calculated at 25% of the order value without having to provide specific proof of individual services rendered. The costs of custom-made products already produced are to be fully reimbursed less assembly and delivery costs.
6.1. The customer must ensure that installation can be carried out without delay; in particular that the fitters are not impeded by other tradespersons. Furthermore, the rooms to be furnished in the assembly area must be kept ready, heated if necessary, cleaned, sufficiently illuminated and provided with an electrical connection. The costs for electricity and water consumption shall be borne by the customer. Carpets must be made non-slip by the customer and adequately covered to protect against dirt and damage.
6.2. If, in the course of installation, mounting is required on fixtures belonging to the customer or third parties (e.g. fastening to the masonry by drilling or mortising), the customer is obliged to draw VOGLAUER’s attention to potential hazards before commencing work, in particular the exact course of electricity, gas, water and other pipeline systems must be pointed out.
6.3. VOGLAUER is not obliged to examine the properties of the walls or objects to which fixings are to be made during installation. However, the customer is obliged to inform VOGLAUER about properties of the walls or objects which could compromise a straightforward and problem-free installation. Any additional costs arising from unexpected properties of the walls or objects shall be borne by the customer.
6.4. Additional costs for overtime and installation delays caused by the customer as well as work not included in the order confirmation or work resulting from defective stock will be charged separately. Fine cleaning of the premises after assembly is to be carried out by the customer at their own expense. Unless otherwise agreed in the contract, the installation services offered by VOGLAUER do not include the installation and connection of any types of electrical appliances or lighting fixtures. Unless otherwise agreed, this work shall be commissioned separately by the customer at their own expense to be carried out by an appropriately authorised contractor. Packaging material must be disposed of by the customer at their own expense.
6.5. VOGLAUER is not obliged to examine the properties of walls or objects to which fixings are to be made during installation. However, the customer is obliged to inform VOGLAUER about properties of the walls or objects which could compromise a straightforward and trouble-free installation. Any additional costs arising from unexpected properties of walls or objects shall be borne by the customer.
6.6. Additional costs for overtime and installation delays caused by the customer as well as work not included in the order confirmation or work resulting from defective stock will be charged separately. This would also apply if VOGLAUER had offered fitting as a lump sum or for free as discount.
6.7. The fine cleaning of the premises after assembly is to be carried out by the customer at their own expense. Unless otherwise agreed in the contract, the installation services offered by VOGLAUER do not include the installation and connection of any type of electrical appliances or lighting fixtures. Unless otherwise agreed, this work shall be commissioned separately by the customer at their own expense to be carried out by an appropriately authorised contractor. Packaging material must be disposed of by the customer at their own expense.
7.1. The customer must immediately check delivered goods for any defects, i.e. within three working-days. Incomplete or incorrect deliveries as well as immediately apparent defects must be reported to VOGLAUER in writing immediately after receipt of goods; defects or errors which are not immediately apparent must be notified as soon as they are discovered. The notification must clearly indicate the nature and extent of the alleged defect. If defects and errors are not notified promptly, the delivery shall be deemed to have been accepted and correct and no warranty claims may be made. The customer fulfils his obligation to check and give notice of defects by checking the goods for visible quantitative or qualitative defects using appropriate methods (please see following “Appropriate Testing Methods”). Appropriate testing methods are the following, although this is not an exhaustive list: (i) the checking of the delivered quantity of goods, (ii) the visual inspection of the packaging and (iii) the inspection of visible damages caused by transport or other matters. Obvious defects shall be notified by the contracting party within a period of two working-days. The timely dispatch of the notice of defects shall suffice to comply with this deadline. Each notice of defects shall only be effective when provided in writing.
8.1. VOGLAUER guarantees the delivered goods for a period of one year from the date of delivery. The warranty period for electrical appliances and lighting supplied by VOGLAUER is six months. Warranty claims shall be subject to the customer complying with their duties of inspection and notification of defects. Should a customer fail in his duty to inspect and/or fail to meet the notification deadline, VOGLAUER’s liability shall be excluded for defects not notified as above. In cases of justified and timely notification of defects, VOGLAUER will, reasonably taking into account customer’s interests, provide warranty by improvement, price reduction or replacement (exchange) or take back the goods refunding the purchase price. VOGLAUER reserves the right to choose the respective warranty remedy. If VOGLAUER does not fulfil their warranty obligations within a reasonable period of time, the customer is entitled to a reasonable price reduction or to withdraw from the contract. Activities undertaken by VOGLAUER resulting from unjustified notifications of defects shall be considered as a contractual service for which the customer has to pay. In particular, the warranty does not apply
9.1. VOGLAUER is only liable for damages outside the scope of application of the Product Liability Act if VOGLAUER is guilty of intent or gross negligence. Liability for slight negligence is excluded as well as compensation for consequential damage and financial loss, loss of profit, loss of interest and damage from third-party claims against the customer.
9.2. Within the scope of application of the Product Liability Act, VOGLAUER is liable for personal injury as well as for material damage suffered by a consumer. VOGLAUER is not liable for material damage suffered by a person in business. Furthermore, § 924 sentence 2 of the Austrian Civil Code (ABGB) and the recourse of the customer according to § 933b of the Austrian Civil Code (ABGB) is excluded. Claims for damages become statute-barred three years after delivery.
9.3. Furthermore, the contracting parties mutually waive all claims for damages insofar as these are covered by an insurance policy of the injured party. This waiver shall not apply to damages caused intentionally or through gross negligence or to the extent that the insurer would not be liable as a result of such waiver.
9.4. Locking devices and safes supplied by VOGLAUER do not constitute burglary and theft protection devices, so claims for damages in this respect are excluded. Any burglary and theft protection must therefore always be provided by the customer themselves at their own risk and expense and VOGLAUER accepts no liability for the contents locked in such devices.
10.1. Invoices for deliveries of goods shall be paid in accordance with the respective agreements made. Unless otherwise agreed, the customer shall pay one third of the amount stated in the order confirmation as a down-payment promptly after placing the order, one third 2 weeks before delivery readiness and the remaining amount from the supply contract immediately after invoicing, in all cases without deduction. Unless different payment terms have been agreed in writing between the contracting parties, payments of the invoice amounts are due without deduction immediately upon receipt of the invoice. Bills of exchange or cheques shall only be accepted by specific written agreement as a means of payment. Discount and bill charges shall be borne by the customer and are due immediately. The customer acknowledges that VOGLAUER’s sales representatives are not entitled to collect payments.
10.2. In the event of default in payment, it is agreed that default interest in the amount of 8% above the base interest rate shall be due. The customer may not offset any amounts due, unless with claims acknowledged by VOGLAUER in writing or legally established.
10.3. If the customer ceases to carry on in business, if execution measures are taken against them, if a cheque or bill of exchange is protested, or if payments are delayed or stopped, or if they file for judicial or extrajudicial composition proceedings or bankruptcy proceedings are instituted against their assets or if a bankruptcy petition is rejected for lack of assets to cover costs, VOGLAUER is entitled to demand immediate payment of all amounts due arising from the business relationship, even if bills of exchange or cheques have been accepted or instalment payments have been granted. The same applies if the customer is in arrears with their payments or other circumstances become known which have an adverse effect on their creditworthiness. Furthermore, in the cases mentioned above, VOGLAUER is entitled to demand advance payment or the provision of security, to realise securities provided and to withdraw from the contract and to claim damages for non-performance.
10.4. The customer is not entitled to withhold payments due to alleged defects unless the defects and the amount of the amounts to be withheld have been acknowledged by VOGLAUER in writing or determined by court. The customer may not assign their claims against VOGLAUER to third parties and rights and obligations arising from contracts entered into may not be similarly assigned without prior written consent from VOGLAUER.
10.5. Provisions in the General Terms and Conditions of the customer shall become invalid if they do not comply with legal requirements, in particular, should they (i) inappropriately discriminate against the supplier, against the principles of good faith, (ii) not be clear and understandable (iii) not be compatible with essential basic principles of the statutory rule from which they deviate, or (iv) limit the supplier’s essential rights or obligations which derive from the nature of the contract to such an extent that the attainment of the contractual purpose were to be jeopardised (hereinafter collectively referred to as the “Invalid terms and conditions of the contractual partners”).
10.6. Towards VOGLAUER, the contractual partner undertakes to refrain from (i) imposing ineffective terms and conditions as their contractual partner; (ii) to include ineffective terms and conditions as their contractual partner in contracts concluded with VOGLAUER or (iii) to assert or enforce any rights and claims arising of ineffective terms and conditions as contractual partner towards VOGLAUER.
10.7. VOGLAUER is entitled to assign claims against the contracting party arising from deliveries or services to third parties (e.g. a bank or a factoring party) to the full extent permitted by applicable law. The contractual partner shall allow data to be forwarded to third parties for the purpose of the collection of the claims.
11. Retention of title
11.1. The delivered goods remain VOGLAUER’s property until the customer has fully met their obligations, in particular payment of the purchase price including incidental costs and interest, fees, expenses, etc.
11.2. Deliveries carried out for a particular construction project shall be deemed to be a standard order, even if they have been ordered, delivered and invoiced in instalments. In this case, the reservation of title to all goods shall not expire until all claims arising from such a standard order have been settled.
11.3. The customer may only resell goods delivered which are subject to retention of title if they are dedicated as commercial goods or if the retention of title has expired through payment or VOGLAUER expressly agrees. If the goods are resold, the customer assigns proceeds from the sale of the reserved goods to VOGLAUER. The customer is obliged to indicate the assignment by suitable entries in their accounting records and, at VOGLAUER’s request, to disclose the names of the corresponding debtors as well as to specify the ceded claims in detail. Subject to this, VOGLAUER accepts the assignment. Any fees and/or taxes in connection with the assignment shall be borne by the customer and they shall indemnify and hold VOGLAUER harmless in this respect. VOGLAUER is entitled at any time to disclose the assignment and to collect the assigned claims itself.
11.4. The customer is obliged to keep the reserved goods insured to an adequate extent at all times against the usual risks such as natural hazards and to provide evidence of this to VOGLAUER upon request. The customer hereby assigns proceeds from possible insurance claims to VOGLAUER. Furthermore, the customer is obliged to store the goods in accordance with the instructions of VOGLAUER using state-ofthe- art technology. Customers must handle the goods with due care and attention until the title is transferred to them.
11.5. VOGLAUER must be notified immediately of access by third parties to VOGLAUER’s reserved property (seizure or description by way of pledge, other court and/or official orders). The customer must provide whatever support VOGLAUER may reasonably require in protecting VOGLAUER’s rights in respect of the reserved property and to bear the associated costs, insofar as they are responsible for endangering VOGLAUER’s reserved property.
11.6. In the event that the reserved goods are combined or mixed with other items, VOGLAUER shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the value of the other item at the time of combination or mixing. If the new item thus created is resold, the customer assigns the exact pro-rata purchase price from the resale to VOGLAUER in the sense of the above-mentioned stipulation.
12. Intellectual property
12.1. Trademarks, representations, as well as the associated drawings, plans and descriptions are VOGLAUER’s intellectual property and may neither be reproduced nor made accessible to third parties without VOGLAUER’s written consent.
13.1. It is agreed that objects furnished by VOGLAUER may be used by VOGLAUER for advertising purposes (reference lists, brochures, press releases, etc.) stating the name of the customer as well as using pictures of the furnished object. In this context, the customer grants VOGLAUER the right to take photographs of furnished objects.
14. Force majeure
14.1. Events of force majeure which affect VOGLAUER or one of its suppliers entitle VOGLAUER to suspend deliveries for the duration of the hindrance and a further reasonable start-up time without falling into arrears or withdrawing from the contract in whole or in part according to their effects. Events of force majeure include, but are not limited to: all impacts of natural disasters, such as earthquakes, lightning, frost, storm, floods; in addition war; laws; official interventions; confiscation; disruption to transport; bans on export, import and transit; international payment restrictions; non-availability of raw materials and energy; further, interruptions such as explosion, fire, strikes, sabotage; and all other events that could only be prevented at disproportionate cost and by economically unreasonable means.
15. Consent under data protection law
15.1. The customer expressly agrees that VOGLAUER may collect, process and use personal data provided by the customer, or which may be provided in the future, for marketing purposes e.g. by creating a customer file. This consent includes in particular the transmission of information for the purpose of advertising by fax, letter, email or any other method of transmission. This consent may be revoked by the customer at any time with future effect.
16. Final provisions
16.1. Austrian law shall apply with the exception of the conflict of legal provisions and the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all disputes arising directly or indirectly from the contract shall be the competent court in the provincial capital of Salzburg. The place of performance for delivery and payment is VOGLAUER’s registered office.
16.2. Should any of these terms and conditions be wholly or partially invalid, the validity of the remaining provisions shall not be affected. The wholly or partially invalid provision is to be replaced by whatever provision comes closest to the intended purpose of the invalid provision.
16.3. All amendments and supplements to contracts between VOGLAUER and the customer must be made in writing and this also applies to departures from the written requirement. All declarations on the part of VOGLAUER are only legally effective if they are made in writing and by employees of the VOGLAUER principal office in Abtenau, Austria.