GENERAL TERMS AND CONDITIONS
Blecha GmbH, valid from 01.07.2022 onwards
1.1 The following General Terms and Conditions (“GTC”) apply to all services of Blecha GmbH (“Contractor”) which the Contractor undertakes vis-a-vis the Client. This also applies if the Contractor uses subcontractors. The Contractor shall contract exclusively on the basis of these General Terms and Conditions. The validity of the GTC is agreed for the entire future business relationship between the Client and the Contractor, without the need for the Contractor to make any special reference to this in the following.
1.2 If it has not done so by other means, the Client accepts these terms and conditions by accepting the goods and services. General Terms and Conditions of the Client shall not form part of a legal transaction and the entire further business relationship with the Contractor.
1.3 A written agreement between the Contractor and the Client to amend individual terms and conditions shall not affect the other terms and conditions of the GTC.
1.4 The GTC apply exclusively to contracts of the Contractor with business as a Client.
2. OFFERS /ORDER PLACEMENT/CONCLUSION OF CONTRACT
2.1 Unless expressly stated otherwise, all offers of the Contractor are subject to change. By ordering the goods and services, the Client makes a binding offer to conclude the contract, to which it is bound – unless otherwise specified – for seven working days. Saturdays, Sundays and public holidays are not considered working days. By sending an order confirmation (including attachments) prior to the stated deadline, the Contractor accepts the offer of the Client (conclusion of contract). Even after the conclusion of the order/contract, customary deviations of the delivery and service items are reserved, insofar as this does not entail a significant change in function or quality (see also point 6).
2.2 The Client may also accept orders only in part or reject them completely. If the Client purchases the product for resale or installation in accordance with the EU Construction Products Regulation, it is obliged to request the respective required documents or material certificates at the latest at the time of placing the order. If this obligation is breached, the Client must indemnify the Contractor and hold it harmless. No warranty or liability is assumed by the Contractor for the subsequent availability of these documents. For the provision of the documents, the Contractor is entitled to charge the costs associated with the expense, but at least EUR 15.00 per document.
2.3 The Contractor reserves the right to make interim sales.
3. PRICE AND PAYMENT
3.1 All indicated prices of the Contractor are subject to change (see also point 2.1), refer to the sale ex warehouse or delivery works and do not include delivery, insurance and packaging costs.
3.2 All ancillary costs, such as costs of freight/delivery, packaging, insurance, export, transit, import permits, notarisations (Acceptance Test Certificates, WAZ), payment transactions fees, taxes, duties, fees and customs duties are to be borne by the Client. For orders below EUR 200.00 net value of goods, the Contractor reserves the right to invoice this amount as the minimum order value or a small invoice surcharge below it.
3.3 The costs for packaging material provided by the Contractor, the costs for their removal (which is not borne by the Contractor) and their disposal shall be borne by the Client.
3.4 Unless explicitly stated, the quoted prices do not include VAT.
3.5 The calculation and specification of the prices shall be made in the currency specified by the Contractor in each case. The Contractor is entitled to adjust the agreed prices for non-delivered products in the event of exchange rate changes, raw material price increases, price increases of subcontractors or suppliers, changes in customs duties, changes in the cost of labour, government intervention or similar situations in which the Contractor has only limited or no influence.
3.6 The invoicing by the Contractor shall, as far as possible, take place immediately after delivery. Payments are due after invoicing within the payment period specified in the order confirmation and the invoice without any deduction and free of charge.
3.7 The Contractor is entitled to invoice after each partial delivery. A right of retention on the part of the Client, in particular also due to incomplete delivery, or guarantee or warranty claims, is excluded.
3.8 Payments received by the Contractor from the Client first pay for interest and incidental expenses, then for pre-litigation costs (such as collection costs) and then for the outstanding capital, starting with the oldest debt. If there are receivables from different deliveries, the Contractor decides on how to allocate the monies received.
3.9 All claims of the Contractor (including future payment obligations of the Client) are due for payment immediately if the Client is in arrears with the fulfilment of even one obligation, so that the Contractor can demand the full payment of the outstanding debt of the Client in the event of delay by the Client (failure to meet deadline). In this case, all discounts granted by the Contractor are also void. The same applies if the Client ceases its payments, is over-indebted, the opening of insolvency proceedings is refused due to a lack of assets, or circumstances become known that justify credible doubts about the creditworthiness of the Client or comparable reasons occur that make it unreasonable for the Contractor to continue with the contract. Independently of this, the reasons mentioned – in particular also the Client‘s failure to pay on time – constitute a reason for the Contractor to withdraw from the contract.
3.10 In the event of late payment or justified concern about the solvency of the Client, the Contractor has the right, without prejudice to the legal consequences, to make further deliveries or services dependent on advance payments or payments of security by the Client.
3.11 The Contractor is entitled to set off all claims of the Client, insofar as these are attachable, against all liabilities of the Client vis-a-vis the Contractor. The Client absolutely and irrevocably waives its right to set off obligations towards Contractor.
4. DUNNING AND COLLECTION COSTS / LATE PAYMENTS AND INTEREST ON ARREARS
4.1 The Client bears all costs incurred by the Contractor during or after the contract term for the collection of due claims, in particular also by reminder and collection efforts, or for other extrajudicial and judicial proceedings. For reminders, a reminder fee of EUR 40.00 will be charged in each individual case; if the actual costs for the reminder are higher, the higher amount will be charged.
4.2 In the event of default and dissolution, the Client shall owe the Contractor interest on arrears in the amount of 9.2% above the base interest rate (§ 456 Austrian Commercial Code/UGB), unless higher default interest on arrears has been agreed. Other rights of the Contractor arising from the breach of contract by the Client remain unaffected. In particular, the Client shall also compensate the Contractor for any damage caused by the delay in payment, irrespective of its fault for the delay in payment.
5.1 The delivery is made at the expense and risk of the Client. The risk and all other burdens are transferred to the Client as soon as the goods leave the warehouse or delivery plant or the Client has been notified of the readiness for delivery, depending on what occurs earlier. In the event of agreed-upon self-collection, risk and burdens shall pass to the Client as soon as the latter collects the goods or is in default of acceptance with the collection. The Contractor is entitled to make partial deliveries.
5.2 The type of delivery (type of dispatch of the goods and means of transport) depends on the ordered goods and is determined by the Contractor – with due consideration of the interests of the Client. The delivery will be made to the delivery address specified by the Client and at the agreed delivery time (delivery date or delivery time frame). An agreed delivery time shall be deemed to have been observed if the Client is notified of the Contractor’s readiness for delivery within the agreed delivery time and the delivery then takes place within a reasonable grace period of at least eight weeks. Irrespective of this, the Contractor is entitled to make objectively justified and appropriate changes to the delivery time if there are objective reasons for not complying with the agreed delivery time.
5.3 The Client is obliged to accept the goods at the agreed delivery time. The Client is liable to the Contractor irrespective of fault for all expenses and damages caused by its default of acceptance.
5.4 The delivery obligations of the Contractor shall be suspended insofar as the Contractor is prevented from delivering by force majeure or other circumstances for which the Contractor is not responsible. Operating and traffic disruptions, measures taken by authorities and improper deliveries from subcontractors are considered force majeure. If the delivery or service becomes impossible due to these circumstances, this releases the Contractor from its obligation to deliver and perform, without the Client being entitled to claims – such as claims for damages.
5.5 As long as the Client is in default of payment or — at the request of the Contractor – not all details of the order are specified by it, the delivery obligations of the Contractor shall be suspended.
5.6 If a bindingly agreed delivery time is exceeded by the Contractor, the Client may withdraw from the contract only by setting a written grace period of at least eight weeks. Claims for damages due to delayed delivery, performance or non-performance by the Contractor are excluded – except in the event of gross negligence (intent or gross negligence) on the part of the Contractor. Penalty claims are always excluded.
5.7 In the event of an agreed upon self-collection, the Client is obliged to collect the goods stored by the Contractor immediately, but in any case within one week, after prior agreement by the Contractor. Job-related special orders that are not retrieved within 2 weeks of the agreed delivery or collection date will be invoiced. The Client owes an appropriate fee for storage after the delivery or collection date has been exceeded.
5.8 For the delivery, the possible and permitted access of heavy TRUCKS is provided and guaranteed by the Client. Unloading is carried out – in the absence of an agreement to the contrary – at the expense and risk of the Client by itself or a third party commissioned by it. If unloading has been agreed by the Contractor, this means placing the goods or the contractual object directly next to the truck and the Client must ensure a suitable storage area.
6. DIMENSIONAL DEVIATIONS / TOLERANCES
Only minor and objectively justified deviations from dimensions, weight, quantity, quality and suitability that are reasonable for the Client are permitted – in particular if these comply with DIN/EN, the technical standards or applicable transport practices. With regard to the delivery quantity, the Client must accept a quantity deviation of +/- 10%.
7.1 The time of transfer of risk shall be deemed to be the handover within the meaning of § 924 (1) ABGB (Austrian Civil Code).
7.2 The warranty obligation of the Contractor does not extend to defects that are attributable to the Client or third parties.
7.3 The Client must examine the goods after delivery without delay and assert any defects immediately, but no later than within three days, and in writing. In the case of hidden defects, the period runs from the occurrence of the defect. As part of the investigation, the Client also has the obligation to visually check the conformity of the goods with the order and on the basis of the product names and batch numbers specified. An omitted, delayed or inappropriate defect claim shall result in the approval of the goods and the loss of the Client’s claims under warranty performance, compensation for damages and being in error about the defectiveness of the goods.
7.4 The warranty period (§ 933 (1) ABGB) is six months from handover. Lapse of claims (§ 933 (3) ABGB) shall enter into force upon expiry of the warranty period. Any defectiveness at the time of handover (point 7.1) must be proven by the Client.
7.5 All warranty rights and claims of the Client as well as any rights arising from guarantees given by the Contractor shall lapse if the Client has the goods reworked, repaired or otherwise worked on by third parties not commissioned by the Contractor. In a warranty case, the Contractor has the choice whether to remedy the defect at its own expense or to be compensated for it by way of a price reduction. Further rights and claims of the Client arising from warranty are excluded. In the case of substitute performance commissioned by the Client, an obligation to provide compensation by the Contractor is excluded, but in any case is also limited to the amount of the Contractor’s own costs when substitute performance is implemented by the Contractor.
7.6 In the event of defectiveness resulting from defects in raw materials, the Contractor shall only be liable if the Contractor should have recognised the defect using professional care. For this and for all supplied third-party products and goods, the Contractor only assumes the guarantee that the producers and suppliers of these products and goods make to the Contractor.
8.1 An obligation to pay damages on the part of the Contractor presupposes gross fault (intent or gross negligence), so that a obligation to provide compensation cannot be considered in the event of slight negligence – insofar as it does not involve personal injury. An obligation to pay damages is limited to compensation for the direct positive damage caused by the defect, which is why compensation for lost profits, consequential damages for defects and other consequential damages, collateral and indirect damages, interest losses, failed savings, third-party damages, damages from third-party claims and purely pecuniary damages is excluded. In terms of the amount, the Contractor’s liability is also limited to the agreed order amount. § 1299 ABGB is not applicable.
8.2 Claims for damages of the Client shall lapse after three months from the obvious identifiability of the damage and the party responsible, and irrespective thereof, shall in any case lapse three years after handover (point 7.1).
9. RETENTION OF TITLE
9.1 The delivered goods remain the property of the Contractor until full payment of all fees owed by the Client from this contract. As long as retention of title exists, no sale, pledge, assignment as security or other transfer of the goods to third parties is permitted. Should the goods delivered under retention of title be used by third parties, the Client must immediately notify the Contractor in writing and inform the third party of the Contractor’s retention of title.
9.2 In the event that the Client should resell the goods irrespective of the retention of title, it shall assign its claim from the resale in the amount of the outstanding claim of the Contractor, including all ancillary costs, to the Contractor on account of payment. The same shall apply to claims of the Client against third parties arising from the processing, mixing or combination of the goods of the Contractor. The Contractor accepts this assignment. In the event that the Client processes the goods, the latter shall also transfer to the Contractor the co-ownership share to which it is entitled.
9.3 If the Client unjustifiably fails to duly fulfil an essential obligation – in particular its obligation to pay – under this contract or if circumstances suggest a significant deterioration in the economic situation of the Client, the Contractor has the right to at any time demand the goods from the Client and to collect them without the cooperation of the Client and at the Client’s expense. For this purpose, the Client undertakes to deposit the goods owned by the Contractor at the first request to a location designated by the Contractor to secure the property of the Contractor or to send them to an address designated by the Contractor. In addition, the Client grants the Contractor irrevocable permission to enter its land, buildings and other premises where the goods are or could be located and to have them opened in the event of obstruction. The Client declares that it does not derive any legal consequences of any kind from this – in particular no liability claims against the Contractor – and that it waives the introduction of possession disruption actions in this context. The assertion of the retention of title by the Contractor does not constitute a cancellation of the contract by the Contractor, unless the Contractor expressly declares to the Client that it is cancelling the contract.
9.4 The Client shall reimburse the Contractor’s costs associated with the assertion of the retention of title.
10. ELECTRONIC INVOICE DELIVERY AND CORRESPONDENCE
The Client agrees to the invoice delivery by the Contractor and the correspondence by electronic means. It must ensure that electronic mail messages can be delivered by the Contractor to the email address it has provided and that technical equipment (e.g. filters, firewall) are set up accordingly. Automated, electronic replies from the Client do not preclude effective delivery. The Contractor is not liable for damages resulting from an electronic dispatch of the invoice. In this context, the Client bears the risk of access by unauthorised third parties. The Client may revoke this consent at any time in writing.
11. DATA PROTECTION
The data protection notice of the Contractor with all information on data protection is available online at https://www.blecha.at/datenschutz/. At the Client’s request, the Contractor will immediately send it the data protection notice by post or email.
12. CHANGE OF ADDRESS
The Client is obliged to notify the Contractor immediately in writing of changes to his delivery or business address and its email address, as long as the present contract has not yet been fully fulfilled by both parties. Until notification of a changed address, the Client’s declarations can legally be sent to the last announced address or email address.
13. PLACE OF PERFORMANCE, JURISDICTION AND APPLICABLE LAW
13.1 The place of performance (both for the delivery and for the payment) is the registered office of the Contractor.
13.2 For all disputes arising from and in connection with this contract and the resulting legal relationship, the competent court at the registered office of the Contractor shall have jurisdiction.
13.3 This contract and the business relationship between the Contractor and the Client shall be governed by Austrian law – to the exclusion of the reference standards of private international law and the UN Convention on Contracts for the International Sale of Goods.
14. FINAL PROVISIONS
14.1 Any amendment to this contract must be made in writing, which also applies to the amendment of this clause.
14.2 The language of the contract and communications is German. Should questions of interpretation arise, the German version of the present General Terms and Conditions must always be used.
14.3 If individual provisions of these terms and conditions are or become invalid, this shall not affect the validity of the remaining provisions. The invalid clause shall be replaced by the clause that comes closest to the economic purpose of the invalid clause.
Version of 21/04/2022