General Terms and Conditions of Business of
Tyrolkraft©, Enzersberger KG
Zeughausgasse 4c, 6020 Innsbruck
Tel: +43 512 589299
Commercial Register No: FN 251809h, Commercial Register Court: Innsbruck Regional Court
VAT Reg. No.: ATU-58162712
1. Scope of Application:
The following general terms and conditions of business apply to all contracts concluded between the company Tyrolkraft, Enzersberger KG (hereinafter referred to as "Tyrolkraft") and their customers regarding the distribution of the stoves and additional products offered by Tyrolkraft.
Any Contrary conditions of the customer are neither acknowledged by Tyrolkraft, or form part of any contract, unless Tyrolkraft declares its express agreement with the differing conditions in written form.
The general terms and conditions of business of Tyrolkraft are applicable for the entire business relationship between Tyrolkraft and the customer, even if these are not agreed upon separately for the follow-up transactions.
In granting an order to Tyrolkraft the customer expressly accepts these general terms and conditions of business.
2. Contract Formation and Scope of Performance:
The decision as to whether to enter into a business relationship with a particular customer is solely that of Tyrolkraft.
The offers of Tyrolkraft on the homepage, in brochures, catalogues and sales material are always non-binding and without obligation. A binding contract only exists when Tyrolkraft gives confirmation of the order in writing. The specific scope of performance originates from the respective order, as individually negotiated between Tyrolkraft and the customer.
3. Delivery and Transfer of Risk:
The delivery date is individually agreed with the customer, taking the order volume into account. Tyrolkraft always endeavours to adhere to the agreed delivery dates. Tyrolkraft points out in advance, however, that delivery bottlenecks may arise for goods due to unforeseen demand, shortage of raw materials, interruptions of operations, strike, fire damage or other cases of force majeure. If, due to one of the above-named reasons, it is not possible to fulfil an order punctually, Tyrolkraft will contact the customer and it is at the customer's discretion to set a grace period of 4 weeks. If the delivery does not take place within the set grace period either, the customer is free to withdraw from the contract. In the case of a withdrawal from the contract by the customer, the customer receives back any advance payment already made. No entitlement beyond this exists.
Delivery are made to the delivery address stated by the customer. If the delivery is not accepted by the customer and/or the customer desires to postpone the delivery of the goods ready for shipment, the goods are warehoused at the customer's expense.
The sum total of the delivery costs depends on the order volume and is at all events to be paid by the customer.
Upon the handing-over of the ordered delivery to the respective freight carrier, the risk of loss pertaining to the goods passes over to the customer. If the handing-over to the freight carrier is delayed due to circumstances that are attributable to the customer, then the risk of loss pertaining to the goods passes over to the customer from the point in time at which Tyrolkraft would have been able to hand over the goods to the freight carrier.
If the customer would like a transport insurance policy, then the customer is to inform Tyrolkraft expressly of this while making the order. The costs arising from the transport insurance policy are to be paid by the customer.
The goods are carefully packaged in the way that is customary in the trade. The costs of the packaging are not included in the price, but standardised loading aids such as pallets and pallet cages can be returned. If these are not returned, the customer is liable to pay for the named loading aids.
4. Payment and Prices:
The price to be paid by the customer stems from the individually negotiated order. All prices are stated in EUR and exclude, insofar as nothing different is stated, the legal value-added tax and accruing additional costs such as insurance, packaging or shipment costs.
The customer is obliged to make an advance payment tothe amount of 1/3 of the gross order value within 7 days from the order confirmation. If the advance payment is not made within 7 days, Tyrolkraft is free to withdraw from the contract with the customer. In this case the frustrated costs that are incurred accordingly by Tyrolkfraft are payable by the customer.
The remaining amount is to be paid within 14 days of receiving the receipt. If the invoice amount is not paid within the agreed 14 days from the receiving of the receipt, interest to the amount of 12% p.a. is due from the receiving of the invoice.
If payment by instalments has been agreed with the customer, then the entire amount becomes due as soon as the customer is in arrears by one instalment, despite a written reminder and the setting of a grace period of 7 days.
Unjustified deductions and unpunctual payments will be subject to reminders without exception. The customer is to bear all costs caused by the delay in payment.
If the customer makes no objections within the term of payment of 14 days to the receivables stated in the invoice, then the demand is regarded as acknowledged.
5. Preconditions for the Performance of Contract:
The customer declares expressly and guarantees that all constructional, technical and legal preconditions and all official approvals that are necessary for the proper fulfilment of the contract by Tyrolkraft have been met and/or are present.
The customer has the right to offset only if his counterclaims are judicially ascertained to be legally binding or if Tyrolkraft gives its express agreement.
7. Reservation of Title:
The goods delivered to the customer remain the property of Tyrolkraft until full payment for all goods including delivery costs, additional costs and value-added tax. In the case of delay of payment, the customer is obliged to surrender the goods at Tyrolkraft's request. In the case of a cessation of payment the customer is obliged to put the goods on one side without having to be instructed to do so and to keep them available to Tyrolkraft.
In the event that the goods owned by Tyrolkraft are treated or processed, joint ownership exists in the ratio of the shares of the value. In the event of the sale of goods that have not yet been fully paid for, including delivery costs, additional costs and value-added tax, are sold the customer undertakes to only sell these on with reference to the ownership rights of Tyrolkraft. In the event of resale the customer already irrevocably offers as security the ceding of his price demands including ancillary rights to which he is entitled, or which will accrue to him, against the third party. Passing on the goods to third parties before complete payment for all goods including delivery costs, additional costs and value-added tax is only permitted after express written confirmation by Tyrolkraft.
It is agreed that enforcing the reservation of title does not constitute withdrawal from the contract, unless Tyrolkraft expressly declares withdrawal from the contract.
8. Warranty, laesio enormis:
After receipt of the delivery, the customer must examine the goods without delay and notify Tyrolkraft of any defects they ascertain within 7 days from receiving the delivery at the latest. If the customer does not fulfil the duty to inspection and objection to which he is subject, then all claims of the customer to warranty, recourse, or compensation due to the defect or arising from an error concerning the absence of defects in the goods are forfeit.
The customer must prove that a defect was present at the point in time of the handing-over to the customer and/or to the transport company.
The warranty is valid for a duration of 12 months.
If the notice of defects is justified and a defect exists that is the fault of Tyrolkraft, this defect is to be rectified by subsequent improvement or replacement, at Tyrolkraft's discretion. The warranty remedies of conversion and price reduction are not due.
Defects in the goods do not justify withholding payment of the invoice amount and do not prevent the expiry of cash discount.
The application of laesio enormis is ruled out by mutual agreement.
9. Limitation of Liability:
Claims for compensation due to slight negligence are ruled out. Tyrolkraft accepts no liability for loss of profit or for consequential harm.
This does not apply to damage to persons or to product liability claims.
The amount of any compensation claims may not be higher than the respective sum total of the order.
10. Data Protection:
The customer is aware that those of his personal details that are necessary for the handling of the order are to be saved on data carriers and he consents to this. He consents expressly to the collection, processing and use of his personal data. The customer is entitled to withdraw this consent at any time, with immediate effect for the future. In such a case, Tyrolkraft undertakes to delete the customer's personal data unless an order process has not yet been fully completed.
11. Place of Fulfilment, Place of Jurisdiction and Applicable Law:
The place of fulfilment for all performances based on the business relationship between the customer and Tyrolkraft is 6020 Innsbruck.
In the case of a difference of opinion and legal disputes, it is regarded as agreed that that the laws of the Republic of Austria are only applicable, with the exclusion of the UN Sales Convention.
It is mutually agreed that the court responsible for 6020 Innsbruck is the competent court.
12. Severability Clause:
Should any individual conditions of these general terms and conditions of business become ineffective or impracticable, the effectiveness of the remaining conditions will remain unaffected. The impracticable or ineffective conditions will be replaced by effective and practicable conditions that come as close as possible to serving the commercial purpose of the impracticable and ineffective conditions.