General Business Terms
General Business Terms (German abbreviation: AGB) of
KRAUS Betriebsausstattung und Fördertechnik GmbH,
Sattnitzgasse 69, A-9020 Klagenfurt
for the online-shop Onlineshop www.hubtisch-shop.com
(valid from 1 October 2016)
1.1. These General Business Terms of KRAUS Betriebsausstattung und Fördertechnik GmbH (hereinafter referred to as "Seller") shall apply to all contracts, which the customer concludes with the Seller in the distance selling channel within the meaning of Subclause 1.4. with regard to the products presented in the Seller’s online-shop. In addition, these General Business Terms shall also apply, until the announcement of new Business Terms, to follow-up contracts, which are concluded with the customer after the first-time order in the distance selling channel without using telecommunication means, even if reference is not explicitly made hereto once again with these contractual conclusions.
1.2. The inclusion of contradictory or supplementary terms and conditions of the customer is hereby objected to. These are without exception only valid if they were explicitly recognised by the Seller in writing in an individual case. Contractual fulfilment acts of the Seller shall not be deemed as a consent to contractual terms and conditions which deviate from these General Business Terms.
1.3. Agreements before conclusion of the contract, which deviate from these General Business Terms, and amendments or addendums to individual provisions, as well as collateral agreements or special agreements after conclusion of the contract shall, without exception, require a written form in order to be valid and shall only apply to the individual business case.
1.4. Customers within the meaning of Subclause 1.1. can exclusively be entrepreneurs. An entrepreneur within the meaning of Section 1 KSchG [Protection against Dismissal Act] is each natural person or legal entity or a partnership with legal capacity, which acts while performing their self-employed professional or commercial activity when concluding a legal transaction.
2. Contractual partner
The purchase contract shall be concluded with KRAUS Betriebsausstattung und Fördertechnik GmbH, Sattnitzgasse 69, A-9020 Klagenfurt.
3. Offer and conclusion of the contract
3.1. The product presentations contained in the Seller’s online-shop do not represent any legally binding contractual offer on the part of the Seller, but are only a non-binding request to the customer to submit a legally binding purchase offer. The Seller will confirm the receipt of the customer’s offer immediately by using electronic means. This does not yet constitute an acceptance of the customer’s purchase offer. The Seller is entitled to refuse to accept the order – also with regard to individual non-associated products.
3.2. Each individual legal transaction will only be concluded legally effective by the written order acceptance (order confirmation) of the Seller. If the order acceptance (order confirmation) contains deviations from the order (e.g. owing to changed prices or product changes) then the Seller shall draw attention hereto separately and if the customer is entitled to revoke the order within two workdays after the date of the order confirmation, otherwise the deviations shall be accepted by it without reservation.
3.3 If the Seller cannot carry an order out, because the ordered goods are not available or if it does not accept the customer’s offer it shall inform the customer hereof within five workdays from receipt of the order.
3.4. The Seller points out that the depicted product photos may deviate slightly from the actual design of the products (symbol photos). Slight optical deviations shall not constitute any defects.
3.5 The product details concerning dimensions, weights, load bearing capacities, properties, capacities, etc. are customary values for the operation and industry and shall be deemed non-binding as long as they were not explicitly assured by the Seller in writing (e.g. in the order confirmation). References to the insurance cover with safety-related equipment are also non-binding customary empirical values for the industry.
3.6. Order process
3.6.1. The customer can submit the offer in writing via the online order form integrated into the online-shop of the Seller. The customer hereby has the possibility to create a user account in the online-shop by entering his personal data (name, address, e-mail address, telephone number) as well as a personally chosen password. In this case the entered personal customer data will merely be stored for the purpose of the easier and quicker processing of future order processes and can be called at all times by entry of the e-mail address and the personally chosen password by the customer. The customer further has the possibility to purchase as a guest and to enter his data separately with each order. In this case the customer data will not be stored for future orders so that it is necessary to enter the data once again with each further order.
3.6.2. By clicking on the requested product category on the start page the customer will go to the individual product offers of the respective category. The customer can place the requested product in the shopping basket either by clicking on the shopping basket symbol or by clicking on the product diagram to a detailed product description and go to the order page where the selected product can be added to the shopping basket by clicking the button "In the shopping basket". By clicking the button "continue shopping" the customer will always go back to the product overview. By clicking the button "to checkout" or the shopping basket symbol in the top right-hand corner on the right of the order page the order process will be continued. The customer will receive an overview of his product selection and can delete all or individual selected products or change their number. Until the order is sent the customer can change the product selection at all times by changing the number of products in the shopping basket or by deleting individual products or by discontinuing the order process at all.
After registration or log-in of the already registered customer or entry of the personal data as well as the billing address by the guest buyer and selection of the requested delivery and payment modalities as well as the explicit declaration of the customer that he accepts the applicable General Business Terms the customer can complete the order process by clicking the button "order subject to payment" and submit a legally binding contractual offer with regard to the goods contained in the shopping basket. As soon as the order process has been completed the customer will be informed hereof by an information window. This shall not yet constitute an acceptance of the customer’s offer by the seller.
3.7. The order data will be stored by the Seller and can be called by the customer after sending his order for a limited period of time (at least, however, 2 years) via the customer account that is protected by a password if the customer created a customer account in the Seller’s online shop before sending his order.
3.8. The order processing and contact will primarily take place by e-mail and automated order processing. The customer has to ensure that the e-mail address entered by him for the order processing is correct so that the e-mails sent by the Seller can be received under this address. The customer in particular has to ensure when using SPAM filters that the mails sent by the Seller can be served.
4.1. The prices listed in the online-shop are net prices in Euro plus the applicable rate of value added tax and possible delivery costs cited on the product page.
4.2. The prices valid at the time of the order are decisive for the invoicing.
4.3. In case of an order value of less than €100.00 net we reserve the right to charge a flat rate processing fee in the amount of €7.50.
5. Terms of payment
5.1. The sale is principally carried out – subject to a positive credit check – against invoice. However, the Seller reserves the right, at its discretion to only carry out individual deliveries – also irrespective of the creditworthiness – against cash on delivery or advance payment. The Seller will inform the customer of this circumstance separately before accepting his offer.
5.2. The invoice amount is due and payable without deduction within 30 days from the invoice day, received on the Seller’s account. For the event of the payment within 10 days from invoicing the Seller shall grant cash discount in the volume of 2 % of the net goods value (not however of possible freight, assembly costs, etc.). Possible transfer charges will be for the expense of the customer.
5.3. Invoices will be sent as a PDF file. The customer declares by the order that he agrees with the issue and sending of the invoices by using electronic means. If the customer wishes to receive a paper invoice he must communicate this informally by e-mail to firstname.lastname@example.org.
5.4. For the event of the default of payment – irrespective of the fault with the default of payment – interest on default will be charged in the amount of 9.2 % p.a. above the base lending rate as well as compound interest in the statutory amount. In addition, the customer is obliged in case of default of payment due to his fault to compensate the Seller for all further actual damages beyond this, in particular also the damages, which are suffered by the fact that accordingly higher interest will be due on possible credit accounts of the Seller as a result of a non-payment, and to refund all costs, spent by it, which are necessary for the collection of the claim in line with the purpose, such as possible lawyer’s fees and costs of debt collection agencies. Irrespective of the assertion of further rights and claims the customer is obliged with entrepreneur transactions according to Section 458 UGB [Austrian Enterprise Code] to pay a flat rate amount of €40.00 as compensation for collection costs.
5.5. In case of default of the customer with a payment or if circumstances become known, which are suitable for reducing the creditworthiness of the customer, the Seller is entitled to deem outstanding, however not yet due invoice amounts from the business relationship due and payable immediately and to withhold still outstanding deliveries until the full payment of the due claims and only to carry these out against an advance payment or provision of security. If the customer does not satisfy these obligations the Seller is entitled to cancel all contracts concluded with the customer without setting a final deadline. This shall have no effect on the right to claim that the goods delivered subject to the reservation of title are returned at the customer’s costs as well as to assert damages.
5.6. The customer is only entitled to offset against an own claim towards the Seller in case of insolvency of the Seller and if the customer’s claim has a legal connection with his liability or the customer’s claim is undisputed, has been declared final and binding or has been recognised by the Seller.
5.7. A right of retention of the customer against claims of the Seller – no matter for what reason – is explicitly excluded.
6. Terms of delivery and shipment, packaging
6.1. The delivery of goods is carried out by way of shipment to the delivery address stated by the customer. The delivery address entered by the customer in the order processing is decisive with the processing of online orders.
6.2. The customer can also pick the ordered goods up himself after the prior arrangement of a date in the Seller’s store in 9020 Klagenfurt, Sattnitzgasse 69. If the ordered goods are not picked up within 7 workdays (with stored goods from the order otherwise from announcement of the availability), the consequences of default according to Subclause 8.2 f. shall occur.
6.3. Insofar as delivery costs are not explicitly disclosed in the offer the delivery shall be carried out within Austria and to Germany free of shipping costs. The delivery costs to other countries will be notified to the customer upon request or in the order confirmation.
6.4. The delivery time of stored articles is, as a rule, 5-10 workdays from receipt of the order. Should an article not be in stock or cannot be delivered immediately and the delivery time be extended accordingly this will be pointed out to the customer separately on the product page.
6.5. The delivery deadlines stated by the Seller are approximate values and are, therefore, non-binding. No claims can be derived against the Seller from the non-adherence to non-binding delivery deadlines.
6.6. The seller is entitled to make partial deliveries and to issue partial invoices in this respect.
6.7. All packaging of the Seller are to be disposed of according to the ARA. The packaging materials can be deposited sorted according to types and not contaminated free of charge at the regional take-over points. Returns of transport packaging will only be accepted by the Seller if they are carried out "free warehouse" (return at the costs of the customer).
7. Passing of risk
The goods shall be sent at the risk of the customer, i.e. the risk of transport shall be borne by the customer. With the hand-over of the ordered goods to the transport leader (carrier, post, railway, parcel service) the Seller shall have fulfilled its delivery obligation and the danger and risk shall pass to the customer. If the customer is in default of acceptance, the risk of an accidental loss or an accidental deterioration to the object of purchase will pass to the customer at the time, at which he is in default of acceptance.
8. Default of acceptance, cancellation of contract
8.1. If the customer does not accept the delivery or if he does not pick the goods up within 7 workdays (with stored goods from the order otherwise from the announcement of the availability) the customer will be in default of acceptance.
8.2. If the customer is in default of acceptance the Seller is entitled to cancel the contract after setting a reasonable final deadline and to sell the goods otherwise or to insist on fulfilment of the contract. This shall have no effect on the obligation of the customer to compensate the Seller for the damages caused by the delay.
8.3. In case of default of acceptance the customer has – irrespective of further claims – to pay a storage fee for each started week in the amount of 0.1%, a maximum however of 5%, of the gross invoice amount of the delayed delivery as a "processing and re-storage fee" as well as to bear the costs for the unsuccessful collection and delivery. The customer shall also bear the risk of storage.
8.4. If the fulfilment of the contractual obligations is impossible or made substantially more difficult for the Seller in cases of force majeure, interference to operation, strike or for other reasons, for which they are not responsible, e.g. delivery difficulties of the sub-suppliers, it is entitled to revoke the contract in full or in part without any compensation obligation or to request the execution at a later deadline if the service cannot be provided despite customary and reasonable efforts. If the execution of the order is deemed unreasonable for the customer in these cases he has, on his part, the right to cancel the contract after setting a reasonable final deadline.
8.5. If the customer cancels the contract – without being entitled hereto – or if he requests its revocation then the Seller has the option to insist upon fulfilment of the contract or to agree to the revocation of the contract. In the latter case the customer undertakes, after the choice of the Seller, to either pay flat rate damages in the amount of 15% of the gross invoice amount or to pay the actually incurred damages.
9. Reservation of title
9.1. The delivered goods shall remain the property of the Seller until the full payment of the Seller’s claims from the business relationship (including interest and costs). The customer will bear the full risk for the reserved goods, in particular for the risk of loss or the deterioration.
9.2. According to the following provisions the customer is entitled to dispose over the purchased goods in the ordinary business operation.
9.3. The reservation of title shall also cover the products produced by processing and finishing, mixing or connection of the reserved goods. This processing or finishing of the products subject to a reservation of title is carried out by the customer in the name and by order of the Seller, without it having any obligations from this. If the goods are processed then the Seller shall acquire co-ownership to the new object in the ratio to the value of the goods delivered by it at the time of the processing. The same shall apply if the goods are processed and mixed with other objects that do not belong to the Seller.
9.4. The customer shall hereby now already assign its claims from the resale of the reserved goods against third parties in total or in the amount of the co-ownership share (cf. Subclause 7.3.) of the Seller on account of payment and no matter whether the reserved goods are resold to one or several buyers. Possible claims against an insurer are hereby now already assigned to the Seller in the limits of Section 15 German Insurance Contract Act. The Seller explicitly accepts these assignments. The customer undertakes to make the assignment of these claims clear in a suitable manner in its business books. The customer is entitled to collect the assigned claims as long as he properly satisfies his obligations towards the Seller and this right is not revoked hereby, otherwise the Seller is entitled to inform the buyers of the goods of the assignment and to request payment to it. For this purpose the customer is obliged to inform it upon request of the addresses of the buyers and the amount of the claims with copies of invoices. The customer is not authorised to assign his claims from the reserved goods to third parties.
9.5. If the customer is in default with his payments towards the Seller then sales proceeds received by him are to be kept separately and the customer shall only have or hold these in the name of the Seller.
9.6. The customer is not permitted to pledge or assign the reserved goods as collateral.
9.7. The customer has to inform the Seller immediately about an attachment or other impairment to the Seller’s rights by third parties and to provide all information that is necessary for asserting the property right. In this case the goods are to be stored at the place determined hereby at the Seller’s request for the protection against further attachments.
9.8. The customer undertakes to inform the Seller before applying for insolvency proceedings so that he can take over goods delivered subject to a reservation of title and which are owned hereby.
9.9. If the customer is in default with his payment in full or in part then the Seller is entitled to request that the goods are returned until the full satisfaction. Limited claims will be due and payable immediately.
9.10. It is agreed that the assertion of the reservation of title does not constitute a cancellation of the contract, unless the Seller explicitly declares the cancellation of the contract.
9.11. If the Seller exercises its reservation of title and if it takes the goods back a credit will be carried out for the goods taken back owing to the reservation of title by taking a price reduction that is reasonable for the storage duration as well as the wear and tear into consideration. The return transport of the goods to the Seller will be carried out at the costs and risk of the customer.
10.1. The assertion of warranty claims is only permitted for defects, which already existed at the time when the goods were handed over to the customer (= passing of risk). Guarantee promises beyond this will not be taken over by the Seller. The Seller shall in particular not be liable for defects and damages, which were caused by use not as intended or improper use, false handling, non-compliance with the operating instructions, natural wear and tear, faulty or negligent treatment or storage, etc. Otherwise the warranty will lapse if the customer or a third party not authorised by the Seller has made changes or repairs to the goods.
10.2. Customary deviations in case of delivery from various production series and slight technical as well as optical deviations shall be deemed as approved in advance and do not constitute any defect.
10.3. The warranty deadline is two years from delivery of the goods (= passing of risk). Warranty claims are to be asserted in court within this deadline with other preclusion.
10.4. The existence of a defect at the time of the hand-over is exclusively to be proven by the customer. Section 924 ABGB [Austrian Civil Code] will not apply.
10.5. According to Section 377 UGB, in case of other loss of his claims for remedy of defects, the customer undertakes to report possible defects in writing immediately after receipt of the delivery, no longer than within 3 workdays, hidden defects are to be reported within 3 workdays after discovery by immediately discontinuing the use (also by fax or e-mail). The complaint is to be sufficiently substantiated and proven with evidence material. If the customer fails to make the timely report of defects the goods shall be deemed as approved. Obvious damages to the packaging are moreover to be noted on the accompanying freight documents.
10.6. The maturity of the Seller’s claims will not be postponed by possible defects. The customer has no right of retention, to reduction or to offset if such has not been explicitly recognised by the Seller in writing.
10.7. In case of justified defects the Seller is, at his choice, entitled to remedy the defect (improvement, subsequent provision of that which is missing), to substitute delivery (exchange) or to revoke the contract. The customer has no right to choose between the stated warranty remedies. Several subsequent improvements and substitute deliveries are permitted. After the second failed attempt at improvement the customer is entitled, at his choice, to request a reduction in the purchase price or to declare the cancellation of the contract. The Seller is in no way obliged to bear the costs for a remedy of defects carried out by the customer through third parties.
10.8. Insofar as not explicitly agreed otherwise in writing the customer has to deliver the goods at his costs and risk to the Seller for the undertaking of the services from the warranty and to pick these up from the Seller. If the subsequent fulfilment is carried out by way of the substitute delivery the customer undertakes to return the first delivered goods to the Seller at his costs within 14 days.
10.9. The right to recourse according to Section 933b ABGB is explicitly excluded.
10.10. The aforementioned provisions concerning the liability for defects shall apply likewise, irrespective of whether claims for defects are asserted from the title of the warranty or the damages according to Section 933a ABGB. Exclusively the following provisions under Subclause 11 shall apply to follow-up damages from defects.
10.11. The assignment of the claims for defects of the contractual partner is excluded.
11. Liability for damages
11.1. Insofar as the following restrictions to liability do not breach mandatory law the Seller will only be liable – with the exception of physical injuries, which are to be compensated for irrespective of the degree of fault – for the compensation of damages, which it caused due to gross negligence or wilful intent. For indirect damages, missed profits, interest losses, omitted savings and damages from claims of third parties it will only be liable in case of wilful intent. In case of gross negligence the liability for property damages is limited with regard to the amount by the value of the goods delivery.
11.2. The proof that the Seller bears a fault from the occurrence of the damages always has to be provided by the customer, the reversal of the burden of proof envisaged by law is explicitly excluded.
11.3. Claims for damages of all kinds are to be asserted in court within one year from knowledge of damages and the damaging party, no longer than within 10 years from the passing of risk, with any other preclusion.
The customer may only assign or pledge his rights from this contract to third parties in full or in part with the prior written consent of the Seller.
13. Data protection
The use of personal data is carried out according to the privacy statement published by the Seller separately on the homepage. The customer grants his consent hereto – subject to statutory storage obligations that is revocable at all times.
14. Place of performance, applicable law, place of jurisdiction, contractual language
14.1. The place of performance for the reciprocal services is the registered seat of the Seller in 9020 Klagenfurt, Sattnitzgasse 69.
14.2. Austrian law shall be deemed as applicable to all disputes between the Seller and the customer from the contractual relationship, including disputes regarding the conclusion and/or the validity of the contract under the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflicts of law of international private law.
14.3. The place of jurisdiction for all disputes from the contractual relationship, including disputes regarding the conclusion and/or the validity of the contract and/or regarding the validity of the place of jurisdiction agreement, is the court of competent jurisdiction for the registered seat of the Seller in the Regional Court district of Klagenfurt. The Seller is however also entitled to bring the matter before the court of competent jurisdiction at the registered seat of the customer.
14.4. The contractual language depends on the language of the offer German or English.
15. Severability clause
Should provisions of these General Business Terms be legally ineffective, invalid and/or null and void or become such over the course of their validity, this shall have no effect on the legal effectiveness and the validity of the other provisions. In this case the legally ineffective, invalid and/or null and void provision (that has become legally ineffective, invalid and/or null and void) is to be replaced by such a provision, which is legally effective and valid and in its commercial implication corresponds with the replaced provision – insofar as possible and legally admissible.