General terms and conditions of sale
of the company K & K PROVITRUM GMBH
Status: January 01, 2022
1. Validity of the general terms and conditions of sale
1.1. For all contracts (especially sales contracts, contracts for work, and all other contractual performances) concluded between the company K&K ProVitrum GmbH (“supplier”) and purchaser or client (“client”) only the following gen-eral terms and conditions of sale will be applied.
1.2. The client’s trading conditions will not be accepted, unless the express and written supplier’s consent would be nego-tiated for a particular case.
2. Conclusion of a contract
2.1. The supplier’s verbal notifications (even if required by the client) are not binding, not even in case that the terms, prices, or technical specifications are communicated. Both the verbal technical expression and suggestions for solu-tion, as well as verbal specifications, demonstrations, or samples are also without guarantee. All assurances and communications on the part of the supplier are to be made in writing.
2.2. Only the features and characteristics, as stated in our offer or in our order confirmation, belong to the negotiated characteristics of our goods. Other or additional features and characteristics will only belong to the negotiated na-ture of our goods, if these ones were explicitly “as such” negotiated by us with the client. Such negotiations about the characteristics of our goods are to be made in writing.
2.3. In any case, the supplier’s offers are not binding. The con-tract is considered as a concluded one, when the order confirmation is presented to the client, or – in case that there is no order confirmation – when the delivery to the client is realized. The contract is also considered as a con-cluded one, when the client (in writing or verbally) accepts the supplier’s offer.
2.4. We reserve the right of deviations from the illustrations and descriptions, common tolerances for quality and di-mensional data, correction of misprints and mistakes, as well as modifications of the products contributing to the technical progress; this will not apply in case that such de-viations etc. are not acceptable for the client.
3.1. The client is obliged, neither to transmit nor to communi-cate any plans, price suggestions, or offers to third parties.
3.2. The client must not transmit the price, payment conditions or special conditions to third parties.
3.3. For the communication of other information, the consent of the supplier is always required.
4. Delivery and claims
4.1. Unless some other delivery conditions are explicitly stated, the “ex-works” (unpaid) delivery is considered as the ne-gotiated one.
4.2. The negotiated delivery assumes that the access road for delivery is suitable for heavy-load trucks.
4.3. The client bears the total transport costs, even if the sup-plier organizes the transport of goods.
4.4. The risks (both destruction and damage) of goods pass to the client at the moment, when the supplier presents the goods to the haulier for transport to the client.
4.5. The delivery term begins with the sending of the order confirmation, however neither before receipt of possibly needed background papers, permits, approvals, and in-formation to be provided by the client necessary for ful-filment of the order, nor before the receipt of the negotiat-ed advance payment.
4.6. The delivery term is considered as kept as agreed, when the supply is dispatched or the preparedness of supply is announced.
4.7. If the supplier co-operates in the transport of goods – at loading and/or unloading or in some other manner (mak-ing/signing of policies, custom formalities, etc.), then such activities are always performed on behalf and at the risk of the client.
4.8. In case of delivery of machinery, the client is obliged to provide at his own expenses the appropriate unloading device (e.g. fork-lift truck, crane) able to unload the com-ponents of machinery according to the packing list and ac-cording to the manufacturer’s unloading instructions. In any case, the client bears responsibility for unloading of the delivered components of machinery from the transport vehicle and for the transport to the final site.
4.9. The client is obliged to check the delivered goods without any delay (but during 4 working days at the latest) for possible defects. The existing defects need to be communi-cated to the supplier in writing, namely within 2 working days after detection of such defects.
4.10. The apparent defects need to be communicated immedi-ately to the supplier as well as to the haulier’s representa-tive.
4.11. If the client fails to perform such check for defects, or, if such checks or the communication of defects will be per-formed too late, the delivered goods will be considered as approved and the client will lose the right of claim against the contract inconsistent delivery.
5. Force majeure
Force majeure and other unforeseeable or on the part of the supplier non-controllable hindrances (e.g. riots, traffic problems, and so on) as well as accidents non-controllable by the supplier or its subcontractors, interrupt the deliv-ery obligation of the supplier for the duration of such cir-cumstances, even if such circumstances arise at some of the supplier’s subcontractors, even in case that at this time the supplier is already in delay.
6. Retention of title
6.1. All goods and supplies remain in the property of the sup-plier until the payment of the total purchase price.
6.2. The client is obliged, to handle with these (retained) prod-ucts carefully and to cover reasonably such (retained) products by policy during the period of retention.
6.3. Should the client be in delay with payment, the supplier is any time entitled to repossess the (retained) goods.
6.4. If the client sells the retained subject of purchase to the third party and if the client will be delayed with the pay-ment, then the client’s claim from the purchase price against the third party will be transferred to the supplier.
6.5. The client is not entitled to use the retained products as pledge or guarantee or to dispose of such products in a manner which jeopardizes the supplier’s property.
7. Warranty period, period of limitation
7.1. The supplier guarantees that the supply will comply with the quality as stated in the order confirmation.
7.2. The warranty period makes 12 months after the hand-over.
(Exemption see clause 7.3).
7.3. For the machinery being operated in multi-shift mode, the warranty period is reduced to 6 months.
7.4. For second-hand machinery, no warranty period is ap-plied.
7.5. The client is always obliged to demonstrate, that the defect subsisted already at the moment of hand-over of the sub-ject of purchase.
7.6. Other contractual claims of the client due to the infringe-ment of the supplier’s duties are to be made within 12 months after the hand-over.
8. Compensation for damage
8.1. The supplier is only liable for gross negligence and inten-tion. The client is obliged to demonstrate the supplier’s gross negligent and intended action. This exclusion of re-sponsibility will not apply for injuries to health or life.
8.2. The exclusion of responsibility (according to clause 8.1.) will be also applied to all employees, commercial clerks and vicarious agents.
8.3. The client is always obliged to demonstrate the supplier’s guilt.
8.4. The rights for compensation of profit loss as well as com-pensation of costs for production breakdowns and deficits are excluded.
8.5. Moreover, whichever liability for consequential losses due to delivery of faulty product or due to delayed supply is al-so excluded.
8.6. When we duly concluded with our subcontractors the congruent dealings, the delivery terms as stated by us are subject to duly and proper reinsurance of the deliveries as such.
8.7. In case that the supplier provides technical information or consultancy not belonging to the contractually negotiated scope of performance; any guarantee for such activities is excluded.
9. Prices and payment conditions
9.1. The supplier’s prices mean the prices without costs for transport and packaging, customs and custom charges, and regular sales tax; the prices are stated in EUR.
9.2. The supplier reserve the right to require an advance pay-ment before the delivery from the client.
9.3. If there will be evident risk of non-payment of the collect-ing demand by the client due to the client’s insufficient paying ability, the supplier is entitled to change all still pending claims from the entire commercial relations with the client into immediately payable claims, provided that the supplier already realized the supply. This will also ap-ply in case that the supplier already received cheques or bills of exchange. Supplier is entitled, to require an ad-vance payment for the as yet non-realized.
9.4. If there is no explicit agreement concerning the payment method, the client is obliged to pay the outstanding amount without delay.
9.5. If there are several claims against the client, the client’s payments will be always placed against the oldest claim. Devious payment purposes of the client are ineffective.
9.6. The client’s claims against the supplier must not be set-off against the supplier’s claims against the client.
9.7. If the client will be delayed with payment, the client is obliged to pay the delay charge in amount of 9.2% in addi-tion to the base lending rate.
10. Special arrangement for the performance of installa-tion, service, and repairing
10.1. In case of installation, service, and repairing performances, the client will bear (in addition to the appropriate applica-ble hourly rate) also the appropriate mileage allowance as well as all other costs for accommodation and travel ex-penses of the technician(s).
10.2. If the contract on installation, service, and repairing per-formances is realized, and if the provision of performance will be prevented by the client, or, if after conclusion of the contract the performance will not be possible due to cir-cumstances under the responsibility of the client, then the client is obliged to pay the entire price of purchase or the price for work. If there are no travel costs or mileage al-lowances, then such costs will not be paid. If the installa-tion, service, and repairing performances will be delayed due to local circumstances under the responsibility of the client, then the additional costs as well as working hours of the technician will be paid by the client.
11. Place of performance, law court and applicable law
11.1. In any case, the place of performance will be the supplier’s registered place, even if the hand-over will occur else-where.
11.2. For all legal disputes, the exclusive jurisdiction of the court competent for the supplier’s registered place is agreed.
11.3. The Austrian law will be applied exclusively. The use of UN-Commercial Law is excluded.
12. Change of address and copyright
12.1. The client is obliged to inform the supplier about the change of address of the place of business without any de-lay. In case of negligence, the goods and correspondence will be considered as delivered ones, even if sent to the last reported address.
12.2. Drawings and sketches, samples, catalogues, brochures, representations etc. always remain the intellectual proper-ty of the supplier or manufacturer. The client obtains no rights of use to the above mentioned items.
13. Saving clause
Should any single terms of this general terms and condi-tions of sale be invalid or become invalid for any reason, the rest of the agreement shall remain unaffected and valid.