1. 1. These general terms and conditions apply to all deliveries and services of Kalmar Austria GmbH. (hereinafter referred to as KALMAR for short) and for all offers and contracts made by KALMAR. They also apply to all future business relationships and are effective even if KALMAR does not explicitly refer to them in subsequent contracts in the context of an ongoing business relationship.
1. 2. Deviating terms and conditions of the customer, which KALMAR does not expressly acknowledge in writing, are not binding for KALMAR, even if they are not expressly rejected to.
1. 3. Contractual relationships with KALMAR are subject to Austrian law exclusively. For the application and interpretation of the contract terms, the individual contract text, the general terms and conditions, the HGB and the ABGB apply in this order.
1. 4. The invalidity of individual parts of these terms and conditions does not affect the validity of the remaining provisions. The ineffective condition shall be replaced by those statutory provisions that come closest to the legal and economic sense of the invalid terms.
2. Offers and orders
2. 1. Quotations from KALMAR are non-binding, in particular with regard to price, quantity, delivery time and availability. Quotations are not binding. The costs for the reimbursement of a cost estimate can be charged to the client.
2. 2. Oral commitments as well as changes and additions to a concluded contract require a written confirmation by an authorized representative of KALMAR in order to be valid.
2. 3. Obvious errors or errors in offers, order confirmations or invoices may be corrected by KALMAR. Legal claims of the purchaser / principal on the basis of provable erroneous statements that are in obvious contradiction to the other sales documents are excluded.
3. Information and documents relating to the delivery item
3. 1. Specifications for the specification of the delivery item as well as documents belonging to the offer such as illustrations, sketches, drawings, cost statements, weight and dimensions are in case of doubt only approximations and therefore not binding.
3. 2. KALMAR reserves the proprietary rights and copyrights to the documents specified in point 3. 1. and other documents attached to the offers. They may not be made accessible to third parties without expressed written consent and must be returned to KALMAR upon request.
3. 3. KALMAR reserves the right to change the design and shape until delivery, which, however, does not unduly affect the interests of the client / orderer.
3. 4. KALMAR is not obliged to check the documents given to it by the customer / orderer for their correctness and completeness.
4. Prices, terms of payment and default
4. 1. All prices are in principle net in EURO from the place of business of KALMAR in 9020 Klagenfurt, or otherwise written agreement, including loading at KALMAR, excluding VAT, customs duties and packaging.
4. 2. All changes to any agreed foreign currency or the exchange rate to the EURO occurring after conclusion of the contract shall affect the Customer / Client.
4. 3. In the case of replacement parts, KALMAR is entitled to charge the customer the price of the day on the date of delivery.
4. 4. Payments are due after receipt of the invoice without deduction, unless otherwise stated on the invoice. Cheques are only accepted for payment and for full compensation.
Bills of exchange are only possible with recourse waiver of the redeeming bank and against full interest and expense reimbursement.
4. 5. In the event of late payment, 12% default interest is agreed. In instalment agreements, default leads to a loss of time at a rate.
4. 6. Rights of retention and set-off are only available to the purchaser / client if the claims have been acknowledged and legally established.
4. 7. If the customer / orderer is in default, the risk of accidental loss or deterioration passes to him.
4. 8. If the contractual service is invoiced to a third party at the request of the client / orderer, the customer / orderer is nevertheless liable as the joint debtor for the invoice amount to KALMAR.
4. 9. KALMAR can demand an advance payment for extensive material expenses (eg for repairs) or long-term work.
5. Delivery, delivery times
5. 1. Delivery times and delivery dates are generally not binding. If a binding delivery period has been agreed, this shall commence upon submission of the written order confirmation, but not before receipt of all documents or materials to be provided by the customer / orderer, clarification of all technical questions and not before receipt of a down payment agreed in the specific case.
5. 2. The delivery period is met if the customer / orderer the completion or readiness for shipment was displayed.
5. 3. Partial deliveries are permitted.
5. 4. If a non-binding date is not met, a reasonable period must be agreed; in the case of doubt, this is considered to be reasonable and agreed for six months. Delay occurs only after fruitless expiry of the new (reasonable) period.
5. The delivery date shifts in cases of force majeure or occurrence of unforeseen events beyond the control of KALMAR, such as: Warranty, strike, breakdown, etc. The delivery date shall be postponed even if the customer / orderer with the duties incumbent on him, e.g. Transfer of documents or other forms of involvement in default. If acceptance is delayed for reasons for which KALMAR is not responsible, then the customer / orderer will be charged with costs of storage amounting to 1% of the order value per month, starting one month after notification of completion.
5. 6. If KALMAR defaults on intent or gross negligence of its organs or vicarious agents or if delivery becomes impossible for these reasons, the customer / orderer may, after a reasonable deadline, withdraw from the contract in accordance with the statutory provisions.
5. 7. KALMAR is liable for delay damage only as a result of intentional or grossly negligent causation by its organs or vicarious agents. This standard of liability also applies with regard to the obligation to pay compensation for damages of any kind - including from positive breach of contract, tort and non-performance.
6. Shipping and transfer of risk
6. 1. The risk shall pass to the customer / orderer at the latest with the dispatch of the delivered or processed goods from the KALMAR production site in Klagenfurt; even in cases of partial deliveries and agreed carriage-free delivery. Any returns to KALMAR are at the risk and expense of the customer.
6. 2. If the dispatch or acceptance of the delivery item is delayed for reasons for which KALMAR is not responsible, the risk shall pass to the orderer / client upon receipt of the notification of readiness for dispatch.
6. 3. Insurances against transport damage are the responsibility of the customer / customer, unless otherwise agreed in individual cases.
6. 4. With default of the client / orderer, the risk for the delivered or processed thing passes to him. The customer / orderer shall be in default of acceptance if he does not receive the goods at KALMAR's place of business in 9020 Klagenfurt or another designated by KALMAR within three weeks after receiving the notification of completion or readiness for dispatch or the invoice Job picks up. If the item is not collected by the customer / orderer within this period, KALMAR is entitled to sell self-help. Further compensation claims of KALMAR are reserved in this case.
6. 5. Default of the client / orderer also occurs when he does not hand over to KALMAR necessary parts, the handover of which he has promised KALMAR, in time.
7. Conclusion of the contract and subject of the contract
7. 1. The scope and content of a specific contractual relationship is determined by KALMAR's written order confirmation; additional agreements are invalid unless they have been confirmed in writing by KALMAR.
7. 2. If, in the course of manufacturing or repair work, the order has to be changed (extended) for technical or economic reasons, KALMAR shall be entitled to execute the order to the extent that KALMAR considers it to be in its interest of the client / orderer. For a further scope of the order the written approval of the customer / purchaser must be obtained. If the customer / orderer does not agree to such a change of the order, KALMAR is entitled to charge for the work done so far and to refuse further execution of the order.
8. Retention of title, lien
8. 1. Delivered items remain the property of KALMAR until full payment of all claims arising from the business relationship between KALMAR and the orderer / client.
8. 2. The items delivered by KALMAR under retention of title and still owned by KALMAR may only be resold with express consent. Pledging or security transfers are prohibited.
8. 3. In case of repairs, KALMAR is entitled to a lien on the processed item until payment of the invoice amount. KALMAR is entitled to assert a right of retention until payment of this claim on the subject of the contract of work.
8. 4. The customer / orderer hereby assigns the claims and other claims arising from a resale of the reserved goods, together with all ancillary rights, to KALMAR for its security. KALMAR accepts the assignment.
8. 5. The customer / client is entitled to collect the claims assigned to KALMAR for their account in his own name as long as he fulfills his contractual obligations to KALMAR and does not fall into financial collapse. Upon request, the customer / client has to disclose the assignment.
8. 6. If the value of the collateral existing for KALMAR exceeds its unpaid claims by more than 20%, KALMAR shall be obliged to release collateral of its choice at the request of the purchaser / client or a third party affected by the over-collateralisation.
8. 7. In the case of seizure, confiscation or other access by third parties to the reserved goods, the customer / client must immediately inform KALMAR of the property and notify KALMAR without delay, handing over the documents necessary for an intervention. Costs and damages resulting from this shall be borne by the customer / client.
8. 8. KALMAR is entitled to insure the reserved goods at the expense of the customer / client against theft, burglary, fire, water and other damages, unless the customer / client has himself taken out the insurance and this has been proven by KALMAR. The customer / client has the obligation to keep the reserved goods in a technically perfect condition, treat them with care and store them carefully.
8. 9. The customer / orderer is liable to KALMAR for all disadvantages that KALMAR incurs when asserting the retention of title.
9. Liability for defects and warranty
9. 1. KALMAR shall be liable for defects in (factory) new delivery items as well as for the lack of written assured properties on such delivery items, excluding further claims for a period of six months (when using the delivery item in multi-shift operation for a period of three months) Indication of readiness for dispatch of the relevant delivery item. This also applies to new spare parts, which are installed in used delivery items of the customer / orderer, in which case the aforementioned deadlines for installation of the relevant replacement part by KALMAR begin to run from the date of installation and otherwise from the date of notification of readiness for shipment , Proof that the defect in question (faulty design, material defect or defective execution) is to be provided by the customer / client. Moreover, the client / orderer has to inform the defect immediately in writing if he otherwise excludes his warranty claims. Spare parts replaced by KALMAR in warranty become their property.
9. 2. The warranty obligation of KALMAR only applies to defects that render the delivery item unusable or significantly impair its usability, and which occur under normal operating conditions and when used properly. Warranty claims and claims for damages based on improper and / or improper use, non-compliance with maintenance regulations, incorrect assembly or commissioning by the customer / customer or third parties, use of unsuitable equipment or spare parts, excessive use, natural wear and tear, extraordinary wear and tear are excluded chemical, electrochemical and electrical influences as well as extraordinary weather and natural influences. Accordingly, a liability of KALMAR is also excluded if rework, changes or repair work were carried out improperly by the customer / client. This does not apply if danger in default requires immediate action.
9. 3. KALMAR shall be given reasonable time and opportunity to make repairs and replacement deliveries; if this is refused, the warranty claim expires
9. 4. In case of failure of the improvement or replacement by KALMAR, in particular in case of impossibility, failure or refusal of legitimate claims for improvement on the part of KALMAR, the customer / client is entitled to claim price reduction or to withdraw from the contract. The same applies if KALMAR has granted a reasonable period of grace for the repair or replacement delivery in respect of a defect for which o.a. Conditions by their fault can pass fruitlessly.
9. 5. Further claims of the customer / client, in particular claims for compensation for damages that have not arisen on the delivery item itself, are excluded. This disclaimer of liability does not apply in the case of intent or gross negligence on the part of organs or vicarious agents. It also does not apply in the absence of properties that are warranted in writing by KALMAR if the assurance of such properties was intended to protect the customer / client against consequential damage.
9. 6. Technical data and product information of all kinds mentioned by KALMAR (including those within the meaning of § 922 Abs. 2 ABGB) are not considered warranted properties within the meaning of § 923 ABGB, unless they have been submitted by KALMAR to the customer / Client have been confirmed in writing as "guaranteed properties".
9. 7. For the delivery of used items a warranty is excluded.
10. Prohibition of assignment
The customer / orderer can transfer the rights from this contract to third parties only with the written consent of KALMAR.
11. General liability
In addition to the warranty provision according to item 9, KALMAR is only liable for intent and gross negligence on the part of its organs or vicarious agents. This applies in particular to claims arising from negligence on conclusion of the contract, positive breach of contract of advice and other support services and tort. Notwithstanding anything to the contrary, Seller shall not be liable for any deliveries that result in direct or indirect loss of production, loss of profit, loss of use, loss of contract, or consequential or incidental loss to Customer. Under no circumstances will the Seller's liability under this Agreement exceed 5% of the total contract value.
12. Place of performance, jurisdiction
The place of jurisdiction and place of fulfilment is Klagenfurt.
These general terms and conditions apply only in business dealings with merchants, companies or with legal entities of public law or with special funds under public law.
General Terms and Conditions of Kalmar Austria GmbH
As of: 01.09.2018