General Terms and Conditions of Kloeckner Metals Austria GmbH & Co KG
Last modified on: 03.11.2016
1. These General Terms and Conditions (hereinafter referred to as "T&Cs") apply to all - including future - contracts between Kloeckner Metals Austria GmbH & Co KG and companies, legal entities, legal entities under public law and special funds under public law (hereinafter referred to as "Contractual Partners") for deliveries and other services, including contracts for work and services and the delivery of non-fungible goods. In the case of drop shipments, the terms and conditions of the price list of the commissioned supplier apply additionally.
2. These T&Cs can be accessed without restriction on the homepage of Kloeckner Metals Austria GmbH & Co KG http://www.kloecknermetals.at under the link "Terms and Conditions" and can be downloaded and stored locally at any time.
3. We provide our services exclusively on the basis of these T&Cs. These T&Cs also apply to all future business relations, even if they are not expressly referred to.
4. Deviating terms and conditions of the Contractual Partner are hereby opposed and are not valid.
5. Amendments, collateral agreements, reservations and supplements to these T&Cs are only legally effective if made in writing. This also applies to the agreement to deviate from this requirement for written form. There are no oral collateral agreements.
II. Offers, conclusion of contract
1. Our offers are subject to change.
2. Oral agreements and assurances made by our employees in connection with the conclusion of the contract only become binding upon our written confirmation.
3. We accept offers or orders of the Contractual Partner by written order confirmation or by delivery of the goods or by performance of the service.
4. The information on our products and services given in catalogues, price lists, brochures, company information material, brochures, advertisements on exhibition stands, in circulars, advertising mailings or other media is non-binding unless expressly declared to be part of the contract in writing.
5. Our cost estimates are always provided without any guarantee of their completeness or correctness.
6. In case of doubt, the Incoterms in their latest version will be decisive for the interpretation of trade clauses.
III. E-commerce, marketplace
These T&Cs apply accordingly to contracts concluded between us and Contractual Partners via our e-commerce website, which can be accessed at https://shop.kloeckner.at/.
Our e-commerce website can only be used by registered Contractual Partners (as described in Section I.). The offers on our e-commerce website are not aimed at consumers (within the meaning of sec. 1 Austrian Consumer Protection Act (Konsumententschutzgesetz – KSchG). Sales to consumer are excluded.
Orders of the Contractual Partner for services of Kloeckner Metals Austria GmbH & Co KG listed on our e-commerce website are deemed to be an offer of the Contractual Partner to conclude a corresponding contract with us. We will send the Contractual Partner an electronic confirmation of receipt of the offer to the contact address stated in the offer without undue delay after receipt of the offer, which, however, does not constitute any acceptance of the offer. The offer is first deemed to have been accepted if we declare acceptance to the Contractual Partner or provide the services that have been ordered. We are not obliged to accept the offer. The contract language is German.
On the e-commerce website we also provide third-party suppliers with a marketplace via which they can sell services to Contractual Partners in their own name and for their own account. Contracts are always concluded with the company indicated for the corresponding services on the e-commerce website (i.e. Kloeckner Metals Austria GmbH & Co. KG or a third-party supplier on the one hand and the Contractual Partner on the other). With respect to the exchange of declarations between Contractual Partners and third-party suppliers we always only act as an intermediary. The Contractual Partner acknowledges that we are neither responsible for the content and information provided by third-party suppliers on our e-commerce website nor for the services offered by these or their actions and that a contractual and/or service relationship between us and the Contractual Partner is not established in this respect. In particular, the third-party supplier is solely responsible for the performance of contracts concluded with Contractual Partners, the provision of services, invoicing, collection of payments as well as warranty for defects, refunds and returns. For the contract with a third-party supplier, the general terms and conditions, privacy policies and other relevant declarations of the third-party supplier stated in the context of the conclusion of the contract apply exclusively. The Contractual Partner grants Kloeckner Metals Austria GmbH & Co. KG and its subcontractors the non-exclusive, transferable, sub-licensable and complimentary right to use the information and data provided or transmitted by the Contractual Partner in connection with the e-commerce website (including data in connection with orders) as well as the information and data generated on this basis within the framework of the e-commerce website for the purpose of compliance with its contractual obligations, the operation of the e-commerce website, for data analyses, in particular for marketing and support purposes and for compliance with statutory obligations and official orders. This includes in particular the right to send the declarations and data of the Contractual Partner to a third-party supplier, as far as this is necessary for the conclusion and/or the performance of contracts of the Contractual Partner with the third-party supplier. Further data protection requirements for the use of personal data remain unaffected by these provisions.
IV. Fees / Prices
1. Unless agreed otherwise, the prices and terms valid at the time the contract is concluded apply.
2. If, later than four weeks after conclusion of the contract, the underlying calculation bases, such as taxes and charges, raw material prices, exchange rates or other external costs or personnel costs included in the agreed price, change or are newly incurred, we are entitled to change the price to the corresponding extent.
3. All prices and fees are ex works or warehouse and plus statutory VAT at the applicable rate in euros.
Packaging, transport, loading and shipping costs as well as customs duties and insurance are charged separately and are therefore at the expense of the Contractual Partner.
V. Payment terms
1. Unless agreed otherwise or stated in our invoices, the invoice amount is due for payment immediately after delivery without discount and free of charges and deductions and is to be paid in such a way that we have the amount at our disposal on the due date, e.g. the amount is credited to our account. Payments are to be made exclusively to us or to the bank account we have specified and only have a debt-discharging effect in the event of receipt of payment by us. Payments to representatives or third parties without our consent have no debt-discharging effect for the Contractual Partner.
2. Payment transaction costs are borne by the Contractual Partner.
3. If the invoice amount is not paid in full or in due time by the due date, the Contractual Partner is in in default of payment without a separate payment reminder being required.
4. In the event of default in payment, default interest of 9.2 percentage points above the base interest rate p.a. is agreed.
Should we incur any additional interest beyond this as a result of making use of any credit facility, we are also entitled to request the payment of such interest.
5. The fees due in the event of default for the intervention of debt collection agencies in accordance with the BMWA (Austrian Federal Ministry for Economic Affairs and Labour) regulation on the maximum rates of debt collection agencies, costs incurred, such as expenses for reminders, storage costs and the costs of lawyers intervening out of court or in court (and also on the basis of their hourly rates customary in the market) are – insofar as they were necessary for the appropriate assertion of claims – to be borne by the Contractual Partner.
6. If we have agreed instalment payments with the Contractual Partner, default on all outstanding instalments is agreed in the event of late or incomplete payment of even one due instalment
7. If the Contractual Partner is in arrears with one of its contractual obligations or any other payment obligation towards us, we are entitled, without prejudice to other rights, according to sec. 1052 Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch – ABGB) to suspend our obligation to perform until payment has been made by the Contractual Partner and/or to claim an appropriate extension of the delivery period and/or to declare all outstanding claims from this or other legal transactions due and payable and to collect any delivered items, without this releasing the Contractual Partner from its obligation to perform. A withdrawal from the contract by us only exists through these actions if this has been expressly declared by us.
8. Should the financial circumstances of the Contractual Partner deteriorate, we are entitled to demand immediate payment of the agreed fee or the purchase price and to execute the contract only against advance payment.
9. The assertion of any right of retention and the defence of non-performance of the contract by the Contractual Partner in the event of alleged defects is excluded. The Contractual Partner may only offset its claims and alleged price reduction claims against our claims if the Contractual Partner's claim has been finally established by a court of law or acknowledged by us in writing.
10. Any agreed cash discount always refers only to the invoice value excluding freight and presupposes the complete and timely payment of all due debts by the Contractual Partner at the time of the cash discount. Unless otherwise agreed, discount periods commence from the invoice date.
VI. Reservation of title
1. All goods and products remain our property until full payment of the purchase price by the Contractual Partner.
2. Clause 1 also applies if the items to be delivered or manufactured are resold, modified, processed or treated or mixed.
If the Contractual Partner processes, combines or mixes the goods subject to retention of title with other goods, we are entitled to co-ownership of the new item in proportion to the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires as a result of combination or mixing, the Contractual Partner hereby transfers to us the ownership rights to which it is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and will keep them in safe custody for us free of charge. Our co-ownership rights are deemed reserved goods within the meaning of clause 1.
3. The Contractual Partner may only sell the reserved goods in the ordinary course of business subject to its normal terms and conditions and as long as it is not in default, provided that the claims from the resale are transferred to us in accordance with clauses 5 to 6. The Contractual Partner is not entitled to dispose of the reserved goods in any other way.
4. Until full payment of all our claims, the service/purchased item may not be pledged, assigned by way of security or otherwise encumbered with rights of third parties. In the event of seizure or other claims by third parties, the Contractual Partner is obliged to point out our right of ownership and to inform us without undue delay.
5. The Contractual Partner hereby assigns to us pending full discharge of its debts all claims and rights to which it is entitled from the resale, processing, mixing or other exploitation of the goods and products, together with all collateral which the purchaser acquires for the claim and which serve as security to the same extent as the reserved goods, and we accept this assignment. The Contractual Partner must note this assignment in its books and on its invoices until the fee or purchase price has been paid in full and inform its debtors of this. Upon request, it will provide us with all documents and information required to assert the assigned receivables and claims.
If the reserved goods are sold by the purchaser with other goods not sold by us, the claim from the resale will be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. In the event of the sale of goods in which we have a co-ownership share pursuant to clause 2, a part corresponding to our co-ownership share will be assigned to us.
6. We are entitled to demand the immediate return of the goods delivered but not yet paid for in full or to retrieve goods subject to retention of title and, for this purpose, to enter the purchaser’s premises if the purchaser fails to meet its payment obligations to us punctually and in full, does not honour a bill of exchange on maturity, or insolvency or restructuring proceedings are applied for or initiated with regard to the assets of the Contractual Partner, or if the insolvency application is rejected due to a lack of assets to cover costs, or if the Contractual Partner de facto ceases payments or approaches its creditors for the conclusion of an out-of-court settlement. Taking back the goods by us will not be deemed withdrawal from the contract unless this has been agreed separately in writing. If the goods sold under retention of title are taken back, we retain the right to claim damages for non-performance.
7. The costs arising from the assertion of the rights to which we are entitled from the retention of title are borne by the Contractual Partner. This also applies to the costs of lawyers intervening out of court or in court (also on the basis of their hourly rates customary in the market) insofar as they were necessary for the appropriate assertion of rights.
8. The provisions contained in these T&Cs or in the laws concerning the time of transfer of risk are not changed by the retention of title.
VII. Performance of deliveries, delivery periods and dates
1. The delivery/performance periods applicable to us are non-binding unless they have been expressly agreed in writing as binding in the order confirmation or in the individual contract.
2. The delivery period commences on the date of our order confirmation and only applies subject to the timely clarification of all details of the order and the timely fulfilment of all obligations of the purchaser, such as the provision of all official certificates, letters of credit and guarantees or the payment of down payments.
3. The date of shipment ex works or ex warehouse is decisive for compliance with delivery periods and dates. They are deemed to have been complied with upon notification of readiness for shipment if the goods cannot be shipped on time through no fault of our own.
4. If the order is amended or supplemented after it has been placed, for whatever reason, the delivery/performance period will be extended by a reasonable period of time.
5. The grace period to be granted to us by the Contractual Partner for the reason that the delivery periods have been exceeded is at least four weeks, whereby this grace period will only be legally effective if it is granted by registered letter.
6. If we are prevented from fulfilling our obligations by the occurrence of unforeseeable or unavoidable circumstances or circumstances for which we are not responsible, such as operational disruptions, state measures and interventions, energy supply difficulties, failure of a supplier who is difficult to replace, strike, obstruction of traffic routes, delays in customs clearance or force majeure, the delivery/performance period will be extended by a reasonable period. It is irrelevant whether we or one of our suppliers or subcontractors is affected by these circumstances. We will inform the Contractual Partner without undue delay about the above-mentioned circumstances and the resulting exceeding of any delivery period.
7. The Contractual Partner is not entitled to assert claims for damages on the grounds that delivery periods have been exceeded, except in the case of gross negligence or intent on our part. In this case, Section XIII applies.
8. If performance of the contract becomes impossible for reasons for which we are not responsible, we are released from our contractual obligations.
In this case, the Contractual Partner does not have any claim for damages or recourse.
1. If acceptance has been agreed, it can only take place in the delivering plant or in our warehouse immediately after notification of readiness for acceptance. The personal acceptance costs are borne by the purchaser; the material acceptance costs are charged to the purchaser in accordance with our price list or the price list of the delivering plant.
2. If the acceptance does not take place through no fault of our own, or does not take place on time or in full, we are entitled to ship the goods without acceptance or to store them at the expense and risk of the purchaser and to charge it for these.
IX. Shipment, transfer of risk, packaging, partial delivery
1. We determine the shipping route and means as well as the forwarding agent and carrier so that the Contractual Partner approves any appropriate form of shipment.
2. Goods reported ready for shipment in accordance with the contract must be called off immediately, otherwise we are entitled, after a reminder, at our discretion to ship them at the expense and risk of the purchaser or to store them and invoice them immediately.
3. If transport on the intended route or to the intended destination in the intended time becomes impossible through no fault of our own, we are entitled to deliver by another route or to another destination; the additional costs incurred will be borne by the purchaser. The purchaser will be given the opportunity to comment beforehand.
4. The risk, including the risk of confiscation of the goods and of all transactions, including carriage-paid and free-house deliveries, passes to the Contractual Partner as soon as we make the purchased item/goods ready for collection in the works or warehouse, irrespective of whether the goods are handed over by us to a forwarding agent or carrier.
5. Shipment, loading, unloading and transport are always at the risk of the Contractual Partner.
6. The packaging requested by the purchaser or deemed necessary by us or our delivering plant is invoiced.
The purchaser has to bear the costs of disposing of the packaging.
7. Transport insurance will only be taken out at the expense of the Contractual Partner on its written request.
8. We are entitled to carry out and invoice or partial or advance deliveries. Excess and short deliveries of the agreed quantity customary in the industry are permitted.
X. Call-off orders/continuous deliveries
1. In the case of contracts with continuous delivery, we are to be given call-offs and product categorisations for approximately equal monthly quantities; otherwise we are entitled to determine these ourselves at our reasonable discretion.
2. If the individual call-offs exceed the total contractual quantity, we are entitled, but not obliged, to deliver the additional quantity. We are entitled to invoice the additional quantity at the prices valid at the time of the call-off or delivery.
XI. Qualities, dimensions and weights
1. Qualities and dimensions are determined in accordance with the DIN/EN/Ö (Austrian) standards or material data sheets valid at the time of conclusion of the contract, in the absence of such standards or material data sheets in accordance with commercial practice. References to standards, material data sheets or works test certificates as well as information on qualities, dimensions, weights and usability are not to be construed as assurances or guarantees, neither are declarations of conformity, manufacturer's declarations and corresponding markings such as CE and GS.
2. The weighing carried out by us or our supplier is decisive for the weights. Proof of weight will be furnished by presentation of the weighing slip. We can also theoretically determine weights without weighing according to the length or area of the product, whereby we can determine the dimensions according to recognised statistical methods. We are also entitled to increase the theoretical weight by an additional amount (commercial weight) customary in the Republic of Austria to compensate for rolling and thickness tolerances.
Quantities, bundle numbers, etc. stated in the shipping note are non-binding for goods calculated by weight. If individual weighing is not usually carried out, the total weight of the consignment applies in each case. Differences from the calculated individual weights are distributed proportionally among these. Rounding up to full kilograms takes place.
XII. Warranty (liability for material defects)
1. The warranty period for deliveries/services in the case of a business transaction relating to both contractual parties is limited to six months and commences from the transfer of risk as defined in the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch - ABGB).
2. Even in the first six months after delivery of the purchased item, the Contractual Partner must prove the existence of a defect at the time of delivery, the time of discovery and that the defect was notified in due time.
3. If the purchase is a business-related transaction for us and the Contractual Partner, the goods must be inspected by the Contractual Partner without undue delay after delivery in accordance with sec. 377 of the Austrian Commercial Code (Unternehmensgesetzbuch – UGB) and any defects in the goods and complaints of any kind must be notified to us in writing without undue delay, but no later than within eight days, stating the possible causes, otherwise any warranty claims are lost.
The date of posting is sufficient. Verbal, telephone or non-immediate notices of defects and complaints will not be considered.
4. Defects which could not be detected on delivery, even after the most careful inspection, must be reported in writing without undue delay after discovery, but no later than within eight days in accordance with clause 1, with immediate cessation of any processing and treatment.
5. If an agreed acceptance is carried out, the notification of defects which were detectable or obvious during the acceptance are excluded, unless we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item.
6. If the Contractual Partner asserts justified warranty claims in due time, we are entitled at our discretion
to repair or replace the item/work and to avert a rescission request by a price reduction, unless a significant or irreparable defect is concerned.
The Contractual Partner may only demand monetary compensation if repair and replacement are impossible or only possible if we incur disproportionate expenses, in particular in relation to the purchase price of the goods.
Instead of the rescission request, the Contractual Partner is only entitled to a price reduction request if the goods have already been processed, altered or mixed.
7. If the purchaser does not immediately give us the opportunity to convince ourselves of the defect, in particular if it does not immediately make the goods objected to or samples thereof available for testing purposes upon request, all rights due to the material defect lapse.
8. In the case of goods which have been sold as downgraded material, the purchaser is not entitled to any rights arising from material defects with regard to the stated downgrading reasons and such defects which it would normally have to expect. Our liability for material defects is excluded for the sale of class IIa goods.
9. The Contractual Partner must hand over the goods objected to at our headquarters, insofar as the latter is feasible. The return shipment or return of the goods is at the risk of the Contractual Partner.
10. We are entitled to carry out or have carried out any inspection we deem necessary, even if this makes the goods unusable. In the event that this inspection reveals that we are not responsible for the defect, the Contractual Partner bears the costs for this inspection for a reasonable fee.
11. All costs incurred in connection with remedying the defect, such as transport and travel costs, costs of assembly and disassembly, etc., are borne by the Contractual Partner. Upon our request, the Contractual Partner will provide any necessary staff free of charge.
XIII. General liability provisions and statute of limitations
1. We are liable – also for the fault of our employees, suppliers and other vicarious agents – for breach of contractual and non-contractual obligations, including impossibility, default, fault in conclusion of a contract (culpa in contrahendo) and tort only for damages caused intentionally or by gross negligence, limited to the damage foreseeable at the time the contract was concluded and typical for the contract.
Liability for slight negligence, with the exception of personal injury, is excluded. Our fault must always be proven by the Contractual Partner.
Our liability for consequential damage, indirect damage, loss of profit, purely financial losses, damage caused by interruption of operations, loss of data, loss of interest as well as claims or recourse by third parties against the Contractual Partner etc. is excluded in any case.
Except in cases of wilful intent and gross negligence, any liability we may have is limited in amount to the amount of the agreed remuneration or purchase price. Any further liability affecting us is expressly excluded. If the total damage exceeds this maximum limit, the compensation claims of individual damaged parties will be reduced proportionately.
The Contractual Partner may initially only demand repair or replacement of the goods/work as compensation; the Contractual Partner may only demand monetary compensation if both are impossible or involve disproportionate expense for us. Reference is otherwise made to the provisions of Section XII “Warranty”.
The Contractual Partner declares that it uses our products predominantly at its company. The obligation to pay compensation for material damage resulting from the Austrian Product Liability Act (Produkthaftungsgesetz – ProdHG) as well as related product liability claims which can be derived from other provisions are excluded to the extent that this is legally possible. The Contractual Partner is obliged to impose the exclusion of liability for product liability claims on any of its possible contractual partners. Any recourse of the Contractual Partner against us from the claim according to the Austrian Product Liability Act is excluded in accordance with this clause XII.1. The Contractual Partner must take out adequate insurance for product liability claims and indemnify and hold us harmless against such claims.
Claims for damages must be asserted by the Contractual Partner in court within six months of becoming aware of the damage and the party causing the damage, otherwise the claim lapses. This period also applies to goods which are used for a building in accordance with their usual use and which have caused its defectiveness, unless this use was agreed in writing.
XIV. Place of performance, jurisdiction, applicable law, general provisions
1. Place of performance for both contractual parties is the delivering plant for delivery ex works, otherwise our warehouse.
2. At our discretion, the place of jurisdiction will be the competent court for the registered office of our headquarters in 1220 Vienna or the competent court where the registered office of the Contractual Partner is located or the court where the registered office our branch office with which the contract was concluded is located.
3. For all legal relationships between us and the Contractual Partner, Austrian law is deemed agreed in addition to these T&Cs and within the meaning of a choice of law pursuant to Article 3 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation), to the exclusion of the referral and renvoi rules of private international law.
4. The provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods do not apply.
5. As long as we are not informed of an address for service, notifications and documents of all kinds are served at the last known address of the Contractual Partner with the effect that they are deemed to have been received by the Contractual Partner.
6. Should one or several provisions of these T&Cs be invalid because they breach mandatory law, this will not affect the validity of the remaining provisions. Ineffective provisions will be replaced by the contractual parties by a provision that comes closest to the ineffective provision and is customary in the industry.
7. The contents of the contract, all other information, customer services and complaint handling will be in German throughout.