GENERAL TERMS OF SALE AND DELIVERY
KRUCH Railway Innovations GmbH & Co. KG
1230 Vienna, Pfarrgasse 87
(FN 462469b of the Commercial Register of the Vienna Commercial Court)
1. SCOPE OF APPLICATION
These Terms of Sale and Delivery apply to all contracts, deliveries, and other services, including those in the future, unless they are amended or excluded with KRUCH’s express written consent. The customer’s terms of purchase are hereby expressly rejected. They will not be deemed contract content even if KRUCH does not expressly reject them again after receiving them. These General Terms of Sale and Delivery will apply when the KRUCH delivery or service is accepted, if not before.
For customers who are consumers for the purposes of the Austrian Customer Protection Act (Konsumentenschutzgesetz, KschG), these Terms of Sale and Delivery apply only insofar as they do not oppose compulsory statutory provisions.
Amendments to these Terms of Sale and Delivery are valid only if they are agreed in writing.
2. OFFERS AND CONTRACT FORMATION
Offers and cost estimates are non-binding.
KRUCH and the customer enter into a contract when KRUCH sends an order confirmation after it receives the order, when the goods are handed over or delivered, or when the service is rendered.
KRUCH may reject orders without giving reasons and without being obligated to compensate the customer for any expenses or damage this causes.
KRUCH may accept the customer’s orders partially (and on doing so shall notify the customer thereof in the order confirmation) unless the customer cannot accept a partial delivery or service. If a partial delivery or service is performed, the customer shall pay only the fee allocated to the goods handed over or delivered or the service rendered.
3. INFORMATION AND PRICES
Information of any type, such as prices, quantities, descriptions, illustrations, and data, remains subject to change and might contain errors, especially (but not exclusively) typos and misprints.
All specified prices are based on the current costs for material, energy, and wages, are net prices from the location of the supplying factory (unless specified otherwise), and do not include legal VAT, costs for shipping and packaging, or COD charges.
If the prices change during a long period between order placement and order fulfilment, or while a framework contract for ongoing delivery or processing activity is in effect, especially if prices go up due to taxes, fees, customs, commodity prices, wages under a collective agreement, or energy costs, KRUCH may raise the prices accordingly when the delivery is made.
If the customer provides materials that are in unsuitable condition, KRUCH will charge separately for any additional costs this incurs.
4. DELIVERY PERIOD AND DELIVERY
Specified delivery periods are nonbinding, but KRUCH shall adhere to them as closely as possible in accordance with the following provisions.
A specified delivery period begins with the date of the order confirmation issued by KRUCH, provided all commercial and technical issues have been clarified and the customer has met all its obligations, such as providing the necessary official certificates or permits or making a down payment, at that time. If this is not the case, the specified delivery period will begin to run only after all previously stated conditions have been met.
KRUCH cannot comply with delivery periods if its suppliers fail to provide correct and prompt delivery. If late delivery from those suppliers is imminent, KRUCH shall inform the customer thereof without undue delay.
A specified delivery deadline is deemed met if the delivery object has left KRUCH’s factory, or the customer has been notified that the goods are ready for shipment, before that deadline expires.
KRUCH may make partial deliveries to a reasonable extent. KRUCH may make deliveries containing up to 10% more or less than the agreed quantity.
5. SHIPPING, TRANSFER OF RISK, INSPECTION AND ACCEPTANCE PROCEDURE
Contracts entered into with KRUCH are fulfilled when the goods are handed over—either in the business premises or to the freight carrier.
Unless otherwise agreed, KRUCH shall specify the route and means of transport and is not obligated to choose the cheapest or fastest option.
The risk of the goods being damaged or destroyed is transferred to the customer or freight carrier when the goods are handed over, but at the latest when the goods leave KRUCH’s company premises, even if freight-paid delivery to the customer is used. The customer shall inspect the delivered goods for transport damage and document any such damage immediately on takeover. If the customer asserts claims against the carrier, KRUCH shall support the customer in so doing to a reasonable extent.
If the goods are ready for shipment, but shipment or acceptance is delayed and KRUCH is not to blame or bears less than grossly negligent culpability, the risk will be transferred to the customer as soon as the customer receives the notice of readiness for shipment.
6. PAYMENT CONDITIONS
Unless otherwise expressly agreed in writing, the purchase price must be paid in full within the agreed payment period. If the customer misses the payment deadline it shall pay default interest amounting to 9.2% above the base interest rate, unless KRUCH has suffered greater damage (due to taking out a loan, for example), in which case the customer shall compensate KRUCH for that greater damage.
KRUCH may make deliveries contingent on a down payment, full prepayment, or cash on delivery.
If circumstances exist that reduce the customer’s creditworthiness, KRUCH may withdraw from the contract if the customer is not prepared to provide adequate security or refuses to make a full prepayment. In this case, the customer shall not assert any claims against KRUCH.
7. SETOFF AND WITHHOLDING
The customer may set off KRUCH’s claims against its own alleged counterclaims only if those counterclaims have been finally adjudicated, acknowledged by KRUCH, or are legally connected with KRUCH’s claims.
The customer has no right of retention unless compulsory statutory provisions provide for one.
8. RETENTION OF TITLE
Delivered goods remain KRUCH’s sole property until the gross purchase price has been paid in full along with any default interest, additional fees, and legal costs. Unless KRUCH’s express prior written consent is obtained, the customer shall not forward or pledge to a third party, either for a fee or at no charge, any goods that have not been completely paid for.
If a creditor of the customer seizes the goods, or insolvency proceedings are initiated against the customer’s assets, or a motion for initiating such proceedings is rejected due to lack of assets to cover the costs, the customer shall inform KRUCH thereof in writing without undue delay and shall disclose all relevant data. If the customer breaches the obligations stated in this paragraph, the customer shall indemnify KRUCH and hold that party harmless against all damage and expenses incurred because of the breach.
9. PACKAGING AND RETURNING REFINED GOODS
In general, goods that KRUCH is to refine are delivered and returned in the customer’s own packaging or transport containers.
If the customer does not provide suitable packaging material, KRUCH may at the customer’s expense properly package the goods for the return delivery.
The customer shall inspect the goods handed over or delivered to that party, or the services rendered for that party, for defects without undue delay, and give written notice of any defect within five business days, failing which the customer will lose all warranty claims, the right to damages arising from that defect, and the right to contest because of an error. If a substantiated notice of defect is submitted, KRUCH may at its discretion cure the defect through repair or exchange. If the defect cannot be cured feasibly or at all, or if KRUCH cannot deliver equivalent defect-free goods or render an equivalent defect-free service, the customer may demand a price reduction or, if the defects are more than minimal, may rescind the contract. For customers who are consumers for the purposes of the Austrian Customer Protection Act, the statutory provisions of that act and of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) apply.
11. DAMAGES AND LIABILITY
KRUCH shall be liable for direct damage (except personal injury), including damage arising from nonperformance of the contract, wrongful acts or omissions, or defects, only if KRUCH caused that damage intentionally or through gross negligence. In any case, KRUCH is not liable for indirect damage or other damage.
The customer’s claims for damages are limited to the order value unless this would oppose compulsory statutory provisions.
This does not affect claims under product liability.
12. INTELLECTUAL PROPERTY, CONTRACTUAL PENALTY, CONFIDENTIALITY
Neither the ordering or delivery of KRUCH merchandise nor KRUCH’s rendering of services or transmitting documents (such as plans or sketches) will entitle the customer to any intellectual property rights to the goods, services, or documents. All the goods, services, and documents that KRUCH provides remain the intellectual property of KRUCH alone. KRUCH may at any time demand the return of documents it has transmitted.
The customer shall protect KRUCH’s or third parties’ intellectual property rights to the goods, services, and documents. Any use of those goods, services, and documents, including without limitation replicating, forwarding, duplicating, publishing, and making them available including by copying them even in part, is expressly forbidden.
If the customer breaches the preceding obligations under this chapter 12, it shall pay a contract penalty of EUR 100,000 per breach plus EUR 10,000 for each day the breach continues.
KRUCH may assert damages exceeding the contract penalty, under the head of damages or any other legal grounds.
Otherwise, the customer shall not disclose to anyone the knowledge it receives due to the business relationship with KRUCH.
If customer gives KRUCH goods or documents or renders services for KRUCH that are subject to legal protection, including copyright protection, KRUCH will have an unrestricted nonexclusive right to use those goods, documents, or services.
13. COLLECTING, PROCESSING, AND USING THE CUSTOMER’S PERSONAL DATA
The customer agrees that the data cited in its order or the purchase contract that concern the customer may be stored and processed for data processing, bookkeeping, and customer records. The data are used exclusively to meet statutory requirements and to process the order and payment transactions. Those data may be forwarded to third parties only if doing so is absolutely necessary to perform the contract, the customer has consented to it, or compulsory statutory provisions require the disclosure.
The customer gives its consent to receive emails about KRUCH’s current products and services; it may withdraw that consent in writing at any time.
14. PLACE OF PERFORMANCE, FORUM, APPLICABLE LAW
The place of performance for delivery and payment is the KRUCH company headquarters; the forum for all disputes is the court having subject-matter jurisdiction for commercial matters in Vienna, although KRUCH may at its discretion bring an action at another court having jurisdiction over the customer. These General Terms of Sale and Delivery are governed by Austrian substantive law under exclusion of conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods.
15. CONSUMER TRANSACTIONS
If these General Terms of Sale and Delivery are based on a consumer transaction for the purposes of the Austrian Consumer Protection Act, they apply under consideration of that act’s provisions and those of the Austrian General Civil Code. If provisions of these General Terms of Sale and Delivery oppose compulsory provisions of the Austrian Consumer Protection Act, the respective statutory consumer protection provisions will apply without affecting these terms’ remaining provisions.
16. FOREIGN CUSTOMERS
For customers whose order must be exported out of Austria, the provisions of these General Terms of Sale and Delivery basically apply, but with the following proviso:
the customer must specify its VAT number in the order; if it fails to do so, or if no tax treaty exists, KRUCH will charge for the Austrian VAT and the customer shall pay the invoiced amount including VAT;
the customer shall bear all costs, taxes, fees, and expenses connected with the export out of Austria, the transport, and the import into the destination country;
if customs duty must be paid on deliveries, the customer alone shall pay it, as well as the costs for it;
if a certification is needed for the products the customer buys, the customer alone shall obtain it and pay for it; KRUCH shall give the customer all the product data and information it needs to obtain the certification, although the customer shall make the additional effort to obtain it;
if an export licence is necessary for the export, the customer shall get one at its expense or reimburse KRUCH for the costs and expenses connected with getting it;
the handover to the customer and the transfer of risk will occur in accordance with Incoterms 2020 EXW (ex works).
17. SEVERABILITY CLAUSE
Finding individual provisions of this contract with the customer, including these General Terms of Sale and Delivery, to be fully or partially ineffective, now or in the future, will not invalidate the remaining provisions. The fully or partially ineffective regulation will be replaced by a regulation that comes closest to its economic purpose.
Status March 2021