Terms and conditions for
Metal technician (locksmith / forge)
As of 22.1.2019
1. validity
1.1.These terms and conditions of business apply between us Kober GmbH and natural and legal persons (in short customer) for the present legal transaction as well as towards entrepreneurial customers also for all future business, even if in individual cases, especially in future supplementary or follow-up orders, no explicit reference was made to them.
1.2 The version of our General Terms and Conditions of Business valid at the time of the conclusion of the contract and available on our homepage www.kobler.co.at shall apply to business customers and have also been transmitted to the customer.
1.3 We contract exclusively on the basis of our AGB.
1.4 The customer's terms and conditions of business or changes or additions to our GTC require our express written consent in order to be valid.
1.5.the customer's terms and conditions of business will not be recognised even if we do not expressly object to them after receipt by us.
2. offer/contract conclusion
2.1 Our offers are not binding.
2.2.Promises, assurances and guarantees on our part or agreements in connection with the conclusion of the contract that deviate from these General Terms and Conditions of Business shall only become binding for business customers upon our written confirmation.
2.3.Information about our products and services which is not attributable to us and which is listed in catalogues, price lists, brochures, advertisements on exhibition stands, circulars, advertising mailings or other media (information material) must be provided to us by the customer - insofar as the customer bases his decision to place an order on such information. In this case we can comment on their correctness. If the customer violates this obligation, such information is non-binding, unless it has been expressly declared in writing - to business customers - to be part of the contract.
2.4 Cost estimates are provided without guarantee and are subject to payment. Consumers will be informed of the cost obligation before the cost estimate is prepared. If an order is placed for all services included in the cost estimate, the fee for the cost estimate will be credited to the invoice in question.
3. prices
3.1.price quotations are generally not to be understood as an all-inclusive price.
3.2.For services ordered by the customer, which are not covered in the original order, the customer is entitled to reasonable remuneration.
3.3.Price quotations are subject to the respective applicable statutory value added tax and are ex warehouse. Packaging, transport. Loading and shipping costs as well as customs and insurance shall be borne by the entrepreneurial customer. These costs shall only be charged to consumers as customers if this has been negotiated in an individual contract. We are only obliged to take back packaging if this has been expressly agreed.
3.4 The customer shall arrange for the professional and environmentally friendly disposal of used material. If we are separately commissioned to do so, the customer shall also pay appropriate remuneration to the extent agreed for this purpose, in the absence of any agreement on remuneration.
3.5.We shall be entitled to adjust the contractually agreed remuneration, both of our own accord and at the request of the customer, if changes of at least 5% have occurred since the conclusion of the contract with regard to (a) wage costs due to legislation, regulations, collective bargaining, works agreements or (b) other cost factors necessary for the performance of the service, such as material costs based on recommendations of the joint commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. The adjustment shall be made to the extent that the actual production costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided we are not in default.
3.6.The remuneration for continuing obligations is agreed as value-hedged according to the CPI 2010 and thus the remuneration is adjusted. The month in which the contract was concluded is taken as the starting point.
3.7 In the case of consumers as customers, the fee is adjusted in accordance with point 3.5 in the event of changes in costs and in the case of continuing obligations in accordance with point 3.6 only in the event of individual contractual negotiations if the service is to be provided within two months of conclusion of the contract.
3.8 In the case of invoicing according to length, the largest length shall be taken as a basis, both for diagonally cut and notched profiles and for curved profiles, handrails and the like as well as for staircases, balcony and protective railings, fencing and the like. When calculating an area dimension, the smallest rectangle circumscribing the executed area is always taken as the basis. Invoicing by weight shall be done by weighing. If weighing is not possible, the commercial weight shall be decisive. For sectional steel and profiles, the commercial weight shall be decisive; for sheet steel and strip steel, 80 N/m² shall be applied per mm of material thickness; the rolling tolerance is included in each case. In the case of bolted, welded and riveted structures, 10 percent shall be added to the masses determined in this way for the fasteners used; the surcharge for galvanized components or structures shall be 100 percent.
4. goods provided
4.1 If equipment or other materials are provided by the customer, we are entitled to charge the customer a surcharge of 20% of the value of the provided equipment or materials.
4.2 Such equipment and other materials provided by the customer are not subject to warranty.
4.3.The quality and operational readiness of provided equipment is the responsibility of the customer.
5. payment
5.1.One third of the fee is due upon conclusion of the contract, one third at the beginning of the service and the rest after completion of the service.
5.2 The entitlement to a discount deduction requires an express written agreement with entrepreneurial customers.
5.3 Any payment dedications made by the customer on bank transfer vouchers are not binding for us.
5.4 In accordance with § 456 of the Austrian Commercial Code (UGB), we are entitled to charge entrepreneurs as customers 9.2 % points above the base interest rate in the event of culpable payment default. Towards consumers we charge an interest rate of 4%.
5.5 We reserve the right to assert further damages caused by default, however, only if this is negotiated in detail with consumers as customers.
5.6 If the entrepreneurial customer is in default of payment within the framework of other contractual relationships existing with us, we are entitled to suspend the fulfilment of our obligations under this contract until the customer has fulfilled them.
5.7 We are then also entitled to make due all claims for services already rendered from the current business relationship with the customer. This vis-à-vis consumers as customers only in the event that an overdue service has been due for at least six weeks and we have unsuccessfully reminded the customer under threat of this consequence by setting a grace period of at least two weeks.
5.8 The customer shall only be entitled to offsetting if counterclaims have been established by a court of law or acknowledged by us. Consumers as customers are also entitled to a right of set-off insofar as counterclaims are legally connected with the customer's payment obligation, as well as in the event of insolvency of our company.
5.9 If the payment deadline is exceeded, any remuneration granted (discounts, reductions, etc.) shall be forfeited and shall be added to the invoice.
5.10. For reminders necessary and appropriate to the purpose of collection, the customer undertakes to pay reminder fees in the amount of € 15,- per reminder if the delay in payment is due to his fault, as long as this is in reasonable proportion to the claim being pursued.
6. credit assessment
6.1 The customer expressly agrees that his data may be transferred to the state-preferred creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvency Protection Association for Employees (ISA) and Kreditschutzverband von 1870(KSV) exclusively for the purpose of creditor protection.
7. duties of cooperation of the customer
7.1.Our obligation to perform shall commence at the earliest as soon as the customer has created all structural, technical and legal prerequisites for performance, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer must have known about due to relevant expertise or experience.
7.2 In particular, the Customer shall provide the necessary information on the location of concealed power, gas and water lines or similar devices, escape routes, other obstacles of a structural nature, borderlines, other possible sources of disruption, sources of danger, as well as the necessary structural data and any planned changes in this respect, without being requested to do so. Order-related details of the necessary information can be obtained from us.
7.3 If the customer does not comply with this obligation to cooperate, our performance is not defective - exclusively with regard to the performance not fully given due to incorrect customer information.
7.4.The customer shall arrange for the necessary authorisations of third parties as well as notifications and authorisations by authorities at his own expense. We will draw attention to these in the context of the conclusion of the contract, unless the customer has waived this or the entrepreneurial customer had to have such knowledge due to training or experience.
7.5 The energy and water quantities required for the performance of the service, including the trial operation, are to be provided by the customer at his own expense.
7.6 The customer shall be liable for ensuring that the necessary structural, technical and legal requirements for the work to be produced or the object of purchase are met, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer must have known about due to relevant expertise or experience.
7.7 The customer shall provide us with lockable rooms for the stay of workers and for the storage of tools and materials free of charge for the time of performance of the services.
7.8 Order-related details of the necessary information can be requested from us.
7.9 The customer is not entitled to assign claims and rights from the contractual relationship without our written consent.
8. performance of services
8.1 We are only obliged to take into account subsequent change and extension requests of the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.
8.2 Minor changes to our service performance that are reasonable and objectively justified for the entrepreneurial customer shall be deemed approved in advance.
8.3 If, for whatever reason, the order is changed or supplemented after the order has been placed, the delivery/performance period shall be extended by a reasonable period of time.
8.4.If the customer wishes to have the service performed within a shorter period of time after the contract has been concluded, this shall constitute a change to the contract. This may make overtime necessary and/or result in additional costs due to the acceleration of material procurement, and the remuneration shall increase appropriately in proportion to the additional work required.
8.5 Partial deliveries and services that are objectively justified (e.g. plant size, construction progress, etc.) are permissible and can be invoiced separately.
9. performance periods and deadlines
9.1.Periods and dates shall be postponed in the event of force majeure, strike, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control during the period during which the relevant event continues. This does not affect the customer's right to withdraw from the contract in the event of delays which make it unreasonable to bind him to the contract.
9.2 If the start of the performance of services or the performance is delayed or interrupted by circumstances attributable to the customer, in particular due to the violation of the obligations to cooperate under these General Terms and Conditions, performance deadlines shall be extended accordingly and agreed completion dates shall be postponed accordingly.
9.3 We shall be entitled to charge 5% of the invoice amount for the storage of materials, equipment and the like in our company for each month of the delay in performance commenced, whereby the customer's obligation to pay and his obligation to accept shall remain unaffected.
9.4 Delivery and completion dates are only binding for business customers if compliance with them has been agreed in writing.
9.5 In the event of delay in the fulfilment of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period. The setting of the grace period must be made in writing (by corporate customers by registered letter) with simultaneous threat of withdrawal.
10. reference to limitation of the scope of services
10.1 Within the scope of assembly and repair work, damage (a) to existing stock may occur as a result of unrecognisable conditions or material defects (b) during caulking work in unbonded masonry. We shall only be responsible for such damage if we have culpably caused it.
10.2 In the case of anodised and coated materials, differences in colour nuances cannot be excluded.
10.3 Protective coatings last three months.
11. temporary repair
11.1. in the case of temporary repairs, the durability is very limited and appropriate to the circumstances.
11.2 In the event of a makeshift repair, the customer shall immediately arrange for a professional repair.
12. bearing of risk
12.1 § 7b KSchG applies to the transfer of risk when the goods are sent to the consumer.
12.2 The risk shall pass to the entrepreneurial customer as soon as we have the object of purchase, the material or the work ready for collection at the factory or warehouse, deliver it ourselves or hand it over to a carrier.
12.3 The entrepreneurial customer shall insure himself against this risk accordingly. We undertake to take out transport insurance at the customer's written request and at his expense. The customer approves any customary mode of shipment.
13. default of acceptance
13.1 If the customer is in default of acceptance for more than 4 weeks (refusal of acceptance, default in advance performance or otherwise) and if the customer has not taken steps to remedy the circumstances attributable to him which delay or prevent performance despite being granted a reasonable period of grace, we may, if the contract is valid, dispose otherwise of the equipment and materials specified for the performance of the service, provided that, if performance of the service is continued, we procure these within a period of time reasonable under the circumstances.
13.2 If the customer is in default of acceptance, we are also entitled to store the goods on our premises if we insist on fulfilment of the contract, for which we are entitled to a storage fee of 10%.
13.3 This does not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.
13.4 In the event of a justified withdrawal from the contract, we may demand lump-sum compensation from the entrepreneurial customer in the amount of 50% of the order value plus VAT without proof of the actual damage. The obligation to pay damages by an entrepreneurial customer is independent of fault.
13.5 The assertion of a higher damage is permissible. This right shall only exist vis-à-vis consumers if it has been negotiated in individual cases.
14. retention of title
14.1 The goods delivered, assembled or otherwise handed over by us remain our property until full payment has been made.
14.2 Resale shall only be permitted if we have been informed of such resale in good time in advance, stating the name and address of the purchaser, and if we consent to the sale. In the event of our consent, the purchase price claim of the entrepreneurial customer shall be deemed assigned to us already now.
14.3 Until the payment of the remuneration or purchase price in full, the customer must make a note of this assignment in his books and on his invoices and inform his debtors of this. Upon request, he shall provide the contractor with all documents and information necessary for the assertion of the assigned claims and receivables.
14.4 If the customer is in default of payment, we shall be entitled to demand the return of the reserved goods after setting a reasonable grace period. With respect to consumers as customers, we may only exercise this right if at least one outstanding performance by the consumer has been due for at least six weeks and we have unsuccessfully issued a reminder under threat of this legal consequence and setting a grace period of at least two weeks.
14.5 The customer must notify us immediately before bankruptcy proceedings are opened against his assets or before our reserved goods are seized.
14.6 The customer expressly agrees that we may enter the location of the reserved goods in order to assert our reservation of title.
14.7 The customer shall bear any costs necessary and reasonable for the appropriate legal prosecution.
14.8 The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
14.9 We shall be entitled to freely dispose of the repossessed reserved goods in the best possible way to entrepreneurial customers.
15. industrial property rights of third parties
15.1 If the customer provides intellectual creations or documents and if property rights of third parties are asserted with regard to such creations, we shall be entitled to stop production of the delivery item at the customer's risk until the rights of third parties have been clarified and to claim compensation for the necessary and appropriate costs incurred by us, unless the unjustification of the claims is obvious.
15.2 The customer shall indemnify and hold us harmless in this respect.
15.3 We are entitled to demand reasonable advance payments from business customers for any legal costs.
15.4 For delivery items which we manufacture in accordance with customer documents (construction details, drawings, models or other specifications, etc.), the customer shall exclusively guarantee that the manufacture of these delivery items does not infringe the property rights of third parties.
15.5 If third-party property rights are nevertheless asserted, we shall be entitled to discontinue the manufacture of the delivery items at the Customer's risk until the rights of third parties have been clarified, unless the unjustification of the claims is obvious.
15.6 We may also claim compensation from the customer for necessary and useful costs incurred by us.
16. our intellectual property
16.1 Plans, sketches, cost estimates and other documents provided by us or created by our contribution remain our intellectual property.
16.2 The use of such documents outside of the intended use, in particular the passing on, duplication, publication and making available, including copying even in extracts, requires our express consent.
16.3 The customer further undertakes to maintain secrecy towards third parties with regard to the knowledge received from the business relationship.
16.4 If we have handed over to the customer objects which were not owed within the scope of the performance of the contract (e.g. colour samples, security fittings, lighting fixtures, etc.), these must be returned to us within 14 days. If the customer does not comply with a corresponding request in due time, we may demand a lump-sum compensation from the customer in the amount of 50% of the value of the handed over objects without proof of the actual damage. The obligation to pay compensation is independent of fault in the case of an entrepreneur.
17. warranty
17.1 The provisions on the statutory warranty shall apply. The warranty period for our services to business customers is one year from delivery.
17.2 Unless otherwise agreed (e.g. formal acceptance), the time of handover is the time of completion, at the latest when the customer has taken over the service into his power of disposal or has refused to take it over without giving reasons.
17.3 If a joint handover is planned, and if the customer fails to meet the handover date notified to him, the acceptance shall be deemed to have taken place on that day.
17.4 Remedies of a defect claimed by the Customer do not constitute an acknowledgement of the defect claimed by the Customer.
17.5 The entrepreneurial customer shall grant us at least two attempts to remedy the defect.
17.6 If the customer's claims for defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred by us in determining that the goods are free of defects or in remedying the defects.
17.7 The entrepreneurial customer must always prove that the defect was already present at the time of delivery.
17.8 In order to remedy defects, the customer must make the plant or equipment available to us without culpable delay and grant us the opportunity to have it inspected by us or by experts appointed by us.
17.9 Defects in the delivery item which the entrepreneurial customer has discovered or should have discovered in the normal course of business after delivery by inspection must be reported to us in writing without delay, at the latest 10 days after handover. Hidden defects must also be reported within this reasonable period of time after their discovery.
17.10.Any use or processing of the defective object of performance which threatens to cause further damage or makes it difficult or impossible to ascertain the cause of the defect must be stopped immediately by the customer, unless this is unreasonable.
17.11. If a notice of defects is not made in due time, the goods shall be deemed to be approved.
17.12. If the customer's claims for defects are unjustified, the customer is obliged to reimburse us for any expenses incurred by us in determining that the goods are free of defects or in remedying the defects.
17.13. Any use or processing of the defective delivery item, which threatens to cause further damage or makes it difficult or impossible to eliminate the cause of the defect, must be stopped immediately by the customer, unless this is unreasonable.
17.14. We can avert a request for conversion by improvement or appropriate price reduction, provided that it is not a substantial and unrecoverable defect.
17.15. If the subjects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we only provide warranty for the execution according to the conditions.
17.16. The fact that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on actual circumstances deviating from the information available to us at the time of performance of the service because the customer does not comply with his obligations to cooperate.
17.17.The defective delivery or samples thereof are to be returned to us by the entrepreneurial customer - if economically justifiable.
17.18.The costs for the return transport of the defective item to us shall be borne entirely by the business customer.
17.19.The customer is obliged to enable us to determine the defect without delay.
17.20.Warranty is excluded if the customer's technical equipment such as supply lines, cabling etc. are not in a technically perfect and operational condition or are not compatible with the delivered items, insofar as this circumstance is causal for the defect.
18. liability
18.1 We shall only be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility of performance, delay etc. in the event of financial loss in cases of intent or gross negligence.
18.2 In relation to entrepreneurial customers, liability is limited to the maximum amount of a liability insurance policy concluded by us.
18.3 This limitation shall also apply to damage to an item which we have accepted for processing. However, this only applies to consumers if this has been negotiated in an individual contract.
18.4 Claims for damages by business customers must be asserted in court within two years otherwise they will expire.
18.5 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage which they inflict on the customer without reference to a contract on their part with the customer.
18.6 Our liability is excluded for damage caused by improper handling or storage, overstressing, failure to follow operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorised by us, or natural wear and tear, provided that this event was causal for the damage. The exclusion of liability also exists for failure to carry out necessary maintenance, unless we have assumed the obligation for maintenance by contract.
18.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable, either through his own or through a damage insurance policy taken out in his favour (e.g. liability insurance, hull, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefits and our liability is limited in this respect to the disadvantages incurred by the customer through the use of this insurance (e.g. higher insurance premium).
18.8 Those product characteristics are owed which can be expected by us, third party manufacturers or importers from the customer with regard to the approval regulations, operating instructions and other product-related instructions and notes (in particular also control and maintenance), taking into account the customer's knowledge and experience. The customer as reseller shall take out sufficient insurance for product liability claims and shall indemnify and hold us harmless in respect of recourse claims.
19. severability clause
19.1 Should individual parts of these GTC be invalid, the validity of the remaining parts shall not be affected.
19.2 We as well as the entrepreneurial customer commit ourselves already now - based on the horizon of honest contracting parties - to find a replacement regulation which comes closest to the economic result of the invalid condition.
20. general information
20.1 Austrian law shall apply.
20.2 The UN Convention on Contracts for the International Sale of Goods is excluded.
20.3 The place of performance is the company's registered office (5020 Salzburg).
20.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the entrepreneurial customer is the court locally responsible for our registered office. The place of jurisdiction for consumers, provided that the consumer has his place of residence in Germany, is the court in whose district the consumer has his habitual residence or place of employment.
20.5 The customer must notify us immediately in writing of any changes to his name, company, address, legal form or other relevant information.