General Terms and Conditions

1. General

1. These General Terms and Conditions (GTC) apply to all our deliveries and services and are made exclusively on the basis of the same. Any deviating conditions on the part of the buyer shall only be valid if written or signed consent has been given thereto by both contracting parties. Any own General Terms and Conditions of the customer do not apply. This even if we have not expressly contradicted them.

2. For our contractual relations exclusively Austrian law shall apply but for any compelling operation of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to these contractual relationships.

3. The agreements reached with our employees are only valid if confirmed in writing by us; the same applies to commitments or information of any kind, which are provided by our employees.

4. For errors, such as to spelling, calculation or pricing, we expressly reserve the right to correction and adjustment charge.

5. We also expressly reserve the right to technical modifications to our equipment and facilities during the delivery period.

6. A transfer of rights from this contract shall only be permitted with our written consent.

7. The existing customer is liable even if we bill the order in accordance with his request to a third party.

8. Your data will be included in our data processing for the purpose of rapid processing of your orders. These data are protected according to the Data Protection Act, the supply of such data is therefore only allowed if there exists a legal obligation. All our employees have undertaken to maintain data confidentiality and to comply with our code of conduct. The data saved are name, address, customer number, order data, sales volume, bank data, and terms of payment. The customer expressly agrees to this agreement. This consent can be revoked at any time by letter to our business address DKS GmbH, Gnadenwald 90a, 6069 Gnadenwald, Austria. The customer has the right to free information of his / her stored personal data.

2. Place of Performance and Place of Jurisdiction

Place of delivery and payment for both parties is 6069 Gnadenwald, Austria. Exclusive jurisdiction for all claims and matters of dispute in connection with a business relationship with us is the competent court for 6069 Gnadenwald, Austria; we reserve the right to sue customers at their general places of jurisdiction.


3. Prices and Terms of payment

1. Our offers are subject to change without notice and non-binding. In case that there are general price increases or apportionable tax increases or major changes in exchange rates for countries of our parent companies until the day of delivery or transfer of risk, the price increases accordingly.

2. Our prices shall apply ex 6069 Gnadenwald, Austria, excluding packaging. Packaging is charged at cost and cannot be taken back. The costs for a transport insurance, loading, checking as well as possible customs costs shall be borne by the customer.

3. Payments with debt-discharging effect may only be made to us. If no written agreement of other content has been made, payments are due immediately after billing without deductions of any kind.

4. If we accept bills, checks, money orders, and the like as payment, all expenses of collection, discount charges and the like shall be at the expense of the customer.

5. In case of default in payment for the period from the due date until receipt of payment default interest will be charged according to § 455 f UGB (Austrian Commercial Code). In case of default in payment, reminder fees of 1% of the invoiced amount shall be charged for every reminder, but only to a maximum of EUR 40. However, we are also entitled to make a claim through a collection agency or a lawyer. The resulting costs are borne by the customer. If the customer is in arrears with the payment of older invoices, we are entitled to deliver outstanding deliveries only against prepayment. The purchase price is due without any reminder on our part.

6. For export orders, prepayment is agreed in principle. A waiver of this agreement requires a separate written agreement.

7. Invoices for repair or services for home or foreign orders are due immediately without any deduction.
8. Partial payments and payments on account are, provided we do not make any other settlement pursuant to section IV/1, provided respectively on the oldest maturity.

9. The customer is not entitled to withhold payments due to warranty claims or counterclaims.

 

4. Reservation of proprietary rights

1. We shall retain title to goods until all of our claims, including claims arising in the future, are fully paid. Even if the customer makes payments to specific invoices, we are entitled to charge these payments - deviating from § 1416 ABGB (General Civil Code) - to other, younger or older bills of free choice.

2. The resale of the goods supplied under retention of title is permissible only in the context and ordinary operation to that effect. The customer hereby assigns – in case of a resale of his existing claims against his customers – as a precaution to us as long as the retention of title is in existence. The customer is not entitled to pledge the goods or to re-assign them for security.

3. The customer is also obliged to inform us immediately of any justification of a lien on the goods delivered with retention of title or of any assertion of other third party claims on these items.

 

5. Delivery and acceptance

1. If we exceed the non-binding delivery date by more than 6 weeks, the customer is entitled to cancel the contract after setting a minimum period of grace of 4 weeks. In case of purpose-built items the period of grace must be at least 8 weeks. Claims for damages for delay in performance or non-performance are excluded. We are entitled to carry out partial deliveries and to separately render account for them.

2. In case that we cannot comply with the non-binding delivery dates without fault, the delivery dates are automatically renewed for the duration of the hindrance.

3. The non-binding delivery period begins with the date of our written confirmation. It is adhered to if the shipment has left our sales premises or warehouse within the statutory timeframe. Shipping is usually ex stock 6069 Gnadenwald, Austria or ex stock 1230 Vienna, Austria. If we notify the customer the readiness for dispatch of the goods, the delivery is considered fulfilled and therefore the risk is transferred to him.

4. Delivery is at the risk and expense of the customer, even if a free delivery is agreed upon. Reshipment of goods requires the express written consent of DKS GmbH. Shipments to us are at the expense and risk of the shipper. We are entitled but not obliged to take out customary transport insurance at the customer´s expense.

5. Check for completeness and absence of defects of the consignment must be monitored immediately. Complaints must be notified in writing at other exclusion within 3 days from receipt of delivery.
6. If the customer does not accept the purchase object within 4 weeks, from the end of the non-binding delivery deadline or the display of our readiness for dispatch, we are entitled to either deliver in future only against prepayment or rescind the contract and claim damages for non-performance. In both cases we are entitled to claim 15% of the sales price as penalty in addition to the actual loss.

7. In case of redemption of the delivered object of purchase, the customer shall bear possible processing costs. If a closed sales contract is canceled by mutual consent before or after the delivery of the goods, we are entitled to claim a processing fee of 10%, based on the invoice amount, which does not preclude the claiming of a higher damage.

 

6. Warranty

1. Complaints due to incomplete or incorrect delivery and complaints relating to visible defects must be made immediately, at the latest within 3 days after receipt of the goods or service, complaints due to other defects immediately after their discovery in writing. If complaints or notices of defect are not sent in due time, the delivery is deemed approved. We provide a guarantee for a state of the art correctness of material and workmanship of the brand-new object for a period of 6 months from transfer of risk; after this period a warranty is excluded; there is no warranty for used goods. However, our guarantee obligation expires if the customer does not comply with all his contractual obligations, in particular his payment obligations, on time.

2. We fulfill our warranty obligations at our own discretion either by repair or by replacement of the defective goods. Only those parts are replaced that have a defect in the material or in the workmanship. Associated costs for installation and removal are to be borne by the customer.

3. We are not liable for those parts not produced by ourselves; however, we are willing to cede our rightful claims against the producer or our pre-supplier to the customer.

4. An entitlement to conversion or price reduction is excluded, particularly also in connection with repair orders.

5. No warranty is accepted for natural wear and damage, which are due to negligence or improper handling or accident; likewise, warranty is not accepted in the case of excessive stress or not following the instructions. Warranty claims expire, if the object of purchase has been changed by a third party or by the installation of third party parts or if the customer has arbitrarily arranged changes or repairs to the purchase object.

6. The assignment of warranty claims to third parties is excluded.

 

7. Compensation for damages

1. A liability with regard to any damage not adhering to the contract is excluded. Claims for compensation can only be asserted if there is proof for intentional or grossly negligent behaviour on our part. Product liability claims and claims involving personal injuries shall remain unaffected hereof. Gross negligence must be proved by the injured party. The limitation period is 12 months after providing a performance.

2. The customer is obliged to check himself products obtained from DKS GmbH for their suitability for the intended use. If DKS GmbH has not provided a written manual for the concrete purpose of use, the customer is obliged to carry out tests prior to use at his own expense or to commission an authorized testing laboratory to carry out the appropriate tests. In addition, the customer is obliged to inform DKS GmbH in writing before the use of processing methods which deviate from a standardized conventional application method, so that any necessary processing instructions can be created by DKS GmbH. In this respect DKS GmbH, however, has no obligation whatsoever.

 

8. Consumer protection

For customers for whom a conclusion of a contract is not part of the operation of their business due to these conditions, the contractual provisions in accordance with the admissibility of the Consumer Protection Act apply; in this respect the invalidity of a provision shall not affect the validity of the other provisions.

The following exceptions apply:

1. The jurisdiction 6069 Gnadenwald, Austria shall only be deemed agreed if the customer is resident of or has habitual residence within the district of the District Court Hall in Tirol or Landesgericht Innsbruck (Regional Court Innsbruck) or if this district is his place of his employment at the time the contract.

2. In regard to such customers we are bound to our offers within the time limit expressly stated by us or any other reasonable time limit; t he normalized contractual exclusion of set-off does not apply.

3. Insofar as claims for damages are excluded according to these terms, the exclusion of compensation applies to these customers only in an action of slight negligence.

4. Our warranty conditions are valid with the modification that the customer is entitled to guarantee claims granted by law.

5. In addition, it is agreed that the customer - if he did not leave his contract in our business premises or in other premises used by us for business or at a fair stand operated by us – can declare withdrawal in writing without giving reasons until the conclusion of the contract or within one week thereafter.

This does not apply, if the customer himself has initiated the business relationship to close this contract, or if there have not been any meetings before the conclusion of the contract. In case of withdrawal the mandatory consumer protection laws apply, according to which already produced and delivered products shall be deferred and a reasonable fee for use, compensation, impairment shall be paid to us; furthermore, a reasonable compensation for services already provided must be paid to us.

6. Consumers shall be granted the right to withdraw from the purchase agreement within 7 (Austria) or 14 (Germany) business days provided that the transaction has been closed on the so-called distance selling in accordance with the Consumer Protection Act.

The withdrawal period begins in each case at the customer's receipt of the goods. For the timely withdrawal, it is sufficient to send the cancellation notice within the deadline. In case of withdrawal a total or partial refund of the purchase price will be done only step by step against return of the goods received by the purchaser. For goods that are impaired by traces of usage or whose packaging is damaged, we reserve the right to levy or withhold an appropriate charge for the impairment of value.

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