General terms and conditions

As of 1 November 2020

Please note: No liability is assumed for inaccuracies and translation errors. Only the original German text is decisive (10.5).

 

1. Scope and general provisions

1.1
The following general terms and conditions (hereinafter also referred to as "GTC") shall apply to our deliveries, services and offers. The version dated 1 November 2020 is valid, unless a different version was made available to you prior to conclusion of the contract. Our GTC also apply to all future deliveries, services or offers to the customer, even if the conditions are not agreed again separately. Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if we explicitly confirm their validity in writing. Our consent is always required, even if, for example, we know of the customer's general terms and conditions and carry out the delivery or other services to the customer without reservation.

1.2
References to the applicability of statutory provisions only serve clarification purposes. Even without such clarification, the statutory provisions apply unless provisions are directly amended or explicitly excluded in these GTC.

1.3
The written form required in the GTC is also satisfied by interfaces, online shop, EDI, fax and e-mail. Transmission errors - regardless of the cause - shall be borne by the customer.

2. Offer and conclusion of contract

2.1     
Our offers are subject to change and non-binding. They are invitations to place orders. Orders placed by the customer are deemed to be a binding offer to enter into a contract. A contract is only concluded when we accept the customer's order. We are entitled to accept or reject the customer's orders within two weeks after receipt of the order. The acceptance of the contract can either be declared in writing (e.g. by order confirmation) or by the delivery of the goods.

2.2
Individual agreements made with the customer in particular cases (including side agreements, supplements and amendments) take precedence over these GTC, which apply subsidiarily in these cases. A written contract or our written confirmation is needed to acknowledge the content of such agreements. Only managing directors or authorized signatories but not our employees are authorized to make arrangements that deviate from these GTC.

2.3     
Our information about goods and services (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data), as well as images of the same (e.g. drawings and illustrations) in catalogs, brochures, etc. are non-binding and only become the subject matter of the contract if reference is made to them in the order confirmation and if they are declared to be the subject matter of the contract. The information or images do not warrant certain characteristics we agree on. They only serve as descriptions or identifications of the goods or services. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible if they do impair the usability and the intended purpose that is stated in the contract.

2.4     
The customer is obliged to check the content of our order confirmations and to immediately notify us of any deviations from the order submitted by him, otherwise the business transaction is concluded with the content we confirmed.

2.5     
We reserve the right of ownership or copyright to all offers and cost estimates submitted by us, as well as drawings, illustrations, calculations, brochures, catalogs, models and other documents and aids made available to the customer. The customer may not make these items available to third parties, disclose them, use them himself or through third parties, or reproduce them without our explicit written consent, neither the items as such or in terms of content. At our request, customers must return all these items and destroy any copies made if they no longer need them in proper business transactions or if negotiations do not lead to the conclusion of a contract.

 

3. Delivery deadline and delayed delivery

3.1     
The delivery date is agreed individually. If possible, we will deliver the goods on the day of the order.

3.2     
The delivery period is met if the delivery item has left our plant or, in the case of direct deliveries/dropshipping, the plant of the presupplier, or readiness for dispatch has been notified by the time the delivery period expires. Subsequent requests for changes and additions by the customer extend the delivery period accordingly. If we cannot meet binding delivery deadlines due to reasons we are not responsible for (e.g. force majeure, strike, delayed delivery of essential parts) (non-availability of items, goods and services) and the item is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part without any obligation to pay compensation; we will immediately reimburse any consideration already paid by the customer. An instance of non-availability is also the delayed self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the goods in the individual case.

3.3     
Withdrawal from the contract by the customer due to a delivery delay is only possible by setting a reasonable - at least 4-week - grace period. In any case, the customer must issue a written reminder. The right to withdrawal only applies to the part of the delivery or service that is delayed.

3.4     
In all cases of delayed delivery or non-execution claims for compensation by the customer are excluded, even after expiry of the grace period, except for intent or gross negligence.

3.5     
The rights of the customer in accordance with section 9 of these GTC and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance) shall remain unaffected.

4. Delivery, passing of risk, acceptance and default in acceptance

4.1     
In the absence of a separate agreement, we deliver free of charge for net order values of € 200 (Incoterms CIP). For an order value of € 100 to € 200 net we only charge € 6.50 for logistics costs. For orders below € 100 net order value we charge € 15 (markup for small-volume purchases). For cash on delivery shipments, an additional € 6.50 collection fee is charged. For direct deliveries to your customers in Austria, we always charge € 5 regardless of the order value. This information is valid until revoked. For direct deliveries abroad, additional shipping costs will be charged, depending on the weight. Our deliveries are insured. One part of the costs is charged separately (“UV” fee for environmental protection and insurance) We reserve the right to choose the transport route, the means of transport and the transport company.

4.2     
Delivery dates that are announced are provisional and non-binding dates. They always refer to the expected time of provision and handover to the customer. No compensation can be claimed in the event of a postponement.

4.3
Any backorders are automatically recorded and the goods are delivered subsequently at no additional cost, provided that the order has a sufficient order value.

4.4
If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons the customer is responsible for, in particular when we exercise our right of retention as a result of a complete or partial default in payment, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). In this case, we charge a lump-sum compensation of 0.1% of the total net order value per calendar day, but not more than 5% of the net order value (or not more than 10% of the total net order value in case of ultimate non-acceptance), starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. At the same time, we are entitled either to insist on the fulfillment of the contract or to withdraw from the contract after setting a reasonable grace period and to use of the goods elsewhere. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the amount of the lump sum compensation is deducted from the total amount of further monetary claims. The customer is entitled to prove that no damage at all or significantly less damage than the lump sum compensation occurred.

5. Prices and payment terms

5.1   
All prices are subject to change and in EUR unless otherwise stated. Unless otherwise agreed in individual cases, our current prices at the time of the contract conclusion apply, plus value added tax. In case of doubt, all amounts or prices shall be understood as net amounts/net prices. Various surcharges such as UHG, URA, ERA (copyright, storage media) and environmental fees are listed separately on the documents of Rauch Import. If costs that are relevant to provide our services change, such as those for materials, energy, transport, external services, financing, we are entitled to increase or decrease the prices accordingly.

5.2     
If, however, after contract conclusion but before the delivery of the goods to the customer, one of our suppliers increases the prices significantly, so that we are no longer able to purchase the goods ordered by the customer from our supplier at the price our calculation of the sales price to the customer was based on, we are entitled to change the sales price even after contract conclusion and to raise it in the same proportion as our supplier raised the prices for the goods ordered. We will immediately inform the customer about this matter and the adjusted prices. The customer is entitled to withdraw from the purchase contract in writing within 7 days from the notification of the adjusted prices without incurring any costs. If the customer withdraws from the contract, we will refund the purchase price paid. Goods that have already been shipped or delivered to the customer shall be returned to us in this case. If the customer does not withdraw from the contract within 7 days of notification of the adjusted prices, the adjusted prices are deemed agreed.

5.3   
The customer is in default within 10 days of the invoice, even without a reminder.

5.4
In the event of default, we charge default interests of 9.2% above the respective base interest rate. We reserve the right to assert a further claim for damages caused by default. We are also entitled to charge compound interest in the event of default from the date of delivery. If the customer is in default with a (partial) payment, we are entitled to ask for immediate payment of outstanding but not yet due invoice amounts and/or to demand advance payment or the provision of security for future deliveries and services.

5.5
The customer only has a right of retention or set-off with regard to counterclaims that are not disputed or have been legally established.

5.6
If it becomes apparent after contract conclusion that our claim to the purchase price is at risk due to the customer's inability to pay (e.g. filing for insolvency), we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract.

5.7
The full value of the goods is insured by the insurance fee stated in point 4. This provision is only valid if the complete environmental and insurance fee is charged.

6. Retention of title

6.1   
We reserve title to all goods delivered by us until the customer has fulfilled all the present and future obligations arising from the purchase contract and our ongoing business relationship (hereinafter referred to as: "secured claims"). These goods may neither be pledged to third parties nor assigned as security prior to full payment of the secured claims. If third parties want to take possession of the goods, the customer must notify us immediately in writing and inform the third party of our retention of title.

6.2   
If the customer breaches the contract, in particular when the customer fails to pay the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and to reclaim the goods on the basis of the retention of title and withdrawal. If the customer does not pay the due purchase price, we may only assert these rights after having set a reasonable grace period without success or if a grace period is not required by law.

6.3     
We may enter the customer's business premises during normal business hours after prior notice to ascertain the inventory of the goods delivered by us.

6.4     
The customer is entitled to resell the delivered goods in the ordinary course of business as long as he/she is not in default of payment. The customer assigns to us in advance the full amount of the receivables from the resale, including the insurance benefit. We accept the assignment. The customer is obliged to note the assignment in his accounting records.

6.5     
The customer remains authorized to collect the debt claim in addition to us. We do not collect the debt claim as long as the customer fulfills his/her payment obligation, is not in default of payment, no application for insolvency proceedings has been filed and there are not any other shortcomings in his/her ability to pay. In the event that one of the aforementioned cases occurs, we can demand that the customer informs us of the assigned claims and the debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment, or we are entitled to inform the resellers of the goods of the assignment and demand payment.

6.6   
If the value of the securities exceeds our secured debt claims by more than 10%, we are obliged, at the customer's request, to release the corresponding collateral/exceeding amount. The purchaser stores the goods subject to retention of title for Rauch Import free of charge. The purchaser bears the entire risk for the goods subject to retention of title, in particular for the risk of destruction, loss or deterioration, until the acquisition of ownership/title and must insure them properly against the usual risks such as fire, theft and water. The purchaser hereby assigns any claims that result from the above-mentioned causes against insurance companies or other parties liable for damages to Rauch Import, to the amount of the invoice value of the goods. All claims and rights from the reservation of title and all special forms specified in these conditions, remain valid until full release from contingent liabilities (e.g. liability for bills of exchange) that Rauch Import incurred in the interest of the purchaser.

6.7   
If we have to make use of our retention of title and take the goods back, we must consider a price reduction appropriate to the storage period, the wear and tear as well as the other circumstances when we issue the credit note for the goods taken back on the basis of the retention of title but it is at least 30% of the invoice value. The customer must notify us before filing for insolvency proceedings so that we can take over the goods that were delivered under retention of title and that are our property.

6.8     
In the event of default in payment, we are entitled to seize the goods. This does not suspend the customer's contractual obligations such as payment. In the event of distraint/seizure of goods that are subject to our retention of title, the customer is obliged to notify us immediately and in detail. A separation of our goods due to imminent insolvency during the existence of the retention of title is not permissible.

7. Claims for defects, rights of the customer

7.1     
The customer's rights in respect of material defects and defects of title of the goods are regulated by statutory provisions. The statutory provisions apply unless otherwise specified below. The special statutory provisions for final delivery of the goods to a consumer (supplier recourse) shall remain unaffected in all cases. Warranty claims can only be asserted directly against the respective producers of the products in accordance with the warranties granted by them and not against us.  If we become active in the course of warranty processing, this is service but not a legal obligation.

7.2     
Goods does not mean the complete delivery, but only the individual defective item.

7.3     
The written agreement regarding the quality/condition of the goods is the basis of our liability for defects. In the absence of an agreement on quality, the statutory regulations shall determine whether a defect exists or not. We do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising messages).

7.4   
Goods must immediately be checked for transport damage upon receipt, if necessary, the damage must be reported to the carrier. Subsequently, the goods must be inspected and any shortages or excess quantities must be reported to us in writing within 24 hours of delivery. Defects must be reported in writing immediately after receipt of the delivery and service, at the latest within 4 days (also applies to latent defects) after discovery. The customer must give plausible reasons for the complaint and provide evidence. When quality complaints are justified, customers can demand the delivery of defect-free goods of equal value. If this is not possible, the customer has the right to withdraw from the contract. Generally, we are only liable for damages in case of intent and gross negligence. We shall not be liable for indirect damages, loss of profit, loss of interest, failure to make savings, consequential and pecuniary damages and damages arising from third-party claims. In terms of the amount, claims for damages are limited to the value of the delivered goods and not more than the sum covered by our insurance. Given the range of possible applications, we are not liable for any consequential damages.  A warranted only exists if we have declared this warranted quality to the customer in a letter addressed only to him/her. Only the direct customer is entitled to warranty claims against us and these are not assignable. § 924 ABGB and § 933b ABGB (General Terms and Conditions Act) shall not apply.

7.5   
If the delivered goods are defective, we can choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. No warranty, guarantee or liability whatsoever shall be assumed for discounted goods or for rejects and lots delivered in accordance with the agreement. The warranty expires if the customer or a third party not authorized by us has changed or repaired the goods.

7.6     
Instead of a replacement delivery or subsequent improvement we are entitled to provide subsequent performance by taking back the defective goods and issue a credit note. In this case, the customer must fill out a return form and send it to us before returning the goods. The sales packaging of the returned goods must be in proper condition. The customer must send the goods to us at his own expense and risk to utilize the warranty service.

7.7     
We may condition our subsequent performance on the payment of the due purchase price. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

7.8     
The customer shall give us the required time for the subsequent performance. The defective goods must be handed over for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.

7.9     
If a defect removal request of a customer turns out to be unjustified, we may demand compensation for the incurred costs incurred.

7.10     
A price reduction or refund beyond 7.6 is not possible. There is no right of withdrawal when the defect is insignificant.

7.11     
Claims of the customer for damages or compensation of futile expenses only exist in accordance with clause 9 and shall otherwise be excluded.

7.12     
We do not take back defect-free goods against credit note. If we take back defect-free goods in individual cases, a service charge of 20% of the value of the returned goods is due as soon as we receive the goods. The goods must be returned to us free of charge ("carriage paid"), in their original packaging and in perfect condition.

8. Liability

8.1    
Insofar as nothing to the contrary arises from these GTC including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

8.2   
The customer may only withdraw from the contract due to a breach of duty other than a defect if we are responsible for the breach of duty.

8.3   
If infringements result from other manufacturers’ products we supplied, we will either assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer.

9. Statute of limitation

9.1
The general limitation period for claims arising from material defects and defects of title is one year from delivery.

9.2     
The above-mentioned limitation periods of sales law also apply to contractual and non-contractual claims for damages of the customer due to a defect of the goods, unless the application of the statutory limitation period would result in a shorter limitation period in the individual case. The limitation periods of the Product Liability Act shall remain unaffected in any case. Insofar as we are liable to the customer for damages in accordance with clause 9, the statutory limitation periods apply exclusively.

10. Final provisions

10.1     
If the customer is an entrepreneur or does not have a place of jurisdiction in the Republic of Austria, the place of jurisdiction for any disputes arising from the business relationship between us and the customer is Vöcklabruck.

Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

10.2     
The laws of the Republic of Austria apply to all legal relations between us and the customer. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

10.3   
If individual provisions of these GTC - even if only for individual groups of persons such as consumers within the meaning of § 1 KSchG/Consumer Protection Act - should be invalid, these provisions shall be replaced by effective provisions that are suitable to realize the economic purpose of the omitted provision as far as possible. The invalidity of individual provisions of these GTC do not affect the validity of the remaining provisions of these GTC.

10.4     
If there are omissions in the contract or these GTCs, the incomplete provisions should be replaced with appropriate and legally effective provisions that come as close as possible to what the contracting parties would have intended in accordance with the purpose of the contract if they had taken this point into consideration.

10.5    
If several language versions of these GTC are circulated, the German version shall always be used for the interpretation of the GTC.

11. Data protection

We employ electronic data processing to store the personal data transmitted to us by the customer. The personal data of our customers and interested parties are kept in confidence. For more details, please refer to our privacy policy or the respective information according to Art 13 DSGVO/GDPR.

Note: The customer acknowledges that we store data from the contractual relationship for the purpose of data processing and reserve the right to transmit the data to third parties (e.g. insurance companies) - if this is necessary for the fulfillment of the contract.

We assume your consent if you do not object to these terms and conditions in writing.

Rauch Import, Walter-Simmer-Straße 9, A-5310 Mondsee, Austria

More questions?

We are happy to help!

Phone

+43 6232 33 99 0

E-Mail

office@rauch-import.at