General Terms and Conditions

General Terms and Conditions

Durstmüller GmbH
Salzburger Str. 59, 4650 Lambach, Austria
Tel: +43 7245 28250 | Fax: DW-50
e-mail: office@dula.at | Web: www.dula.at

(as at 01.01.2022):

I. Validity
The deliveries, services and offers of our company are made exclusively on the basis of these terms and conditions; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions unless we have expressly agreed to their validity. In this respect, contractual fulfilment on our part shall not be deemed to be consent to contractual conditions that deviate from our terms and conditions. These terms and conditions shall also apply as a framework agreement for all further legal transactions between the contracting parties.

II Conclusion of contract
A contract offer from a customer requires an order confirmation. The dispatch of the goods ordered by the customer also brings about the conclusion of the contract. If offers are submitted to us, the party submitting the offer shall be bound by it for a reasonable period of time, but at least 8 days from receipt of the offer.

III. price
Unless expressly stated otherwise, all prices quoted by us are exclusive of VAT. Should labour costs change due to collective bargaining agreements in the industry or internal company agreements, or should other cost centres relevant for the calculation or costs necessary for the provision of services such as those for materials, energy, transport, external work, financing, etc. change, we shall be entitled to increase or reduce the prices accordingly. For consumer transactions, point. III. not.

IV. Terms of payment, interest on arrears
In the absence of any agreement to the contrary, our claims shall be paid in cash step by step against delivery of the goods. Cash discounts require a separate agreement. In the event of default in payment, including instalments, any discount agreements shall also cease to apply. Payments by the customer shall only be deemed to have been made when they are received in our business account. If the customer is in default of payment, we shall be entitled, at our discretion, to demand compensation for the damage actually incurred or – unless it is a credit transaction with consumers – to charge interest on arrears at a rate of 9.2% above the base rate of the Austrian National Bank.

V. Cancellation of contract
In the event of default of acceptance (Section VII.) or other important reasons, such as in particular bankruptcy of the customer or rejection of bankruptcy for lack of assets, as well as default of payment by the customer, we are entitled to withdraw from the contract, provided that it has not yet been completely fulfilled by both parties. In the event of cancellation, if the customer is at fault, we have the option of claiming a lump-sum compensation of 15% of the gross invoice amount or compensation for the actual damage incurred. If the customer is in default of payment, we shall be released from all further performance and delivery obligations and shall be entitled to withhold outstanding deliveries or services and to demand advance payments or securities or to withdraw from the contract after setting a reasonable grace period. If the customer – without being entitled to do so – withdraws from the contract or requests its cancellation, we shall have the choice of insisting on the fulfilment of the contract or agreeing to the cancellation of the contract; in the latter case, the customer shall be obliged to pay, at our discretion, a lump-sum compensation amounting to 15% of the gross invoice amount or the actual damage incurred.

In the case of distance selling contracts (§§ 5a ff of the Consumer Protection Act), the consumer may withdraw from the contract within 7 working days, whereby Saturdays do not count as working days. The period begins on the day the goods are received by the consumer or, in the case of services, on the day the contract is concluded. It is sufficient to send the cancellation notice within this period. If the consumer withdraws from the contract in accordance with this provision, he shall bear the costs of returning the goods; if a credit has been concluded for the contract, he shall also bear the costs of any necessary authentication of signatures and the charges (fees) for the granting of credit. Cancellation is not possible for services that are agreed to begin within 7 working days of the conclusion of the contract.

VI Reminder and collection charges
In the event of default, the contractual partner (customer) undertakes to reimburse the dunning and collection expenses incurred by the creditor, insofar as they are necessary for appropriate legal action, whereby he undertakes in particular to reimburse at most the fees of the collection agency involved, which result from the regulation of the BMwA on the maximum rates of fees due to collection agencies. If the creditor handles the dunning process himself, the debtor undertakes to pay an amount of E 4.00 for the second reminder and an amount of E 8.00 for the third reminder.

VII Delivery, transportation, default of acceptance
Our sales prices do not include any costs for delivery, assembly or installation. On request, however, these services can be provided or organized by us for a separate fee. The costs actually incurred for transport or delivery, including a reasonable overhead surcharge, but at least the freight and carriage charges applicable or customary on the day of delivery for the selected mode of transport, shall be invoiced. Assembly work shall be invoiced on a time basis, whereby a man-hour rate customary in the industry shall be deemed agreed. If the customer has not accepted the goods as agreed (default of acceptance), we shall be entitled, after unsuccessfully setting a grace period, to either store the goods on our premises, for which we shall charge a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof, or to store the goods at the customer’s expense and risk with an authorised tradesman. At the same time, we shall be entitled either to insist on fulfilment of the contract or, after setting a reasonable period of grace of at least 2 weeks, to withdraw from the contract and to dispose of the goods elsewhere.

VIII. Delivery period
We are only obliged to perform the service as soon as the customer has fulfilled all his obligations necessary for performance, in particular all technical and contractual details, preliminary work and preparatory measures. We are authorised to exceed the agreed deadlines and delivery periods by up to one week. Only after expiry of this period may the customer withdraw from the contract after setting a reasonable grace period.

IX. Place of fulfillment
The place of fulfilment is the registered office of our company.

X. Minor changes to services
If the transaction is not a consumer transaction, minor or other changes to our performance or delivery obligation that are reasonable for our customers shall be deemed approved in advance. This applies in particular to deviations caused by the item (e.g. in dimensions, colours, wood and veneer appearance, grain and structure, etc.).

XI. Warranty, obligation to inspect and give notice of defects
We shall fulfil the customer’s warranty claims in all cases at our discretion either by replacement, repair within a reasonable period or price reduction. The customer may only request cancellation of the contract if the defect is significant, cannot be remedied by replacement or repair and a price reduction is not reasonable for the customer. Claims for damages by the customer aimed at remedying the defect by improvement or replacement can only be asserted if we are in default with the fulfilment of the warranty claims. Warranty claims relating to movable goods must be asserted in court within one year of delivery of the goods. If the customer asserts the existence of a defect, any resulting claims, in particular for warranty or damages, can only be asserted if the customer proves that the defect already existed at the time of delivery of the goods; this also applies within the first six months after delivery of the goods. Furthermore, the customer must inspect the goods immediately after delivery, but within 6 working days at the latest, in accordance with § 377 f HGB (German Commercial Code). We must be notified in writing of any defects discovered without delay, but at the latest within 3 working days of their discovery, stating the nature and extent of the defect. Hidden defects must be reported in writing without delay, but at the latest within 3 working days of their discovery. If a complaint is not made or not made in good time, the goods shall be deemed to have been approved. Our warranty obligation shall expire in any case upon expiry of the warranty period; any further special recourse of the customer pursuant to § 933b ABGB (Austrian Civil Code) due to warranty obligations fulfilled by the customer is excluded. None of the provisions of section XI. shall apply to consumer transactions.

XII Compensation for damages
All claims for damages are excluded in cases of slight negligence. This shall not apply to personal injury or, in the case of consumer transactions, to damage to items accepted for processing. The existence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. If it is not a consumer transaction, the limitation period for claims for damages is three years from the transfer of risk. The provisions on damages contained in these terms and conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim. Before connecting or transporting IT products or before installing computer programmes, the customer is obliged to adequately back up the data already existing on the computer system, otherwise he shall be responsible for lost data and for all associated damage.

XIII Product liability
Recourse claims within the meaning of § 12 of the Product Liability Act are excluded, unless the party entitled to recourse proves that the error was caused in our sphere and was at least due to gross negligence.

XIV Retention of title and its assertion
All goods are delivered by us subject to retention of title and remain our property until full payment has been made. The assertion of the retention of title shall only constitute a cancellation of the contract if this is expressly declared. If goods are taken back, we are entitled to charge any transport and handling costs incurred. In the event of seizure of the reserved goods by third parties – in particular through attachment – the customer undertakes to draw attention to our ownership and to inform us immediately. If the customer is a consumer or not an entrepreneur whose ordinary course of business includes trading in the goods purchased from us, he may not dispose of the reserved goods, in particular not sell, pledge, give away or lend them, until the outstanding purchase price claim has been settled in full. The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

XV Assignment of claims
In the case of delivery subject to retention of title, the customer hereby assigns to us his claims against third parties, insofar as these arise from the sale or processing of our goods, until final payment of our claims. Upon request, the customer shall name his buyers to us and inform them of the assignment in good time. The assignment must be entered in the business books, in particular in the open items list, and made visible to the customer on delivery notes, invoices, etc. If the customer is in arrears with his payments to us, the sales proceeds received by him shall be segregated and the customer shall only hold them in our name. Any claims against an insurer are already now assigned to us within the limits of § 15 of the Insurance Contract Act. Claims against us may not be assigned without our express consent.

XVI Retention
If the transaction is not a consumer transaction, the customer shall not be entitled to retain the entire gross invoice amount, but only a reasonable part thereof, in the event of a justified complaint, except in cases of rescission.

XVII Choice of law, place of jurisdiction
Austrian law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. The contract language is German. The contracting parties agree on Austrian, domestic jurisdiction. If it is not a consumer transaction, the court with subject-matter jurisdiction at the registered office of our company shall have exclusive local jurisdiction to decide all disputes arising from this contract.

XVIII. Data protection, change of address and copyright
The customer agrees that the personal data contained in the purchase contract may also be stored and processed by us automatically in fulfilment of this contract. The customer is obliged to inform us of any changes to his residential or business address as long as the contractual legal transaction has not been completely fulfilled by both parties. If such notification is omitted, declarations shall be deemed to have been received even if they are sent to the last known address. Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like shall always remain our intellectual property; the customer shall not receive any rights to use or exploit them in any way whatsoever.

XIX Severability clause
If individual provisions of these General Terms and Conditions are invalid, this shall not affect the validity of the remaining provisions. The provision in question shall then be interpreted in such a way that the economic and legal purposes originally intended are achieved as far as possible.