General Terms and Conditions of Business Wittmann Möbelwerkstätten GmbH
These Terms and Conditions apply to all current and future transactions between Wittmann Möbelwerkstätten GmbH (hereinafter referred to as “the Company”) and the Customer, unless otherwise agreed.
By making an order, the Customer expressly accepts and acknowledges these Terms and Conditions. Any changes to these Terms and Conditions shall only apply if agreed to in writing by both parties.
1. QUOTATIONS AND CONCLUSION OF CONTRACT
1.1 All quotations, price lists and cost estimates issued by the Company are non-binding and only apply to orders made in full as quoted.
1.2 A contract is concluded once the Company furnishes a written order confirmation.
1.3 The subject of such contract is limited to the goods or services listed in the order confirmation. Should goods or services listed in the order confirmation differ from those in the Customer’s order, the Customer must notify the Company of this immediately, and at the same time notify the Company of whether it accepts the amended contract. In the absence of such notification the contract shall be deemed to be amended in accordance with the order confirmation.
1.4 Changes and cancellations may be made within five working days of the order confirmation being issued. If changes are requested after this period, and the Company ascertains and confirms that such changes are technically feasible, the Company shall be entitled to impose a surcharge of €100,- of the item(s) concerned.
1.5 Orders may only be cancelled by express written agreement of the Company.
1.6 Should the Company agree to cancel a contract, the cost of materials that have already been ordered and of work already performed shall become payable immediately.
2.1 All prices are ex works unless otherwise specified in the order confirmation.
2.2 The prices quoted are based on the Company’s price list for the country concerned valid on the day that the non-binding quotation is issued.
2.3 The minimum order value is as stated in the applicable price list.
3. DELIVERY AND TRANSFER OF RISK
3.1 The place of delivery and of transfer of risk shall be the Company’s works unless other delivery terms are agreed and defined using Incoterms.
3.2 No damage to goods shall entitle the Customer to refuse delivery. The Company shall be entitled to make deliveries by instalments.
3.3 The delivery dates provided by the Company in the order confirmation are estimates.
3.4 The Company is entitled to delay or postpone delivery within reason on the grounds set out in condition 3.5, or if delivery is prevented by
reasons that are not due to at least gross negligence on the part of the Company. Such delays or postponements shall not entitle the Customer to any claims against the Company.
3.5 The Company shall not be liable should delivery be delayed or become impossible due to force majeure circumstances, or other circumstances beyond the Company’s control, for example failure of the Customer to complete required preparation in a timely manner.
3.6 Once delivery has taken place in accordance with condition 3.1, the Customer shall bear the risk of destruction or deterioration of the goods.
3.7 If dispatch or collection is delayed for reasons for which the Customer is responsible, the costs arising from storage of the goods at the Company’s works after the Customer has been informed that the goods are ready for dispatch shall be borne by the Customer. The minimum charge for this shall be 0.5% of the invoiced cost for each item for each month of storage or part thereof. The Company is entitled to store the goods in question at a location other than its works.
3.8 Should the Customer not take delivery of the goods by the appointed date after three delivery reminders have been issued, the Company shall be entitled to ship the goods to the Customer at the Customer’s expense, or to terminate the contract and claim full compensation for damages.
3.9 Should prepayment for goods that have been produced not be received by the due date, the Company shall be entitled to terminate the contract and claim full compensation for damages.
3.10 In case of delivery ex works, once the Customer has been notified that goods are ready for delivery, such goods shall be stored at the expense and the risk of the Customer. The same applies to goods that cannot be delivered for reasons set out in conditions 3.7 or 3.8.
4. CONDITIONS IN RESPECT OF COSTUM PRODUCTS
4.1 Condition 4 shall form part of the contract if the Company has agreed to manufacture a custom product. Custom products are any that are not listed in the Company’s price lists.
4.2 All documentation that the Customer is contractually obliged to provide to enable a custom design to be manufactured must be supplied in good time for the Company to review such documentation and make the necessary preparations prior to initiating production.
4.3 Following careful inspection of the production documentation the Company shall, in light of its technical expertise, notify the Customer of any noticeable deficiencies and any concerns regarding the envisaged manufacture of the design.
Should the Customer fail to provide, within one week, adequate instructions or suggestions in response to such notification in order to rectify or improve the design, the Customer shall bear sole liability for the consequences of such omission. In such circumstances, the Company shall be entitled to decline to manufacture the product, or to manufacture the product at the Customer’s expense without assuming any liability whatsoever. Deficiencies and errors in the production documentation that the Company can only identify by carrying out extensive checks involving the use of advanced technology shall not be deemed to be noticeable deficiencies.
5.1 Unless other payment terms are agreed in writing, payment shall be due without any deductions within ten days of the invoice date. The same shall apply to partial invoices. Cheques and bills of exchange do not constitute payment until realised and require the Company’s express written agreement.
5.2 If payment is not received by the due date, the Company shall be entitled to charge interest at an annual rate of 8% above the Oesterreichische Nationalbank base rate. In the event of continued default after reminders have been issued, the Company may engage the services of a debt collection agency and solicitor to recover the debt, at the Customer’s expense. The Company shall be entitled to claim reasonable compensation for all recovery costs resulting from the Customer’s default on payment.
5.3 The Customer shall not be released from its obligations to comply with the payment conditions by invoking defects in the goods. The Customer shall not be entitled to exercise a right of retention.
5.4 The Customer may only offset payments if its counter-claims have been established by a court of law or acknowledged by the Company.
5.5 In the event that the Customer’s financial circumstances deteriorate, or that the Company subsequently become aware that at the time of conclusion of the contract the Customer’s financial circumstances were such as to endanger its ability to fulfil its contractual obligations, the Company may refuse to supply the goods and services agreed until a prepayment has been received.
5.6 If the agreed payment terms are not complied with, the Company may retain goods to be delivered, or may terminate the contract after setting a reasonable deadline. In the event of the Customer’s insolvency the Company may terminate the contract without notice. This shall be without prejudice to any additional claims on the part of the Company to compensation for damages.
6. RETENTION OF TITLE
6.1 All goods and work produced shall remain property of the Company until full payment of the sale price including all additional fees has been received.
6.2 The Customer is not entitled to pledge goods under retention of title to a third party, or to offer such goods as collateral, or to assign any other rights to such goods to a third party. The Customer hereby undertakes to notify the Company as quickly as possible in the event of the seizure of ist property under execution or any other seizure by a third party of goods supplied under retention of title.
In the event of any levy of execution or other claim laid by a third party on such goods, the Customer shall draw attention to the Company’s ownership of the goods. The Customer shall be liable for any related costs and damages.
6.3 A levy of execution of the goods shall not be deemed to constitute a waiver of retention of title.
7.1 The Customer has a duty to inspect the goods upon delivery and, should a defect be discovered, to inform the Company in writing within one week of delivery, otherwise all warranty and damages claims shall be excluded. This shall also apply to wrong deliveries.
7.2 Should defects only become evident later, complaints must also be made within one week, otherwise the goods shall be deemed to be accepted with such defects.
7.3 The Customer shall give the Company an opportunity to assess the complaint, and in particular make the goods that are the subject of the complaint and the packaging in which they were supplied available for inspection. If the Customer is unwilling or unable to do this, the Company shall have no liability for defects.
7.4 Creases and variations in the colour of textiles, leather, metal and wood from those of our collections of samples shall not constitute defects.
7.5 If goods have been produced in accordance with the Customer’s instructions the Company’s liability shall be limited to compliance with such instructions.
7.6 The Customer may make warranty claims up to one year after taking delivery of the goods. The Company may compensate warranty claims by supplying missing goods, repairing or replacing defective goods, or offering price reductions.
7.7 Goods may only be returned by express written agreement of the Company.
7.8 In the event of an unjustified complaint the Company may invoice the Customer for the cost of assessing the warranty claim.
7.9 Should the Customer insist on the use of a material provided by it, contrary to the Company’s advice, the warranty shall lapse.
7.10 Should the Customer or a third party carry out any work on, or alterations or repairs to the goods without the Customer’s written agreement thereto, the warranty shall lapse.
8.1 In addition to the warranty, the Company shall furnish a five-year guarantee to the end user of the goods.
The terms of the guarantee are stated on the guarantee slip and in the price list.
9.1 The Company shall be liable for damages to the Customer only to the extent that such damages are due to wilful intent or gross negligence on the part of the Company or its agents. Liability shall normally be limited to five per cent of the value of the goods in question, and in all events to a maximum of EUR 1,000 (one thousand euro).
9.2 Liability for lost profits, consequential damages or damages arising from third-party claims is excluded.
9.3 The Company shall not be liable for damages resulting from improper treatment of the goods supplied. Liability is also excluded for any alterations, improvements or repairs made by third parties after the goods have been delivered.
9.4 Should the Customer insist on the use of a material provided by it, contrary to the Company’s advice, the Company shall not assume any liability for damages resulting from the use of such material.
10. OTHER PROVISIONS
10.1 Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.
If any rights under these Terms and Conditions are not claimed, no other rights whatsoever shall be waived in consequence.
11. APPLICABLE LAW, PLACE OF PERFORMANCE, JURISDICTION
11.1 These Terms and Conditions and contracts concluded under these Terms and Conditions shall be subject to Austrian substantive law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and any conflict of laws rules.
11.2 The place of performance for both contractual parties shall be 3492 Etsdorf am Kamp, Austria.
11.3 The parties hereby agree that any disputes arising from and in connection with the contract shall be for the sole jurisdiction of the competent court for 3492 Etsdorf am Kamp, Austria.
11.4 If the Customer is a professional merchant and hence a legal entity in public law, then the Company’s registered place of business shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract. The Company shall be entitled at its own discretion to instigate proceedings against the Customer at the competent court for the Customer’s domicile.
12. CONSUMER PROTECTION
12.1 If the Customer is a consumer in the meaning of the Austrian Consumer Protection Act, then the above provisions shall apply to the extent that they are permissible under that Act.
12.2 The nullity of any provision or part thereof shall not affect the validity of the other provisions.
Status November 2017