Terms of Sale and Delivery
Terms of Sale and Delivery of EKRO Bausystem GmbH
The conditions below apply to all the offers, sales, deliveries and services of EKRO Bausystem GmbH (referred to from now on as “EKRO”) to natural or legal persons (referred to from now on as the “Client”). The Terms of Sale and Delivery of EKRO have priority over the General Terms and Conditions of Business of the Client as a more specific standard. Any necessary conditions of the Client only ever become binding if EKRO separately confirms in writing that these conditions apply on an exceptional basis. If the Client’s General Terms and Conditions of Business become effective in contravention of this regulation, they must be considered under the proviso that EKRO will not be disadvantaged by their application versus the conditions below.
1.1. Offers and list prices are non-binding. The information about dimensions, prices, services and the like that are contained in catalogues, brochures, circulars, advertisements, illustrations and price lists are subject to correction. Printing errors and misprints excepted.
1.2. If the order is based on an individual request of the Client – in particular to manufacture a custom workpiece – the offer should be considered as a non-binding cost estimate. If this results in unexpected additional time and effort after the offer has been accepted, EKRO is authorised to bill the Client for the additional time and effort. In the same way, the costs for additional services tasked by the Client after acceptance of the offer will also be billed to the Client.
In case of doubt, all prices are net in Euros excluding Value Added Tax. Variations in exchange rates will be charged to the Client. All settlements are made according to EKRO’s offers, execution plans and parts lists for the actual amounts that are supplied.
- TERMS OF PAYMENT
3.1. Unless otherwise agreed in writing, all invoices are due for settlement within one week. A payment has been made when EKRO can irrevocably withdraw the complete invoiced amount. Any entitlement to a discount only exists in the case of a written agreement to this effect. Invoicing errors must be notified in writing within five days of receipt of the invoice. Asserting warranty or product liability claims, claims for damages or any other claims does not stop invoices from being due for settlement. Offsetting with possible counter claims requires the written approval of EKRO and is only ever possible with a credit note granted by EKRO.
3.2. In the case of existing older accounts payable, Client’s payments will initially be credited to interest, then to costs, then to older accounts payable and finally to open capital. Payment specifications by the Client are ineffective.
4.1. Any and all deliveries are conditional upon the creditworthiness of the Client. If EKRO receives negative information about the solvency of the client after conclusion of the contract, EKRO is authorised both to demand payment in advance and to withdraw from the contract.
4.2. Cancellations on the part of the Client require the express approval of EKRO. Any claims asserted by EKRO, in particular for transportation and storage costs resulting from this, are unaffected.
- TRANSFER/DISPATCH AND TRANSPORTATION/TRANSFER OF RISK
5.1. Unless agreed otherwise in writing, goods are delivered at the cost and risk of the Client. EKRO decides on the type of transport to be used. Partial deliveries will be made at the request and expense of the Client. The risk is transferred to the Client on transfer of the product by the transport company or on delivery to the agreed location.
5.2. Delivery free site means delivery without unloading. Delivery is made to the agreed unloading location; the purchaser must ensure that the unloading location has road access that heavily loaded trucks can drive on even in bad weather. In snowy and icy weather, the purchaser must ensure that the access road to the unloading location is cleared.
5.3. EKRO expressly strives to meet delivery deadlines at all times. Any information about delivery deadlines represents guide values that are based on existing experience, and this means that they are basically non-binding unless delivery deadlines have been expressly assured in writing. Claims for damages due to delayed delivery are excluded.
5.4. Collection by the customer: The person carrying out collection is responsible for correct legal loading of their vehicle as well as for packing, stowing and cargo securement of the goods that they are collecting from EKRO (this applies in particular in the sense of § 101 of the Motor Vehicles Act (KFG)).
If EKRO is delayed for whatever reason, the Client will grant EKRO a reasonable grace period to provide the service before they are authorised to declare their withdrawal from the contract. In individual cases, an appropriate grace period shall be guided by the reason for the delay; in particular, by the average amount of time required for production and repairs as well as by the delivery periods for materials.
- RETENTION OF TITLE
7.1. All goods that are supplied, installed or transferred in any other way remain the property of EKRO until complete payment, including costs and expenses, has been received. The Client will respect this property will not encumber it and will insure it in particular against fire, damage and theft. In the case of late payment, EKRO is authorised to assert their claim to retention of title; in particular, to demand hand over of the goods, to collect them and to declare their withdrawal from the contract; this also applies when the goods are in use.
7.2. If, for whatever reason, EKRO does not recover the goods that are under retention of title, the Client is strictly liable for the damages for EKRO resulting from this. This applies in particular to cases in which the goods under retention of title are removed from a site by third parties. In this case, the fault of the Client can be seen due to them not having secured or supervised the site adequately.
7.3. Resale of goods to a third-party that have not been paid for completely is only allowed if EKRO agrees to this in writing and the Client informs the third-party about the retention of title. In case of resale, the Client assigns to EKRO their purchase price claim as well as any and all other considerations amounting to all open claims. EKRO is authorised to inform the third-party of this assignment. Under all circumstances, the Client is obliged on request to inform EKRO of the name and address of the third-party.
7.4. EKRO must be informed immediately of any foreclosure measures that can be expected or have already been taken to be able to avoid garnishment and enforcement if possible. Any costs that arise for EKRO for safeguarding their ownership rights will be charged to the Client.
- REMINDER FEES AND COSTS
The client is obliged to pay reminder fees for the collection of outstanding claims. In addition to this, the Client is obliged to reimburse for any damages suffered by EKRO due to tasking suitable third-parties to collect outstanding claims; this applies in particular to the costs of pre-trial letters of formal notice from lawyers. The Client recognises expressly that letters of formal notice from lawyers according to TP3A plus the standard rate of the Tariff Act of Lawyers must be paid and that these costs are appropriate. EKRO is authorised to legally claim for any and all pre-trial costs as damages.
- WARRANTY – NOTIFICATION OF DEFECTS
9.1. EKRO warranties the supplied products to be free of material and processing faults. In the case of obvious defects that are found after careful inspection, the Client must issue notification in writing with a detailed description within five working days of delivery at the latest. In the case of defects that are not obvious after careful inspection and are found later, the Client must issue notification in writing with a detailed description within five working days of delivery at the latest. This must be done in each case with any other exclusion of warranty claims, of claims for damages due to the defect itself as well as for claims resulting from a mistake regarding the object being free of defects.
9.2. Warranty claims are excluded if any of the following points apply: any modifications and incorrect treatment of the goods, incorrect assembly, inadequate servicing, any and all repairs or modifications by the Client themselves or third parties tasked with this, use of the object that goes above and beyond the intended use, as well as ignoring the instructions for use. The Client bears the burden of proof that the defect was present at the time of transfer of the risk.
9.3. If there is a defect, the Client is entitled to improvement. A price change will be excluded by mutual agreement. The warranty period is one year from the transfer of risk of the product; in the case of used goods, the warranty is excluded. An extension of the warranty period by means of possible remedial action is excluded.
- COMPENSATION FOR DAMAGES
EKRO is liable for damage that is caused intentionally, due to illegal gross negligence. Liability for damages in the case of less serious levels of culpability is excluded in the same way as compensation for consequential damages and loss of profits. The burden of proof lies with the Client to prove that damage has occurred that was caused by EKRO, that EKRO acted illegally and that EKRO was culpable. Claims for damages lapse within six months of the damage occurring.
- INTELLECTUAL PROPERTY RIGHTS
The Client recognises that EKRO goods may be subject to intellectual property rights (patent, sample, design, copyright, etc.). The Client will respect these rights and not duplicate or disseminate the products. Technical plans, drawings, sketches, any other technical documents remain the intellectual property of EKRO.
The Client declares their approval for automated processing of all the data that they provide at the request for quote and especially on placing the order. Data will only ever be transferred to third parties if this is necessary to fulfil the order or for other normal business-related reasons. This includes passing on the data to priority associations for the protection of creditors for a creditworthiness check.
- CHOICE OF LAW – COURT OF JURISDICTION
Austrian law will be applied. UN sales law is excluded. The agreed place of performance is the head office of EKRO. The court of jurisdiction is the responsible court in Leoben.
- MODIFICATION OF THE GENERAL TERMS AND CONDITIONS – SEVERABILITY CLAUSE
EKRO reserves the right to modify Terms of Business without stating any reasons. The current version, which can be viewed at http://www.ekro.at, applies to conclusion of the contract in each case.
If one of the provisions of these Terms and Conditions is ineffective, this does not affect the remaining ones. Ineffective provisions must be replaced by others that best correspond economically to the aim and object of the void provision in a legally effective way. The same applies to possible loopholes.
Additional provisions for LEASING
Supplement to the Terms of Sale and Delivery of EKRO Bausystem GmbH
1.1. The lease includes the use of the goods made available to the Client by EKRO. Planning, delivery, installation, retrieval and cleaning are not included in the lease and will be charged for separately.
Depending on the device, calculation is carried out by calendar days, weeks or months. The calculation starts on the day of delivery or pick up and ends with pick up by EKRO of the leased goods on the agreed date; however, in all other cases, this takes place at the earliest on the day of return to one of our warehouses (at Krieglach/Vienna/Asten).
The minimum leasing period, lease flat rates, freight charges and purchased parts are factored in immediately on the day of delivery. This provision also applies to subsequent deliveries. After initial invoicing, subsequent settlements are paid to the end of the month in arrears. After the end of the lease and internal quality inspection, the final invoice may be issued. Final invoices will be submitted immediately after clarifying missing parts, repair and cleaning costs. Deposits will be returned after the internal quality inspection.
Unless agreed otherwise, leasing and installation invoices are payable within 10 days of the invoice date without cash discount.
1.2. Notification of availability must be made ONE WEEK BEFORE THE END OF THE LEASE in writing or by phone to our MRP department to make it possible to arrange return shipment on an economic basis. In the case of partial returns/partial notification of availability of the leased material, the list of material that is ready for collection must be sent to EKRO in advance. The END OF THE LEASE IS NOT THE SAME AS the date of notification of availability.
1.3. Unless the contract specifies an all-inclusive or daily lease, the MINIMUM LEASE PERIOD is generally 30 days. After the minimum lease period or an all-inclusive lease for a specific period of time has expired, leases will continue to be charged on a pro rata basis per calendar day. IMPORTANT INFORMATION: If an order is placed, detailed planning can result in changes to piece counts or articles, which may slightly affect the final price.
1.4. Leasing costs apply ex works Krieglach and must be agreed on in writing in all cases.
Transport costs are at the expense of the lessee.
Unless otherwise expressly agreed, delivery/pick up by EKRO will be charged according to the applicable freight charge table. This is based on the weight listed on the delivery note. A free on-site dwell time of a maximum of one hour applies. Idle times that are caused by the customer will be charged for at the current hourly rate. The goods will be delivered exclusively in the storage and transport racks that are intended for this purpose, which will be settled on the same leasing terms.
It is possible to agree pick up and transfer by the lessee themselves or a haulage company. This must be carried out during the normal working hours of EKRO Bausystem GmbH.
- ACCEPTANCE/OBSTACLES TO DELIVERY
3.1. Delivery is made to the agreed unloading location. The lessee must ensure that the unloading location has road access that heavily loaded trucks can drive on even in bad weather. In snowy and icy weather, the lessee must ensure that the access road to the unloading location is cleared.
3.2. The lessee must inspect the leased article without delay and give notice of any defects immediately. Complaints will only ever be considered if they are submitted within three days of receipt of the goods.
- OBLIGATIONS OF THE LESSEE
4.1. Complete responsibility is passed on to the lessee on transfer of the leased goods.
4.2. The lessee is completely liable for correct use of the leased goods by complying with all relevant regulations – in particular, with legislation, standards and instructions for use. The lessee is responsible to EKRO as well as to third-parties for safe use of the leased goods. This means that the lessee must ensure that only professional people with a knowledge of the operating regulations are allowed to use the leased goods. Use of the leased goods that goes above and beyond the intended use is expressly prohibited.
In the case of leased goods that have to be serviced or that contain wear parts, the lessee is responsible for complying with service intervals and replacing wear parts in good time. EKRO must be notified of technical malfunctions without delay. The lessee is prohibited from making any and all technical modifications to the leased goods.
4.3. The leasing agreement is concluded with the lessee for a specific place of use. Transferring the leased goods to a different site as well as sub-leasing is only ever allowed with the ADVANCE WRITTEN APPROVAL of EKRO.
4.4. The lessee is obliged to return correctly the complete, undamaged leased goods. If, for whatever reason, EKRO does not recover the leased goods, the lessee is strictly liable for the damages for EKRO resulting from this. This applies in particular to cases in which the leased goods are removed from a site by third parties. In this case, the fault of the lessee can be seen due to them not having secured or supervised the site adequately.
4.5. EKRO must be informed immediately of any foreclosure measures that can be expected or have already been taken to be able to avoid garnishment and enforcement of leased goods if possible. Any costs that arise for EKRO for safeguarding their ownership rights will be charged to the Client.
4.6. In the case of a major deterioration in the assets and liabilities of the lessee and/or their liquidity, the lessee is obliged to inform us of this without delay and, on request, to provide securities for outstanding leasing instalments up to the agreed pick up deadline or the probable end of the lease.
- CANCELLATION/TERMINATION OF THE LEASE
5.1. During the agreed minimum lease period of the lease, it is not possible to terminate the leasing arrangement by cancellation.
5.2. However, EKRO is authorised to terminate prematurely with immediate effect if the lessee breaches essential contractual obligations. This applies in particular if they are in arrears with their lease payments in the amount of at least one monthly payment for longer than 30 days or if they deploy or use the leased goods in breach of the contract. In cases like this, the lessee is obliged to compensate EKRO for all the damages resulting from this; this applies in particular to lost profits in the amount of the leasing payments up to the time of the first possible end of the lease. In the case of premature cancellation, EKRO is authorised at any time to uninstall the goods and return them at the expense of the contractor. Free access to the site must be guaranteed.
5.3. Claims for damages of the lessee against EKRO due to premature termination of the lease and retrieval of the leased goods are excluded by mutual agreement.
- OBLIGATION TO RETURN/REMOVAL OF DEFECTS
6.1. After termination of the contract, the lessee is obliged to hand over the leased goods in their original condition to EKRO. The piece counts and material conditions apply that were determined by EKRO’s warehouse manager at delivery or return delivery.
6.2. It must be ensured that no proprietary or legacy items are returned. The leased goods will be accepted exclusively in the storage and transport racks that are intended for this purpose. Leased formwork systems must be returned exclusively to the Krieglach plant.
6.3. Leased goods, in particular formwork components, must be returned cleaned. Otherwise, the lessee will be charged for final cleaning based on the flat rate per m² of the complete return delivery or for cleaning of the support components and of all of the other leased goods on a time and materials basis at the current hourly rate.
6.4. Any damage to the leased goods that exceed any signs of wear due to careful use or wear will be charged to the lessee. EKRO will repair worn or damaged leased goods on a time and materials basis, which will be charged for. At the option of EKRO, we can also demand that the lessee restore the original condition. Severely damaged material that cannot be repaired will be declared as scrap and the lessee will be invoiced for it. Lease payments WILL NOT be credited to scrap or missing parts. Leased goods that have been declared as scrap will be kept for inspection or pick up for up to 30 days at the Krieglach factory and will then be disposed of WITHOUT further notification.
6.5. If the lessee does not hand over the leased goods after termination of the leasing agreement in good time, EKRO is entitled to a usage fee for the duration of the withholding amounting to the agreed lease payment. The same thing applies if the leased goods are not operable after being returned. Asserting a claim for other damages is expressly unaffected by this.
- GENERAL INFORMATION
7.1. The Terms of Sale and Delivery of EKRO Bausystem GmbH apply on a subsidiary basis. This applies in particular to the points entitled Terms of Payment, Withdrawal/Cancellation, Reminder Fees and Costs, Compensation for Damages, Data, and Court of Jurisdiction.
EKRO reserves the right to modify the Terms of Business and Leasing Conditions without stating any reasons. The current version, which can be viewed at http://www.ekro.at, applies to conclusion of the contract in each case.