The present Terms and Conditions of Sale and Delivery (in short: Terms and Conditions) govern the legal relationship between us, Kraken Innovations GmbH, as contractor / service provider on the one hand and our clients on the other hand and apply to any form of order placement (e.g. purchase contract, contract for work and labour, contract for work and materials, consulting contract).
Our deliveries, services and quotations are provided exclusively on the basis of these terms and conditions. These terms and conditions shall also apply to all future business relationships, even if they are not expressly referred to again before each individual business transaction. Deviations from these terms and conditions shall only be effective if they are confirmed by us in writing.
Any terms and conditions of business, purchase and acceptance of the client shall not take precedence over these terms and conditions and shall only be binding on us if we have expressly recognised them in writing in each individual business case. In particular, we are not obliged to object to any terms and conditions used by the customer that conflict with these terms and conditions. Failure on our part to object to or perform the delivery or service shall in no way constitute approval or acceptance, even if we are aware of terms and conditions of the customer that conflict with or deviate from our terms and conditions. Any reference on our part to the customer’s documents shall not constitute any acknowledgement of the customer’s conditions or regulations. If the customer first becomes aware of the existence or wording of our terms and conditions in the context of our commercial letter of confirmation or our order confirmation, these are recognised in full by the uncontradicted acceptance of the letter of confirmation or the order confirmation.
B) OFFER AND CONCLUSION OF CONTRACT
Our offers are subject to change. In particular, the information on services and products contained in our catalogues, price lists, brochures, information material, leaflets, online shop, advertisements at trade fair stands, circulars, advertising mailings or other media is non-binding.
The information contained in our brochures, catalogues or similar documents, in the online shop and in our offer, in particular illustrations, digital colour reproductions, drawings, descriptions, dimensions, weight, performance and consumption data, delivery times and information regarding the usability of our products are only approximate, unless this information has been expressly designated as binding. An assurance of the properties of our services requires prior written agreement.
Contracts and any other agreements shall only become binding upon our written confirmation. With regard to validity as written confirmation, electronic correspondence shall be deemed equivalent to correspondence.
Orders which deviate in their wording from the offers submitted by us in any respect shall require our express written confirmation in order to be binding.
Writing errors or calculation errors shall entitle us to withdraw from the contract if the client refuses an adjustment. Claims for compensation by the client are excluded in this case.
C) DELIVERY TIME
The delivery periods and delivery dates are always only approximate unless they have been expressly agreed in writing as fixed dates.
The delivery periods shall commence at the earliest on the date of our order confirmation, but not before the order has been fully clarified, in particular not before all necessary documents to be provided by the customer have been provided and any advance payment agreements have been fulfilled. The same applies to delivery dates.
Delivery periods and delivery dates are ex works. If the goods cannot be collected or dispatched on time through no fault of our own, delivery periods and delivery dates shall be deemed to have been met upon notification of readiness for dispatch.
In the event that a fixed date has been agreed, collection must take place at this time, otherwise within 5 working days of receipt of our notification of readiness for collection. If the customer does not fulfil his obligation, he shall be in default of acceptance without the need for a reminder.
Unless otherwise agreed in individual contracts, we shall have a period of at least 4 weeks for the initial provision of our deliveries and services. Even after the delivery period has been exceeded, the client remains obliged to accept and pay for the processed goods.
We shall not be in default of delivery if the customer is in default of payment. In this case, we shall be released from any obligation to perform until fulfilment of the payment obligations.
We shall not be responsible for delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided, and these cannot lead to default on our part. Any resulting additional costs shall be borne by the client. Postponements for which the client is responsible shall require a new schedule to be drawn up by us.
In the event of postponements for which the client is responsible, we also have the option of requesting the client in writing, setting a grace period of 8 days, to fulfil its obligation to cooperate to the agreed extent.
Otherwise, we shall be entitled to withdraw from the contract without setting any further grace period and shall be entitled to invoice the client for the services rendered to date on a time and material basis, plus any lost profit. Counterclaims cannot be asserted by the client during this period.
In the event of postponements for which the client is responsible, we also have the option of requesting the client in writing, setting a grace period of 8 days, to fulfil his obligation to cooperate to the agreed extent. Otherwise, we may withdraw from the contract without setting any further grace period and shall be entitled to invoice the client for the services rendered to date on a time and material basis, plus any lost profit. Counterclaims cannot be asserted by the client during this period.
In the event that we declare cancellation of the contract in accordance with this provision and settle our production costs incurred up to that point or the expenses for the services rendered to date, including the lost profit, the client shall be entitled to the parts of the goods that have already been (partially) completed or processed. The provisions made under point K) of these terms and conditions remain unaffected by this.
The client may not assert any claims against us arising from a delay in delivery, even if we are at fault for the delay.
We are authorised to make partial deliveries, which the client must accept.
In the event that the fulfilment of the order or delivery is delayed, hindered, made unreasonable or impossible due to force majeure, we may postpone the delivery date or withdraw from the contract in part or in full. In such cases, the client shall have no claims for compensation against us. In the event of partial or complete cancellation of the contract by us, we shall be entitled to aliquot remuneration in accordance with the services rendered to date. Alternatively, we may invoice the previous service on a time and material basis. In this case, the client shall be entitled to any parts of the goods that have already been (partially) completed or processed.
All unforeseeable events or events which, even if they were foreseeable, are beyond our control or the control of the client and whose effect on the fulfilment of the contract cannot be prevented by reasonable efforts shall be deemed to be force majeure.
Force majeure includes, in particular, strikes, lockouts, lack of means of transport, official interventions, embargoes, any kind of sanctions (especially economic and political), energy supply difficulties, epidemics, pandemics or other circumstances (of whatever kind) that make delivery or performance significantly more difficult or even impossible for us, regardless of whether they have occurred at our premises or those of one of our subcontractors.
D) DELIVERY AND TRANSFER OF RISK
Deliveries are made ex works (EXW according to Incoterms 2000) at the expense and risk of the client, unless expressly agreed otherwise in writing.
The risk of damage, destruction or deterioration of the purchased or delivered goods shall pass to the customer as follows:
If “ex works” is agreed, as soon as the goods are ready for collection at our works in Graz;
If “free carrier” is agreed, as soon as the goods have been handed over to the person carrying out the transport for loading;
If “carriage paid” is agreed, as soon as the goods have been handed over to the person carrying out the transport for loading;
In the event of loss or damage during transport, the recipient shall be responsible for making a complaint to the carrier or forwarding agent.
The client is obliged to immediately accept the goods sent or made available for collection in accordance with the contract. If dispatch is delayed at the request of the customer or for reasons within the customer’s sphere of responsibility, the risk shall pass to the customer upon notification of readiness for dispatch.
In the event of default of acceptance or in the event of impossibility of delivery due to force majeure, we shall be entitled to store the goods ourselves or store them with a forwarding agent at the expense and risk of the customer.
The following also applies to the export of goods and merchandise and the provision of technical services:
If the export of goods and merchandise ordered from us or the provision of technical services by us is subject to the existence of an official authorisation (of whatever kind), the customer undertakes to ensure that all authorisations are granted in good time to the extent necessary for the export of the goods and merchandise or the provision of the technical services. We are entitled, but not obliged, to refuse (further) fulfilment of the order until proof of the existence of all necessary permits. All damages, expenses and burdens (of any kind whatsoever) incurred by us as a result of non-issuance, non-existence or untimely proof of the existence of all necessary authorisations shall be borne by the customer and reimbursed to us.
The following also applies to the provision of services:
The client must co-operate to the best of its ability in the provision of the service by us and undertake or make every effort to ensure that we can provide our service in accordance with the contract. Delays or failure to perform the service as well as all associated consequences, expenses and burdens due to omitted or insufficient co-operation and support on the part of the client shall be borne exclusively by the client.
The prices stated in our quotations are subject to the proviso that the order data on which the quotation was based remain unchanged.
The prices specified in our order confirmations shall apply. Value added tax at the legally standardised rate shall be added to the prices including all ancillary costs.
The prices quoted by us are ex warehouse or ex works. They do not include freight, postage, insurance, customs duties and other packaging, transport and shipping costs. Transport insurance will only be taken out at the express request of the customer. With regard to ancillary costs, we shall be free to choose whether to charge the reasonable costs in the respective case or a flat rate for ancillary costs.
The client must dispose of the packaging supplied by us at his own expense. An obligation to take back the packaging material shall only exist if expressly agreed in writing.
Increases in the freight and customs rates valid at the time of the conclusion of the transaction and the introduction of new duties shall entitle us to increase the agreed sales price proportionately without the customer being entitled to declare its cancellation. We shall also be entitled to price increases due to increases in freight and customs rates or the introduction of new levies if there is a delay in delivery and the corresponding increase in freight, customs rates and levies occurs after the originally agreed delivery date.
Price quotations and cost estimates on our part are generally non-binding, unless their binding nature has been expressly confirmed in writing.
If delivery is made more than 1 month after conclusion of the contract, the prices applicable on the date of dispatch shall be invoiced.
If our quotation (cost estimate) is exceeded as a result of changes to the quotation on the part of the customer, the customer shall be deemed to have approved such changes even without notification from us. The client waives his right of cancellation in such cases.
Should the (purchase) prices to be paid by us or the costs to be borne by us change – in particular due to collective agreement regulations, internal company agreements or other circumstances relevant to the calculation or the resources required for the provision of services, e.g. for materials, energy, transport, external labour, financing – we shall be entitled to increase the prices accordingly at any time. We shall in any case be entitled to pass on to our customer any increases in costs, prices and wages etc. passed on to us by our suppliers and producers.
F) DISCOUNT RECALCULATION
Discounts on our list prices and cash discounts shall only be granted on condition that the agreed remuneration is paid in full and on time. If the agreed remuneration is not paid in full – in particular due to the opening of insolvency proceedings against the customer’s assets – we shall be entitled to claim our list prices.
G) TERMS OF PAYMENT
Payment is due immediately upon receipt of the invoice without deduction, but in any case within 30 days of the transfer of risk at the latest. Payment shall only be deemed to have been made when we can dispose of the amount without restriction.
Bills of exchange and cheques shall only be accepted by special agreement and on account of payment if the bank has confirmed acceptance. Refinancing costs and expenses shall be borne by the client and must be paid immediately by the client. We shall only assume liability for the timely presentation, protest, notification and return of the bill of exchange in the event of dishonour in the event of intent or gross negligence on our part or on the part of our vicarious agents.
In the case of bills of exchange, cheques or transfers, the date on which the bank credits the amount in our favour shall be decisive.
If the client refuses to collect the goods despite notification of readiness for dispatch or acceptance, full payment of the invoice amount must nevertheless be made no later than 30 days after notification of readiness for dispatch or delivery.
A right of retention on the part of the client, in particular based on the defence of non-performance of the contract due to alleged defects, is expressly excluded. Nor is the customer entitled to set off any claims whatsoever, with the exception of claims recognised by us or already enforceable.
H) DELAY OF PAYMENT
In the event of late payment, we are entitled to charge annual interest of 9.2% above the respective base interest rate of the Austrian National Bank from the preceding 30 June or 31 December in accordance with § 456 UGB.
This does not exclude the assertion of further damages caused by default. The client shall be liable to us for such further damages, in particular also for interest damages due to late fulfilment of the payment obligation.
If we assert outstanding claims ourselves, the client undertakes to pay an amount of EUR 40.00 for each reminder issued, irrespective of the actual expense incurred. Section 1333 (2) ABGB shall apply to the reimbursement of collection costs exceeding this lump sum.
In addition, all claims shall become due immediately if the terms of payment are not complied with or circumstances become known which, in our opinion, are likely to reduce creditworthiness. In this case, we shall be entitled to perform outstanding services only against advance payment or to withdraw from the contract after a reasonable deadline set by means of a reminder has expired without result.
In the event of default of payment, we shall be entitled to declare cancellation not only with regard to the contract in question, but also with regard to other transactions not yet completed or with regard to successive deliveries.
Furthermore, we have the right to withhold goods that have not yet been delivered and to cease further work on current orders if the pro rata payments are not received. We shall also be entitled to demand the return of goods already delivered but not paid for by the customer and to retrieve them at the customer’s expense. The client must grant us all necessary access to exercise the right of recovery.
If the client’s financial situation deteriorates significantly, if insolvency proceedings are opened against the client’s assets or the opening of such proceedings is imminent, if insolvency proceedings are not opened due to a lack of assets to cover the costs or if we receive information which is likely to cast doubt on the client’s ability or willingness to pay, we shall be entitled to declare all claims against the client due and payable immediately at any time. If a method of payment other than cash payment has been agreed, we shall also be entitled to demand cash payment.
This provision shall not affect our right to cancel the contract in accordance with point P) of these terms and conditions.
I) ORDERING OF SECURITIES
Even if the provision of securities was not agreed upon conclusion of the contract, we are entitled to demand securities for the fulfilment of the payment obligation prior to dispatch and to withdraw from the contract in the event of refusal.
J) TECHNICAL SPECIFICATIONS AND DOCUMENTS
Our illustrations, drawings, copies, dimensions, performance and weight details as well as specifications, colour details and samples in catalogues, advertising material, offers, etc. are only approximate and are subject to change.
All documents provided contain know-how, ideas and development work by us and our subcontractors. The intellectual property and all material property rights to these documents shall remain with us. The customer shall only be granted a right of use to the extent absolutely necessary for the operation and maintenance of the contractual goods. This right of use shall expire when the contractual goods are taken out of service.
All documents and information may not be copied, analysed, reproduced or made accessible to third parties in any way, either in whole or in part, without our permission. Details thereof are also subject to the statutory protective provisions.
K) RESERVATION OF TITLE
All goods delivered by us shall remain our property until complete fulfilment of all financial obligations towards us, including interest and costs.
Ownership shall remain with us even if the delivery is firmly attached to, mixed with or incorporated into the property of the customer.
The customer shall take all measures at his own expense to make our ownership of the delivery recognisable to everyone in accordance with the respective statutory publicity requirements or, in the event of an attempted claim by third parties, to expressly point out our right of ownership.
If parts or goods delivered by us have become a dependent part of the customer’s property through combination with the customer’s property, the customer shall be obliged, in the event that he does not settle all his liabilities to us in due time, to tolerate the reassembly of all parts or goods at his risk and expense and to bear all costs incurred as a result of or in connection with the reassembly until they arrive at the respective factory premises to be designated by us. The customer recognises our ownership of such removed items.
As long as the retention of title exists, the goods delivered by us may not be sold, pledged, transferred by way of security, leased or otherwise transferred without our written consent.
The products manufactured from our goods delivered under retention of title may only be resold by the customer subject to our retention of title to the goods and the proceeds. If the new product is sold, corresponding co-ownership of the proceeds of the sale shall arise, which the customer shall receive from the third party as our trustee.
In the event of seizure by third parties of the parts and goods supplied by us and still subject to retention of title, the customer shall be obliged to inform us immediately of the name of the claiming party, the amount of the claim, the intervening court, the file number and, if applicable, the date of the auction. Furthermore, the customer is obliged to inform us of any extraordinary reduction in the value of the goods delivered under retention of title.
If a law other than Austrian law is agreed with the client or if a law other than Austrian law applies for other reasons and if the retention of title is not effective according to its provisions, the securities possible under the other law shall be deemed agreed. If the co-operation of the customer is required in this respect, the customer shall be obliged to take all measures necessary to establish and maintain such rights.
Any defects in the goods delivered or services rendered by us shall be warranted in accordance with the following provisions:
The warranty period begins with the dispatch or collection of the goods. If the customer is in default of acceptance, the warranty period begins with the notification of readiness for dispatch.
The warranty period ends after 6 months.
Warranty obligations shall only apply to defects which are notified in writing without delay, but at the latest within a period of 3 working days from the date on which they become recognisable to the client, together with an indication of the possible causes. If the client fails to give notice of defects in due time, he can no longer assert the claims specified in § 377 para. 2 UGB. In order to be able to assert our warranty obligation, the client must provide proof that an alleged defect is one for which we are responsible and that it was already present at the time of handover. The applicability of the legal presumption of § 924 ABGB is expressly excluded. Further limitations of liability in these terms and conditions remain unaffected.
We are only liable for defects that occur under normal use and in compliance with the intended operating conditions, the care instructions and the specified maintenance and service intervals. In particular, it does not apply to defects that are due to reasons for which the customer or third parties are responsible.
Warranty is also excluded if the delivered goods are handled or used improperly and, in particular, if the relevant instructions and regulations provided by us are not observed.
If the quantity and weight of our delivery do not deviate by more than 10% from the order, this shall not constitute a defect. Only our incoming or outgoing weighing shall be decisive for this.
If the improvement or replacement is impossible or would involve a disproportionately high expense for us or if we cannot fulfil the request for replacement or improvement or cannot do so within a reasonable period of time, we shall have the right, at our discretion, either to cancel the contract in its entirety or to grant the customer a reasonable price reduction.
The warranty obligation shall lapse if the customer makes unauthorised changes of any kind to the delivery item without our prior written consent.
The warranty relates exclusively to goods supplied by us. We shall only be liable for goods that we have purchased from subcontractors to the extent that we are entitled to warranty claims against the subcontractors.
If we are obliged to rectify a defect, we may replace the defective goods or their defective part, rectify the defect on site during normal working hours or have the defective goods or their defective part sent to us for rectification. We must be granted the necessary time to inspect the defects and to repair or supply replacement parts.
Furthermore, the customer is obliged to grant us at least two attempts to rectify the defect if necessary.
The client shall bear the costs and risk for the outward transport of the defective goods or parts; we shall bear the costs and risk for the return transport. If the defects are rectified on site, the customer shall bear all costs and expenses incurred in connection therewith, in particular officially prescribed and sovereign fees, other expenses as well as our travel and any overnight accommodation costs and shall also be obliged to take all necessary organisational measures and precautions at its own risk and expense to enable us to carry out the rectification work without friction.
The warranty period shall not be extended once defects have been rectified or replaced.
We shall only be liable for the rectification of defects by the customer itself or by third parties if we have given our written consent to this.
In any case, we shall be released from any warranty obligation as long as the client has not settled our outstanding claims in full.
Warranty claims do not authorise the client to withhold agreed payments.
From the beginning of the warranty period, we do not accept any further liability than that specified above, including for defects whose cause lies before the transfer of risk.
If a genuine guarantee commitment is made, the above provisions shall apply mutatis mutandis. Warranty repairs will only be recognised after prior consultation with our warranty department and subsequent written confirmation.
With the exception of personal injury, we shall only be liable to the customer in the event of gross negligence or wilful intent, whereby claims for damages shall in any case be limited to the mere repair of the damage and to the amount of the order sum. Under no circumstances shall we be liable for other damage of any kind whatsoever, such as damage to goods that are not the subject of the contract, for loss of profit, for consequential damage caused by defects or for damage caused by interruption of production and operational hindrance. The reversal of the burden of proof according to § 1298 ABGB is excluded. The client must provide evidence that we are guilty of gross negligence or intent.
Our liability for vicarious agents and assistants is limited to the careful selection of the same. Should and – for whatever reason – should we be liable beyond this in individual cases, the limitations of liability stated in the previous paragraph shall also apply to the same extent to our vicarious agents and agents.
All claims for compensation shall lapse no later than one year after delivery or provision of the service.
Under no circumstances shall we be liable for damage to workpieces provided by the customer.
Liability for compensation for claims resulting from the Product Liability Act due to material damage as well as product liability claims that can be derived from other provisions are excluded.
In those cases in which cover is provided by our business liability insurance, any liability for compensation is limited to the amount of cover available under our business liability insurance. The aforementioned limitations of liability remain unaffected by this.
N) CHANGE IN CIRCUMSTANCES
If the circumstances under which a contract was concluded have changed so significantly that it can be reasonably assumed that the contract would not have been concluded at all or only on different terms under the changed circumstances, and if the change in circumstances could not have been foreseen at the time of conclusion even if the prudence of a prudent businessman had been applied, we shall be entitled, depending on the nature of the case, to withdraw from the contract or to demand an amendment of the contractual provisions to take account of the changed circumstances.
O) CANCELLATION BY THE CLIENT / REDEMPTION MONEY
If the client – for whatever reason – declares his cancellation of the contract, we are free to accept this cancellation in return for payment of a penalty or to reject the cancellation.
In the event of acceptance of the cancellation, the penalty shall be
for marketable goods: 10% of the sales price;
for non-marketable goods or other services as well as customised products: 10% of the sales price or agreed remuneration plus the production costs incurred up to the acceptance of the withdrawal, whereby the customer shall be entitled to the parts of the goods that have already been (partially) completed or processed.
P) EARLY CONTRACT CANCELLATION
All contracts with the client can be cancelled prematurely by us at any time without notice for good cause.
Good cause for premature cancellation exists in particular if
an application to open insolvency proceedings against the client’s assets is rejected due to a lack of assets to cover costs or if we receive information which is likely to cast doubt on the client’s ability or willingness to pay (§ 25b IO remains unaffected by this provision);
the client has not paid outstanding claims despite a reminder;
the client does not fulfil its obligation to provide the documents necessary for the fulfilment of the order or other obligations to cooperate despite being requested to do so.
Q) PLACE OF FULFILMENT AND JURISDICTION
Place of fulfilment for delivery and payment is, unless otherwise agreed, the registered office of Kraken Innovations GmbH in 8010 Graz.
The place of jurisdiction for legal disputes regarding the existence or non-existence of a contractual relationship that is subject to these terms and conditions or for disputes arising from such contractual relationships is exclusively the competent court for 8010 Graz for actions brought by the customer and for actions brought by us, either the competent court for 8010 Graz or the general place of jurisdiction of the customer.
Unless otherwise agreed, Austrian law shall apply, but excluding the conflict of law rules. This shall also apply to the question of the conclusion of the contract. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
R) GENERAL PROVISIONS
All deviations from these terms and conditions must be made in writing in order to be valid. This shall also apply to any waiver of the written form requirement. Verbal collateral agreements are legally invalid.
Should individual provisions of these terms and conditions be invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the contracting parties undertake to replace the invalid or unenforceable provision with a valid or enforceable provision that comes as close as possible to the economically intended purpose of the wholly or partially invalid or unenforceable provision within the framework of the contract as a whole.
In the event of a loophole occurring at a later date, the provision that corresponds to what would have been agreed in accordance with the meaning and purpose of the present terms and conditions if the solution to the non-contractually regulated issues had been considered from the outset shall be deemed to have been agreed.
If contractual agreements are made between us and the Client outside these Terms and Conditions and these are in conflict with the provisions of these Terms and Conditions, it is agreed that the provisions in the contractual agreements outside these Terms and Conditions shall only take precedence if it has been expressly agreed in writing that the corresponding provisions of these Terms and Conditions are subordinate.
The contracting parties undertake to treat all commercial and technical details that become known to them through this business relationship as business secrets, unless they are already generally known.
The client agrees that we may store the data received from the business relationship in accordance with the Data Protection Act and use it for our own business purposes.