General Terms and Conditions

1. Validity
1.1.
The following General Terms and Conditions (hereinafter briefly referred to as "GTC") shall apply to all deliveries, services, purchases and offers (hereinafter briefly referred to as "Services") of Rudolf Koller Ges.m.b.H., company register number 36250i, Rudolf KOLLER spol.s r.o. and Koller Holz Handels GmbH, company register number 186766g, Brünner Straße 313-315, 1210 Vienna, as well as their branches at Rudolf-Koller-Straße 1, 3902 Vitis (hereinafter briefly referred to as "Koller"). The services of Koller shall be provided exclusively on the basis of these GTC. Conflicting GTC of the Customer or the Supplier shall not be recognised unless Koller has expressly given its consent in writing. In this respect, acts of contract performance by Koller shall not be deemed to be consent to contractual terms and conditions deviating from these GTC. These GTC shall apply in particular as a framework agreement for all further legal transactions between Koller and the other contracting party; this shall also apply in the event that no further explicit reference is subsequently made to the GTC.

2. Conclusion of contract
2.1.
Koller's sales offers shall be subject to change. A sales offer shall require a written acceptance of an order or an order confirmation. The dispatch by Koller of the goods ordered by the Customer shall also effect the conclusion of the contract. If offers are made to Koller, the offeror shall be bound by them for a reasonable period of at least 10 days from demonstrable receipt of the offer. Acceptance of an offer made to Koller shall always require a written declaration of acceptance by Koller.

3. Price
3.1.
Unless expressly stated otherwise, all prices quoted by Koller shall be exclusive of statutory VAT.
3.2. If, in particular, wage costs change due to collective agreement regulations in the industry or internal company agreements or if other cost centres relevant to the calculation or costs necessary for the provision of services such as those for materials, energy, transport, external work, financing etc. change, Koller shall be entitled to increase or reduce the prices accordingly. This clause 3.2. shall not apply to consumer transactions.

4. Terms of payment, interest on arrears
4.1.
In the absence of any other agreement, Koller's claims against Austrian contracting partners shall be due for payment concurrently against handover of the goods immediately after receipt of the invoice, free of charges and deductions. In the case of foreign contracting partners, in the absence of any other agreement, one third of the total price shall be due as an advance payment when the order is placed and the remaining amount shall be due by means of an irrevocably confirmed letter of credit from a first-class bank having its registered office in the European Union or in cash concurrently against the handover of the goods. Discount deductions shall require a separate written agreement. In the event of default in payment, including partial payments, any discount agreements shall also cease to apply. Payments by the Customer shall only be deemed to have been made on the date of irrevocable and unconditional receipt in Koller's business account.
4.2. In the event of default in payment by the Customer, Koller shall be entitled, at Koller's discretion, to demand compensation for the damage actually incurred or default interest at the statutory rate, but at least 8% per annum for business transactions. In the event of default in payment by the Customer, Koller shall also be entitled to demand compound interest from the date of handover of the goods. In the case of a consumer transaction, the default interest shall be 4% per annum.
4.3. In the event of default, payments by the Customer shall first be credited against interest and costs and only then against the principal amount.

5. Withdrawal from contract
5.1.
In the event of default in acceptance or other important reasons, such as in particular insolvency of the Customer or rejection of such an opening for lack of assets, as well as in the event of default in payment by the Customer, Koller shall be entitled to withdraw from the contract, insofar as the contract has not yet been fulfilled in full by both parties. In the event of withdrawal, Koller shall have the option of claiming lump-sum damages of 15% of the gross invoice amount irrespective of fault or compensation for the actual damage incurred; payment shall be due within 7 days of Koller's first request.
5.2. In the event of default in payment by the Customer, Koller shall be released from all further obligations to perform and deliver 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 period of grace, whereby 14 days shall be deemed reasonable in any case.
5.3. If the Customer withdraws from the contract - without being entitled to do so - or requests its cancellation, Koller shall have the choice of insisting on the fulfilment of the contract or agreeing to the cancellation of the contract expressly and in writing; in the latter case, the Customer shall be obliged to pay, at Koller's discretion, either lump-sum damages in the amount of 15% of the gross invoice amount or the actual damage incurred within 7 days of Koller's request.
5.4. In the case of distance contracts, the consumer may withdraw from the contract within 14 days in accordance with the statutory provisions. The period shall begin on the day of receipt of the goods by the consumer or, in the case of services, on the day of conclusion of the contract. It shall be sufficient to send the declaration of withdrawal within this period. If the consumer withdraws from the contract, the consumer shall bear the costs of returning the goods. In the case of individual services, withdrawal shall not possible in accordance with the statutory provisions.

6. Dunning and collection charges
6.1.
In the event of default, the Customer (debtor) undertakes to reimburse Koller (creditor) for the dunning and collection expenses incurred, insofar as they are necessary for the appropriate prosecution, whereby the Customer undertakes in particular to reimburse the fees of any collection agency engaged, which are derived from the relevant ordinances on the maximum rates of fees payable to collection agencies. If Koller carries out the dunning process itself, the debtor undertakes to pay an amount of EUR 40.00 for each reminder issued in accordance with § 458 UGB (Austrian Commercial Code); this shall not apply to consumer transactions.

7. Delivery, transport, default of acceptance
7.1.
Unless otherwise agreed, Koller's sales prices do not include costs for delivery, assembly or installation. At the request of the Customer, however, these services shall be provided or organised by Koller against separate payment. The actual costs incurred for transport or delivery, including a reasonable overhead surcharge, but at least the freight and carriage charges for the selected mode of transport applicable or customary on the day of delivery, shall be invoiced. Assembly work shall be invoiced according to the time spent, whereby the agreed man-hour rate shall apply. Each hour or part thereof shall be charged in full. If no man-hour rate has been agreed, a man-hour rate customary in the industry shall apply, but at least EUR 56.00 plus statutory VAT. Travel costs to and from assembly sites in Austria shall be charged at a flat rate of EUR 240.00 plus statutory VAT. For assignments outside of Austria, a cost estimate shall be submitted prior to acceptance of the order.
7.2. If the Customer has not accepted the goods as agreed (default in acceptance), Koller shall be entitled, after setting a period of grace of seven days to no avail, either to store the goods on its premises, for which a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof shall be charged, or to store the goods at the expense and risk of the Customer with an authorised tradesman. At the same time, Koller shall be entitled either to insist on performance of the contract or, after setting a reasonable period of grace of at least 14 days, to withdraw from the contract and dispose of the goods elsewhere. In the event of withdrawal from the contract, point 5 of these GTC shall apply in particular.

8. Delivery time
8.1.
Koller shall only be obliged to perform the service as soon as the Customer has fulfilled all its obligations required for performance, in particular all technical and contractual details, preparatory work and preparatory measures. The Customer must inform Koller of all circumstances that may impede the performance of the service.
8.2. Koller shall be entitled to exceed the dates and delivery periods agreed in writing by up to 2 weeks. Only after this period has expired may the Customer withdraw from the contract after setting a reasonable period of grace of at least 14 days.

9. Place of performance
9.1.
The place of performance and payment shall be Koller's registered office. Risk and coincidence shall pass to the Customer upon handover to the first carrier. In the event of default in acceptance, with notification by Koller of readiness for shipment. Transport shall be at the risk of the Customer.

10. Minor changes in performance
10.1.
If it is not a consumer transaction, minor or other changes to the performance or delivery obligation that are reasonable for the Customer shall be deemed to have been approved in advance.

11. Compensation, warranty, guarantee
11.1.
All claims for damages shall be excluded in cases of slight and gross negligence. This shall not apply to personal injury and, in the case of consumer transactions, to damage to items accepted for processing. Unless it is a consumer transaction, the limitation period shall be six months from knowledge of the damage and the damaging party, and the maximum compensation shall be EUR 20,000.00. The absolute limitation period shall be five years from the damaging event. In the case of product liability, liability shall be limited to an amount of EUR 1,500,000.00.
11.2. Before connecting or transporting EDP products, the Customer shall be obliged to back up any data accordingly in advance. Koller accepts no liability for irretrievably lost data.
11.3. In the case of business transactions, the following shall apply with regard to the warranty: The warranty period shall be six months after the handover of the goods. The legal presumptions of §§ 924 and 933a ABGB (Austrian Civil Code) are expressly waived, so that without exception the buyer or Customer must prove that the defect already existed at the time of handover. Defects must be reported in writing within a reasonable period of time after handover of the goods in accordance with § 377 UGB (Austrian Commercial Code). Hidden defects must be reported in writing immediately after their occurrence. After a notice of defect, the goods or the workpiece must be made available for inspection by returning them to Koller (in cases of a justified notice of defect, Koller shall bear the transport costs). A notice of defects shall have no effect on the due date for payment for the properly performed partial deliveries or work performances. In the case of defective work performances, Koller shall decide whether the unusable workpiece is to be improved or replaced; the warranty shall be limited to the amount of the (aliquot) remuneration for the defective parts, i.e. in the case of work for wages, the liability for deficiencies in the execution of the accepted contract manufacturing, for which Koller is responsible, shall be limited to the amount of the invoiced labour costs. If improvement or replacement is not possible, Koller undertakes to carry out the contractually agreed work performance free of charge on replacement material provided by the Customer. In the case of repairs, the warranty rights shall relate only to the spare parts used, if any, but not to the repaired workpiece as such. If warranty claims are asserted in the relationship between the buyer or Customer and its customers, recourse against Koller shall be excluded in accordance with § 933b ABGB.
11.4. Unless otherwise agreed individually for brand-new goods, a guarantee of one (1) year after handover of the goods shall apply. During the guarantee period, all repairs of defects shall be carried out at Koller's expense, irrespective of the time of occurrence of the defect within the warranty period. No guarantee shall be granted on goods that are not brand new or goods that are older than one (1) year. The guarantee shall be invalidated if the goods are modified, installed or converted or if seals are broken. In the event of repairs, no guarantee shall apply to the repaired goods.

12. Product liability
12.1.
 Recourse claims within the meaning of the Product Liability Act shall be excluded unless the party entitled to recourse proves that the defect was caused within Koller's sphere of responsibility and was at least due to gross negligence.

13. Retention of title
13.1.
All goods shall be delivered by Koller subject to retention of title and shall remain property of Koller until full payment has been made. The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared in writing. In the event of default, Koller shall be entitled to assert the retention of title and the Customer shall waive the right to assert any defences that prevent this. If goods are taken back, Koller shall be entitled to charge any transport and handling costs incurred. Reductions in the value of the goods shall be borne by the Customer. In the event of seizure of the reserved goods by third parties - in particular by way of attachment - The Customer undertakes to draw attention to Koller's ownership and to notify Koller immediately of the attachment. If the Customer is a consumer or not an entrepreneur, whose ordinary business operations include trading in the goods purchased from Koller, the Customer may not dispose of the reserved goods, in particular 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. The Customer shall be obliged to adequately insure the reserved goods against natural hazards and theft at its own expense. Proof of the insurance must be provided to us at first request and the claims arising from the insurance must be assigned to Koller.

14. Subrogation
14.1.
In the event of delivery subject to retention of title, the Customer hereby assigns to Koller its claims against third parties, insofar as these arise from the sale or processing of the goods, on account of payment until final payment of Koller's claims. The customer must name its buyers to Koller on request and notify them of the assignment in good time. The assignment must be entered in the books of account, in particular in the open item list, and made visible to the Customer on delivery notes, invoices, etc. The Customer must inform Koller of the assignment in good time.
14.2. If the Customer is in arrears with its payments to Koller, the sales proceeds received by it shall be segregated and the Customer shall hold these only in Koller's name. Any claims against an insurer are already assigned to us now within the legal limits.
14.3. Claims against us may not be assigned without our express and written consent.

15. Retention
15.1.
If the transaction is not a consumer transaction, the Customer shall not be entitled to retain the entire gross invoice amount, but only an appropriate part thereof, in the event of a justified complaint, except in cases of rescission.

16. Choice of law, place of jurisdiction
16.1.
Austrian law shall apply exclusively; however, consumers may not be deprived of the protection of mandatory provisions of their country of residence by this choice of law. The applicability of international private law, the international reference standards and the UN Convention on Contracts for the International Sale of Goods is excluded. The contractual language shall be German.
16.2. The contracting partners agree that the court with subject-matter jurisdiction for Koller's registered office in Austria shall have exclusive jurisdiction; this shall not apply to consumer transactions (§ 14 KSchG (Employment Protection Act/EPA), Art 18 EuGVVO (European Jurisdiction and Enforcement Regulation)).

17. Data protection, change of address and copyright
17.1.
The Customer consents to Koller's automated storage and processing of the personal data included in the contract for the purpose of fulfilling the contract. Koller may pass on this data in particular for advertising purposes.
17.2. The Customer shall be obliged to notify Koller of any changes to its residential or business address as long as the legal transaction that is the subject of the contract has not been completely fulfilled by both parties. If this notification is omitted, declarations shall be deemed to have been received even if they are sent to the last address notified.
17.3. Plans, sketches or other technical documents, such as samples, catalogues, brochures, illustrations and the like, shall always remain Koller's intellectual property; the Customer shall not obtain any rights of use or exploitation whatsoever to them.

18. Miscellaneous
18.1.
Koller reserves the right to amend these GTC at any time. Changes shall be communicated to the Customers in an appropriate form. The GTC as amended from time to time shall apply.
18.2. Should individual provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Should individual provisions of this contract be wholly or partially ineffective or lose their effectiveness at a later date, this shall not affect the validity of the rest of the contract. The ineffective provision shall be replaced by the parties with an effective provision, which corresponds as far as possible to the economic purpose of the ineffective provision. The same shall apply to any loopholes in the contract.

Status August 2021

ABOUT KOLLER

The name KOLLER stands for an established family-owned company which have developed dynamically in almost 40 years and is seen as a pioneer in the range of whirlpool technology. The KOLLER International Group consists today next to Koller Timber & Hardware Stor, of further following divisions:
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