GENERAL TERMS AND CONDITIONS PRODUCTS
BAUTENSCHUTZ BUSCHEK GMBH
1.1 Bautenschutz Buschek GmbH (hereinafter referred to as Buschek) renders its services exclusively on the basis of these terms and conditions (hereinafter referred to as AGB-P). These also apply to all future services, even if they are not expressly agreed again.
1.2 In the event that the Buyer qualifies as a consumer within the meaning of the KSchG, the AGB-P shall be modified in accordance with the mandatory provisions of the KSchG.
1.3 The GTC-P shall also apply if different terms and conditions of the purchaser are not objected to. These shall only be effectively agreed upon if they are accepted in writing by Buschek prior to receipt of the order confirmation.
1.4 Any provisions deviating from or supplementing these GTC-P must be in writing in order to be valid; this also applies to the waiver of the written form requirement.
1.5 Declarations to be made in accordance with these GTC-P may also be made by fax or email, unless otherwise specified.
1.6 Buschek shall be entitled to amend and supplement these terms and conditions with a reasonable notice period within the scope of legal possibilities. In the event that the buyer does not give its consent to the amended GTC-P within 1 month, Buschek shall be granted the right to withdraw from the contract.
1.7 In the event that individual provisions of these GTC-P are or become invalid, this shall not affect the validity of the remaining provisions and the orders concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and economic purpose.
1.8 The applicability of the relevant technical ÖNORMEN is agreed. This shall not apply to provisions contained in these ÖNORMEN which contradict these AGB-P, in which case the provisions of these AGB-P or a separate agreement concluded between the parties shall take precedence.
1.9 ÖNORM B 2110 is not applicable unless the parties separately agree that it is binding.
2.1 The prices are calculated according to the list prices in EUR valid on the day of dispatch excluding VAT and other costs (e.g. transport costs).
2.2 The invoiced quantity shall be determined according to the dispatch weights measured by Buschek on a calibrated factory scale. Shortfalls of up to 5 % may not be objected to by the buyer.
2.3 Without exception, payments with debt-discharging effect can only be made to the account of Buschek indicated in the invoice. Buschek's agencies shall not be entitled to collect payments.
2.4 The remuneration shall be due and payable without any deductions within 14 days of the date of the invoice. A payment shall be deemed to have been made only on the day on which Buschek can dispose of it. No liability discount shall be granted. In the event of default in payment, the statutory interest on arrears applicable at the time (for entrepreneurs currently 9.2% above the base interest rate, for consumers currently 4%) shall be charged, irrespective of any further claims.
2.5 The buyer is not entitled to withhold payments due to warranty claims or other claims.
2.6 In the event that the Buyer is in default with a contractual obligation, all reminder, collection and legal costs incurred in this connection shall be borne by the Buyer.
2.7 Should a price reduction be agreed in writing in individual cases, the reduced price shall only apply if the purchaser pays on time, otherwise a subsequent settlement of the difference price shall be made.
2.8 In the event of a termination of the contract not attributable to Buschek, the purchaser shall be obliged to pay a penalty in the amount of EUR 20% of the agreed total remuneration, irrespective of fault. The assertion of further claims for damages shall remain unaffected.
2.9 Any set-off by the purchaser with claims against Buschek arising from all legal relationships - both contractual and statutory - shall be excluded.
3.1 Delivery shall be made for the account and at the risk of the Buyer (ex works).
3.2 This shall not apply in the case of an agreed transport by Buschek's own factory vehicles, however, in this case the liability shall be limited to fault or gross negligence. An agreed delivery presupposes that the access road is passable. Furthermore, in case of any other loss of claims, the purchaser shall ensure that any complaints are noted in writing on the transport note.
3.3 The goods shall be packaged as is customary in the industry. The goods shall only be insured against damage in transit, loss in transit etc. at the written request of the buyer and at his expense.
3.4 The information on delivery periods shall always be non-binding. Buschek shall endeavour to comply with them as far as possible. Events not attributable to Buschek, such as cases of force majeure, raw material shortages or operational disruptions in its own or third party operations, shall release Buschek during their duration from the timely performance as well as from all claims to be derived therefrom.
3.5 The goods shall also be deemed to have been delivered if they are not accepted immediately on the delivery date after notification of readiness for shipment. In this case, Buschek shall store the goods at the expense of the purchaser. Any further claims of Buschek shall remain unaffected.
4.1 The purchaser undertakes to inspect the goods upon acceptance. Any defects shall be notified by the buyer to Buschek in writing without delay, but within 3 days at the latest, stating the type and extent of the defect. Until final clarification, the goods shall not be used, otherwise the liability shall be excluded, and the buyer shall store them properly.
4.2 In the event of a timely and justified notice of defect, Buschek shall be entitled to choose between supplementing the defective goods, improving the goods or replacing them within a reasonable period of time. All warranty claims shall be limited in amount to the value of the defective product delivered by Buschek.
4.3 The warranty period shall commence on the date of handover (date of the final invoice or the partial invoice) and shall be 6 months (also for hidden defects).
4.4 Buschek shall be liable to the buyer for damages - except for personal injuries - only in case of gross negligence (intent or gross negligence). The liability shall be limited to the order value and claims for damages shall be asserted within 6 months from knowledge of the damage and the damaging party, but at the latest within 3 years after the event giving rise to the claim.
4.5 There shall be no claim for compensation for indirect damage, consequential damage caused by a defect or loss of profit. Furthermore, the applicability of § 933b ABGB is excluded.
4.6 If Buschek is consulted by the purchaser within the warranty period for the assessment of a case of damage and if it turns out that Buschek is not responsible for the defect, the purchaser shall be charged for the costs incurred for the assessment (in particular working time and travel expenses).
4.7 Buschek assures the use of proven raw materials and careful manufacturing. No warranty is given for a suitability for use if this is due to improper processing or an unsuitable condition of the substrate.
4.8 Instructions for processing and advice shall only be binding if these instructions are given by Buschek in writing and in relation to a specific construction project known to Buschek in all details. Apart from this, the purchaser is obliged to check the instructions given, taking into account the product descriptions, properties of the goods and the specific purpose of use, and to consult a specialist if necessary in case of doubt.
4.9 The purchaser acknowledges that Buschek's samples are only an aid to orientation and that there is no liability for deviations of the shades in colour and plaster deliveries compared to the samples or within the samples or in the case of repeat orders.
4.10 The purchaser shall be obliged to observe all warnings and other instructions, in particular the data sheets, which can be found on the goods or on the Internet on the Buschek homepage (www.buschek.at), both for its own use and for passing them on to third parties. Any liability of Buschek resulting from a violation of this information is excluded, both towards the purchaser and towards third parties.
4.11 The Buyer acknowledges that frost has adverse effects on liquid substances. If loading is nevertheless requested in cold weather, the buyer shall bear the associated risk. 4.12 Returned goods shall be accepted by Buschek only after prior written agreement and in original packaging and in perfect condition. Buschek shall be entitled to charge a flat rate of 20 % of the invoice amount as handling charges - at least, however, EUR 50 per transaction. The return of custom-made products shall be excluded in any case.
5.0 Retention of title
5.1 Until the purchase price has been paid in full, the delivered goods shall remain the property of Buschek until they are combined with the real property (the building). In the event of processing or blending, co-ownership shall arise in proportion to the value shares.
5.2 Pledging or transfer of ownership by way of security is not permitted prior to full payment of the goods. Attachment and any other endangerment of Buschek's property shall be reported immediately in the event of any other indemnity or claim.
6.0 Termination of the contract
6.1 The contractual relationship ends in principle with the fulfilment of the order.
6.2 Notwithstanding the foregoing, the contract may be terminated by Buschek in writing at any time for good cause. An important reason shall be considered in particular
- if the buyer violates essential contractual obligations
- if the buyer is in default of payment after the opening of insolvency proceedings.
- if there are justified doubts as to the creditworthiness of the purchaser, in respect of whom no insolvency proceedings have been opened, and if the purchaser, at the request of Buschek, neither makes advance payments nor provides suitable security prior to the performance of the services by Buschek, and if the poor financial circumstances were not known to Buschek at the time of the conclusion of the contract (plea of uncertainty).
6.3 If the goods are not delivered for reasons on the part of the purchaser or due to a justified premature termination of the contractual relationship by Buschek, Buschek shall retain the right to payment of the services rendered to date or of the agreed penalty pursuant to section 2.8. Claims for damages on the part of the purchaser due to a justified termination of the contract by Buschek shall be excluded.
7.0 Final provisions
7.1 All legal relations of both a contractual and a statutory nature between Buschek and the purchaser shall be governed exclusively by Austrian law, excluding its conflict-of-law rules and the applicability of the UN Convention on Contracts for the International Sale of Goods.
7.2 The place of performance shall be Buschek's place of business. For disputes arising from or in connection with the contractual relationship, including pre-contractual obligations, or other legal relationships between Buschek and the purchaser, the exclusive jurisdiction of the court with subject-matter jurisdiction in Eisenstadt shall apply, unless mandatory statutory provisions provide otherwise.