General Terms and Conditions

KTAS KG
8200 Gleisdorf, Lassnitzthal 301

Hereinafter referred to as KTAS.
Client = Customer, Contractor = Contractor consequently KTAS. Status as of 1.11.2018

Disclaimer: This English version of the General Terms and Conditions is provided for convenience only. It has been generated by machine translation and may contain errors. In the event of discrepancies or disputes, the German version shall prevail.

1. Scope of Application

1.1 The deliveries and services of KTAS KG shall be rendered exclusively on the basis of the following General Terms and Conditions. The license conditions of the manufacturers, which are enclosed with the contractual products, form an integral part of the contract. The Customer declares to be an entrepreneur within the meaning of the Austrian Commercial Code (UGB) with respect to the transactions and contracts with KTAS KG.
1.2 Any terms and conditions or declarations of the Customer that conflict with or deviate from the offer, the General Terms and Conditions of KTAS KG, or the contractual content proposed by KTAS KG shall not be recognized. These General Terms and Conditions shall also apply if KTAS KG, being aware of conflicting or deviating conditions of the Customer, unconditionally executes the delivery to the Customer. Insofar as the General Terms and Conditions of KTAS KG are silent, dispositive law shall apply, even if the Customer’s general terms contain a provision in this respect. Amendments and supplements to the contract must always be made in writing. This requirement also applies to any amendment to the written form requirement itself.

2. Deliveries and Services

2.1 Offers made by KTAS KG are non-binding and without obligation. A contract shall only be concluded by written order confirmation from KTAS KG, sent by fax or e-mail, or at the latest by acceptance of delivery by the Customer or performance of the service.
2.2 KTAS KG reserves the right to modify the object of delivery, in particular in the course of further development, provided that the performance data are met.
2.3 Delivery dates, if agreed, shall be deemed to have been met when the contractual product has been handed over to the carrier by the agreed delivery date. If dispatch of goods ready for shipment is delayed for reasons not attributable to KTAS KG, the contractual products may be stored at the Customer’s expense and risk.
2.4 The choice of supplier shall remain at the discretion of KTAS KG. The Customer cannot demand procurement from a specific source of supply. KTAS KG expressly reserves the right to make partial deliveries and to invoice them separately.
2.5 The delivery date shall be agreed according to the foreseeable performance capacity of KTAS KG and shall be deemed non-binding and subject to timely self-supply and unforeseen circumstances and obstacles, irrespective of whether these occur at KTAS KG or its supplier, in particular force majeure, governmental measures, failure to grant official permits, labor disputes of any kind, sabotage, shortage of raw materials, unavoidably delayed delivery of materials, etc. Such events shall extend the delivery date accordingly, even if they occur during an existing delay. Any grace period set by the Customer shall also be extended by the duration of the unforeseen event. KTAS KG reserves the right to withdraw from the contract if the delay in delivery and performance caused by such events lasts longer than six weeks.
2.6 In the event of slight negligence, any claim of the Customer for damages due to delay in delivery and performance is excluded. If the delay is not due to intentional breach of contract by KTAS KG, liability shall be limited to the foreseeable, typically occurring damage, but in any event to a maximum of 5% of the delivery value affected by the delay; clause 10.4 applies accordingly.
2.7 In the event of default in acceptance, KTAS KG shall be entitled, in addition to its payment claim, either to determine a new delivery date or to withdraw from the contract. If the Customer is in default of acceptance of the deliveries or services offered by KTAS KG, or fails to perform a duty of cooperation incumbent upon him, he shall be obliged, irrespective of fault, to compensate KTAS KG for the additional expenses or damage arising from the default or omission.

3. Inspection and Transfer of Risk

3.1 The risk of damage to or loss of the contractual product shall pass to the Customer upon handover to the transport company by KTAS KG. If dispatch is delayed or rendered impossible without fault on the part of KTAS KG, the risk shall pass to the Customer upon notification of readiness for dispatch. These provisions shall also apply to returns following rectification of defects or chargeable service to the Customer.
3.2 The Customer shall inspect the goods immediately upon receipt for completeness, conformity with the delivery documents, and defects. If a written notice of defect is not made within four days of the delivery note date, the goods shall be deemed to have been delivered properly and completely, unless the defect was not apparent upon inspection. Visible damage or shortages must be noted by the Customer on the carrier’s delivery receipt; otherwise, the delivery shall be deemed in conformity with the contract. The note must sufficiently and clearly specify the damage or shortage.

4. Prices and Terms of Payment

4.1 All prices are in euros, unless another currency is expressly stated, excluding packaging and insurance, plus the applicable statutory VAT. Unless otherwise agreed, the Customer shall bear the costs of packaging, transport, and insurance.
4.2 Payments shall be made within 8 days of the invoice date without deduction and free of charges. Cheques shall only be accepted on account of payment and only by prior agreement.
4.3 In the event of default in payment, interest at the statutory rate shall be payable. In addition, a processing fee of EUR 15 per reminder shall be charged. Invoices for service contracts, maintenance contracts, and license fees must be settled within the stated payment period; otherwise, services may be suspended without notice.
4.4 The Customer may only offset claims of KTAS KG against undisputed or legally established counterclaims. The Customer is not entitled to withhold payments due to warranty claims or other counterclaims.
4.5 KTAS KG reserves the right to adjust prices accordingly if, after conclusion of the contract, cost reductions or increases occur, in particular due to collective wage agreements, material price changes, or currency fluctuations. Proof of these shall be provided to the Customer upon request.

5. Data Processing and Data Protection

5.1 KTAS KG is entitled to process and store the Customer’s personal data in compliance with the applicable data protection regulations, insofar as this is necessary for the purpose of the contractual relationship.
5.2 The Customer agrees that KTAS KG may use the Customer’s data for internal market research and advertising purposes. The Customer may revoke this consent in writing at any time.
5.3 KTAS KG points out that, despite all technical and organizational security measures, complete protection of data against access by third parties cannot be guaranteed when transmitting data via the Internet.

6. Retention of Title

6.1 The delivered goods shall remain the property of KTAS KG until full payment of all claims arising from the business relationship with the Customer.
6.2 The Customer is entitled to resell the goods in the ordinary course of business; however, he hereby assigns to KTAS KG all claims against his customers or third parties arising from the resale in the amount of the purchase price agreed with KTAS KG (including VAT), irrespective of whether the goods were resold without or after processing.
6.3 The Customer is authorized to collect these claims even after assignment. The authority of KTAS KG to collect the claims itself remains unaffected. KTAS KG undertakes, however, not to collect the claims as long as the Customer duly meets his payment obligations. If the Customer is in default of payment, KTAS KG may demand that the Customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment.
6.4 The processing or transformation of the goods subject to retention of title by the Customer shall always be carried out for KTAS KG. If the goods are processed together with other items not belonging to KTAS KG, KTAS KG shall acquire co-ownership of the new item in the ratio of the value of the goods to the other processed items at the time of processing.
6.5 If the goods are inseparably mixed with other items not belonging to KTAS KG, KTAS KG shall acquire co-ownership of the new item in proportion to the value of the goods to the other mixed items. The Customer shall hold the co-ownership in safe custody for KTAS KG.
6.6 In the event of breach of contract by the Customer, in particular default of payment, KTAS KG shall be entitled to take back the goods after issuing a reminder and the Customer shall be obliged to surrender them.

7. Warranty

7.1 KTAS KG warrants that the contractual products are free from material defects and defects of title at the time of transfer of risk.
7.2 The warranty period shall be twelve months from the date of delivery.
7.3 In the event of defects, KTAS KG shall, at its discretion, remedy the defect or deliver a defect-free replacement (subsequent performance).
7.4 If subsequent performance fails, the Customer shall be entitled to demand a reduction of the purchase price (abatement) or rescission of the contract (withdrawal).
7.5 Warranty claims are excluded if the Customer modifies the contractual products or has them modified by third parties without the consent of KTAS KG and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of rectification of defects resulting from the modification.
7.6 Wear parts and consumables are excluded from the warranty.

8. Liability

8.1 KTAS KG shall be liable without limitation for intent and gross negligence.
8.2 In the event of slight negligence, KTAS KG shall be liable only in the event of breach of a material contractual obligation (cardinal obligation). In this case, liability shall be limited to compensation for foreseeable, typically occurring damage.
8.3 Liability for loss of profit is excluded.
8.4 Liability for damage caused by the contractual product to legally protected goods of the Customer, e.g. damage to other property, is excluded.
8.5 The above limitations of liability shall not apply to claims under the Product Liability Act and to damages resulting from injury to life, body, or health.

9. Confidentiality and Intellectual Property

9.1 The Customer undertakes to treat all information, documents, and knowledge of a technical and commercial nature received from KTAS KG in connection with the contractual relationship as confidential, unless such information is publicly known.
9.2 The Customer shall impose the same obligation on his employees and agents.
9.3 KTAS KG reserves all rights to the documents, software, and know-how made available to the Customer. The Customer is not granted any rights of use or exploitation beyond the purpose of the contract.
9.4 The Customer may not reproduce, distribute, modify, or make publicly accessible the software, documentation, or other materials provided by KTAS KG without the prior written consent of KTAS KG.
10.1 The place of performance for all obligations arising from the contractual relationship is the registered office of KTAS KG.
10.2 The contractual relationship shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
10.3 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the competent court at the registered office of KTAS KG. However, KTAS KG shall also be entitled to bring an action at the Customer’s general place of jurisdiction.
10.4 Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.

11. Written Form

11.1 Amendments and supplements to these General Terms and Conditions must be made in writing. This requirement also applies to any amendment of the written form requirement itself.

12. Severability

12.1 If any provision of these General Terms and Conditions proves to be invalid or unenforceable, the validity of the remaining provisions shall not be affected. The parties undertake to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intended economic purpose.