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General Terms and Conditions for Delivery and Sales by Holler-Tore GmbH, A-8430 Leitring, Dorfstrasse 31
1. Foreword
Holler Tore (Gates) accepts orders, sells and supplies only on the
basis of these terms and conditions of sales and delivery. The
following conditions are applicable to all services that are
provided by Holler Tore or a subcontractor appointed by it in the
course of executing an order. Any amendments or supplements
to this contract agreement that have been made verbally are
effective only if they have been confirmed by Holler Tore in
writing. Any business-related terms and conditions of the
customer are expressly excluded for the present legal transaction
and the entire business relationship. If any specific provisions
become ineffective, this shall not affect the remaining terms and
conditions. All information regarding prices, weights, dimensions
or technical specifications etc. furnished in the documentation of
Holler Tore are binding only if reference is made to them
expressly. Technical specifications are subject to change.
2. Delivery of goods
The delivery takes place at the cost and risk of the customer.
Holler Tore is entitled to make partial or advance deliveries and
to invoice the same. The customer must bring any complaints
immediately on receipt of the goods to the notice of the trans-
port company (endorsement on the consignment note) and to
Holler Tore in writing, at the latest within eight days. The
measures and costs incurred towards storage of the goods in safe
custody that become necessary on account of reasons attribut-
able to the customer, shall be borne by the customers, and are
deemed to be delivered as soon as the action for storage of the
goods commences. Factually justified and reasonable changes in
the service and delivery obligations of Holler Tore, particularly
reasonable extensions in the delivery period, are deemed to have
been approved by the customer in advance. Delivery schedules
announced are considered to be merely approximate estimates.
Force Majeure conditions or other unforeseeable hindrances
attributable to Holler Tore or its sub-suppliers absolve Holler Tore
from the obligation of complying with the delivery schedule
agreed to. The customer is obliged to make arrangements to
collect the goods stored at Holler Tore promptly after being
intimated by them to do so. Operational and traffic disruptions
and deliveries by sub-suppliers not in accordance with the
schedule are also applicable as Force Majeure conditions and
absolve Holler Tore for the period of hindrance or, based on the
choice of Holler Tore, even ultimately from the obligation of
delivery, without any claims becoming due to the customers on
account of withdrawal by Holler Tore. Holler Tore is free to
choose the type of dispatch of the goods and the mode of
transport. The place of performance for the delivery and pay-
ment is the head office of Holler Tore.
3. Offer preparation and pricing information
The offers of Holler Tore, whether in writing, verbally or via
telephone, are applicable on ex-works basis unless specified
otherwise. A purchase agreement is created if Holler Tore either
sends an order confirmation in writing or delivers the items
ordered out within the acceptance period of the agreement. In
general, the acceptance period is 4 weeks. All offers are non-
binding and subject to confirmation. Holler Tore is not obliged to
accept the order.
4. Manufacturing tolerances and clearances
No liability is assumed for the quantities specified in the offers.
Holler Tore reserves the right to variations from specifications
given in brochures and samples in terms of colour, dimensions,
weights and quality. Provided that any deviations or variations
are, in any case, reasonable for the customer, particularly since
they are minor in nature and realistically justified, Holler Tore
may deviate from the products ordered as a result of production
tolerances. Technical specifications are expressly subject to
change.
5. Cost estimates
The cost estimate is prepared based on the best knowledge, but
no liability can be assumed for the correctness of the same. The
costs for the preparation of a cost estimate, provided that they
are incurred, are charged to the customer. All cost estimates can
only be issued in writing. Provided that nothing else follows from
this, Holler Tore is bound to the cost estimate for a period of four
weeks.
6. Expenses for collection, sending reminders and encashment
In case of delay in payment, the customer is obliged to reimburse
all costs incurred by Holler Tore prior to legal proceedings, such
as lawyer's fees and costs of the collection office, provided that
these costs were necessary for the purpose of legal proceedings.
The customer is obliged to pay an amount of 15,- EUR for each
reminder, plus the interest due at the rate of 14 % p.a. and all
other special costs incurred.
7. Guarantees, Warranties and Liabilities
For all products that are delivered to companies in the sense of
commercial law, the warranty period is limited to 1 year from the
date of delivery / acceptance. In case of any defect in the goods
delivered, the customer, to begin with, can only demand
improvement or replacement of the goods. Holler Tore under-
takes to make improvement to or replace the goods after they
are handed over by the customers within a reasonable period of
time, whereby the non-binding delivery period shall be consid-
ered to be the respective reasonable period of time. The devel-
opment of the warranty obligation agreed to is send & return, for
which the place of performance is the original place of delivery. It
is agreed that the customer must enforce his right and warranty
for movable and immovable items in accordance with Article 933
of the ABGB (General Civil Code) within six months. Over and
above this, Holler Tore grants a guarantee for the coating of
profile parts (not aluminium die-cast parts) of 15 years (Holler
Tore coating guarantee), but this is applicable only subject to the
following prerequisites: 1. Cleaning and servicing must be done
using only the maintenance and care products of Holler Tore.
Preservation must be done in a verifiable manner and in such a
way that the item under warranty is cleaned at least twice a year
with Holler Tore surface care by trained and authorised person-
nel of Holler Tore as is finally impregnated with impregnation
agents of Holler Tore. 2. No improper treatment should be done
by the purchaser or any other third party. 3. The product covered
by warranty should not come into contact with salts, water
containing lime or similarly procured immersion agents, acids or
alkalis. 4. Moreover, there should be no impact of Force Majeure
conditions (mechanical damage). The guarantee is related only to
the reimbursement of the material cost for the repair. Regardless
of his rights, the customer bears the onus of expressly confirming
the characteristics required of the items ordered out as subject
matter of the contract agreement. Customarily presumed
characteristics are the product characteristics specified by the
manufacturers provided that those characteristics that can be
made by proper and purposeful application of the product as well
as the relevant EN and Austrian (OEN) standards. As far as the
surface coating is concerned, it is specifically agreed that the
Austrian standard EN 12206-1 shall be applicable. The work of
settings on doors or gates with the design of a non-continuous
foundation does not represent any defect. Regardless of his
rights, the customer also bears the onus of checking the confor-
mity of the goods delivered by Holler Tore with the order visually
and immediately, as well as with the product names and batch
numbers specified at the time of their delivery.
Claims for compensation made by the customer are basically
ruled out.. The liability for gross negligence or mal-intent to those
other than consumers is limited to an amount that is twice the
net value of the goods. Any claim for compensation is ruled out in
case of non-compliance with our terms and conditions for
installation, commissioning or use. The customer must inform
Holler Tore promptly of any damage. Technical information from
Holler Tore is subject to change and requires written confirma-
tion from Holler Tore provided that they go beyond the scope of
the manufacturer's specifications.
Other than instances for
injuries to persons, claims for compensation by the customer on
account of delayed delivery or withdrawal from the contract
agreement are excluded. . ..
8. Payment terms
The invoice is raised, as far as possible, promptly after delivery.
Payments are due on the issue of the invoice without any delay
or deductions. Payment terms that have been specified and
agreed to for the entire order are also applicable to part invoices.
For orders that cover several units, Holler Tore is entitled to raise
an invoice after the delivery of each unit or item of service. The
customer is not entitled to retain payments on account of
incomplete deliveries, claims for guarantee or warranty or any
defects. Payments received from the customer by Holler Tore are
due for compound interest, interest and subsidiary expenses, and
costs prior to legal proceedings such as costs of engaging a
lawyer and collection office on the outstanding capital amount
starting from the oldest amount due. In case of delay in payment,
it is agreed that interest shall be charged on the delayed payment
at 14 % p.a. by B.ALU. In the event of default in two instalments
for part payments, Holler Tore is entitled to have delay in
schedules to come into effect and to make any acceptance of
goods handed over as correspondingly due for payment. If the
customer is in default of payment such that a complaint can be
made for only one invoice of Holler Tore pending, it is agreed that
as far as all pending invoices of Holler Tore for this customer are
concerned, they become due for payment and any cash discounts
or other rebates become invalid. In case of non-compliance with
the payment terms of Holler Tore as well as justified concerns of
the payment capability of the purchaser (that is, with payments
that already been delayed), Holler Tore is entitled to retain any
deliveries or services that are outstanding, or to demand advance
payments or guarantees or to withdraw from the contract
agreement without setting any grace period.
9. Retention of title
The goods delivered remain in the unlimited ownership of Holler
Tore until the payment of all claims made by Holler Tore for the
delivery (including interest payments and costs) has been made.
Hypothecations and assignments by way of security made by the
customer are excluded unless complete payment has been made.
If the customer does not comply with his obligations arising out
of the contract agreement that has been concluded, Holler Tore
is entitled to retrieve its property at any time at the cost of the
customer, and the customer expressly undertakes to issue the
same under these circumstances. If the goods delivered by Holler
Tore are still under their title and are hypothecated or confis-
cated, the customer undertakes to inform Holler Tore of the
same within three days and to issue all information necessary to
Holler Tore for the enforcement of its ownership rights. If third
parties access the goods standing in the ownership of Holler Tore
or enforce claims on them, the customer undertakes to bring to
the notice of those concerned, the fact that these goods are in
the ownership of Holler Tore. The enforcement of the title of
retention by Holler Tore does not represent any withdrawal on
the part of Holler Tore from the contract agreement. Deliveries
made for a particular construction project, even if are ordered
out, delivered and billed section-wise, are considered to be one
uniform order. In the event of delayed payment as well as in case
of justified concerns regarding the payment capability of the
purchaser (payment that has already been delayed is sufficient
cause), Holler Tore is entitled to amended any agreements
arrived at so far with immediate effect unilaterally (discounts,
sales territories etc.), to collect goods under their ownership
without withdrawing from the contract agreement. For all goods
taken back, the customer has to reimburse all costs incurred in
this connection with their transport and handling to Holler Tore.
10. Product liability
Demands for claims in the context of Article 12 of the Product
Liability Act are excluded unless the party authorised for recourse
establishes that the fault is attributable to Holler Tore and that
Holler Tore is culpable at least for gross negligence. Provided that
the customer is not a consumer in accordance with the KSchG
(Buyer Protection Act), the liability for damage to property arising
from a fault in the product is excluded as specified in Article 8 of
the Product Liability Act and, in fact, even for all companies
involved in the manufacture, import and sale. For this case, the
customer undertakes to transfer this exclusion of liability to his
buyers. As far as the sales of imported goods are concerned,
Holler Tore undertakes to notify the customer against a written
request about the preceding endorser within 14 days.
11. Applicable law and jurisdiction
It is agreed that only the locally competent Court located in 8430
Leibnitz having the jurisdiction shall preside over any disputes.
Austrian material law shall be applicable. The applicability of the
UN CISG (Convention on the International Sale of Goods) and the
reference standards on the IPRG (Code on Private International
Law) is ruled out.
12. Assignment of claims
For delivery under retention of title, the customer assigns its
claims against third parties at this stage to Holler Tore provided
that these arise as a result of sale or processing of our goods,
until final payment has been made against all our claims. This
cession must be made evident in the books of accounts, con-
signment note, invoices, etc. to the buyer. If the customer is
default of payment to Holler Tore, the proceeds of sales received
by him need to be separated out in such a manner or the
customer holds such payments only on behalf of Holler Tore. Any
claims from an insurance company need to be assigned to Holler
Tore at this stage to the limits specified in the respective Insur-
ance Act. The customer is not entitled to adjust any counter-
claims against Holler Tore against the claims made by Holler Tore.
An exception to this is only when these counter-claims have been
acknowledged by Holler Tore in writing.
13. Privacy policy declaration – Change in address
The customer grants his consent for the personal information
contained in the purchase agreement may be saved and proc-
essed by Holler Tore for the purpose of fulfilling the contract
agreement. The customer is obliged to inform Holler Tore about
any amendments to his residential or business address provided
that the legal transaction pertaining to the contract agreement
has not been completed by both parties.
If this information is not furnished, declarations are deemed to
have been received even if they have been sent to the last known
address.
14. Final provisions
For the sale to consumers in the context of the Consumer
Protection Act, the provisions given above are applicable only if
the Consumer Protection Act does not foresee any other
provisions as being mandatory. Force Majeure conditions or
other unforeseeable hindrances in the scope of Holler Tore
absolve them from compliance with the obligations agreed to for
the period of the Force Majeure conditions. The customer
expressly dispenses with the right to challenge the terms and
conditions of sale and payment agreed to in the contract that has
been concluded, regardless of the reason, even on account of
reduction by more than half the actual value as well as on
account of a mistake.
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