TERMS AND CONDITIONS
1.1. These general terms and conditions apply unless the contracting parties have expressly agreed otherwise in writing.
1.2. The following provisions on the delivery of goods also apply to services.
1.3. For assembly work, the assembly conditions of the Austrian Association of the Austrian Machine and Steel Construction Industry (FMS) also apply.
- CONCLUSION OF CONTRACT
2.1. The contract is considered concluded when the seller has sent a written order or order confirmation after receipt of the order. The buyer must check the order or order confirmation immediately. If the order or order confirmation deviates from the order and the customer has not complained in writing within 3 days, this is deemed to have been approved by the buyer.
2.2. Changes and additions to the contract require the written confirmation of the seller to be valid. The purchaser’s conditions of purchase are only binding for the seller if they are acknowledged separately in writing by the seller. Verbal promises by the seller are only binding if they are subsequently confirmed in writing.
2.3. The offers (including items ordered in the web shop) and delivery dates of the seller are non-binding and non-binding until receipt of the order confirmation by the buyer. The intermediate sale is reserved.
2.4. If import and export licenses, foreign exchange permits or similar permits are required for the execution of the contract, the party responsible for procurement must make all reasonable efforts to obtain the necessary licenses or permits in a timely manner.
2.5. The seller is entitled to withdraw from contracts that have already been concluded if the buyer does not meet his payment obligations (in the case of advance payment, payment within 5 working days after receipt of the order confirmation), or if payment processing via credit card institutes, banks or other payment processing offices is rejected due to insufficient funds. The seller is also entitled to withdraw from concluded contracts if credit insurance refuses to cover the customer.
2.6. In the event of unjustified withdrawal from the contract by the customer or if the seller based on point 6.7. or 8.1.d (default of acceptance or payment by the buyer) withdraws from the contract, the seller is entitled to charge 10% (ten percent) of the purchase price as a cancellation fee, regardless of any claims for damages that go beyond this.
- INFORMATION, PLANS AND DOCUMENTS
3.1. The information on dimensions, weight, capacity, delivery, price, etc. contained in catalogues, the website, web shop, circulars, advertisements, brochures, illustrations, price lists, etc. are only relevant if they are expressly referred to in the order confirmation. The respective information about the performance depends on the operation and material and is based on empirical values. However, no assurances of any kind can be derived from them. No legal consequences for the seller can be derived from information about weight recommendations for the carrier devices (e.g. excavator weight) for the products offered by the seller. Only the information from the manufacturers of the carrier devices is relevant here. In this regard, the buyer is obliged to obtain all necessary information and recommendations from the manufacturer of the carrier device (e.g. excavator manufacturer) and to follow them accordingly. In particular, the seller is not liable for damage that may arise due to improper (e.g. exceeding the weight) or incorrect use of the attachment with the carrier device, nor is the seller liable for the fact that the product sold can be used with a specific carrier device.
3.2. Sketches, plans and other technical documents, as well as catalogues, samples, brochures, illustrations, representations, videos, installation and assembly instructions, operating instructions and images etc. always remain the intellectual property of the seller. Any exploitation, distribution, duplication, publication and presentation may only take place with the express consent of the owner.
3.3. The seller reserves the right to make design and material changes, provided that the usual use of the delivery item or that required by the contract is not significantly and adversely affected.
Unless otherwise agreed, the prices do not include packaging. If the packaging is customary in order to avoid transport damage under normal transport conditions of the goods on the way to the specified destination, this is at the expense of the buyer and can only be taken back by agreement.
- TRANSFER OF RISK
5.1. The point in time at which the risk passes is determined in the following cases: a) in the case of sale “ex works”, the risk passes from the seller to the buyer when the goods are made available to the buyer. The seller must notify the buyer of the date on which the buyer can dispose of the goods. This notification must be made in good time so that the buyer can take the measures that are usually necessary for this purpose; b) in the case of sale “truck, barge, wagon” (agreed place of dispatch), “border” or “place of destination” or in the case of sale “freight free to”, the risk passes from the seller to the buyer at the point in time when the goods are sold loaded means of transport is taken over by the first carrier; c) in the case of sale “fob” or “cif” or “c&f” the risk passes from the seller to the buyer when the goods have actually passed the railing at the agreed port of shipment.
5.2. Unless otherwise agreed, the goods are deemed to be sold “ex works”.
5.3. The seller is only obliged to take out insurance if and insofar as this has been agreed in writing.
5.4. Otherwise, the INCOTERMS apply in the version valid on the day the contract was concluded.
- DELIVERY TIME
6.1. Unless otherwise agreed, the delivery period begins with the latest of the following times: a) Date of the order or order confirmation; b) Date of fulfillment of all technical, commercial and financial requirements incumbent on the buyer; c) the date on which the seller receives a deposit or advance payment to be made before delivery of the goods and/or a letter of credit to be drawn up has been opened.
6.2. The seller is entitled to make partial and advance deliveries and to charge for them separately.
6.3. If the delivery is delayed due to a circumstance on the part of the seller, which constitutes a reason for exoneration within the meaning of Art. 11, last paragraph, a reasonable extension of the delivery period will be granted.
6.4. If the seller is responsible for a delay in delivery, the buyer can either demand performance or declare withdrawal from the contract, setting a reasonable deadline for catching up. In the case of custom-made products, when determining the grace period, it must be taken into account that the seller may not be able to use parts that have already been processed elsewhere.
6.5. If the in Art. 6.4. If the grace period provided for is not observed through the fault of the seller, the buyer may, by notice in writing, terminate the contract with regard to all goods not yet delivered which cannot be used in a reasonable manner. In this case, the buyer has the right to reimbursement of the payments made for the undelivered goods or for the unusable goods and, insofar as the delay in delivery was caused by gross negligence on the part of the seller, to reimbursement of the justified expenses incurred up to the termination of the contract and had to be made for its implementation. However, the seller is not liable for any lost profits of the buyer. The buyer must return goods that have already been delivered and cannot be used to the seller.
6.6. Claims of the buyer against the seller other than those mentioned in Art. 6 due to the seller’s delay are excluded.
6.7. If the buyer does not accept the goods provided under the contract at the place or time agreed in the contract and the delay is not caused by an act or omission of the seller, the seller can either demand performance or withdraw from the contract setting a period for acceptance. If the seller withdraws from the contract due to the buyer’s default of acceptance, point 2.6. apply accordingly. If the goods have been segregated, the seller may store the goods at the expense and risk of the buyer. The seller is also entitled to demand reimbursement for all justified expenses that he had to incur for the execution of the contract and that are not included in the payments received.
Unless expressly agreed otherwise, the prices apply ex works of the seller without packaging and without loading. If delivery with delivery is agreed, the prices do not include unloading and contracts. Unforeseen delivery costs that were not caused by the seller (e.g. temporary storage, multiple trips) are to be paid by the customer.
8.1. Payments are to be made in accordance with the agreed terms of payment. The buyer is not entitled to withhold or offset payments due to warranty claims or other counterclaims not recognized by the seller. If the buyer is in arrears with an agreed payment or other performance, the seller can either a) insist on performance of the contract and postpone the performance of its own obligations until the overdue payments or other performance have been effected; b) make the entire outstanding purchase price due; c) set a reasonable grace period; d) declare withdrawal, granting a period of grace. Unless there is a reason for relief on the part of the buyer within the meaning of Art. 11, the seller is entitled to charge default interest of 6% above the respective 3-month EURIBOR from the due date of a claim. We reserve the right to claim higher interest on arrears from the title of damages. All frustrated expenses that the seller had to make to carry out the contract are to be reimbursed. The seller retains title to the object of purchase until full payment has been made (including any interest or transport costs).
8.2. All credit card holders are subject to validation checks and approvals by the card issuer. We may exchange personal data of the credit card holder, which is necessary for these checks, with third parties. If the issuer of the credit card refuses to authorize the payment, we are not obliged to deliver until the customer makes the payment by other means.
8.3. The seller uses state-of-the-art encrypted transmission methods for payment processing via the web shop. However, the seller is not liable for the improper use of payment-related data by third parties.
- CUSTOMER ACCOUNT AND DATA
9.1. When using the customer account service or the web shop, the customer is responsible for ensuring the confidentiality of the account and password and for restricting access to the computer. Customer agrees to be responsible for all activities that occur through the account or password. The customer must take all necessary steps to ensure that the password is kept secret and stored securely and must inform Hartl Engineering & Marketing GmbH immediately if there is reason to believe that a third party has gained knowledge of the password or that the password has been unauthorized used or likely to be used.
9.2. The customer is responsible for ensuring that the information provided to the seller is correct and complete. The customer shall notify the seller of any changes to the information provided by the customer. The Customer can view and update much of the information they have provided to the Seller and their account settings in the My Account section of the Website.
9.3. The customer may not use the customer account service or the web shop service: a) in a way that is likely to interrupt, damage or otherwise damage the customer account service or the web shop or access to it or b) for fraudulent purposes or in connection with a criminal offense or illegal activity, or c) to cause annoyance, inconvenience or anxiety.
9.5. Information that the seller receives from the customer should help to customize and continuously improve the order processing via the web shop and the customer account. The seller uses this information for the processing of orders, the delivery of goods and the provision of services and information, as well as the processing of payments (in the case of purchase on account also for necessary checks). The seller also uses the information to communicate with the customer about orders, products, services and marketing offers, to update the data records and to maintain and maintain the customer account with the seller, as well as to display content and products to the customer or to recommend services that may interest the customer. The seller also uses the data and information to improve his own offers and platform, to prevent or detect misuse, in particular fraud. The seller also uses the data to enable third parties to carry out technical, logistical or other services on his behalf. The seller is also entitled to pass this information on to authorized dealers and/or contracted sales personnel in order to fulfill the above purposes.
9.6. The seller shall protect the customer’s data from unauthorized use. However, the seller is not liable for the misappropriation or use of data by third parties.
The auxiliary means required for the handover, commissioning or any subsequent or necessary rework must be made available by the buyer free of charge.
- WARRANTY AND LIABILITY
The warranty only applies to brand-new goods and on condition that the terms of payment are met, the exclusive use of Hartl original spare and wear parts, and the maintenance instructions according to the operating and maintenance instructions are fulfilled by trained persons or by authorized dealers. The warranty period is 12 months from the commissioning of the goods. If the commissioning is not proven by a valid commissioning report, the invoice date applies as the date of commissioning. An extension of the warranty period does not occur after the defect has been rectified. The buyer is obliged to inspect the delivered goods immediately upon receipt. Immediately upon receipt of the goods, they must be inspected for obvious defects in accordance with § 377 UGB (Austrian Company Code). Defects that only become apparent later despite proper inspection must be reported in writing immediately after they become apparent, stating the order data, the invoice number and an exact description of the type, extent and content of the defect in the goods complained about.
If the buyer omits the formal and timely notification, the goods are considered approved. The time of receipt by the supplier is decisive for the timeliness of the notification. Any warranty or compensation for damages is excluded if the defect in the delivered goods is not reported immediately after receipt and/or defects are not reported immediately and in a timely manner after their discovery, or changes of any kind have been made to the delivered goods by persons not authorized to do so by the supplier or the goods were otherwise improperly handled. The warranty also expires if parts of the system are replaced with non-original Hartl spare or wear parts and the use of these parts has not been expressly recommended or approved by the seller. The warranty only takes place in such a way that the defective parts, which become unusable within this period of time as a result of work or material defects, are replaced free of charge or repaired within a reasonable period of time, at the discretion of the seller. The labor costs incurred for the removal and installation are to be borne by the buyer. If parts are returned, the buyer assumes the risk and costs. The seller must give written approval for costs that arise if the buyer carries out the correction of defects himself.
The warranty obligation only applies to defects that occur during normal use. It does not apply to defects caused by improper handling by the buyer or one of his representatives. There is no warranty for wear and tear or damage caused by violence and their consequential damage. For those parts that the seller has obtained from sub-suppliers, he is only liable within the scope of the warranty claims to which he is entitled.
The seller is liable for damages within the framework of the statutory provisions, provided that intent or gross negligence can be proven. Liability for slight negligence, compensation for consequential damage and financial loss, savings not achieved, loss of profit, loss of interest and damage from third-party claims against the buyer are excluded in any case. Furthermore, no liability is assumed for injuries to persons and for damage to goods that are not the subject of the contract.
In any case, the following circumstances are grounds for exoneration: labor disputes, fire, confiscation, embargo, ban on the transfer of foreign currency, riot, lack of means of transport, restriction of energy consumption.
- JURISDICTION, GOVERNING LAW
The place of jurisdiction for all disputes arising directly or indirectly from the contract is the competent Austrian court at the seller’s registered office. In addition to the general terms and conditions of the seller, Austrian law applies exclusively. The application of the UN sales law is expressly excluded. The place of performance for delivery and payment is the seller’s registered office, even if the handover takes place at a different location as agreed.
These general terms and conditions are available in different languages; the German version alone is authoritative for the clarification of questions of interpretation of the English and German versions.
HARTL ENERGY GMBH
Pem street 2
T + 43 7238 29520 M +43 676 6322311