GENERAL TERMS AND CONDITIONS

GAPPMAIER GMBH

1 Scope

1.1 All deliveries, services and offers of our company shall be made exclusively on the basis of and subject to these General Terms and Conditions (GTC). We do not recognize any conflicting, deviating and new terms and conditions of the contractual partner not included in our terms and conditions, unless we have expressly agreed to their validity in writing. In this respect, contractual performance on our part shall not be deemed to be consent to deviating or new contractual terms and conditions not contained in our terms and conditions.

1.2 For consumers under the Austrian Consumer Protection Act (ö KSchG), the provisions of these Terms and Conditions shall apply only to the extent that they are not contradicted by mandatory consumer protection conditions.

2 Offers, collateral agreements

2.1 All our offers are, unless otherwise stated, non-binding and subject to change with regard to all specified data including the price. Information contained on our homepage, in catalogs, brochures, product descriptions, cost estimates, etc. shall only be binding if reference is made thereto in our order confirmation. Illustrations, quantity, dimension and design specifications, appearance, prices and conditions in brochures, catalogs and the like are only exemplary.

2.2 The quantities, dimensions and design specifications, the prices and conditions stated in our order confirmation or works planning shall be checked by the contracting party immediately after receipt of the order confirmation or works planning. If our order confirmation contains changes to the order, these shall be deemed to have been approved by the customer unless the customer objects in writing within five calendar days of the order confirmation being sent. Cost estimates shall only be binding if they have been prepared in writing and expressly designated as binding.

3 Conclusion of contract

3.1 Agreements, sales, orders and contracts with us must be in writing and shall only be concluded upon our written (order or work planning) confirmation. Written or electronic declarations on our part or invoices shall be deemed to have been received by the contractual partner if they have been handed over to the postal service with an address of the contractual partner known to us, sent by fax to a fax number of the contractual partner known to us or if the contractual partner can retrieve them under normal circumstances. The contracting party agrees that all business documents, invoices, etc. shall be created and transmitted to it electronically.

3.2 Changes and additions to the order or work planning require written confirmation by us in order to become the subject of the present contractual relationship.

3.3 The Contractor may engage other appropriately authorized persons for the performance of the contract and place orders with them on behalf of and at the expense of the Client.

4 Fee / Prices

4.1 Unless otherwise stated, all prices are quoted in Euro.

4.2 The prices quoted do not include value added tax (VAT), which shall be paid separately by the Client.

4.3 If the Contractor is commissioned with services without a prior offer, the Contractor may claim an appropriate fee. If it becomes apparent during the execution of the order that services are also to be performed which were not expressly included in the order, the Customer shall already now commission the Contractor with the performance of these services. The Contractor shall be entitled to demand an appropriate fee for this. The same shall apply to additional services which the Client commissions or orders during the execution of the order without any further written order supplement.

4.4 Flat-rate price/fee agreements shall require express designation as such and written form in order to be effective. This does not mean that the services are flat-rate (non-genuine flat-rate price). Changes to the service content are not included in this lump sum price.

4.5 After placing the order, the Contractor shall be entitled to invoice a down payment in the amount of at least one third of the agreed remuneration and to invoice divisible services separately. Otherwise, the settlement takes place after handover. The term of payment is 30 days net. The date of receipt by the Contractor shall be decisive.

4.6 Payments by the Client shall be made free of charges and deductions.

4.7 In the event of default in payment, the Customer shall reimburse the Contractor for the reasonable and necessary costs incurred as a result of the default in payment, such as expenses for reminders in the amount of € 5.00 per reminder, collection attempts, storage costs and any court or out-of-court legal fees. Interest on arrears shall be 8% above the prime rate per annum.

4.8 Offsetting by the Client with counterclaims or with alleged price reduction claims shall only be permitted if the Client’s claim has been legally established or has been expressly acknowledged by the Contractor in writing.

5 Mounting

5.1 In principle, products to be delivered ex works shall be deemed ordered without assembly. Unless otherwise agreed, a commissioned installation shall be invoiced on the basis of direct hours against proof. Requested overtime, overtime, night work and other additional operational costs shall be paid separately in accordance with the collective agreement or statutory surcharge.

6 Withdrawal from the contract

6.1 In the event of default on the part of the Contractor, withdrawal by the Customer shall in any case only be permissible after setting a sufficient grace period by registered letter. Delay with minor or insignificant (partial) services does not entitle the customer to withdraw from the contract.

6.2 In the event that the Customer is in default with respect to an obligation or duty, in particular with respect to the fulfillment of purchase, partial or other payment obligations or cooperation activities, which makes the execution of the order impossible or significantly impedes it, the Contractor shall be entitled to rescind the contract immediately. Statutory rights of withdrawal shall not be affected thereby.

6.3 If the Contractor is entitled to withdraw from the contract, the Contractor shall retain the claim to the entire agreed fee, likewise in the event of unjustified withdrawal by the Client. Furthermore, § 1168 ABGB (Austrian Civil Code) shall apply; in the event of a justified withdrawal by the Client, the services rendered by the Contractor shall be paid for by the Client.

6.4 The Contractor shall also be entitled to withdraw from the contract in the event of other important reasons, such as in particular bankruptcy of the Customer or rejection of bankruptcy for lack of assets, provided that the contract has not yet been fully performed by both parties.

7 Performance periods and deadlines, delivery, transport and transfer of risk

7.1 Delivery periods are non-binding and shall not commence before submission of all technical and other execution details, payment of an agreed down payment and/or complete clarification of all details of the execution. Only in the event of a delay in performance for which the Contractor is responsible shall the Client be free to withdraw from the contract by setting a period of grace, which may not, however, be less than two weeks and must be in writing; any other or additional claims of any kind, in particular claims for damages, shall be excluded unless the Contractor is guilty of gross negligence or intent in the delay in performance.

7.2 Performance dates and deadlines are not fixed dates but are only binding if they are expressly agreed as such in writing. The Contractor shall otherwise perform the services within a reasonable period of time.

7.3 The additional costs incurred due to delays shall be borne by the Customer if the circumstances causing the delay are attributable to its sphere of influence.

7.4 Operational disruptions of any kind at the Customer or its suppliers, natural disasters, strikes, pandemics, war and other circumstances for which the Customer is not responsible or which are unforeseeable shall entitle the Contractor to extend the delivery period or to cancel the contract in whole or in part, to the exclusion of all warranty claims, claims for the avoidance of errors and claims for damages of the Customer. This shall also apply if the events occur at a time when the Contractor is in default.

7.5 Complaints about partial deliveries shall not entitle the Customer to reject the remaining deliveries.

7.6 Unilateral changes in performance by the Contractor, such as, for example, changes in production due to technical reasons, as well as deviations in dimensions, weights, colors and samples, shall be reasonable for the Customer if they are objectively justified. This also applies to subsequent deliveries.

7.7 The transport/shipment of the goods shall be ex works at the risk of the Purchaser/Orderer. This shall also apply if and to the extent that shipment is effected by the Supplier’s own means of transport. This also applies to partial deliveries.

8 Retention of title and property rights

8.1 All goods, items and fixtures delivered by the Contractor shall remain the property of the Contractor until all services rendered by the Contractor have been paid for in full. This also applies to built-in furniture, which can be dismantled without damaging the fabric of the building. The copyrights of the plans, sketches, visualizations and photographs prepared by the Contractor shall remain the sole property of the Contractor. The Contractor shall be entitled to take photographs of the services rendered and goods delivered and to use them for advertising and marketing purposes. This is done in compliance with the personal protection provisions of the Data Protection Act.

9 Intellectual property

9.1 Plans, sketches, visualizations and other technical documents as well as brochures, catalogs, samples and the like shall remain the intellectual property of the Contractor. Any utilization, duplication requires the express consent of the contractor. In case of their use without consent, the Contractor is entitled to claim a distance fee of the estimate amount.

10 Properties of the delivery item

10.1 If the underlying transaction is not a consumer transaction, it shall be deemed agreed that the delivery item only provides the safety that can be expected on the basis of ÖNORMEN, operating instructions, regulations on the treatment of the delivery item (e.g. instructions for use or care) and required maintenance, in particular with regard to the prescribed inspections and other instructions given.

11 Warranty

11.1 The warranty shall primarily take the form of improvement or replacement of the performance within a reasonable period of time. The Contractor shall have the right to choose in this respect. If improvement or replacement is not possible or only possible at disproportionate expense, a reasonable price reduction shall be granted. Only in the case of remediable defects that hinder the use of the object of performance shall there be a right of conversion.

11.2 The Customer shall also prove the existence of a defect at the time of handover during the first six months after handover of the Work. § 924a ABGB is expressly waived.

11.3 Warranty claims shall expire if the Contractor’s services have been modified or supplemented by third parties or by the Customer itself.

11.4 The warranty period shall be 24 months unless otherwise agreed in writing.

11.5 Notifications of defects and complaints of any kind must be made in writing without delay, describing the defect as precisely as possible, otherwise warranty claims and claims for damages shall be forfeited. Verbal, telephonic or not immediate notices of defects and complaints will not be considered. Notifications of defects and complaints which are not made within 14 days of handover shall in any case be deemed to be late. The client bears the risk of delay and loss for the notices of defects and complaints.

11.6 Contractor’s declarations designated as “warranty” shall only constitute statutory (extended) warranty commitments and not guarantee commitments.

11.7 If the Customer is a consumer within the meaning of the Austrian Consumer Protection Act, the statutory warranty provisions shall apply exclusively. The provisions listed under this item shall not apply in this case.

12 Compensation

12.1 The Contractor shall only be liable for damage caused by gross negligence or intent, provided that this does not involve personal injury or damage to property which it has taken over for processing. The existence of gross negligence must be proven by the injured party.

12.2 Liability for consequential damages, lost profits and claims of third parties shall be excluded in any case. This shall also apply to damage caused by failure to complete the work on time (damage caused by delay), in particular if the delay is due to serious or unforeseeable operational disruptions, supply problems or the absence of workers.

12.3 Claims for damages shall become statute-barred within six months of knowledge of the damage and the damaging party.

12.4 All claims for damages or product liability against the Contractor shall be limited in amount to the net value of the individual contractual item giving rise to a claim for damages. This limitation does not apply to personal injury and damage caused intentionally or by gross negligence, whereby the claimant must prove gross negligence or intent.

13 Insurance of reserved property

13.1 In the case of amounts invoiced in excess of € 5,000 and a payment term of more than 30 days, the customer shall be obligated for the duration of the reservation of title to insure the reserved property in the amount of the invoice amount against all risks at replacement value. The future claims against the insurer are already now assigned to the contractor.

14 Place of performance, validity, choice of law and place of jurisdiction

14.1 The place of performance for delivery and payment as well as for all obligations of the Customer towards the Contractor shall be the Contractor’s place of business, even if the handover of the goods or performance of the service takes place at another location as agreed.

14.2 If individual or several (partial) provisions of these GTC should be or become invalid, this shall not affect the validity of the remaining provisions. In place of the invalid (partial) provision, a provision shall be deemed to have been agreed, the economic purpose of which comes closest to the invalid provision in a legally permissible manner.

14.3 The legal relationship between the contracting parties shall be governed by Austrian law (excluding the UN Convention on Contracts for the International Sale of Goods/CISD).

14.4 The Customer grants the Contractor the right to take photographs of the delivered products/services and to have them published for advertising purposes (print media, homepage, self-advertising, advertisements, … ).

14.5 For all legal disputes arising between the Customer and the Contractor, in particular in connection with this contractual relationship, it is agreed that the court with subject-matter and local jurisdiction for the Contractor’s place of business shall have jurisdiction, but the Contractor may, at its option, also bring an action before any other court with jurisdiction for the Customer. Insofar as the client is a consumer within the meaning of the Austrian Consumer Protection Act, the relevant provisions shall be observed.

 

15 Force majeure / pandemics

15.1 Force majeure and other unforeseeable impediments or impediments beyond the control of the Contractor, such as labor disputes, traffic disruptions, interruption of energy supply, pandemics, war, etc., as well as accidents for which the Contractor or its suppliers are not responsible, shall release the Contractor from the obligation to deliver for the duration of their effects, even if they have occurred at one of the upstream suppliers. In this case, the Contractor shall not be subject to any consequences of default.