AGB Brunn am Gebirge
1. Validity
The following General Terms and Conditions apply to business transactions between the customer and Fiala Dan Küchen GmbH, Hubatschstraße 3, 2345 Brunn am Gebirge,
FN 461891 b. The version valid at the time of the conclusion of the contract is decisive in each case. The deliveries, services and offers of Fiala Dan Küchen GmbH are exclusively based on these terms and conditions, conflicting or supplementary conditions of the customer are only valid if they are expressly acknowledged and confirmed in writing by the management.
and confirmed in writing. Additional agreements of any kind as well as promises of representatives require the written confirmation of the management to be legally valid.
2. Conclusion of Contract
Offers made by Fiala Dan Küchen GmbH are subject to change without notice, unless they are expressly designated as binding. By signing the order form the customer makes a binding offer to Fiala Dan Küchen GmbH to conclude a contract. Fiala Dan Küchen GmbH is entitled to accept the order within 14 days from receipt of the customer’s written order. The customer’s order shall be deemed accepted only upon Fiala Dan Küchen GmbH’s order confirmation, whereby a contract shall come into existence. If the customer’s offer to conclude a contract is rejected by Fiala Dan Küchen GmbH, Fiala Dan Küchen GmbH will inform the customer within 14 days after receipt of the order form. Subsequent change requests, in particular with regard to furniture and room equipment goods already in progress, cut meter goods or cut-to-length wood, are generally not accepted. If plans are provided by the customer or measurements are given, the customer shall be liable for their correctness, unless these are recognizable by Fiala Dan Küchen GmbH as obviously incorrect. If an instruction of the customer proves to be incorrect, Fiala Dan Küchen GmbH will notify the customer thereof within a reasonable period of time and request appropriate instructions within a reasonable period of time. If the instruction is not given in time, the customer is liable for the costs incurred until then as well as for the consequences of the delay. Insofar as furnishings made of wood are delivered, it is to be taken into account that natural features such as knotholes, cracks or different shades of color do not reduce the value of the furnishings to a minor extent. Also customary minor deviations in color or pattern of room textiles or flooring are considered accepted.
3. Terms of Payment, Interest on Arrears
Fiala Dan Küchen GmbH is entitled to demand a maximum of ½ of the gross invoice amount as a down payment. Unless otherwise agreed, the due date for the (remaining) contractual payment is the day of collection or delivery of the contracted goods. As far as payment by bill of exchange, check, bank or customer cards is accepted, the claim of Fiala Dan Küchen GmbH is only redeemed when these funds are cashed. Discount charges shall be borne by the customer. The customer can only offset claims asserted against Fiala Dan Küchen GmbH with such claims that have been established by a court of law or acknowledged in writing. Discount deductions require a separate written agreement. In case of default of payment, also with partial payments, any discount agreements shall become invalid. Payments of the customer are considered as made only at the time of receipt on the business account of Fiala Dan Küchen GmbH. For the timeliness of the fulfillment it is sufficient, if the customer is a consumer, if he gives the transfer order on the day the payment is due.
4. Withdrawal from the Contract
In case of default of acceptance (point 7) or failure to cooperate in the fulfillment of the contract by the customer or other important reasons (e.g. opening of insolvency proceedings, provided that the continuation of the company after opening of insolvency proceedings is not endangered by the termination), Fiala Dan Küchen GmbH is entitled to withdraw from the contract by setting an appropriate grace period. If the customer is in default of payment, Fiala Dan Küchen GmbH is entitled to withhold outstanding deliveries and services and to demand advance payments or securities or to withdraw from the contract after setting a reasonable grace period. If an installment payment was agreed with the customer, Fiala Dan Küchen GmbH is entitled to withdraw from the contract in case of delay with only one installment of 6 weeks, after threatening the loss of the deadline and setting a reasonable grace period. A withdrawal from the contract can only be declared legally effective in writing by both contracting parties. If the customer – without being entitled to do so – withdraws from the contract or requests its cancellation, Fiala Dan Küchen GmbH has the choice to insist on the fulfillment of the contract or to agree to the cancellation of the contract. In the latter case, the customer is obliged to pay, at Fiala Dan Küchen GmbH’s discretion, either liquidated damages in the amount of 15% of the gross invoice amount or the actual damage incurred. It is expressly pointed out that the 14-day right of withdrawal regulated in § 3 Z 3 FAGG as well as in § 3 KSchG does not apply to contracts between Fiala Dan Küchen GmbH and a customer, since an exhibition stand is also a business premises in the sense of § 3 Z 3 FAGG as well as § 3 KSchG.
If Fiala Dan Küchen GmbH withdraws from the contract after setting a reasonable grace period due to default of acceptance or other important reasons that lie in the sphere of the customer, Fiala Dan Küchen GmbH is entitled to demand liquidated damages from the customer in the amount of 15% of the gross invoice amount. In the event of a withdrawal from the contract, Fiala Dan Küchen GmbH is also entitled to demand the return of all planning documents, sketches, samples, catalogs, brochures, illustrations and other documents that it has provided to the customer during the term of the contract, unless these have already been paid for separately by the customer.
In case of culpable non-fulfillment of the contract by Fiala Dan Küchen GmbH or in case of unjustified withdrawal from the contract by Fiala Dan Küchen GmbH, the customer may, apart from the reimbursement of the already paid purchase price including legal interest in the amount of 4 % to which he is entitled, also demand liquidated damages in the amount of 15 % of the gross invoice amount or the damage actually incurred by him from Fiala Dan Küchen GmbH.
5. Price, bills
All prices quoted by Fiala Dan Küchen GmbH are inclusive of VAT and other charges, unless otherwise expressly stated.
The prices stated in the contract are based on the running meter prices and type price lists valid at the time of conclusion of the contract. If the period between the conclusion of the contract and its execution exceeds 12 months and if the delay in the performance of the contract is only due to reasons for which the customer is responsible (failure to cooperate, etc.), the delay in the performance of the contract shall be limited to the period of 12 months.
cooperation, etc.) Fiala Dan Küchen GmbH is entitled to pass on any resulting price increases to the customer. In return, however, Fiala Dan Küchen GmbH is obliged to pass on any resulting price reduction to the customer. Corrections of invoices already issued by Fiala Dan Küchen GmbH can be made with legal effect by Fiala Dan Küchen GmbH only due to formal defects (e.g. wrong invoice recipient, invoice address).
6. Dunning and collection charges
In case of default of Fiala Dan Küchen GmbH, the contracting party (customer) undertakes to reimburse Fiala Dan Küchen GmbH for the dunning and collection expenses necessary for appropriate legal action.
to reimburse. However, the customer is only obligated to reimburse a maximum of the remuneration of the collection agency involved, which results from the collection fee regulation (BGBl. Nr. 141/1996). If the creditor carries out the dunning process himself, the debtor undertakes to pay an amount of € 10.90 per reminder and an amount of € 3.63 per half-year for keeping the debt relationship on record in the dunning process.
7. Delivery, Transport, Default of Acceptance
The sales prices of Fiala Dan Küchen GmbH do not include costs for delivery, assembly or installation. However, on request, these services are provided or organized by Fiala Dan Küchen
will be provided or organized by Fiala Dan Küchen GmbH. In this case, the actual costs incurred for transport or delivery will be invoiced together with a reasonable overhead surcharge, but at least the freight and carriage charges for the selected type of transport applicable and customary on the day of delivery. Assembly work shall be invoiced on a time basis, whereby a man-hour rate customary in the industry shall be deemed to have been agreed. If the customer has not taken over the goods as agreed (default of acceptance), Fiala Dan Küchen GmbH is entitled, after setting a grace period, either to store the goods, for which a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof will be charged, or to store the goods at the customer’s expense and risk with an authorized tradesman. At the same time, Fiala Dan Küchen GmbH is entitled either to insist on fulfillment of the contract, or to withdraw from the contract after setting a reasonable grace period of at least 2 weeks, to dispose of the goods elsewhere, and to claim liquidated damages from the customer in the amount of 15% of the gross invoice amount as stipulated in item 4.
8. Delivery time
The delivery period is agreed individually or stated by Fiala Dan Küchen GmbH upon acceptance of the order. The agreement of fixed dates requires the explicit designation as such and the written confirmation by the managing director of Fiala Dan Küchen GmbH to be effective. If a fixed date has been effectively agreed upon, the delivery time starts with the beginning of the acceptance of the order by Fiala Dan Küchen GmbH, however, not before clarification of all details of the execution of the order. The delivery period does not start until the customer has fulfilled all his obligations necessary for the execution, in particular all technical and contractual details, preparatory work and preparatory measures have been fulfilled and the agreed down payment has been made. Fiala Dan Küchen GmbH is entitled to exceed the agreed deadlines and delivery periods by up to 4 weeks. Only after expiration of this period, the customer can withdraw from the contract exclusively by setting a grace period of at least 14 days under written threat of refusal. If Fiala Dan Küchen GmbH cannot meet binding delivery deadlines due to unforeseeable circumstances beyond its control (e.g. import and export embargoes, strikes, energy shortages, lack of means of transport, etc.), Fiala Dan Küchen GmbH will inform the customer immediately and notify the new expected delivery deadline. In this case the agreed delivery period will be extended appropriately. If it is foreseeable that the delay in delivery will last longer than 2 months, both parties are entitled to withdraw from the contract.
9. Place of performance
The place of performance is the place of installation of the kitchen / contractually owed service.
10. Warranty and liability
In case of defects of the goods handed over to the customer, the statutory warranty provisions apply. Fiala Dan Küchen GmbH is liable to the customer for damages due to breach of contractual obligations, only in case of intent or gross negligence. In case of slight negligence Fiala Dan Küchen GmbH is only liable for personal injuries or for damages according to the product liability law. In addition, Fiala Dan Küchen GmbH is liable to consumers also in the case of slight negligence for damage to the items handed over to it for processing. The provisions on damages contained in these terms and conditions or otherwise agreed upon shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim. Fiala Dan Küchen GmbH does not assume any liability for material defects and damages caused by unsuitable or improper use, normal wear and tear or faulty or negligent handling, especially in case of non-observance of the care recommendations given by Fiala Dan Küchen GmbH. Fiala Dan Küchen GmbH expressly points out that direct exposure to water at the edge of the worktop, on the joints of the panel connection and in the area of the worktop cut-outs can lead to damage to the kitchen equipment, in particular to swelling of the furniture. For such damage to worktops and
Fiala Dan Küchen GmbH therefore expressly accepts no liability for any damage to worktops and cabinets caused in this way. As far as Fiala Dan Küchen GmbH takes over the planning and/or installation of a fitted kitchen, the customer is obliged to make sure about the type and course of supply lines, load-bearing capacity of the walls as well as any special features (e.g. sloping walls) before starting the work. The customer has to inform Fiala Dan Küchen GmbH about this before starting the work without being asked, otherwise – if inaccuracies in the customer’s information were not obviously recognizable for Fiala Dan Küchen GmbH – no liability will be assumed for resulting damages.
11. Retention of title, copyrights
All goods are delivered by Fiala Dan Küchen GmbH under reservation of title as well as extended reservation of title. The goods remain the property of Fiala Dan Küchen GmbH until full payment of the purchase price and the associated costs and expenses. In case of return of goods Fiala Dan Küchen GmbH is entitled to charge accrued transport and manipulation expenses. In case of access of third parties to goods subject to retention of title, especially by seizure, the customer is obliged to point out the ownership of Fiala Dan Küchen GmbH and to inform Fiala Dan Küchen GmbH immediately. If the customer is a consumer or not an entrepreneur whose ordinary business operations include trading in the goods purchased from Fiala Dan Küchen GmbH, he may not dispose of the reserved goods, in particular sell, pledge, give away or lend them, until the outstanding purchase price claim has been settled in full. Plans, sketches or other technical documents as well as samples, catalogs, brochures and illustrations and the like always remain the intellectual property of Fiala Dan Küchen GmbH, the customer does not receive any rights of use or exploitation whatsoever.
12. Assignments of receivables
In case of deliveries under retention of title, the customer assigns to Fiala Dan Küchen GmbH already now his claims against third parties, as far as they arise from the sale or processing of the goods, until final payment of the claim of Fiala Dan Küchen GmbH.
of the goods, until the final payment of the claim of Fiala Dan Küchen GmbH. The customer has to name his buyers to Fiala Dan Küchen GmbH on demand and to inform them in time
and to inform them of the assignment in due time. The assignment is to be entered in the business books, in particular in the open item lists and to be made visible to the customer on delivery bills, invoices, etc. The customer is to inform Fiala Dan Küchen GmbH of the assignment in good time. If the customer is in default with his payments to Fiala Dan Küchen GmbH, the sales proceeds received by him shall be segregated and the customer shall hold them only in the name of Fiala Dan Küchen GmbH.
13. Choice of Law Venue Vienna
For all current and future claims arising from the business relationship between Fiala Dan Küchen GmbH and entrepreneurs, the court with subject-matter jurisdiction in
in Vienna shall have jurisdiction. If the client is a consumer, the competent court according to the statutory provisions shall be responsible. Austrian law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer is domiciled.
14. Data protection, change of address
Fiala Dan Küchen GmbH will store or process the personal data received from the customer solely for the purpose of fulfilling this contract in an automation-protected manner and is also entitled to do so within the scope of fulfilling the contract in accordance with § 8 para. 3 no. 4 DSG. As long as the contractual legal transaction has not been completely fulfilled by both parties, the customer undertakes to notify Fiala Dan Küchen GmbH of any changes to his residential or business address. If the notification is omitted, declarations shall be deemed received even if they are sent to the customer’s last known address.