GENERAL TERMS AND CONDITIONS of Fahrzeugbedarf Kotz & Co. KG

Version/17012020

1. general
1.1 These GTC are an integral part of all contractual relationships that Fahrzeugbedarf Kotz & Co. KG (hereinafter referred to as the “Contractor”) enters into with a customer as the Contractor

1.2 The customer’s general terms and conditions of any kind whatsoever shall not become part of the contract unless the contractor expressly agrees to the validity of these
general terms and conditions in writing. The execution of an order does not constitute acceptance of deviating provisions.
1.3. Should individual provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining contractual provisions. Such an invalid provision shall be deemed to be replaced by a provision that comes closest to the economic purpose of the invalid provision. The same applies in the event of a regulatory gap. Even in such cases, individual provisions of the customer’s GTC shall not become part of the contract

1.4 The Contractor concludes contracts both with other entrepreneurs (B2B transactions) and with consumers within the meaning of the
Consumer Protection Act (B2C transactions). If clauses are only applicable to one of these two business areas, this is indicated with “B2B” or “B2B”.
labeled “B2C”. In principle, these GTC shall only apply to consumer transactions within the meaning of the Consumer Protection Act to the extent that they do not contradict the mandatory provisions of this Act.
1.5. In addition to these GTC, any order confirmation shall form an integral part of the contract and shall take precedence over these GTC in the event of deviating provisions.
1.6. Amendments and additions to the contract and other material declarations must be made in writing to be effective. This also applies to the
departure from the written form requirement hereby agreed. Declarations made by fax or e-mail shall also be deemed to be “in writing” within the meaning of these GTC.
1.7. The Contractor may in principle assume that the Customer’s employees are authorized to place further orders, deliver goods for processing or collect goods on behalf of the Customer.
1.8 Until the mutual and complete fulfillment of the contract, the customer is obliged to notify
immediately of any changes to his business address, otherwise declarations shall be deemed to have been received even if they were sent to the last known address.
1.9 B2B: The application of Sections 9 and 10 of the E-Commerce Act (ECG) is excluded.
1.10. Insofar as trade terms are used, the provisions of the Incoterms 2010 as amended from time to time shall apply to their interpretation, unless otherwise agreed.
1.11. B2B: The contract may not be contested on the grounds of error.

2. offer and conclusion of contract
2.1. Offers are generally subject to change and non-binding unless they are expressly designated as binding.
2.2. The contract is only concluded after written confirmation by the contractor.
2.3. The customer’s order merely represents a contractual offer to the contractor. The receipt of electronic orders will be confirmed immediately. However, this confirmation of receipt does not constitute a binding declaration of acceptance unless expressly stated otherwise.
2.4. The contractor is entitled to refuse to accept an offer without giving reasons. The submission of an offer does not give rise to any entitlement to the conclusion of a contract.
2.5. The Contractor shall declare either acceptance or rejection of the offer within 14 days of receipt of the offer. In the event that the Contractor does not submit a declaration within 14 days, this shall not constitute acceptance or rejection of the offer. In this case, the customer
shall contact the contractor and request the submission of a declaration.
2.6. All ancillary costs associated with this contract shall be borne by the customer.
2.7. Documentation, technical drawings, cost estimates and other documents, which may also be part of the offer (item 2.1.), as well as samples, catalogs, brochures, illustrations and the like shall always remain the intellectual property of the Contractor. Any utilization, duplication, reproduction, distribution and forwarding to third parties, publication and presentation may only take place with express written consent. The customer is obliged to take suitable measures to prevent unauthorized third parties from accessing this data. In the event of a breach of this obligation, the Customer shall be liable to the Contractor for any resulting damage.
2.8. In the case of contracts concluded electronically, the following applies: The content of the contract is stored by the contractor for internal purposes only. It is not possible to make the content of the contract available to the customer again after the contract has been concluded. The customer must save or store the text of the contract himself.
2.9 B2C: If the customer submits a contractual declaration by means of distance selling or outside the contractor’s business premises, he has a right of withdrawal. In this case, the customer will be sent a separate revocation instruction including a sample revocation form together with the offer.

3. prices, costs
3.1. Prices are exclusive of statutory VAT, ex works, without packaging and without discount.
3.2. The prices are based on the costs at the time of the price submissions, unless otherwise agreed. Should the costs on which the prices are based change by the time of delivery, these changes shall be in favor of or at the expense of the customer.

4. terms of payment
4.1. Unless otherwise agreed, invoices must be paid within 14 days of the invoice date without discount or other deduction. Payment must be made in the manner specified in the offer, in the order confirmation or in the invoice. In the case of repair and maintenance orders,
payment must be made immediately in cash without discount or other deduction on collection.
4.2. The customer is not entitled to withhold payments on the basis of alleged warranty or other claims, including in the form of liability or coverage retentions.
4.3 If the Customer is in arrears with an agreed payment or other service, the Contractor may postpone the fulfillment of its own services until
settlement of the outstanding payments or other services, make the entire outstanding purchase price due immediately and demand payment from
. § In accordance with Section 456 of the Austrian Commercial Code (UGB), interest on arrears of 9.2 percentage points above the prime rate (B2B) or 5% (B2C) shall be charged and added to the outstanding capital at the time of partial payments made and/or at the end of a quarter. The same applies if a deferral is agreed. B2C: The default interest shown shall be charged irrespective of any responsibility of the customer for the delay in payment.
4.4. The Contractor reserves the right to prove and assert any higher damage caused by delay.
4.5 Reminder and collection costs arising from the default shall in any case be borne by the Buyer and the Contractor shall be entitled to add the collection and legal costs incurred to the capital.

5. loss of date
5.1 Default occurs if the customer is more than two weeks in arrears with even one partial payment or is more than eight days in arrears with the surrender of agreed
bills of exchange or the signing of credit documents required for financing.
5.2. The entire outstanding balance shall become due if execution is unsuccessfully levied against the customer’s assets, if the forced sale or forced administration of real estate is approved or if the creditworthiness is otherwise reduced and the fulfillment of the customer’s obligations is thereby jeopardized.
5.3. Failure to meet the deadline shall entitle the contractor to withdraw from the contract and the customer shall be liable for all resulting damages.

6 Delivery, performance, transfer of risk
6.1. The stated delivery times and dates are merely approximate and not fixed dates, unless a fixed date is expressly agreed.
6.2 The Contractor is entitled to unilaterally change the time and scope of the delivery or service if this is objectively justified and reasonable.
6.3. If changes to services are agreed after conclusion of the contract, the Contractor shall be entitled to extend the performance deadlines accordingly.
6.4. In the event of unforeseen, unavoidable and involuntary events, such as fire, mobilization, confiscation, embargo, prohibition of foreign currency transfer, insurrection, war, lack of means of transport, general shortage of supplies, restriction of energy consumption, labour disputes, in general in all cases of force majeure both at the contractor’s and at suppliers’ and carriers’ premises, as well as in the event of delay in delivery by the carrier, the contractor shall be released from its obligation to perform until the end of such circumstances. In such a case, the customer is not entitled to withdraw from the contract or to hold the contractor liable for any damages. In such a case, the contracting parties shall endeavor to agree new delivery dates. The same shall apply if official or other third-party approvals required for the performance of the service are not received in good time.
6.5. The Contractor shall not be liable for delays in delivery for which it is not responsible and in such a case the Customer waives the right to withdraw from the contract and to assert any resulting claims for damages.
6.6. The Contractor shall be entitled to make partial deliveries and these shall be accepted and paid for by the Customer, failing which the Customer shall be in default of acceptance.
6.7. If delivery on call has been agreed and such a call is not made within 4 weeks of notification of readiness for dispatch, the customer shall be obliged to accept the goods within 8 days of being requested to do so.
6.8. The transfer of risk of accidental loss and accidental deterioration shall take place upon handover to the carrier or to the customer. In the case of call-off delivery agreements, the transfer of risk shall take place upon notification of readiness for dispatch. If the customer is in default of acceptance, this shall be deemed equivalent to handover.
6.9. Shipping and packaging costs are to be paid separately by the customer in advance or by cash on delivery.
6.10. The goods are generally not shipped insured. However, should the customer wish to take out insurance, the costs incurred for this shall be borne by the customer and must be paid in advance.

7. prohibition of set-off and assignment
7.1 The Customer shall only have a right of set-off in respect of counterclaims expressly recognized in writing by the Contractor or against such claims in respect of which the Customer has obtained a legally binding court title against the Contractor.
B2C: The Customer may also declare offsetting in the event of the Contractor’s insolvency and even if the counterclaim is legally related to the Customer’s liability.
7.2. The Customer may only assign claims against the Contractor to third parties with the express written consent of the Contractor.

8. reservation of title
8.1. Delivered goods and spare parts shall remain the sole property of the Contractor until all of the Customer’s financial obligations (purchase price, wages, reminder fees, etc.) have been settled. The Contractor shall be entitled to identify this reservation of title at the Customer’s expense. The removal of such a label is inadmissible and causes the entire outstanding claim to become due.
8.2. B2B: The customer shall be entitled to resell the delivered goods in the ordinary course of business. Until the purchase price has been paid in full, the Customer assigns to the Contractor all claims and security interests to which it is entitled from the resale on account of payment and shall make a note of the assignment in its books. The customer is entitled to collect the assigned claim as long as he fulfills his payment obligation. If the Customer is in default of payment, the Contractor shall be entitled to inform the repurchasers of the goods, whom the Customer must notify to
, of the assignment.
8.3. During the period of retention of title, the customer must treat the goods with care and carry out any necessary maintenance and inspection work or have it carried out professionally at his own expense. Furthermore, the Customer shall ensure at its own expense that the items subject to retention of title are adequately insured against all conceivable risks and shall endorse the insurance policy in favor of the Contractor.
8.4. The customer is entitled to mount the goods subject to retention of title on another vehicle or other device, provided that the mounting can be reversed without further ado. In such a case, the goods shall in any case remain the property of the contractor. Should it no longer be possible to return the goods subject to retention of title to their original condition after they have been treated and/or processed, or should they be mixed with items not subject to retention of title, the Contractor shall acquire co-ownership of the new item or of the mixed items to the extent that this is in proportion to the value of the goods delivered subject to retention of title.
8.5 In the event of seizure or sale of such equipment, the Customer undertakes to inform the Contractor immediately for the purpose of dismantling or excision. The same applies in the event that goods subject to retention of title are described as a pledge in the course of a judicial seizure. Should the customer fail to comply with these information obligations, he shall be liable for all resulting damages.
8.6. The dismantling of the goods subject to retention of title does not remove the retention of title and it remains attached to the individual parts.
8.7. In the case of replaced or new parts, ownership shall not pass until the main item has been replaced.
8.8. The customer is not entitled to pledge or otherwise encumber the goods during the period of retention of title, unless the contractor expressly agrees in writing.
8.9. In the event that the Customer is in default of payment, the Contractor shall be entitled to assert the retention of title and recover the goods. The execution of the surrender and the provision of security shall not be deemed a withdrawal from the contract. The customer’s obligations, in particular to pay the purchase price, shall remain in force.

9. warranty
9.1. B2B: The customer must inspect the goods/work immediately after acceptance in accordance with §§ 377 and 378 UGB. Noticeable defects must be reported immediately on the delivery bill, receipt or consignment note, or if an immediate inspection is not possible, within 8 days by registered letter. Defects occurring at a later date must be reported in writing by registered letter within 3 days of their occurrence.
9.2. B2B: In the event of failure to comply with the obligation to give notice of defects, claims under warranty, compensation for damages due to the defect and due to the error regarding the absence of defects can no longer be asserted.
9.3. B2B: Warranty claims must be asserted in court within 6 months of delivery.
9.4. B2B: The customer is responsible for proving the existence of the defect at the time of handover; the presumption rule of § 924 ABGB is excluded.
9.5. B2BIn the event of a defect, the contractor may, at his own discretion,
– repair the goods on site,
– have the defective goods or the defective parts returned to him for repair,
– replace the defective parts or the defective goods.
The return shipment to Fahrzeugbedarf Kotz & Co. KG and the re-transmission to the customer shall be at the expense and risk of the customer. Conversion and price reduction are excluded.
9.6 The replaced goods or parts shall again become the sole property of Fahrzeugbedarf Kotz & Co KG.
9.7. The costs of rectification of defects by third parties shall only be borne by Fahrzeugbedarf Kotz & Co. KG after express written consent.
9.8. B2B: Fahrzeugbedarf Kotz & Co KG shall only be liable for parts of the goods that Fahrzeugbedarf Kotz & Co KG itself has purchased from third parties within the scope of the warranty claims to which it is entitled against the third party.
9.9. Minor technical changes and minor deviations from drawings, catalogs, etc. that do not impair the intended usability of the goods do not entitle the customer to make complaints.
9.10. B2B: The warranty period is 6 months.
B2C: The warranty period for sales contracts for used movable goods is reduced to 12 months.

10. compensation for damages
10.1. The customer shall only be entitled to claims for damages if the contractor is guilty of gross negligence or intent; this restriction shall not apply to personal injury.
B2C: The above limitation of liability does not apply to damage to items that have been handed over to the contractor for processing.
10.2. Compensation for consequential damages and loss of profit is excluded.
10.3. In any case, the customer must prove the occurrence of the damage, the amount of the damage and (B2B) fault on the part of the contractor.
10.4. Application instructions provided, in particular maintenance instructions and operating instructions of the manufacturer, must be observed and, in case of doubt, the customer must obtain the opinion of the contractor. The Contractor shall not be liable for defects and damage resulting from non-compliance with these instructions or failure to obtain
the opinion, nor for unauthorized changes to the object of purchase.
10.5. If goods are manufactured on the basis of the customer’s design specifications, the contractor’s liability shall not extend to the correctness of the design, but to the fact that the design was carried out in accordance with the customer’s specifications. The duty to warn under § 1168a ABGB is excluded.
10.6. If the customer expressly requests to purchase a device without the associated safety device, the contractor shall not be liable for any resulting damage.
10.7. B2B: If the Customer, as an entrepreneur, has sold goods purchased from the Contractor to a third party and is liable for any defects, any recourse against the Contractor shall be excluded in any case if the Customer itself is no longer entitled to a warranty claim against the Contractor.

11. product liability
11.1. The right of recourse acc. § 12 PHG is hereby expressly excluded. Should the customer therefore be held liable by a third party on the basis of the PHG in
, no claims for recourse against the contractor shall arise from this.
11.2. The customer is obliged to fully inform those persons to whom he enables the use of the subject matter of the contract or to whom he resells it of all operating instructions, safety regulations and warnings and to impose this obligation on his customers.
11.3 If the Customer fails to fulfill its obligations under Section 11.2, it undertakes to indemnify and hold the Contractor harmless.

12. right of retention
B2B: Sections 369 ff UGB apply.
B2C: The statutory regulations apply.

13. repair, spare parts
13.1. The contractor is entitled to demand an advance payment up to the total amount of the expected costs for more extensive repair work, i.e. work whose expected value exceeds EUR 1,500.00.
13.2. The Customer must precisely and clearly identify all parts handed over in connection with a repair order in a list (if necessary, the dimensions of the parts must be specified) and send this list together with the corresponding parts to the Contractor. The contractor is not obliged to check the completeness of this list and is not liable for parts that do not appear in this
list. If such a list is not provided, the order confirmation (acceptance certificate) shall serve as proof.
13.3. The delivery of spare parts shall be made exclusively against cash on delivery; shipment shall be at the customer’s expense.
13.4. The written consent of the contractor must be obtained before returning spare parts. Returns must be made carriage paid. A handling fee of 10% of the value of the goods, but at least EUR 5.00, will be charged on crediting.

14. cost estimate
14.1. Cost estimates and other services and expenses necessary for their preparation (e.g. travel and dismantling work) are subject to a charge and are not included in the price.
14.2. Cost estimates prepared by the Contractor are generally non-binding unless they are expressly designated as binding.
14.3. Should it become necessary to carry out additional work in the course of fulfilling the contract, the non-binding cost estimate may be exceeded by up to 20% without the customer being entitled to withdraw from the contract in accordance with the provisions of the German Civil Code. § 1170a para. 2 ABGB or the contractor loses the claim due to the additional work.

15. insolvency of the customer
15.1. In the event that insolvency proceedings are opened against the Customer’s assets, the Contractor shall be entitled, irrespective of any other agreements made (e.g. order confirmation, terms of payment), to make the provision of services dependent on advance payment or security for the agreed remuneration.
15.2. Any requested security must be provided in the form of cash or an abstract bank guarantee. Any advance payment or security requested must be provided within 8 days, otherwise the Customer shall be in default and the Contractor shall be entitled to withdraw from the contract without setting a further grace period. The costs of advance payment or security shall be borne by the customer.

16 Cancellation
If the customer declares his withdrawal from the contract for a reason that does not already entitle him to withdraw from the contract by law, the contractor is entitled, at his discretion, either to insist on fulfillment or to demand a cancellation fee of 25% of the agreed price. The Contractor reserves the right to assert further claims for damages.

17. data protection
Personal data of the customer may be processed by the contractor on the basis of the statutory provisions (GDPR, TKG 2003). The
detailed privacy policy can be viewed at www.fahrzeugbedarf.at.

18 Place of performance, place of jurisdiction and applicable law
18.1. The place of performance for both parties to the contract is 2512 Tribuswinkel.
18.2. The exclusive place of jurisdiction for all disputes arising from a contractual relationship between the Contractor and the Customer and for all disputes concerning the existence of such a contractual relationship shall be the court with subject-matter and local jurisdiction for the Contractor (Mödling District Court or Wiener Neustadt Regional Court). However, the Contractor shall also have the option of taking legal action against the Customer before the places of jurisdiction that are possible and permissible for the Contractor.
18.3. All contractual relationships or other legal relationships between Fahrzeugbedarf Kotz & Co. KG and the customer shall be governed exclusively by substantive and formal Austrian law, with the express exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of law rules of the IPRG.
18.3. This choice of law and jurisdiction agreement shall only apply insofar as it does not conflict with mandatory provisions (in particular the Consumer Protection Act).