General Terms and Conditions
I. General
(1) Planlicht GmbH & Co. KG and related companies (in the following short “Company”) agrees contracts with Customers solely on the premise of the General Terms and Conditions (short “GTC”). The Customers waives the right to change the GTC by sending their own conditions. Should the Customer nevertheless send or have sent such conditions, they waive any legal effects arising thereof. Once the terms and conditions of the Company have come into force between the Company and a Customer, they also apply to all future contracts between them. The cancellation, amendment or modification of contracts must be made in writing in order to be valid. Should an enterprise associated with Planlicht GmbH & Co. KG include their own terms and conditions in an offer or a delivery, these apply with priority.
(2) Without the Company’s written consent employees are not permitted to make commitments which lift, supplement, or change the GTC; in case such commitments are binding for the Company according to the Consumer Protection Act, they may withdraw from the contract at any time.
(3) The Customer is no permitted to transfer the rights and duties arising from the contract with the Company without the Company’s written consent. All commercial or technical documents created by the Company are sales aids and remain property of the Company. Any distribution and utilization require the written consent of the Company. Sales aids shall only be used to present and advertise the Company’s products. In particular those documents shall not be made accessible to third parties. The Company is free to redeem such docu-ments and sales information at any time without giving any reasons.
II. Offers
(1) The Customer’s offers received by the Company are confirmed only by written declaration of acceptance or by actual fulfilment; the Customer submitting an offer is bound for four weeks after the Company receiving the offer.
(2) The Company’s offers as well as the content of the any other documents (cost estimates, circulars, catalogues, price lists, brochures, advertisements, illustrations etc.) can always be subject to change and non-binding and can be amended and revoked by the Company. The calculations in the offer only apply if the entire goods or quantity offered are ordered.
(3) Should after the confirmations of the order a cost increase of more than 15% take place, the Company informs the Customer immediately thereof. Should after the confirmations of the order an unavoidable cost increase of more than 15% take place, the Company informs the Customer immediately thereof. In the event of unavoidable cost increase of up to 15%, a separate notification is not required, and these costs can be invoiced without further ado.
(4) The Company provides the Customer in time with the complete information and documents which are required for the fulfilment of the service. The Company will inform the Customer about all circumstances relevant to the fulfilment of the contract, also when these only become known while executing the contract. The Customer shall bear the costs incurred as a result of work having to be repeated or delayed by the Company due to incorrect, incomplete, or subsequently changed information provided by the Customer.
(5) The Customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the contract for any copyrights, trademark rights, trademark rights or other third-party rights (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of merely slight negligence or after fulfilling its duty to warn, the Company shall not be liable – at least in the internal relationship with the Customer – for any infringement of such third-party rights by documents provided. If a claim is made against the Company by a third party due to such an infringement, the Customer shall indemnify and hold the Company harmless and support it in the defence against any third-party claims. The Customer shall provide the Company with all documents for this purpose without being requested to do so.
(6) Furthermore, the Customer is obliged to check the documents and plans provided for the execution of the contract, including the preliminary technical notes, in terms of correctness, expediency, completeness and conformity as well as all dimensions and measurements. The Customer shall indemnify and hold the Company harmless for any damage resulting from a lack of testing.
III. Delivery and terms of delivery
(1) Unless explicitly agreed otherwise in writing, the delivery period and dates are subject to change and non-binding. The delivery period begins with the legally effective conclusion of the respective contract, but not before all details concerning planning and execution have been fully clarified and not before an agreed advance payment has been made. In the event of a subsequent amendment to the respective contract, the Company shall be entitled to unilaterally reassess the delivery period and delivery date, even if a binding written commitment has been made.
(2) In the absence of any agreement to the contrary, the services are agreed to be ex works (warehouse) of the Company and for the account and at the risk of the Customer; this also applies to partial deliveries. If collection has been agreed, the risk shall be transferred as soon as the goods are made available for collection. If the Customer does not take over the goods as agreed, the risk shall pass to the Customer on the agreed date and the Customer shall be obliged to bear all costs for storage, whether with the Company or with third parties. The costs for storage amount to a maximum of EUR 250.- per day. If the goods are to be delivered by the Company to a specific location as a result of a separate agreement, the delivery there shall not be deemed carriage paid without further agreement. The Company is free in choosing the means of transportation. The risk shall pass to the Customer upon handover to the forwarding agent or carrier, irrespective of any later acceptance of the delivery by the Customer. Delivery and fulfilment of the delivery period shall take place in our core markets Austria, South Tyrol, Switzerland, Germany, France, Finland carriage paid to the named place of destination (CPT) in accordance with the version of the INCOTERMS by the International Chamber of Commerce in Paris valid on the day the contract is concluded. Unless expressly agreed otherwise in writing, delivery within Austria is free from a net order value of EUR 350.-, to Germany, Switzerland and South Tyrol from a net order value of EUR 750.-, to France from a net order value of EUR 500.-, and to Finland from a net order value of EUR 1000. For shipments below the aforementioned amount, the Customer shall bear the freight costs. The freight costs vary depending on the destination country and the ordering country. The Customer is informed of the exact amount in advance. The Company reserves the right to process deliveries by cash on delivery. In addition, the Company shall be entitled to charge the Customer a surcharge of 1% of the net value of the goods to cover any claims arising from concealed defects caused by transportation.
(3) If the performance of a contract is hindered by force majeure (e.g. strikes, major disruptions in operation and all circumstances that make delivery considerably more difficult or impossible) and if this cannot be remedied by the Company or can only be remedied in an economically unreasonable manner, the Company shall be released from its contractual obligations without the Customer being entitled to claim damages. The Company is entitled to conduct the delivery or service after the hindrance has ceased or to withdraw from the contract with regard to the part not yet fulfilled. In this case, the Customer may request the Company in writing to declare whether he wishes to withdraw from the contract or deliver within a reasonable period of time. If the Company does not respond within 14 days of receipt of the written request, the Customer may withdraw from the contract, waiving any claims for damages.
(4) If the Customer is absent on the notified delivery date or fails to make the necessary arrangements for the execution of the (partial) delivery, the service or delivery shall be deemed to have been accepted. Risk and costs are transferred to the Customer, if not already transferred earlier. If the Customer does not accept the contractual goods or services at the right place or at the right time, the Company may in any case either demand fulfilment or withdraw from the contract after setting a reasonable grace period; in this case, the Cus-tomer shall be liable for all damages occurred as a result.
(5) If the Company is responsible for the delay, the Customer may, after setting a reasonable grace period of at least 14 days in writing, either demand fulfilment or declare withdrawal from the contract. The declaration of cancellation must be made by the Customer in writing, imperatively and specifically when the grace period is set. Withdrawal from the contract shall only take effect if the Company also culpably fails to meet the grace period. Further claims, in particular claims for damages, are expressly excluded to the extent permitted by law.
(6) The Company shall be entitled, without incurring any consequences of default, to make compliance with delivery periods and deadlines dependent on the receipt of agreed advance payments, on the timely payment of outstanding receivables, on the clarification of any outstanding issues arising subsequently, on the fulfilment of all technical and spatial requirements and on the fulfilment of all other contractual obligations.
(7) In the absence of an explicit written agreement to the contrary, the Company is entitled to make partial and advance deliveries and to issue corresponding partial invoices for these.
(8) Obvious transport damages or defects must be reported by the Customer to the freight carrier and the Company immediately upon receipt of the delivery and confirmed by them. Transport damages or defects that were not recognisable in the packaged condition shall be reported to the freight carrier and the Company within three days of receipt of the goods, otherwise the processing of transport damage or defects via the Company is ruled out.
(9) If the Customer’s facilities are required for the installation of products (e.g. Wi-Fi, building services), the Customer must ensure that all services are made available in good time.
IV. Returns
Subject to the explicit written approval of the Company, returns require explicit prior written notification and can only be made within four weeks from the date of delivery/service. If the Company agrees, only faultless, technically up-to-date, and originally packaged goods will be taken back. Depending on the internal expenditure, the Customer will be charged at least 20 % of the value of the goods (at least EUR 10.00) for handling costs. Any transport costs incurred for returns of any kind shall be borne in full by the Customer. Reference is made to the judicial right of moderation pursuant to § 7 KSchG (Austrian Customer Protection Law)
V. Sample delivery
Samples can be made available for four weeks by arrangement. In the case of sample deliveries, the payment term shall be extended by the specified retention period. The delivery costs for the delivery and the return shall be borne by the Customer. Sample deliveries shall only be taken back and credited by the Company if they correspond in scope and quality to the original delivery, no mechanical assembly has been conducted and the goods show no signs of damage. Illuminants of all kinds are excluded from return.
VI. Payment conditions
(1) Prices (charges) are, unless agreed otherwise in writing, for the sales of goods of the Company shall apply ex works (warehouse) in Euro net plus the applicable statutory value added tax, including packaging but excluding freight costs, insurance, customs duties, fees, or other ancillary costs. Price increases due to increases in production costs (in particular material prices, wages, general overheads, etc.) between the conclusion of the contract and fulfilment shall be invoiced to the Customer and shall be borne by the Customer. Orders without price determinations shall be invoiced according to the Company’s usual prices applicable on the day of invoicing. Technical modifications or deviation of specifications of any kind shall be accepted by the Customer at the generally usual price, provided they do not oppose the Customer’s intended purpose.
(2) Payment including all ancillary charges (VAT etc.), unless otherwise agreed in writing, is due within 14 days of the invoice date without deduction and discount.
(3) Invoicing shall be conducted exclusively by electronic means.
(4) The Company is not obliged to accept cheques. Payments by cheque shall only be made in lieu of payment. All charges and bank commissions in connection with transfers of any kind shall be borne by the Customer. In the case of bank transfers and cheques, the date on which the amount is credited to the account, or the cheque is cashed shall be deemed to be the date of receipt of payment. In the event of default in payment, the statutory default interest plus reminder fees shall be agreed. In addition, if the amount owed is claimed in court, the discounts and other price reductions shall lapse, and the gross list prices shall be deemed to be owed.
(5) In the event of default on even a single (partial) payment, all invoices and claims shall be due immediately without the need for the Company to explicitly declare them due. The same applies in the event of a significant deterioration in the Customer’s financial circumstances. In this case, the Company is also entitled to withdraw from the contract after setting a reasonable grace period and to take back the goods delivered to the Customer, to demand that they be handed over or to withhold outstanding deliveries/services, including those relating to other orders.
(6) After a cancellation of the contract becomes effective, the Customer must immediately return the goods already delivered to the Company at their own expense without further request, pay compensation for any reduction in value and reimburse all the Company’s expenses in the course of the execution of the contract and its reversal. In the case of consumer transactions, this shall apply insofar as the Company has delivered the service in full, even if the Customer is only at least six weeks due, and if the Customer has been given a reminder setting a grace period of at least two weeks under threat of losing the deadline.
(7) The Customer waives the possibility of offsetting. This shall not apply towards Consumers in the event of the Company’s insolvency or for counterclaims that are legally related to the Company’s claims, that have been established by a court of law or have been recognised by the Company. In these cases, Consumers may have the possibility of offsetting. Incoming payments can be offset by the Company against the oldest delivery/service, irrespective of the dedication by the Customer.
(8) Insofar as this does not conflict with mandatory statutory provisions the Customer has no right of retention or lien on the Company’s goods.
(9) In the event that goods are to be delivered to a third country, the Company expressly reserves the right to subsequently charge the legally applicable VAT if the Customer does not fulfil his obligation to provide proper export documentation.
VII. Retention of title
(1) Until full and unconditional payment of all claims of the Company arising from a contract, including interest, costs, and expenses, and until full fulfilment of all other present and future financial obligations of the Customer in connection with the respective delivery/service the delivered goods shall remain the unrestricted property of the Company. The Customer shall, at their own expense and on their own initiative, take all steps and make all declarations which, depending on the situation of the item, are necessary to establish or maintain the retention of title.
(2) Selling or pledging of the reserved goods before complete fulfilment of all financial obligations is only permitted with the explicit written consent of the Company. Irrespective to the above, the Customer hereby irrevocably offers to assign all claims arising from the resale of these goods to the Company for the latter’s satisfaction in lieu of payment. The Company may accept this offer of assignment at any time without time limit. All related fees and costs shall be borne in full by the Customer.
(3) The Customer shall not be entitled to process or treat the delivered goods or to combine them with other items until all financial obligations have been met in full, failing which the Company is entitled to sole ownership of the items resulting from processing, treating, or combining them.
(4) In the event of seizure or other utilisation of the delivered goods, the Customer is obliged to inform the Company immediately and to take all measures to protect the Company’s right of ownership at the Customer’s own expense. If the reserved goods of title are segregated by the Company, the Company may store them at the Customer’s expense and risk. The Customer must reimburse the Company for all expenses occurring from the assertion of ownership.
(5) In the event of non-payment of a due claim of the Company, suspension of payment, the opening of insolvency proceedings or execution on reserved goods, the Customer must return all goods subject to retention of title to the Company.
VIII. Claims for damages
(1) The Company’s liability for damage to the Customer’s property is excluded for slight negligence. To the maximum extent permitted by law, the Company shall not be liable for the Customer’s loss of profit, impairment or loss of goodwill, impairment or loss of business opportunities, consequential loss of any kind, other economic loss, pure financial loss, loss of interest, loss arising from third-party claims against the Customer and/or other loss arising out of or in connection with individual supply contracts or with these GTC.
(2) In the event of gross negligence, the Company’s liability for damages shall be limited to ten times the net invoice amount of the delivered goods causing the damage.
(3) In the event of non-compliance with any of the Company’s conditions for installation, commissioning and use, any compensation shall be excluded.
(4) The Customer undertakes to transfer this exclusion of liability in favour of the Company to any purchasers. The Customer is obliged to inform their employees continuously and verifiably about all information and instructions that the Company supplies with their products, as well as about legal regulations. The Company’s liability is in any case limited to ten times the net invoice amount of the delivered goods that caused the damage.
IX. Claims and warranty
(1) In the event that in individual cases separate written agreements have been made or mandatory statutory provisions – in particular in the legal relationship with consumers within the meaning of the Austrian Consumer Protection Act of 8 March 1979, as amended – apply, the Company is obliged to provide a warranty in accordance with the following provisions of paragraphs 2 to 8. In the event mandatory statutory provisions are applicable, these shall apply; in the event of any other invalidity, point XIII. paragraph (4) of the General Terms and Conditions of Business and Delivery shall apply.
(2) The warranty period is six months from the transfer of risk; the warranty period for replacement parts and improvements is three months. Warranty claims shall become statute-barred at the latest within six months of a complaint being made in due time. For Consumers, the statutory provisions on the warranty period shall apply.
(3) Visible defects, missing parts as well as hidden defects must be reported in writing immediately after delivery and by means of ceasing immediately all internal and/or external processing by third parties, otherwise the warranty is excluded; expenses incurred by the Customer, of whatever kind, in connection with complaints shall in any case be borne exclusively by the Customer if no explicit written agreement has been reached with the Company regarding their amount and compensation before they arise. In the absence of a timely complaint, the goods shall be considered to have been accepted unconditionally, duly, and free of defects.
(4) In the event of a timely complaint, the Company is only obliged in their sole discretion to improve or replace the goods; the Company has a reasonable period of time, but at least one month, to do so. If the improvement or replacement means a disproportionate effort for the Company, they can also fulfil their warranty obligation by granting an appropriate price reduction; if the defect is not minor, the Company can demand cancellation of the contract (rescission). In the case of price reduction and rescission, the Company fulfils their obligations if they issue a corresponding credit note in the Customer’s favour in the amount of the Customer’s claim resulting from said reduction or rescission. If the Customer is not present at a date agreed for improvement for reasons for which he is responsible, or if he makes the improvement or replacement more difficult or impossible, this shall be deemed a waiver of the warranty claims.
(5) The costs occurring as a result of the above-described measures shall be borne by the Customer with the exception of shipping costs for spare parts or replacement goods (additional payment).
(6) The Company shall not be obliged to remedy defects as long as the Customer fails to fulfil their payment obligations, including any additional payment.
(7) In the event of fault, the Company shall only be liable for damages in the event of gross negligence or intent, but not in the event of slight negligence. In the event of compensation for damages, the above rules in accordance with paragraph 4 shall apply accordingly.
(8) The warranty by the Company is excluded if the goods have been used in an unusual manner, if the defect has been caused by the Customer or a third party or if the Customer or a third party has tampered with or repaired the goods. The warranty is excluded for consumables and wearing parts.
(9) The warranty expires automatically if a licensed electrical enterprise does not conduct the installation.
X. Protections of plans and documents / non-disclosure
(1) Plans, sketches, cost estimates and other documents such as brochures, catalogues, samples, presentations and similar remain the intellectual property of the Company. Any use, in particular passing on, reproducing, publishing, and making available the above-mentioned documents, including the copying of extracts, requires the explicit consent of the Company.
(2) All of the above-mentioned documents can be reclaimed at any time and must be returned immediately without further request if the contract is not concluded.
(3) The Customer shall further maintain confidentiality towards third parties with regard to the knowledge obtained from the business relationship.
XI. Documents
Documents (e.g. invoices, rejection of the order, etc.) sent to the Customer at the last known address or address shall be deemed to have been received by the Customer in any case, unless the Customer has notified the Company of a change of address in writing in good time. Should a document (invoice) nevertheless be amended, the Company will charge a flat-rate fee of EUR 25 net!
XII. Data protection
(1) In order to fulfil contracts, the Company processes and stores personal data automatically in compliance with data protection regulations. How the data is processed specifically is set out in the company’s privacy policy.
(2) Provisions on data protection can be found in the company’s privacy policy at: planlicht.com/data-protection/?lang=en
XIII. Choice of law, place of jurisdiction and severability clause
(1) A-6134 Vomp, Austria is hereby agreed to be the sole and exclusive place of performance of all deliveries/services per formed by either party and all payments made by either party.
(2) For all contracts concluded between the Company and the Customer and for all claims arising from the existence or non-existence of these contracts shall be governed by the law of the Republic of Austrian, with the exception of the provisions of Austrian international private law and the provisions of the UN Convention on Contracts for the International Sale of Goods.
(3) The exclusive place of jurisdiction for all legal disputes arising from the contractual relationship shall be the competent court for A-6134 Vomp, Austria; however, the Company shall have the right to bring legal action against the Customer at an alternative place of jurisdiction in Austria or abroad.
(4) If individual provisions of these General Terms and Conditions are invalid, the contracting parties hereby explicitly undertake to agree on legally valid provisions which come as close as possible to the economic purpose of the invalid provisions. The validity of all other provisions shall not be affected by the invalid provisions.