General Business Terms and Conditions for MK Illumination Handels-GmbH (hereinafter referred to as “MK”)
Should no other arrangements have been set out in writing, the following terms and conditions apply as regards the acceptance of orders and the handling thereof. Other terms and conditions from the client are only valid if MK has approved them in writing. MK is also not bound by those terms and conditions if express reference is made of this in the written order.
A contract can only be based on these General Business Terms and Conditions and alterations to these approved in writing by MK. The MK Terms and Conditions also prevail accordingly in cases where MK responds to an order based on other terms and conditions of the client and delivers some or all of the goods ordered.
The client is bound by his order until such time as he receives written confirmation of acceptance or refusal from MK. Once issued, orders cannot be retracted.
All prices given by MK are ex stock prices and exclude surcharges, packing and VAT. In the case of a delay in payment of over fourteen days or the commencement of insolvency proceedings, all special terms accorded over and above the standard prices (standard net price or gross price less standard discount) are forfeited and are subsequently debited from the account.
Unless other special agreements have been made, decisions regarding the delivery method are made by MK. MK has the right to undertake the part-shipment of orders.
The delivery is made from the main warehouse or distribution warehouse. Packing is charged at cost price. The goods are delivered at the client’s risk and expense.
The client assumes the risk liability for the goods at the latest when the goods are dispatched. This is also valid in the case of part-shipments or when other services are provided, e.g. when the goods are supplied and installed by MK. Should the delivery or receipt of the goods be delayed for reasons not attributable to MK, the client assumes the liability risk for the goods from the day on which the goods are ready for dispatch.
Returns not agreed in advance will not be accepted by MK and will be sent back at the risk and expense of the original sender. The sender takes cognisance of the fact that MK is not obliged to provide temporary storage for the goods. In the case of returns agreed between MK and the client, a 10% handling charge – of a minimum of EUR 3.63 is invoiced. Agreed returns are sent back at the risk and expense of the sender. In the case of returns not agreed by MK, MK can levy a storage charge of 0.25%o (per mille) per day.
Invoices from MK are payable net with no discount on receipt of goods. In the case of delayed payment, interest on arrears will be charged at a rate of 8% more than the bank interest paid by MK plus VAT.
Sales representatives and agents are not authorized to receive payments or goods etc on behalf of MK. This entails the existence of a specific collection authority or authorization. Anyone handing over cheques or monies to unauthorized representatives, even if this was general practice for MK, does so at his or her own risk. MK emphasizes that the bearer, who is acting here on behalf of the client, does not thereby have any legal mandate for the receipt of money. Similarly, any claims made on the basis of the non-receipt of credit notes for goods in these cases will also be discounted.
6. Bill of exchange
MK will only accept bills of exchange on the basis of an agreement made in advance: bills of exchange are regarded as payment and are only credited to the client’s account following the correct payment and settlement of all outstanding expenses.
7. Defects and warranty
The goods supplied must be tested according to the methods set out in § 377 HGB (commercial code) and any defects found must be noted in detail on the delivery note or bill of freight in order to exclude any contractual claims – in particular claims for damages. Should immediate testing not be possible on receipt, this must also be noted on the delivery note or bill of freight in order to exclude all contractual claims and the company must be notified in writing of any defects discovered during testing within four days of delivery.
Liability applies to manufacturing and material defects differing markedly from the technical standard. The warranty period is 6 months from the date of delivery of goods; after this period, any other claims, such as for damages, will also be excluded.
Should there be an actual defect, it is up to MK to fulfil the client’s warranty claims by upgrading or supplementing the faulty product, reducing the price or exchanging the faulty goods for functional goods, or taking back the goods and refunding the customer. The client has the right to reduce the price only if MK fails to fulfil the client’s warranty claims as set out above within a reasonable period of time.
MK may choose whether to remedy defects at the company’s premises or at the site where the goods were delivered. If the necessary services to remedy the defects are undertaken at the company’s premises, the client must return the goods to MK, correctly packed, at his own cost, as required by MK.
In case of a defect, the seller’s liability will be limited to the sales price of the defective part of the goods. Specifically, there will be no liability for reimbursement of expenses the purchaser (customer) incurred in connection with the seller’s remedying or exchanging of the goods. This will apply especially to any disassembly and re-installing of the products. Example: An installed rope light becomes partially defective due to a manufacturing or material defect to be warranted by the seller. The cost of disassembly and re-installing of the part of rope light affected by the defect cannot be claimed from the seller. His warranty and liability obligations will be completely satisfied by the delivery of a replacement for the part of rope light affected by the defect. No additional claims will be accepted.
MK has no liability for damages caused by the client or by a third party through any unusual external influences. MK is also released from any warranty liabilities if the products supplied by the company are altered or changed in any way by the customer or a third party.
The seller’s liability will be limited to cases caused intentionally or through gross negligence. This will also apply for consequential damage, unless reimbursement of such is not excluded already (such as for expenses listed above, occurring during the remedying of defects.)
The company assumes no liability for used products.
The client is responsible for familiarizing him-/herself with all regulations relevant to the use of the product and is contracted to ensure that all provisions are made to ensure that these regulations are observed in the installation and operation of the product.
Colour deviations in LED are possible.
8. Damage occurring during shipment
Any occurrence of damage must immediately be detailed in writing and sent to the carrier. Claims for damages may only be submitted on this basis. If MK has delivered the goods itself, the Allgemeine Österreichische Speditionsbedingungen (General Terms and Conditions for Austrian Freight Forwarding) apply, with particular reference to §§ 51 ff.
9. Items made to order
In the case that MK undertakes to make special items to order following drawings, samples or models provided by the client, the client assumes liability for ensuring that there is no infringement of the trademark rights of any third party and in this respect MK is indemnified by the client.
10. Reservation of proprietary rights
The goods remain the property of MK until payment in full of the purchasing price, including all interest and any related costs.
If the goods are sold on to a third party before payment in full of the purchasing price, the price at which the goods are sold on then becomes the price payable to MK. The customer is legally obliged to keep safe any profits made in this respect and to transfer them to MK immediately.
Should the goods be seized or confiscated, the customer is legally obliged to inform MK within three days and to provide MK with all information and support necessary to the enforcement of proprietary rights.
It is agreed that the proprietary rights of MK are maintained even when the delivered goods are combined and converted.
In cases of delay of payment, impending insolvency, reclamations to do with exchange and cheques, enforcement proceedings, or in cases where unsatisfactory information is provided regarding the ability of the client to make a payment and / or their financial situation, MK will request the return of any goods over which it has proprietary rights. The client may only keep the goods if the right to do this is recognized by MK or is ascertained via legal means.
11. Delivery date
The delivery dates stated by MK in order confirmations or in other business documents are only estimates and can therefore be adjusted. Compliance with the delivery date is dependent upon the prompt provision by the client of all documents, authorizations, clearance and compliance with the agreed payment terms and any other obligations. Should these conditions not be met in good time, the delivery date will be adjusted as appropriate. In the case of an alteration or addition to an order, the lead-time stated in the original order confirmation recommences from the date of the alteration or addition to the order.
Should special circumstances prevent the delivery of an order on time, the client may only withdraw from the contract once a six-week notice period, as set out in writing by the client, has elapsed. If a client withdraws from a contract, the client can make no claim for damages from MK.
Should there not be compliance with the request from MK for information regarding the client’s credit situation, or should the information provided not be satisfactory or should the statement of account suggest that a payment not be possible, MK has the right to fully or partially revoke its delivery obligations. In cases where delays in delivery are the client’s responsibility, MK has the right to invoice for storage costs as per point 4, paragraph 3. MK’s right to claim for damages in this connection remains unaffected.
12. Force Majeure
Should MK’s fulfilment of its contractual obligations be made impossible or be substantially complicated by forces beyond the control of MK, such as its component maker’s failure to supply goods or in the case of strikes and lockouts, the company can partially or fully revoke the contract. In this case, as in all others, the purchaser relinquishes his / her right to any legal claim on the basis of delayed or stopped delivery.
Once accepted by MK, the rescission of an order on the basis of error is ruled out.
For the purpose of securing his/her entire outstanding debt, purchaser will provide MK with a lien against the objects purchaser has transferred to MK. With this transfer, purchaser confirms that s/he is authorised to dispose of these objects.
15. Exclusion of Offset
As long as an open account has not been established, purchaser’s counterclaims may not be offset against MK claims without the express written consent of MK.
Some of MK’s designs are protected by registration; the representation of the products in catalogues and brochures, images provided, drawings, sketches and other documents are MK’s intellectual property. The documents listed above and any other documents made available in business transactions may not be used for any other purposes, and they may not be copied and made accessible to third parties without the written consent of MK. Upon request, they are to be returned immediately.
MK Illumination Handels GmbH may perpetually and irrevocably incorporate the customer‘s name and a description of the service provided for the customer into its reference list and use that information as well as pictures of customer’s light-installations with its products for advertising and presentation purposes in any fair manner whatsoever, including, without limitation, on the internet.
17. Partial Voidness
If individual clauses of these delivery and payment conditions should be or become void, the validity of the remaining conditions shall not be affected.
18. Applicable Law, Court of Jurisdiction, and Place of Fulfilment
Austrian law will apply; the application of CISG will be excluded.
Place of fulfilment of the contract is MK’s company seat.
Court of jurisdiction is the appropriate court in Innsbruck.
By placing an order or accepting a shipment, the purchaser is expressly acknowledging these General Terms and Conditions.