General Terms and Conditions (AGB)
Valid in the currently published version!
The General Terms and Conditions apply at the time of the respective business transaction, downloadable in the respective published version on this website.
Version from 13.12.2021
Provider: JAKO Messtechnik GmbH (hereinafter referred to as “Provider”) Company register number: 124244 m
Commercial Register Court: Commercial Register of the Commercial Court of Vienna Address: Lamezanstraße 14, 1230 Vienna
Fax: +43 1 6152544 E-Mail: office@jako.at
Offer, conclusion and content of the contract, minimum order value
The following General Terms and Conditions (GTC) apply to all present and future deliveries and services of JAKO Messtechnik GmbH, even if no express reference is made to them. Any deviating terms and conditions of business or purchase of the customer shall only apply with our written consent. Persons who place orders or deliver or collect goods for processing shall be deemed to be authorized to accept our General Terms and Conditions on behalf of the customer and to make reservations in this respect.
Our offers are subject to change unless they are expressly designated as binding.
A contract shall only be concluded with legal effect by means of a written order confirmation from us. Partial deliveries are permissible.
The minimum order value is EUR 150.00 net. If this minimum order value is not reached, EUR 150.00 net will be invoiced and the difference to the value of the goods will be shown separately on the invoice.
Our employees are not authorized to make agreements that deviate from our GTC or list prices. Agreements in this respect require our written confirmation.
In the case of custom-made products, deviations from the ordered quantity of up to +/-10% are accepted and paid for by the customer without prior notification.
Details in catalogs, brochures, etc. are non-binding and only become part of the contract if they are expressly referred to in the order confirmation.
The content of our order confirmations must be checked by the recipient and obliges him to immediately notify us of any deviations from the message sent by him, otherwise the transaction will be concluded with the content confirmed by us.
Prices, costs
All prices are subject to change and – unless otherwise stated – are in euros and exclude VAT. All transportation and packaging costs, freight and insurance charges, customs duties, fees and charges shall be borne by the customer.
For deliveries within Austria up to a gross delivery weight of 30 kg, packaging, transportation and handling costs will be charged at a flat rate of EUR 25.00.
The statutory value added tax will be charged additionally at the applicable rate. Any fees are to be paid by the customer. The prices quoted are “ex works” or “ex works” INCOTERMS 2020″ and do not include the costs of transportation, assembly or installation.
Cost increases for which we are not responsible and which occur in particular during the ongoing processing of orders (framework agreements), such as increases in material prices, collectively agreed wage increases, tariff or cost increases for energy costs, shall entitle us to a reasonable price increase that is reasonable and comprehensible for the customer. If no agreement is reached with the customer on the price increase, we shall be entitled, at our own discretion, to withdraw from the fulfillment of the current order with immediate effect or to deliver the remaining quantity against advance payment as a one-off delivery at the last valid price.
Estimates for services are subject to a charge and are non-binding unless otherwise agreed.
Terms of payment, prohibition of compensation
Our invoices are due for payment within 10 days of invoicing, free of charges and deductions. Bank transfers shall only be deemed as payment upon receipt of the amount in our account. Bills of exchange or checks shall only be accepted after written agreement, only on account of payment and shall exclude any discount deduction. Discount interest and all bank charges shall be borne exclusively by the customer.
If the customer is in default of payment, we shall be entitled, at our discretion, to demand compensation for the damage actually incurred or default interest at the statutory rate. For companies, this is 9.2% pa above the base interest rate. We are also entitled to demand compound interest in the event of default of payment by the customer from the date of delivery of the goods. In the event of default of payment, the customer undertakes to reimburse us for the dunning and collection expenses incurred by us, insofar as they are necessary for appropriate legal prosecution. This shall in any case include a lump sum of EUR 40.00 as compensation for collection costs in accordance with § 458 UGB. The assertion of further rights and claims shall remain unaffected. If the customer is in arrears with a (partial) payment, we are entitled to collect outstanding but not yet due
to demand immediate payment of invoice amounts and/or advance payment or provision of security for future deliveries and services.
Offsetting against counterclaims of the customer that are disputed by us and have not been legally established is excluded, as is the exercise of a right of retention without a legally binding title or on the basis of claims from other legal transactions.
Delivery time, delay in delivery, impossibility, delay in acceptance
We are only obliged to perform the service as soon as the customer has fulfilled all his obligations required for delivery (e.g. receipt of the agreed down payment). We shall adhere to the delivery deadlines and dates as far as possible. Unless expressly agreed as binding, they are non-binding and are always to be understood as the expected time of provision and handover to the customer. Withdrawal from the contract by the customer due to delay in delivery is only possible by setting a reasonable – at least 4-week – grace period. Withdrawal must be declared by registered letter. The right of withdrawal only applies to the part of the delivery or service for which there is a delay.
The delivery deadline shall be deemed to have been met if the delivery item has left our factory or, in the case of direct deliveries, the factory of the upstream supplier, or readiness for dispatch has been notified by the time the deadline expires. Subsequent requests for changes and additions by the customer shall extend the delivery period accordingly. The same shall apply in the event of unforeseen obstacles that lie outside our sphere and/or that of our suppliers, such as force majeure, strike, lockout, delays in the delivery of essential raw materials, materials or parts.
Claims for compensation by the customer are excluded in all cases of delayed or non-executed delivery, even after expiry of the grace period, except in cases of intent or gross negligence.
If delivery is not possible as a result of delivery difficulties and/or price increases at our suppliers or at the producer, we are entitled to withdraw from the contract without any obligation to pay compensation.
Our liability for damages caused by delay shall be limited to 0.5% of the value of the delayed delivery, up to a maximum of 5% of the value of the part of the delivery that was not delivered on time.
Goods not accepted by the agreed delivery date shall be stored for a maximum period of 6 weeks at the customer’s risk and expense. The storage fees shall be borne by the customer. At the same time, we shall be entitled either to insist on fulfillment of the contract or to withdraw from the contract after setting a reasonable grace period and to utilize the goods elsewhere. In the event of utilization, a contractual penalty of 50% of the invoice amount (excluding VAT) shall be deemed agreed.
Delivery, dispatch, transfer of risk, insurance, packaging
Unless otherwise agreed in writing, the goods shall be delivered from our registered office in 1230 Vienna, Lamezanstraße 14. The customer is obliged to accept our deliveries and services. We deliver uninsured. The risk shall pass to the customer as soon as the delivery item has been handed over to the forwarding agent or other shipping person, in the event of default of acceptance by the customer from the time of readiness for shipment. This shall also apply if partial deliveries are made or if we have assumed other services. In the absence of an express agreement to the contrary, the goods are deemed to be sold “ex works” INCOTERMS 2020.
Drop shipments or direct deliveries with different delivery and billing addresses shall only be made at the express request and risk of the customer, with the disclosure of a named contact person including telephone number. This information will be provided by us to the delivery company. However, we do not guarantee that the delivery service will actually contact the contact person prior to delivery, that the contact person will be reached by telephone or that the delivery will be made to the contact person in person. In the case of drop shipments and direct deliveries, the transfer of risk is exclusively “ex works” INCOTERMS 2020.
Retention of title, assignment of claims
We reserve title to the delivered goods until the purchase price has been paid in full. The customer shall bear the entire risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.
In the event that the goods are processed or combined with third-party items, our ownership shall extend to the new item. The customer is 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 us all claims and security interests to which he is entitled from the resale on account of payment. He is obliged to note this assignment in his books. In the event of the customer’s default in payment, we shall be entitled to inform the resellers of the goods, whom the customer must notify to us, of the assignment and to demand payment to us.
Any pledging or transfer by way of security of our goods delivered subject to retention of title in favor of third parties is not permitted without our consent. The customer must notify us immediately of any seizure by third parties. Recognition of the balance shall not affect the reservation of title, nor shall the surrender of bills of exchange or checks until they have been correctly and actually honored. If we have to make use of our retention of title and take back the goods, the credit note for the goods taken back on the basis of the retention of title shall be issued taking into account a price reduction appropriate to the storage period, wear and tear and other circumstances,
but at least 30% of the invoice value. The customer undertakes to notify us before filing for insolvency proceedings so that we can take over goods delivered and owned by us subject to retention of title.
In the event of default of payment, we shall be entitled to seize the goods, whereby this shall not cancel the customer’s obligations under the purchase contract, in particular with regard to payment. In the event of seizure of goods subject to our retention of title, the customer must inform us immediately in detail; likewise, segregation of our goods due to imminent insolvency charges on the goods during the existence of the retention of title is not permitted. The goods delivered subject to retention of title shall be properly stored and adequately insured against all risks foreseeable in the ordinary course of business.
Notice of defects, warranty, compensation, product liability, secondary obligations
Defects must be reported in writing immediately after receipt of the delivery and service, at the latest within 4 days, hidden defects within 3 days of discovery. The complaint must be sufficiently substantiated and supported by evidence.
The warranty period shall be a maximum of 6 months from the date of delivery. The existence of defects must be proven by the contractual partner. § Section 924 ABGB and Section 933b ABGB shall not apply.
Minor technical changes and deviations from drawings and catalogs (e.g. design changes, other materials, other types of construction) shall be deemed approved in advance.
In the event of justified defects, the warranty shall be limited at our discretion to improvement, replacement, supplementation of the missing items or commercial compensation by issuing a credit note. Several improvements and replacement deliveries are permissible. Conversion claims are excluded. The warranty shall lapse if the customer or a third party not authorized by us has made changes or repairs to the goods. The improvement of a defect claimed by the customer does not constitute an acknowledgement of a warranty defect.
The customer must deliver the goods to us and collect them from us at his own expense and risk in order to perform the warranty services.
We are not liable for damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage. www.jako.at for download. The customer is obliged to consult the relevant data sheet before reselling, planning, building, assembling, connecting, installing, commissioning, operating and maintaining our products in order to be able to make a qualified decision on the suitability of the respective product for the intended use. If, in exceptional cases, a data sheet is not available for download, it must be requested from us.
There shall be no warranty claims for defects due to natural wear and tear, in particular in the case of wearing parts, improper handling, assembly, use or storage or improperly carried out modifications or repairs to the products by the customer or third parties. The same applies to defects which are attributable to the customer, in particular if the defect is due to chemical, physical or thermal influences which are unusual and of which the customer has not informed us in writing.
No warranty, guarantee or liability of any kind whatsoever shall be assumed for rejects and batch goods delivered at a reduced price or as agreed.
If the order confirmation contains a guarantee promise (this is in any case only a “non-genuine guarantee contract”), this does not under any circumstances include wearing parts (such as seals etc.), damage caused by unsuitable or improper use, natural wear and tear or incorrect or negligent handling or storage. The guarantee promise is to be understood in such a way that we are liable for defects (with the exception of the cases listed above) that occur within the agreed guarantee period after handover and are claimed within this period.
Insofar as this does not violate mandatory law and unless otherwise stipulated in these terms and conditions, we shall only be liable for compensation for damages caused by gross negligence or willful misconduct. However, this limitation of liability does not apply to compensation for personal injury. We shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, consequential damage and financial loss and damage arising from third-party claims. In the event of gross negligence, our liability shall be limited to the amount of the delivery of the goods, up to a maximum of the amount covered by our insurance.
Liability for property damage and personal injury based on the Product Liability Act is excluded. The customer undertakes to transfer this exclusion of liability to its customers. Customers who resell our products also undertake to take out and maintain appropriate insurance for product liability claims and to indemnify and hold us harmless in respect of any recourse claims.
If and to the extent that the customer can claim insurance benefits for damages for which we are liable through his own insurance or insurance taken out in his favor, e.g. liability, comprehensive, transport, fire, business interruption insurance, the customer undertakes to claim the insurance benefit and our liability is limited only to the disadvantages incurred by the customer.
Intellectual property
Patent rights, copyrights and other property rights embodied in the service provided by us shall not be transferred to the customer. www.jako.at and may not be reproduced in whole or in part or made accessible to third parties. All documents, samples, offers, brands or trademarks not made publicly accessible are to be treated confidentially and may only be passed on to third parties with our written consent.
Electronic business transactions
Orders or other legal declarations by the customer can be validly sent using our electronic forms and by e-mail, but must be received by us without error in order to be valid. Transmission errors – regardless of the cause – shall be borne by the customer.
We reserve the right to immediately revoke the validity of individual or time-specific legal declarations due to a malfunction of our data processing system by appropriate means (individual message, announcement on our website) and to make or request the renewed, valid transmission of the same.
Legal validity, place of performance, applicable law, place of jurisdiction
The place of performance is our business address.
Austrian law shall apply exclusively, excluding the conflict of law rules of private international law (e.g. IPRG, Rome I Regulation, etc.) and the UN Convention on Contracts for the International Sale of Goods.
The exclusive local jurisdiction of the court having subject-matter jurisdiction for 1230 Vienna shall be the place of jurisdiction.
Should provisions of these GTC be legally ineffective, invalid and/or void or become so in the course of their term, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the legally ineffective, invalid and/or void provision (which has become legally ineffective, invalid and/or void) shall be replaced by a provision which is legally effective and valid and which corresponds in its economic effect to the replaced provision – as far as possible and legally permissible.
Data protection
The Provider and the Customer are obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.
The provider processes the personal data required for the purpose of fulfilling the contract. www.jako.at.
The customer is obliged to take all necessary data protection measures, in particular those within the meaning of the GDPR (e.g. obtaining the declaration of consent of the data subjects), so that the provider may process the personal data for the purpose of the contractual relationship.
