General Terms and Conditions of Business
1.1. These general terms and conditions of business form an integral part of every offer from the company in question, KIOTO Clear Energy AG, commercial register no. FN 100241 p (hereinafter referred to as KIOTO) and all sales contracts concluded with the company. Any general terms and conditions of business of any kind which contravene these terms and conditions of business are deemed to be invalid and legally ineffective.
1.2. Any deviations from these terms and conditions are only effective if expressly agreed in writing by the contractual parties.
2.1. The offers made by KIOTO are non-binding and are subject to technical modifications and developments. All technical documents remain the intellectual property of KIOTO; they may not be reproduced or forwarded to third parties without the express permission of KIOTO.
2.2. Public statements issued by KIOTO or an associated third party, in particular in advertising or in details provided with the goods, are only deemed to be contractual content if they have been included in writing as part of the offer or where the offer makes an express reference to this.
All prices are net prices ex works and exclude packaging, loading, installation, insurance and VAT, unless stated otherwise in writing. They are only list prices. If any increases arise in material costs or additional services or costs which are beyond the control of KIOTO between the signature of the contract and performance of the service by KIOTO, the costs involved will increase accordingly, except where the time from the placement of the order to the delivery is less than 3 months.
4. Delivery periods and dates
Unless a fixed deadline has been expressly agreed, delivery periods are non-binding. In the case of an agreed modification to the contract, KIOTO is entitled to establish a new delivery date. KIOTO accepts no responsibility for any delays to delivery caused by third party negligence. In these cases, the client is not permitted to withdraw from the purchase and claims for damages will not be accepted.
Unless agreed otherwise, the goods will only be supplied following cash-on-delivery or net payment in advance, without any discount.
KIOTO is entitled to refuse payment by cheque or bill of exchange without specifying a reason. In the event that cheques or bills of exchange are accepted by special agreement, this is on account of payment but not in lieu of the performance of this payment. Any collection and discount fees are to be borne by the client. Offsetting against counterclaims or withholding of payment for any reason whatsoever are not permitted without the express agreement of KIOTO. Payments must be made into a KIOTO account and have the effect of settling the debt. In the event of the payment deadline being exceeded, either through a default of acceptance or payment default, KIOTO is entitled to charge interest on arrears at the legally stated rate. In the case of such a delayed payment, the contractual partner is obliged to reimburse any reminder fees, intervention costs and legal costs in addition to the interest on arrears. Any warrantee claims issued by the contractual partner do not involve an entitlement to withhold agreed payments.
6. Default on payment
If the contractual partner defaults on a contractually agreed payment or part of such a payment by more than 14 days, KIOTO is entitled to request the immediate payment of the full purchase price (remaining invoice total). The rest of the outstanding sum also becomes due for payment following an unsuccessful garnishment in respect of the assets of the contractual partner, the compulsory auctioning off of property or entering into receivership or when the solvency and credit worthiness of the contractual partner is reduced in any way whatsoever.
7. Conditions of shipping and acceptance, exchange, reverse transactions
7.1. Following receipt of the goods at the agreed delivery location, the contractual partner is required to check and accept the goods or have the goods checked and accepted by an authorised representative. If the contractual partner explicitly or tacitly fails to check the goods, the objects of purchase are deemed to have been delivered and accepted in line with agreements. The shipping takes place at the expense and risk of the contractual partner. Once the goods ordered by the contractual partner have been handed over to the freight carrier (post, train, plane, ship or haulier), KIOTO is deemed to have fulfilled its contractual obligations and the risk is transferred to the contractual partner.
7.2. Any exchange or reverse transaction in spite of KIOTO properly fulfilling its obligations is only possible with the agreement of KIOTO. However, the costs relating to the return shipment are to be covered in full by the contractual partner (delivery costs, fees etc). If agreed by KIOTO, this may take the form of a lump sum to cover any regular costs anticipated, to total at least 15% of the order value. The goods must be returned to KIOTO in their original packaging and in perfect condition. Goods delivered more than 3 months ago cannot be exchanged. The exchange of special goods is also not permitted (no stock goods).
8. Reservation of proprietary rights
8.1. KIOTO reserves the right to retain ownership of all goods supplied by KIOTO until full payment of all obligations relating to the business relationship has been received. These goods may only be sold as part of the normal business process, so long as the contractual partner does not have any outstanding payment obligations to KIOTO.
8.2. In the event of items being re-sold, the following terms and conditions apply:
Upon signature of the contract, the contractual partner assigns any receivables resulting from sales to KIOTO and agrees to document this as appropriate in its records.
On the request of KIOTO, the contractual partner is obliged to inform the third party purchaser of any relevant receivables and to provide KIOTO with all documents and information relating to the enforcement of the debt in question.
If any goods delivered under retention of ownership or receivables assigned to KIOTO are seized, KIOTO must be informed of this including the provision of all details required for the enforcement or implementation of the claims.
8.3. Authorisation of the contractual partner to sell goods delivered under retention of ownership as part of the normal business transactions ends at the latest upon cessation of payments or when insolvency proceedings are instigated against the assets of the contractual partner. In this case, the contractual partner is obliged to return the goods delivered under retention of ownership at the first request of KIOTO.
8.4. The pledging or assignment as securities of the goods delivered under retention of ownership or any other such disposal of the assigned receivables is not permitted.
8.5. KIOTO must be informed immediately of any seizure of goods or other third party intervention, specifying the seizing creditor or intervening third party.
8.6. The contractual partner is obliged to send KIOTO a statement about any remaining available goods delivered under retention of ownership and a statement about any claims against third party debtors and credit notes, as soon as payments have been suspended.
Warranty periods start with the delivery of the goods to the contractual partner and acceptance of the goods by the contractual partner.
9.1. KIOTO offers a 2 year warranty covering any defective purchase items as follows:
The warranty shall be satisfied by the repair of the purchase item, the replacement of the defective parts, an exchange or a price reduction, as chosen by KIOTO. Exchanged goods are transferred back under the ownership of KIOTO. It is down to the discretion of KIOTO whether to exchange defective goods for similar fault-free items. In this case, claims for a termination of the contract agreement are not permitted.
9.2. The contractual partner expressly rules out any claims for direct or indirect damages (direct and consequential harm) or loss of profits against itself and its legal successors caused by a defect in the purchase item as a result of slight or gross negligence.
9.3. The special right of recourse of a company which has provided the consumer with a warranty (§ 933 b of the Austrian Civil Code or ABGB) is limited to a statutory warranty period (§ 933 ABGB). The pre-requisite for a right of recourse in accordance with § 933 b ABGB is the fulfilment of the fault notification requirements as specified in § 377 of the Austrian Company code (UGB). In the case of damages which can be traced to the improper or negligent handling of the purchase item by the contractual partner, no warranty is valid. Warranty claims are only valid if they are communicated in writing immediately after a fault has been identified – within 5 working days maximum. Only then is the right of recourse according to § 377 UGB guaranteed. Verbal or telephone-based agreements are not sufficient for the right of recourse to be awarded. In the event that a fault is not communicated in time, claims for compensation for consequential damages are not deemed to be valid. In the event of slight or gross negligence, § 377 Abs 5 UGB is not applicable; in this case, the contractual partner agrees to forgo any right to object.
10. Business transfer/ Objections
In the event of a transfer of the business of the contractual partner, KIOTO is opposed to the (automatic) transfer of the contractual relations to the buyer; a transfer of this nature requires a special agreement (in writing).
11. Place of performance and jurisdiction
11.1. The place of performance for both parties is the KIOTO headquarters.
11.2. The competent court in Klagenfurt has jurisdiction in any dispute arising directly or indirectly from a contract signed with KIOTO – including with regard to the legality of any events taking place within the scope of contractual relations.
11.3. Austrian law applies to all contractual relations, with the exception of the uniform UN trade law (UNCITRAL) and international private law.