General Terms and Conditions of Doris Scheriau | Telkon | Lederergasse 32, 9500 Villach | Austria (hereinafter referred to as Telkon). Valid for deliveries and services to entrepreneurs within the meaning of §1 UGB, as well as industry, trade, crafts, authorities, and liberal professions.
1. Scope
1.1. Deliveries and services by Telkon are exclusively subject to the following General Terms and Conditions and the provisions of the offers prepared by Telkon, unless otherwise agreed in writing. Reference is additionally made to the license terms of the manufacturers accompanying the contract products. These license terms form an integral part of the contract.
1.2. We do not recognize any conditions or declarations of the customer that contradict or deviate from the offer, the General Terms and Conditions, or the contract content proposed by Telkon, unless we have expressly agreed to their validity in writing. Only with express written consent from Telkon can deviating declarations of the customer become part of the contract. Amendments and additions to the contract require written form. Our general terms and conditions also apply if we carry out deliveries to the customer without reservation, even if we are aware of conflicting or deviating conditions of the customer. Promises and ancillary agreements require written confirmation from Telkon.
2. Deliveries and Services
2.1. Offers from Telkon are subject to change and non-binding and are subject to our suppliers’ self-delivery. The purchase contract is only concluded with our order confirmation or the delivery of the goods.
2.2. Telkon is entitled to withdraw from contracts if facts arise that indicate the customer is not creditworthy.
2.3. The customer is subject to reasonable technical and design deviations from information in brochures, catalogs, and written documents, as well as model, construction, and material changes in the course of technical progress and further development, without any rights being derived against Telkon.
2.4. Telkon expressly reserves the right to reasonable partial deliveries and their invoicing.
2.5. Agreed delivery dates are deemed to have been met if the contract product was handed over to the carrier by the agreed delivery date, unless otherwise expressly agreed in writing. If the dispatch of ready-for-shipment goods is delayed for reasons not attributable to Telkon, the contract products may be stored at the customer’s expense and risk.
2.6. The delivery date is agreed upon according to Telkon’s estimated performance capacity and is non-binding and subject to timely self-delivery and unforeseen circumstances and obstacles, regardless of whether these occur at Telkon or at the manufacturer, in particular force majeure, government measures, non-issuance of official permits, raw material shortages, unexcused late material deliveries, etc. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. Any grace period set by the customer in this case will also be extended by the duration of the unforeseen event. Should Telkon be delayed with a delivery by more than ten weeks, the customer may withdraw from the contract after a reasonable grace period set in writing, excluding further claims. A claim by the customer for damages due to delayed delivery is excluded; otherwise, liability is limited to the amount of foreseeable damage, but not more than 5% of the delivery value. Telkon reserves the right to withdraw from the contract if the delivery delay caused by one of the above-mentioned events lasts longer than ten weeks and is not caused by Telkon.
3. Postponement of Delivery Dates
3.1. The agreement on the postponement of delivery dates must be in writing. In case of default of acceptance, Telkon has the right, in addition to the claim for payment, to either determine a new delivery date or withdraw from the contract.
4. Inspection and Transfer of Risk
4.1 The customer must immediately check the goods upon receipt for completeness and conformity with the invoice. If a complaint is not made, the goods are deemed to have been delivered correctly and completely, unless it is a defect that was not recognizable during the inspection. Any transport damage or shortfalls must be reported to Telkon in writing (e.g., by email) within 2 working days. In case of later notification, any goodwill solution by Telkon is excluded.
4.2 Insignificant defects that do not impair the functionality of the delivery item do not entitle the customer to refuse acceptance.
4.3 The risk passes to the customer upon handover of the contract product to the carrier, its agent, or other persons designated by Telkon. Insofar as dispatch is delayed or becomes impossible through no fault of Telkon, the risk passes to the customer upon notification of readiness for dispatch. These provisions also apply to returns after defect rectification or paid service to the customer.
5. Prices and Payment Terms
The prices resulting from the offer are ex-warehouse. Value-added tax and other statutory duties in the country of delivery, as well as packaging, transport costs, transport insurance, and handling fees, will be charged to the customer according to the currently valid trade price list. Environmental protection-related expenses, as well as public and non-public fees and charges, such as in particular ARA and copyright levies and other comparable expenses, will be invoiced separately.
5.1. Telkon reserves the right to reasonably increase the price if cost increases occur after the conclusion of the contract – in particular due to price increases from suppliers or exchange rate fluctuations – at Telkon. We will prove these to the customer upon request.
5.2. Payments are due promptly after invoicing without any deduction. Invoicing takes place upon delivery. Telkon reserves the right to supply customers only against prepayment or cash on delivery. If payment deadlines are exceeded, Telkon is entitled to default interest of 5% above the current discount rate of the Austrian National Bank without further reminder. The right to assert further damages remains unaffected.
5.3. Telkon is entitled, despite differing provisions of the customer, to first offset payments against older debts. If costs and interest have already arisen due to default, Telkon is entitled to first offset the payment against the costs, then against the interest, and finally against the main services.
5.4. Offsetting or asserting a right of retention due to counterclaims not recognized by us or not legally established is excluded.
5.5. Insofar as the above payment conditions are deviated from without justified reason, Telkon may at any time demand delivery step by step against cash payment, advance payment, or security.
6. Retention of Title
6.1. The contract product remains the property of Telkon until all, including future, claims from this contract and beyond from the entire business relationship with the customer have been fulfilled.
6.2. The customer is revocably entitled to pass on the reserved goods in the ordinary course of business under retention of title, provided that he resells under his own retention of title, but not to pledge or assign as security in any form. In the event of third-party access to the reserved goods, the customer must point out Telkon’s ownership and inform Telkon immediately. The customer must clearly mark Telkon’s property.
6.3. In the event of combination, processing, or mixing of the reserved goods with goods not belonging to Telkon, Telkon acquires co-ownership proportionally to the invoice value of the reserved goods to the other goods.
6.4. In the event of default in payment, also from other and future deliveries or services from Telkon to customers, or in the event of financial collapse of the customer, Telkon may enter the customer’s business premises and take possession of the reserved goods to assert the retention of title.
6.5. The assertion of the retention of title or the seizure of the delivery item by Telkon is not considered a withdrawal from the contract.
6.6. The customer assigns his claims from the transfer of the reserved goods at the respective invoice value of the reserved goods to Telkon in advance at the time of the order. The customer remains entitled to collect even after the assignment. Telkon is nevertheless entitled to collect within the ordinary course of business, but will only make use of this right in the event of payment default or in the event of an application for the opening of insolvency or composition proceedings by the customer. At Telkon’s request, the customer will name the assigned claims, provide necessary information, hand over documents, and notify the debtors of the assignment. Telkon may disclose this assignment at any time to secure its payment claims.
6.7. The selection of the securities to be released is incumbent on Telkon. For the valuation of the securities, the net list price of Telkon valid at the time of the request for release is decisive for the reserved goods; for assigned claims, the net invoice amount minus a security discount of 30% is to be assumed. If the claims are those for which the customer’s buyer is already in default of payment or facts are known that give justified reason to assume that a default is to be feared, the discount is 50%. For securities existing only in the form of co-ownership due to connection, mixing, or processing, the net list price of the goods supplied by Telkon minus a discount of 30% is to be assumed.
6.8. Items supplied for testing and demonstration purposes remain the property of Telkon. They may only be used by the customer beyond the testing and demonstration purpose on the basis of a separate agreement with Telkon.
7. Warranty
7.1. The statutory provisions according to ABGB §§922ff apply. 7.2. The recourse according to §933b is expressly excluded.
7.3. Returns to Telkon must be sent free of charge. Unpaid packages will not be accepted. The costs of shipping after repair or exchange back to the customer will be borne by Telkon.
7.4. Since Telkon operates exclusively in the business-to-business sector (and therefore does not conclude consumer transactions), the KSchG (Consumer Protection Act) does not apply.
8. Manufacturer’s Warranty
If a manufacturer offers a warranty period for a product, defective products will be forwarded to the manufacturer after consultation between the buyer and Telkon. However, Telkon will not replace the defective parts in advance during this period. Any transport costs are to be borne by the customer. However, the manufacturer’s warranty cannot be enforced by the customer against Telkon.
9. Transport Damage / Shortages
Transport is generally at the recipient’s risk. Any transport damage or shortages must be reported to Telkon in writing within 2 working days. In case of later notification, any goodwill solution by Telkon is excluded.
10. Returns
Returns to Telkon must be sent free of charge. Unpaid packages will not be accepted. A description of the defect and the invoice must be enclosed with the defective product.
11. Repairs Subject to Charge
Repairs to be carried out directly by Telkon will be performed up to an amount of €100,- excl. VAT without prior consultation with the customer. If the repair costs exceed €100,- excl. VAT, the customer will be informed before the repair is carried out. If the customer wishes a defective part to be returned, this must be noted on the defect description.
12. Cost Estimates
The price for a Telkon technician is €120,- excl. VAT per hour. If the defective product has to be sent to the manufacturer or an authorized repair company, it will be forwarded for a cost estimate (incl. transport costs) up to an amount of €150,- excl. VAT without prior consultation with the customer.
13. Industrial Property Rights and Copyrights of Third Parties
13.1. Telkon assumes no liability that the contract products do not infringe any industrial property rights or copyrights of third parties. The customer must immediately inform Telkon of all claims raised against him on this ground.
13.2. Insofar as the delivered products have been manufactured according to the customer’s designs or instructions, the customer must indemnify Telkon against all claims asserted by third parties due to the infringement of industrial property rights and copyrights. Any litigation costs must be advanced appropriately.
14. Liability and further Warranty
14.1. Unless otherwise stated in these provisions, further claims of the customer – regardless of the legal grounds – are excluded. Telkon is therefore not liable for damages that did not occur to the delivery item itself; in particular, we are not liable for lost profits or other financial losses of the customer. The exclusion also applies in particular to claims due to fault at the conclusion of the contract, breach of ancillary duties, and product liability. We are not liable for incorrect information in brochures, catalogs, and other written documents.
14.2. This exclusion of liability does not apply if the cause of the damage is based on intent.
14.3. If we negligently breach an essential contractual obligation, our liability for property damage and personal injury is limited to the compensation provided by our liability insurance. The obligation to compensate is in any case limited to the foreseeable damage at the time the contract was concluded.
14.4. The above exclusions and limitations of liability do not apply to claims under the Product Liability Act or due to initial impossibility or impossibility for which we are responsible. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and vicarious agents.
15. Export and Import Permits
15.1. Products and technical know-how supplied by Telkon are intended for use and retention in the country of delivery agreed with the customer. The re-export of contract products – individually or in system-integrated form – requires the customer’s approval and is generally subject to the laws of the Republic of Austria or the other country of delivery agreed with the customer. The customer must independently inquire about these regulations with the relevant authority. Regardless of whether the customer specifies the final destination of the delivered contract products, it is the customer’s sole responsibility to obtain any necessary approval from the relevant authorities before exporting such products.
15.2. Any onward delivery of contract products by customers to third parties, with or without Telkon’s knowledge, simultaneously requires the transfer of the export permit conditions. The customer is liable to Telkon for proper compliance with these conditions. Embargo provisions imposed by international agreements or international organizations must be strictly observed.
16. EU Import VAT
16.1. Insofar as the customer is based outside Austria, he is obliged to comply with the regulations regarding the import VAT of the European Union. This includes, in particular, the disclosure of the VAT identification number to Telkon without a separate request. The customer is obliged to provide Telkon with the necessary information regarding his status as an entrepreneur, regarding the use and transport of the delivered goods, and regarding the statistical reporting obligation upon request.
16.2. The customer is obliged to reimburse any expenses – in particular a processing fee – incurred by Telkon due to incomplete or incorrect information from the customer regarding import VAT.
16.3. Any liability of Telkon arising from the consequences of the customer’s information regarding import VAT or the relevant data thereof is excluded, unless Telkon is guilty of intent or gross negligence.
17. General Provisions
17.1. The customer is not entitled to assign their claims under the contract.
17.2. If, in the event of an unauthorized withdrawal, we nevertheless accept the customer’s withdrawal, the customer will be charged a cancellation fee amounting to 30% of the net value of the goods or services, plus any sales tax applicable to the cancellation fee.
17.3. The place of performance and jurisdiction for customers is Klagenfurt. However, Telkon is entitled to sue the customer at any other legal place of jurisdiction.
17.4. The law of the Republic of Austria applies. The Vienna UN Convention “UNCITRAL” on the international sale of goods is excluded.
17.5. Order processing is carried out within Telkon using automatic data processing. The customer hereby gives their express consent to the processing of data that has become known within the scope of contractual relationships and is necessary for order processing by Telkon. The customer also agrees that Telkon may use the data received from the business relationship with them, in accordance with the Data Protection Act, for Telkon’s business purposes, including within the corporate group.
17.6. Should one or more provisions of these General Terms and Conditions be or become invalid, or should this contract text contain a loophole, the contracting parties shall replace or supplement the invalid or incomplete provision with appropriate regulations that largely correspond to the economic purpose of the intended regulation. The validity of the remaining provisions remains unaffected.
