General Terms and
Sale and Delivery of Pongratz Trailer-Group GmbH
– Consumer –
1. Scope of application
1.1 All consulting services and other services, conclusions of agreement and other declarations made in connection with legal transactions as well as offers, purchase and delivery transactions made by Pongratz Trailer-Group GmbH (hereinafter referred to as “Seller”) with contractual partners (hereinafter referred to as “Purchaser” or “Consumer”) shall be subject to these General Terms and Conditions of Sale and Delivery (hereinafter referred to as “Terms of Sale and Delivery”).
1.2 Purchasers shall be consumers as defined in the Austrian Consumer Protection Law and hence individuals that are not entrepreneurs.
1.3 These Terms of Sale and Delivery shall apply to all agreements regarding goods and services to be introduced by the Seller – irrespective of whether these goods are produced by the Seller or by the Seller’s suppliers.
1.4 The Terms of Sale and Delivery applicable at the time of conclusion of the agreement with the Seller shall apply. They can be downloaded here and form an integral part of the agreement.
2.1 All details, descriptions, figures and designs as well as technical data such as measurements and declarations of weight shall be approximate values – irrespective of the medium where they were published (homepage, brochures, price lists, advertisements, etc.). Exempted herefrom shall be those binding details that are provided in the order confirmation.
2.2 The price lists, offers and quotations published by the Seller shall be non-binding and shall not constitute an offer in the legal sense.
2.3 The Seller shall not be allowed to correct any obvious mistakes or errors in price quotes, terms of payment and delivery, goods or descriptions of goods subsequently without any legal consequences.
2.4 The Seller expressly reserves the right to make minor changes to the goods in terms of form and/or construction, provided that the item of delivery and its physical appearance and functionality are not changed substantially and the changes are objectively justified.
3. Conclusion of agreement
3.1 By placing an order, the Purchaser declares to accept the purchase offer with binding effect. When placing an order electronically, the Purchaser makes his/her purchase offer regarding the goods contained in the basket of goods by clicking the “Buy subject to charge” button. The Purchaser shall be bound by his/her purchase offer for a period of two weeks.
3.2 If the goods are ordered electronically, the Seller shall confirm receipt of the Purchaser’s order without delay. The confirmation of receipt does not constitute any binding acceptance of the purchase offer. The confirmation of receipt shall be deemed a declaration of acceptance only if this is explicitly declared by the Seller.
3.3 All declarations forwarded electronically shall be deemed received at the time they can be retrieved by the addressee.
3.4 The Seller shall be entitled to accept the purchase offer binding for the Purchaser or to reject it without providing any reasons.
3.5 The agreement shall be deemed concluded if the Seller accepts the Purchaser’s offer in writing.
3.6 Acceptance shall be made in the form of a written order confirmation by the Seller. Emails shall be deemed to meet the written form requirement as well.
3.7 If the Purchaser orders goods electronically, the text of the agreement shall be saved by the Seller and sent to the Purchaser by email after conclusion of the agreement by way of order confirmation.
4. Prices and costs
4.1 Unless agreed otherwise in writing, all prices indicated by the Seller in the applicable price lists and programmes shall be non-binding and ex works exclusive of freight charges, postage, insurance costs, packaging and other delivery charges, including statutory VAT applicable at the time of invoicing.
4.2 The prices agreed upon by the Seller and the Consumer in accordance with the order confirmation by the Seller shall apply.
4.3 Generally, price quotations shall not be regarded as lump-sum prices, unless a price is explicitly referred to as a lump-sum price. Services ordered by the Purchaser and not covered by the original order shall be set off on the basis of the material cost actually incurred and the amount of time needed.
4.4 In the case of subsequent orders, the Seller shall not be bound by the prices previously agreed.
5. Terms of payment, interests, and prohibition of offsetting
5.1 All payments to the Seller must be made in euros only.
5.2 The Purchaser can choose one of the following payment methods to pay the outstanding invoice amount: cash payment at the time of the goods’ collection, advance payment by wire transfer (in all cases of custom-made goods), payment by credit or debit card. If the Purchaser orders the goods electronically, the following payment methods are available: instant payment, payment by credit card and payment by PayPal.
5.3 The Purchaser shall have a right of offset only if the Seller becomes insolvent and with respect to any claims that are legally related to the Purchaser’s liability and that have been recognised by declaratory judgement or recognised by the Seller.
5.4 All payments shall have the effect of discharging an obligation only if made directly to the Seller.
5.5 Any periods granted for payment and any other agreed payment terms for the benefit of the Purchaser shall be deemed to have been agreed only if the Customer fulfils all of his/her contractual obligations.
6.1 Any periods quoted for delivery shall be approximate and non-binding.
6.2 Generally, the agreed delivery dates shall be deemed binding if they are included in the order confirmation. However, any irrelevant or minor deviations from the intended delivery dates shall be deemed expressly approved by the Purchaser.
6.3 The delivery period shall start on the date of the order confirmation. If the Purchaser has to provide the documents required for production (e.g. measurements, plans, etc.), the delivery period shall start on the date of receipt of the required documents by the Seller.
6.4 The delivery period shall be suspended as long as the Consumer is in delay with payment due under the agreement.
6.5 Unless agreed otherwise between the Purchaser and the Seller, delivery shall be effected ex works with the risk being transferred to the Purchaser at the same time. Delivery shall be deemed accepted when the goods are made available.
6.6 If any delay in delivery is due to the Seller’s fault, the Purchaser can either demand performance of the agreement or rescind the agreement after sending a reminder notice including an appropriate grace period to the Seller.
6.7 Any events of force majeure shall entitle the Seller to postpone delivery by the period of obstruction and a reasonable start-up period or to rescind the agreement in whole or in part with respect to the part of the agreement that has not been fulfilled yet, provided that the Purchaser has an interest in partial performance of the agreement. Strikes, lock-outs or unforeseeable and unavoidable circumstances such as operational disruptions which are beyond the Seller’s control and which make it impossible for the Seller to effect timely delivery despite making reasonable efforts shall be equivalent to events of force majeure. This shall also apply if the above obstructions occur during the Seller’s delay.
6.8 If the Purchaser is in delay in acceptance or if delivery is delayed for any other reasons the Purchaser is responsible for, the risk of accidental destruction of the purchase item shall pass to the Purchaser. The Purchaser shall be liable for compensation of any resulting damage including additional expenditures (e.g. storage cost), at the Seller’s request. The Seller’s right to make the delivery become due for payment or to rescind the agreement and set an appropriate grace period shall remain unaffected thereby.
7. Delivery of goods, transfer of title
7.1 Delivery of goods shall be effected by collection of the goods by the Purchaser himself/herself or by shipment. In case of delivery by shipment, the goods shall be delivered by a parcel service or a forwarding company presented by the Seller. Delivery of the goods shall always be effected at the Purchaser’s expense.
7.2 In case of shipping the goods, the risk of loss or damage to the goods shall not pass to the Purchaser until the goods are delivered to the Purchaser or any third party other than the carrier that has been specified by the Purchaser.
7.3 The Seller shall not be obliged to insure delivery against potential risks. If the Purchaser wants an insurance, he/she shall be responsible for taking out such an insurance and shall bear all costs associated with this insurance.
8. Retention of title
8.1 The Seller shall retain the title to the goods made available until full payment of the purchase price by the Purchaser (hereinafter referred to as “goods subject to retention of title“).
8.2 If the goods are delivered to the Purchaser before full payment of the purchase price, the Seller shall retain the title to the goods until payment of all claims resulting from the business relationship with the Purchaser.
8.3 It is by no means allowed to change, process or rent out the goods subject to retention of title before full payment.
8.4 In the event that the Purchaser changes or processes the goods subject to retention of title contrary to the provisions of Article 8.3, the Seller shall remain the sole owner of the goods subject to retention of title, and the Purchaser shall be entitled to claim damages.
8.5 The goods subject to retention of title can neither be pledged to any third party nor assigned as collateral. If the goods subject to retention of title are pledged or confiscated by any third party nonetheless, the Seller must be notified accordingly without delay. The resulting costs shall always be borne by the Purchaser, unless they must be borne by a third party.
8.6 The Purchaser shall always be obliged to treat the contractual goods carefully as long as title to the goods has not yet passed to him/her. In the case of high-quality goods, the Purchaser shall be obliged to ensure that the goods are properly insured at their replacement value and, for safety’s sake, shall assign any future claims for reimbursement to the Seller; the Seller shall accept this assignment.
8.7 The Purchaser shall not be allowed to resell the goods subject to retention of title. In the event that the Purchaser resells the goods subject to retention of title nonetheless, he/she shall hereby assign to the Seller the claims arising from the resale as well as any other justified claims against the recipient of the goods including all ancillary rights until fulfilment of the Seller’s claims. The Purchaser shall undertake to make a respective note in his/her books and on his/her invoices and to furnish proof that he/she has notified the recipient of the goods of the assignment. The Seller shall hereby accept the assignment.
8.8 The Purchaser shall be obliged, at the Seller’s request, to provide the Seller with all information and to submit to the Seller all documents required to assert the Seller’s rights against the recipient of the goods.
8.9 If the Seller makes use of his/her right of retention of title and takes back the goods subject to retention of title in accordance with the above-mentioned provisions, he/her shall be entitled to sell the goods in the open market or to have them sold at auction. The goods subject to retention of title shall be taken back at the proceeds generated, but only at a price that does not exceed the price agreed with the contractual partner. Any further claims for damages or loss of profit shall be expressly reserved.
The statutory warranty provisions shall apply.
10.1 The Seller shall be liable only for intentional or gross negligence except for bodily injury. This does not include any potential violation of primary contractual obligations.
10.2 The Consumer shall be obliged to provide all contractual documents in good time to enable the Seller to comply with the delivery periods.
10.3 The Seller’s liability for damages incurred by improper treatment or storage, overuse, non-compliance with the operating instructions, improper assembly by the Purchaser or the Purchaser’s assistants, improper initial operation, improper maintenance and servicing by the Purchaser or any third party not authorised by the Seller, or fair wear and tear shall be excluded.
10.4 In case of rescission of the agreement by the Purchaser in accordance with Article 11, he/she shall pay to the Seller a compensation for the decrease in the goods’ market value if the loss of value is due to any use of the goods that is not required to check the quality, the characteristics and the functioning of the goods.
11. Purchaser’s right of rescission
11.1 The Purchaser shall be entitled to rescind an agreement within two weeks without providing any reasons in accordance with § 11 of the Austrian Distance Selling Act (FAGG). With service agreements, the rescission period begins on the day the agreement is concluded. With purchase agreements, the rescission period begins on the day the Purchaser or any third party specified by the Purchaser and not acting as a carrier has acquired possession of the goods. If the goods are delivered by way of several partial deliveries, the rescission period begins on the day the Purchaser or any third party specified by the Purchaser and not acting as a carrier has acquired possession of the last partial delivery received.
11.2 The declaration of rescission must be made by way of a clearly communicated declaration vis-à-vis the Seller and shall not be subject to any form requirement. The Purchaser can use the declaration of revocation made available on the Seller’s homepage and transmitted to the Purchaser by email. The rescission period shall be deemed complied with if the declaration of rescission is sent off within this period.
11.3 If the Purchaser makes use of his/her right of rescission, the Seller shall reimburse all payments made by the Purchaser, including the delivery costs, without delay, but no later than within two weeks from receipt of the declaration of rescission and not until receipt of the goods or until the Purchaser has furnished evidence that he/she has returned the goods. To reimburse payment, the Seller must use the same payment method as used by the Purchaser for payment, unless expressly agreed otherwise between the Purchaser and the Seller. If the Purchaser has not used a low-price standard delivery method but instead a delivery method that is not customary in the market, he/she shall not be entitled to any reimbursement of the additional expenses incurred by him/her.
11.4 The Purchaser shall be obliged to return the goods received without delay, but no later than within two weeks from the day he/she made the declaration of rescission vis-à-vis the Seller. The rescission period shall be deemed complied with if the goods are sent off within this period. The costs of returning the goods shall be borne by the Purchaser.
11.5 The Seller shall be entitled to refuse repayment until he/she has received the goods or until the Purchaser has furnished evidence that he/she has returned the goods.
11.6 If the Purchaser rescinds a service agreement after he/she has expressly demanded before expiry of the rescission period that the Seller start performing the agreement and after the Seller has started performing the agreement subsequently, the Purchaser shall pay to the Seller an amount that, compared to the contractually agreed total price, is equivalent to the services rendered by the Seller until rescission.
11.7 In case of services specifically rendered for the Purchaser, the Purchaser shall have no right of rescission. The Purchaser’s right of rescission shall also be excluded if the Seller had started rendering the service before expiry of the rescission period pursuant to Article 11.1 and if the service had been fully rendered subsequently, provided that this has been expressly demanded by the Purchaser and given that the Purchaser has confirmed he/she is aware of losing his/her right of rescission in case of complete performance of the agreement.
12. Seller’s right of rescission
12.1 If the Consumer fails to meet his/her contractual obligations, the Seller shall be entitled to rescind the agreement and set an appropriate grace period. If the rescission is due to the Consumer’s fault, the Consumer shall reimburse the Seller for all costs already incurred by him/her.
12.2 The Seller shall also be entitled to rescind the agreement prematurely for good cause without any notice period, in particular if
– the Purchaser is already in delay with the fulfilment of his/her contractual obligations for a period of at least six weeks despite having been granted an appropriate grace period including the threat of dissolution of the agreement;
– the agreed retention of title is asserted or its assertion is seriously at risk due to the Purchaser;
– the contractual partner has made incorrect or incomplete statements in the course of the initial business contact and/or has kept secret significant circumstances which would have refrained the Seller from concluding an agreement.
12.3 In the event of premature rescission of the agreement, the Purchaser shall be obliged, at his/her own risk and expense, to return the goods to a place and within a period specified by the Seller or to make the goods fit for transport and ready for collection.
12.4 If the Purchaser fails to meet this obligation without delay, the Seller shall be entitled to have the goods returned at the Purchaser’s risk and expense. The Seller shall reserve the right to claim damages if they are attributable to the Purchaser’s fault.
13. Intellectual property
All photographs, plans, sketches and other graphic illustrations as well as technical documents, cost estimates, samples, catalogues, brochures, etc. shall remain the Seller’s intellectual property. The contractual partner shall not be allowed to pass them on to third parties or to reproduce or publish them without the Seller’s consent, nor shall the contractual partner receive any right to the work or other rights of use.
14. Place of performance, applicable law and place of jurisdiction
14.1 Unless agreed otherwise between the contractual parties, the place of performance shall be 8772 Traboch in Austria. This shall even apply if it has been agreed to deliver the goods at a different place.
14.2 With respect to any legal disputes arising from agreements concluded with the Seller on the basis of these General Terms of Sale and Delivery, Austrian law shall apply exclusively excluding its conflict of law rules and the UN Sales Convention. The language of contract shall be German. In the event that the Purchaser does not have his/her place of residence in Austria, it is pointed out that next to the Austrian provisions, all potential mandatory safeguarding provisions of the consumer country shall apply as well.
14.3 With respect to any disputes arising, either directly or indirectly, from the agreement entered into by and between the Seller and the Purchaser, it is agreed that the court in 8700 Leoben in Austria shall have exclusive jurisdiction. This place of jurisdiction shall be deemed agreed only if the Purchaser’s place of residence, habitual place of abode or place of work is located inside the court’s area of jurisdiction.
15. Miscellaneous provisions
15.1 All contractual relationships and these Terms of Sale and Delivery shall be governed exclusively by Austrian law. This shall also apply to export transactions, irrespective of the provisions applicable in the country of the contractual partner. The provisions of the UN Sales Convention shall not apply.
15.2 The Seller exclusively reserves the right to make editorial changes to these General Terms and Conditions. Generally, the Purchaser waives his/her right to be informed. In case of major changes, however, the Purchaser shall be notified by the Seller before the changes enter into force.
15.3 Should one or several provisions of these Terms of Sale and Delivery be invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that comes closest to the economic intent of the original provision. The same shall apply to any unintended gaps in the agreement.
15.4 Any collateral agreements, amendments and supplements to the relevant agreement must be confirmed by the Seller in writing in order to become legally effective. Any deviation from these Terms of Sale and Delivery as well as any waiver of the written form requirement contained herein shall be permitted only if expressly agreed by the Seller and the Purchaser in writing.