Terms and Conditions

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TERMS AND
CONDITIONS

1. Applicability:

These terms and conditions apply to all merchandise shipped by companies of the Kuchler
Group. The Kuchler Group currently comprises S.A.M. Innovations GmbH & Co KG, S.A.M.
Innovations GmbH, Kuchler Electronics (USA) Inc. and S.A.M. Kuchler Schweiz GmbH, as
well as KUCHLER Holding International GmbH and its subsidiaries S.A.M. KUCHLER
Electronics GmbH, S.A.M. Kuchler electronics Deutschland GmbH, KUCHLER Electronics
Benelux BV, Kuchler Electronics CR s.r.o. and S.A.M. Kuchler Electronics Schweiz GmbH;
hereinafter referred to as “SAM”.

They also apply to all repair and service work performed by SAM Kuchler for customers.
Customers’ terms of purchase or other general terms of trade or conditions of the customer
are not applicable. Special agreements are only legally effective if confirmed in writing
by SAM Kuchler. Commercial agents, field sales representatives, service technicians and
sales staff are not authorized to make or accept legally binding declarations of any kind.

 

2. Offers and Purchase Orders:

All offers by SAM are non-binding. Customers are bound to their purchase orders or
contracts for 30 days. Within this period SAM will either accept the customer’s order by
providing written confirmation or delivering the shipment/performing the services,
whereby SAM also reserves the right to cancel the order within the stipulated period.

 

3. Prices and Terms of Payment:

All prices are net prices FCA Klagenfurt am Wörthersee (“ex works”) (INCOTERMS 2010).
The prices do not include statutory value-added tax. Amounts invoiced by SAM are
payable within eight (8) days of the date of invoice. In the event of default in payment,
interest on default shall be charged in accordance with § 456 UGB and the costs of
extrajudicial debt recovery (dunning costs, collection costs and attorneys’ fees, insofar as
they are necessary for the purpose of prosecution) shall be reimbursed. This includes a
lump sum of EUR 40,-, irrespective of any additional collection costs (within the meaning
of § 1333 paragraph 2 ABGB). Furthermore, SAM shall be entitled to claim compound
interest in the event of default in payment by the customer from the day the goods are
handed over.

The customer may not bring counterclaims against SAM to set off these charges without
our written acknowledgement or without a final court order. Any defects in the merchandise
only entitle the customer to withhold an appropriate amount anticipated for rectifying
the defect. SAM may, in its sole discretion, accept checks or promissory notes as payment,
whereby fees or other costs incurred by SAM shall be reimbursed by the customer. In the
event that a protest has been entered or any other payment is in default, or a check or
promissory note has not been honored, or other terms of payment have been violated, or
the credit worthiness of the customer has been jeopardized due to unfavorable circumstances,
all outstanding receivables, regardless of when they fall due, are payable immediately
and may even be legally enforced if necessary against any promissory notes that have
been issued. Unless payments have been assigned to a certain account, SAM reserves the
right to assign the payments in its discretion. Payments for the purpose of discharging
debts must be remitted to the accounts stated on the invoice only.

Commercial agents, field sales representatives, service technicians and sales staff are not
authorized to collect payments or to grant deferrals of payment. In the event of default in
payment, delay in acceptance or failure to meet a deadline, SAM is entitled to charge
interest on arrears at the legal rate and the customer also undertakes to reimburse any
reminder expenses and intervention costs necessary for the related collection, recovery or
legal action as well as the standard lawyers’ fees for any such intervention. In the event of
default in payment, the interest may be capitalized until the date of legal action and the
private collection and intervention costs added to the capital.

4. Delivery Deadlines:

Any periods for delivery and work completion times indicated are merely approximations
that serve as guidelines and are not binding. Only after 90 days have elapsed since the
delivery deadline and provided that an additional 30-day period has been granted is the
customer entitled to give warning of his withdrawal from the contract by registered letter
and then, once the 30 days have elapsed to no avail, to give notification of his withdrawal
from the contract.


5. Risk of Loss, Place of performance
:

The customer bears the risk of loss in transit from the time the merchandise leaves the
SAM plant. This also applies to shipments using our own vehicles. If shipment is delayed
due to circumstances beyond our control, the risk of loss is transferred to the customer on
the day on which we are ready for dispatch. In the event of the customer causing acceptance
to be delayed, SAM Kuchler will, where possible, store the merchandise at the
customer’s risk and cost. Even if acceptance is delayed, amounts due are still payable. The
Place of performance for all services and deliveries provided by SAM is the registered
office of S.A.M. KUCHLER Electronics GmbH in 9020 Klagenfurt am Wörthersee,
Klatteweg 4-6, Austria.

6. Retention of Title:

The merchandise delivered remains the sole property of SAM until payment of the agreed
price and any ancillary costs for the merchandise has been made in full. The customer shall
keep the merchandise delivered by SAM in safe custody for SAM until the transfer of
ownership to the customer. The customer shall bear the entire risk for the reserved goods,
in particular the risk of loss, destruction or change for the worse. In the event that the
reserved goods are resold, the customer hereby assigns to SAM, without any further
declaration of assignment or notification being required, any claims against his customer
arising from the resale of the reserved goods for the settlement of all claims, including
ancillary claims, up to the value of the delivered goods of SAM. The customer shall not be
entitled to pledge goods subject to retention of title to SAM or to assign them by way of
security. In the event of seizure or other claims by third parties, the customer shall be
obliged to assert SAMs right of ownership, to notify SAM immediately and to take all
necessary steps to safeguard SAMs interests.

If payment is in default, or if the customers economic situation worsens, SAM may demand
the return of the merchandise to which SAM retains title or alternatively may collect the
merchandise and store it at the customers cost. Enforcement of title and collection of the
merchandise do not constitute grounds for termination of the contract. The sales price
remains outstanding.

If payment is in default, or the customers economic situation worsens, or for any other
important reason on the customers side that makes it unacceptable for SAM Kuchler to
abide by the sales contract, SAM Kuchler may rescind the contract thus annulling it. Any
claims over and above these may also be asserted.

 

7. Warranty:

The warranty is twelve (12) months for new machines and six (6) months for second-hand
machines, spare parts and repair services; in each case from the date of shipment or return
following repair or provision of the service. Warranty claims will solely be processed at
S.A.M. KUCHLER Electronics GmbH in 9020 Klagenfurt, Austria. The customer is liable to
pay all the travel expenses and/or transportation costs incurred in connection with
handling warranty claims. A customer’s warranty claim is restricted to the replacement by
SAM, without charge, of defective merchandise. The annulment of the contract or a
proportionate price reduction may not be claimed under the warranty. For all other
warranty claims SAM may, in order to avoid a claim for a proportionate price reduction,
offer to remedy the defects or supply the missing merchandise within a reasonable period
and in a manner that is acceptable to the customer. The customer is not entitled to
demand a replacement machine for the duration of the repair. Warranty covers original
software that has not been altered in any way; individual custom modifications and other
software programmed for the customer is excluded from the warranty. The customer
forfeits any warranty, guarantee and damage claims if he neglects to immediately inspect
incoming merchandise and file a complaint without delay, i.e. within at the latest seven
days of receiving the merchandise or, in the case of hidden defects, when the defect can
be identified. The complaint must be in writing and must accurately describe the shipment
in question and the defects that give rise to the complaint. Services provided under
guarantee or warranty only extend the period of guarantee or warranty regarding the parts
replaced.

Used parts that are replaced in the course of repair, service, conversion, warranty, guarantee
or other work become the property of SAM without any compensation being paid.
Disputes arising from reduction in value by more than half are reciprocally excluded
regarding all contractual relationships of any kind between SAM and the customer.
Unless otherwise agreed in individual cases, the provisions regarding this item also apply to
providing guarantee services.

 

8. Damages:

Damage claims by the customer against SAM are precluded, except when SAM is charged
with either intent or gross negligence. Liability for loss of profit, indirect damages, consequential
damages, loss of production, downtime, etc. are precluded for all forms of fault, in
particular but not limited to intent or gross negligence. Likewise, SAM is not liable in any
case for atypical or unforeseeable consequential damages.

8.1 Software:

With respect to software made available to the customer, SAM grants the customer a nontransferable
and non-exclusive right of use, which is restricted to the use of software in
keeping with the customer’s business for any machines the customer has purchased from
SAM with the appropriate software. The customer may not pass the software on to third
parties (except when selling the machine with the software stored on the machine) or copy
same, even for the customer’s own use, without the written permission of SAM Kuchler.
The same applies to passing on documents on the software. If the customer violates these
provisions, the customer shall pay SAM a penalty not subject to reduction by the courts of
50% of the development costs for the software in question, at least however
EUR 37,500, –.

8.2 Directive 2012/19/EU on Waste Electrical and Electronic Equipment, Austrian Waste
Electrical Equipment Directive (EAG-VO):

The customer undertakes to dispose of the machines/merchandise/materials supplied by
SAM properly in compliance with the legal requirements, especially the waste electrical
equipment directive, and solely for his own account and at his own cost.

8.3 Written Form:

Subsidiary agreements, deviations from these terms and conditions and other agreements
are only deemed effective when confirmed in writing by SAM. If any provision of these
Terms and Conditions of Sale and Delivery is or becomes invalid, the validity of the
remaining agreements is not affected. In such cases, the parties agree to replace any
invalid provision with a valid provision that most closely approximates the intent and
economic effect of the invalid provision.

 

9. Jurisdiction:

Austrian law shall apply, including the United Nations Convention on Contracts for the
International Sale of Goods. The exclusive place of jurisdiction for the resolution of all
disputes arising from a contract – including disputes about its existence or non-existence –
shall be the relevant competent court for Klagenfurt am Wörthersee.

 

 

D A T A   P R O T E C T I O N

 

We inform you that the following personal data, in particular name/company name,
company register number, contact person, delivery and billing address, VAT number, e-mail
address, telephone or fax number and other account data, data relating to your SAM
product such as machine type, slicers counter, serial number, documentation of the repair
work as well as correspondence for the purpose of fulfilling the contract and processing
your order/request or your order as well as for our own advertising purposes e.g. sending
you advertising mailings, newsletters, product information or other company-related
information. of your order as well as for your own advertising purposes, e.g. sending
advertising mail, newsletters, product information or other company-related information
(basis: predominant operational interest of SAM) may be determined, processed and stored
automatically by SAM.
If you do not wish to receive any further advertising or announcements about the products
or services offered, you can withdraw your consent at any time (by e-mail to
datenschutz@sam-kuchler.com).
In order to fulfil the contract, we pass on your data to the shipping company commissioned
with the delivery or to third parties who participate in the fulfilment of the contract;
insofar as this is necessary for the delivery of ordered goods or the provision of services,
such as repair or maintenance work.
Please note our privacy policy, which can be viewed at
www.sam-kuchler.com/datenschutz.

 

As of: December 2018