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. KUCHLER Electronics GmbH, S.A.M. Kuchler electronics Deutschland GmbH, S.A.M. Innovations GmbH, Kuchler Electronics (USA) Inc., S.A.M. Kuchler Electronics Schweiz GmbH, KUCHLER Holding International GmbH, KUCHLER Electronics Benelux BV, Kuchler Electronics CR s.r.o. and S.A.M. Kuchler Electronics Schweiz GmbH; hereinafter referred to as “SAM” for short.
They shall further apply to all repair and service work performed by SAM on behalf of the customer. Customers’ terms and conditions 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. commercial agents, field sales representatives, service technicians and sales staff are not authorized to make or accept legally binding declarations of any kind. These Terms and Conditions shall also apply if they were used as a basis for an initial order and they were not expressly used as a basis for a further business relationship or, in the case of recurring services and orders on call, for the subsequent order.
II. 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. If the order confirmation deviates from the customer’s order, the contractual relationship shall be concluded on the terms and conditions contained in the order confirmation, unless the customer objects to the order confirmation in writing within three days of receipt. Subsequent changes to the contents of the service shall require written confirmation by SAM. Information in catalogs, brochures, etc. shall not be binding and shall only become part of the contract if they are expressly referred to in the order confirmation.
III. Prices and Terms of Payment:
All prices are net prices FCA Klagenfurt am Wörthersee (“free carrier”) (INCOTERMS 2020). 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 40.00, 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.
IV. 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. In the event of force majeure and other events for which SAM is not responsible, such as wars, strikes, operational disruptions and official decrees, the delivery obligations shall be suspended for as long as and to the extent that such obstacles exist. The delivery or performance periods shall be extended accordingly. The customer is not entitled to derive any claims from such delays.
V. 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 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.
VI. 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 to abide by the sales contract, SAM may rescind the contract thus annulling it. Any claims over and above these may also be asserted.
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 about any defects, shortages or wrong deliveries 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 and must be supported by evidence. 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.
Damage claims by the customer against SAM are precluded, except when SAM is charged with either intent or gross negligence. This limitation of liability does not apply to compensation for personal injury. In case of gross negligence, liability shall be limited in amount to the annual contract value (=invoice amount of the goods already called off and paid for in the contract year affected by the event giving rise to the damage), but not more than the amount covered by SAM’s business liability insurance. Liability for loss of profit, indirect damage, recall costs, loss of production, downtimes, loss of interest, missed savings, consequential and pecuniary damage and damage resulting from third party claims as well as for damage caused by unsuitable or improper use, natural wear and tear, faulty or negligent handling or storage, etc. shall be excluded for all forms of fault, in particular also for intent or gross negligence. Likewise, SAM is not liable in any case for atypical or unforeseeable consequential damages.
With respect to software made available to the customer, SAM grants the customer a non-transferable 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. 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 39,500.00
X. 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.
XI. 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.
It is expressly agreed that Austrian law shall apply exclusively – to the exclusion of the reference norms of international private law (e.g. IPRG, Rom I-VO) and the UN 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 and fax number and other account data, data relating to your SAM product such as order data, machine type, slicers counter, serial number, price, delivery dates, payment data, ordered or delivered products or services, documentation of the repair work as well as correspondence may be used for the purpose of fulfilling the contract and processing your order/request as well as for our own advertising purposes e.g. sending you advertising mailings, 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 firstname.lastname@example.org).
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.
As of: February 2022