of LOC Holz GmbH

1. Applicable law, place of jurisdiction, place of performance:

(1) For all legal transactions of LOC Holz GmbH (hereinafter referred to as “LOC”), their execution and the resulting claims, the contracting parties agree to the application of Austrian law, excluding the conflict of laws provisions of international private law and the UN Convention on Contracts for the International Sale of Goods, and the exclusive jurisdiction of the competent court at the registered office of LOC.

(2) The place of performance shall be the registered office of LOC, even if the handover takes place at another location as agreed.

2. Offers, contracts:

(1) All offers, cost estimates, or service descriptions in brochures, advertisements, or on the LOC website are subject to change and non-binding. They do not constitute a legally binding offer, but merely an invitation to the contractual partner to submit an offer. Orders placed by the contractual partner are binding upon receipt by LOC.

(2) A contract for LOC products and services shall only come into effect upon receipt of a written order confirmation from LOC by the contractual partner or upon delivery of the ordered products or provision of the commissioned services to the contractual partner. Until this point in time, there shall be no entitlement to the conclusion of a contract or the provision of services.

(3) Order confirmations received by the contractual partner must be checked immediately and returned to LOC signed within 7 days of delivery. If no written objection is received from the contractual partner within this period, the order confirmation shall be deemed to have been accepted by the contractual partner in terms of content, regardless of whether it has been signed and returned.

(4) All amendments and additions to declarations and contracts by LOC must be made in writing to be effective. This also applies to any waiver of the written form requirement itself. Verbal side agreements are not valid.

(5) LOC is entitled to use third parties to fulfill the contract without requiring the consent of the contractual partner.

(6) LOC reserves the right to make changes to the design or execution of the services if these lead to a significant improvement in the results or a more efficient processing of orders in the interests of the contractual partner.

(7) Price or quantity changes by LOC of up to five percent (+/- 5%) compared to the prices or quantities agreed in the respective contract shall be deemed accepted by the contractual partner and shall not entitle the latter to withdraw from or extend the contract.

3. Performance deadlines, performance execution, and default of acceptance:

(1) Unless expressly agreed as binding, the performance deadlines or dates specified by LOC are non-binding and are always understood to be estimated completion dates.

(2) Force majeure, pandemics, demonstrations, natural disasters, and transport blockades, as well as other circumstances beyond LOC‘s control, release LOC from its performance obligation or allow LOC to set a new performance deadline. Such circumstances also include problems with material procurement that arise retrospectively, general operational disruptions, power failures, strikes, lockouts, lack of means of transport, unforeseen staff shortages, orders from authorities, and the like. These circumstances also apply if they affect a supplier of LOC or its sub-suppliers.

(3) In the event of an agreed change to the respective order, LOC shall be entitled to unilaterally reschedule the delivery date and to invoice the services associated with the change separately.

(4) Claims by the contractual partner for non-performance or delay shall be excluded, unless they are based on intent or gross negligence on the part of LOC.

(5) LOC reserves the right to make design and shape changes during the delivery period. LOC is entitled to make partial or advance deliveries.

(6) Unless otherwise agreed in writing, LOC‘s deliveries and services shall be provided in accordance with the Incoterms 2020 clause FCA LOC/Arbing factory. Performance shall be deemed complete upon handover of the goods to the carrier designated by the contractual partner or determined by LOC at the agreed handover location, LOC/Arbing factory. Upon handover, the risk of accidental loss or damage to the goods shall pass to the contractual partner. LOC shall not be responsible for transport costs or damage after this point in time, unless expressly agreed otherwise.

(7) If LOC has notified the contractual partner of the completion of the work and delivery to the contractual partner or commissioning fails for reasons within the sphere of influence of the contractual partner (e.g., on-site services not performed), default of acceptance shall occur. In the event of default of acceptance, LOC shall be entitled, after setting a grace period of 14 days without success, to either demand performance or withdraw from the contract and, in any case, to claim damages for non-performance of the contractual agreement. LOC shall also be entitled to store the purchased item at the expense and risk of the contractual partner.

(8) If the Contractual Partner wishes to have an acceptance test carried out, this must be expressly agreed in writing with LOC upon conclusion of the contract. Unless otherwise agreed, the acceptance test shall take place at the place of manufacture or at a location to be determined by LOC during LOC‘s normal working hours.

(9) LOC shall notify the contractual partner of the acceptance test in good time so that the contractual partner can participate in person or through an authorized representative. If the purchased item proves to be non-compliant with the contract during the acceptance test, LOC shall remedy the identified defects immediately, at the latest within a reasonable period of time, and restore the purchased item to the condition specified in the contract. The contractual partner may only request a repeat of the test in cases of significant defects.

(10) Following an acceptance test, an acceptance report must be drawn up. If the acceptance test has confirmed that the purchased item has been manufactured in accordance with the contract and is in perfect working order, this must be confirmed by both contracting parties in any case. If the contractual partner or its authorized representative is not present at the acceptance test despite timely notification by LOC, the acceptance report shall be signed by LOC alone. LOC shall in any case send the contractual partner a copy of the acceptance report, the accuracy of which the contractual partner can no longer dispute even if he or his authorized representative was unable to sign it due to absence. Unless otherwise agreed, the contractual partner shall bear the costs of the acceptance test carried out.

(11) Regardless of any acceptance test carried out, the contractual partner remains obliged to inspect the subject matter of the contract for defects in accordance with Section 5 (2) without delay and to notify LOC in writing of any recognizable defects without delay, at the latest within 7 days of delivery. Hidden defects must be reported in writing immediately after their discovery.

(12) If the contractual partner postpones the agreed delivery date, the following provisions shall apply:

i. Postponement by more than 4 weeks: LOC reserves the right to adjust the prices to the LOC price list valid at the time of the new delivery date.

ii. Postponement by less than 4 weeks: LOC is entitled to invoice the order on the originally agreed delivery date. For each additional working day of delay caused by the customer, a storage fee of EUR 120 per working day shall be payable. This covers only the costs of storage; further damages or expenses remain unaffected.

4. Prices:

(1) Unless otherwise agreed in writing, all prices quoted are net prices plus the applicable sales tax. The contractual partner shall bear the freight costs, as well as any customs duties on the goods or taxes and fees additionally levied by the respective country. LOC is entitled to charge a flat-rate freight rate.

2) Delivery is uninsured, unless otherwise agreed in writing.

5. Warranty:

(1) LOC provides a warranty exclusively for expressly warranted characteristics of its products and workmanship, as well as for characteristics that are usually expected. Any warranty for the suitability of the work or product for specific purposes of the contractual partner is expressly excluded. Only those characteristics that have been expressly identified in writing by LOC and promised to the contractual partner shall be deemed warranted characteristics. Product descriptions, brochures, technical data sheets, or other general information provided by LOC do not constitute warranted characteristics. LOC accepts no liability for visual defects, provided they do not impair functionality, or for defects arising as a result of the contractual partner‘s actions, or for defects attributable to customary or slight, technically unavoidable deviations (e.g., minor deviations in weight, color, coating, equipment, standard dimensional tolerances, and quality).

(2) For entrepreneurs, the statutory obligation to give notice of defects pursuant to § 377 UGB (Austrian Commercial Code) applies. The contractual partner is obliged to inspect each delivery and service for visible defects immediately upon receipt, but no later than 7 days after delivery, and to notify LOC in writing of any defects. Notifications of defects must contain a detailed description of the defect and, if possible, be supplemented by suitable evidence (e.g., photos, test reports). Notifications of defects received by LOC later than 7 days after delivery or collection will not be accepted. This does not apply to hidden defects, which must be reported immediately after discovery.
If the contractual partner fails to give notice of defects in good time, the goods or services shall be deemed to have been approved as free of defects. In this case, warranty, damage compensation, or other claims based on these defects are excluded.

(3) The warranty period for services provided by LOC is 6 months from delivery and begins with the handover of the goods to the contractual partner (FCA LOC Arbing factory, departure from the factory).

(4) The assertion of defects does´t entitle the contractual partner to raise the defense of non-performance of the contract or to change the terms of payment.

(5) The existence of defects must be proven by the contractual partner. § 924 ABGB (Austrian Civil Code) does not apply. The contractual partner also bears the full burden of proof for the existence of all claim requirements and the timeliness of the notice of defects. The warranty period is not extended due to the rectification of defects.

(6) In the event of a warranty claim, LOC is entitled to determine the type of warranty (repair, replacement, price reduction, or rescission) itself. The repair shall be carried out at LOC‘s discretion at the place of delivery or at LOC‘s registered office.

(7) Once a product or system has been put into operation by the contractual partner, it shall be deemed to have been accepted. Minor defects shall not prevent commissioning/acceptance.

(8) The contractual partner‘s warranty claims shall lapse as soon as processing or further processing of the purchased item has commenced.

(9) The timely assertion of defects or complaints does not release the contractual partner from its payment obligation. The contractual partner is obliged to pay the full invoice amount within the payment period specified in the order confirmation (OC). Offsetting or withholding payments is only permissible if the counterclaim has been legally established or expressly recognized by LOC. In the event of unjustified withholding of payments, LOC is entitled to charge default interest in accordance with § 456 UGB (Austrian Commercial Code) as well as all costs incurred as a result of the delay in payment, in particular reminder fees and collection costs.

6. Damages:

(1) LOC shall only be liable for damages in cases of intent or gross negligence. In cases of slight negligence, LOC‘s liability shall be limited to personal injury. In particular, LOC shall not be liable for indirect damages and consequential damages, lost profits, loss of interest, lost savings, or other purely financial losses. In any case, LOC‘s liability is limited to the value of the order amount of the respective order. LOC‘s liability expires 6 months after the contractual partner becomes aware of the damage and the party responsible for the damage, but in any case within 3 years after complete performance of the service.

(2) The contractual partner must prove any fault on the part of LOC.

(3) The exclusion of liability also includes claims against LOC‘s employees, representatives, and vicarious agents for damages they cause to the contractual partner without reference to a contract on their part with the contractual partner.

(4) If a contractual penalty payable by LOC has been agreed, this shall be subject to judicial moderation; the contractual partner shall not be entitled to claim damages in excess of the contractual penalty.

(5) Claims for damages resulting from delivery delays shall be limited to a maximum of 2% of the order value of the delayed delivery in question.

7. Payment – Payment terms – Conditions of payment:

(1) LOC invoices are due for payment immediately upon delivery or collection or when the goods are made available for shipment. Unless expressly agreed otherwise, no cash discount is possible.

(2) Offsetting or withholding payments by the contractual partner due to alleged counterclaims – including those arising from warranty claims – is excluded.

(3) An unauthorized cash discount deduction or an excessive deduction or exceeding the cash discount period are not permitted. In such a case, the contractual partner is obliged to immediately reclaim the unlawfully withheld amount.

(4) LOC is entitled to charge default interest on the amount unlawfully withheld in accordance with § 456 UGB (Austrian Commercial Code) as well as all costs incurred as a result of the delay in payment (in particular reminder fees and collection costs) and to collect these.

8. Default of payment:

(1) From the date of default, LOC shall be entitled in the event of default of payment (of any kind) to charge default interest in accordance with § 456 UGB per annum and – without prejudice to other rights – to withhold deliveries until the agreed consideration has been provided, while observing the outstanding delivery period, or to withdraw from the contract after a reasonable grace period has expired and to claim damages for non-performance. If LOC withdraws from the contract with good cause, the contractual partner must return the delivered items to LOC without delay. LOC shall be entitled to claim damages for depreciation, wear and tear, and its own transport and processing costs. In the event of a justified withdrawal from the contract, LOC shall be entitled to retain or claim a minimum penalty of 20% of the order value as lump-sum damages. Further claims for damages shall remain unaffected.

(2) If LOC becomes aware of circumstances regarding the contractual partner‘s lack of solvency or poor economic situation, LOC is entitled to demand immediate payment of all outstanding debts. In this context, LOC may demand existing but not yet fulfilled delivery contracts, a security payment and/or advance payment, or, if these are not provided, refrain from delivery and withdraw from the contract.

(3) LOC Holz GmbH is permitted to offset incoming payments against outstanding reminder fees, outstanding interest, and subsequently outstanding capital amounts, starting with the oldest debt.

9. Retention of title:

(1) All deliveries relating to the purchase shall remain the sole property of LOC (retention of title) until the contractual partner has fulfilled all (payment and ancillary) obligations arising from the respective legal transaction. As long as the retention of title exists, the contractual partner
is not entitled to sell, pledge, use as security, rent or otherwise transfer the delivered goods without the prior written consent of LOC.

(2) If the contractual partner defaults on a payment or violates the obligations under this clause, LOC shall be entitled to take back the deliveries subject to retention of title at the expense of the contractual partner without this being deemed a withdrawal from the contract.

(3) If third parties assert claims to LOC‘s retention of title, the contractual partner shall notify LOC thereof immediately, without delay, both verbally and in writing, and shall defend LOC‘s retention of title at its own expense.

(4) During the period of retention of title, the contractual partner shall, at LOC‘s request, insure the purchased item at its original price against all risks, including fire. The insurance policies shall be assigned to LOC.

(5) During the retention of title, the contractual partner shall be obliged to keep the purchased item in proper condition and to have any necessary repairs carried out immediately in consultation with LOC.

(6) In the event of resale, pledging, transfer by way of security, leasing, or other transfer of the purchased item to third parties during the period of retention of title, which has been approved in writing by LOC, the contractual partner is obliged to inform the third party of the existence of the retention of title and to transfer all obligations arising from these General Terms and Conditions to the third party.

10. Severability clause, consumer transactions:

(1) Should any provision of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of all other provisions and of the contracts concluded on the basis thereof. The contracting parties shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the content and purpose of the legally invalid or unenforceable provision.

(2) In the case of a consumer transaction, the mandatory provisions of the KSchG shall replace the corresponding provisions of these General Terms and Conditions. The remaining provisions of these General Terms and Conditions shall remain in full force and effect.

LOC Holz GmbH
Technologiestraße 11, 4341 Arbing, Austria
Telephone: +43 (0) 7263/88 329
Email: office@loc-holz.at
Company register number: 538736i
Company register court: Landes- als Handelsgericht Wels
VAT number: ATU75802268