These Terms and Conditions shall apply between SYMAK Austria GmbH, FN 549059s, (hereinafter referred to as the Company) on the one hand and natural and legal persons as well as other entities with legal capacity (hereinafter referred to as the Customer) on the other hand for all deliveries and services as well as for all further transactions, even if in individual cases, in particular in the case of future supplementary or follow-up orders, no express reference is made thereto.
The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the Company and the Customer shall be the court with local jurisdiction for the registered office of the Company (see imprint).
The version of the GTC of the Company current at the time of conclusion of the contract, available on the Company's homepage (www.siccro-fensterservice.at), shall apply in each case and was also transmitted to the Customer.
The Company contracts exclusively on the basis of its GTC.
Any general terms and conditions of the Customer shall only be applicable to the contractual relationship between the Company and the Customer with the express written consent of the Company. Likewise, the amendment or supplementation of the Company's GTC by the Customer in individual cases shall require the Company's express written consent. An implied agreement of the General Terms and Conditions of the Customer or an implied amendment or supplement of the General Terms and Conditions of the Company by the Customer is hereby expressly excluded.
Austrian law shall apply. The application of UN sales law is excluded.
The place of performance is the respective registered office of the Company. This is currently A-5204 Straßwalchen, Salzburgerstrasse 26.
B. Offers, conclusion of contract
Offers made by the Company are subject to change without notice and are non-binding.
Promises, assurances and guarantees by the Company or agreements in connection with the conclusion of the contract that deviate from these GTC shall only become binding upon express written confirmation by the Company.
Silence on the part of the Company shall not be deemed to be consent or acceptance of the Customer's offer.
The Company reserves the right not to provide the promised service if it transpires after conclusion of the contract that the goods/service are not available although a corresponding commitment transaction has been concluded. In such a case, the customer shall be informed immediately. Any consideration already paid shall be refunded without delay. Further claims against the Company are excluded or waived by the customer.
Cost estimates are expressly provided without guarantee and are subject to payment. If the customer is a consumer within the meaning of § 1 para. 1 no. 2 of the Consumer Protection Act (KSchG), he/she has been informed in advance of his/her obligation to pay.
The Company offers a Silver Subscription (2 Services), a Gold Subscription (3 Services) and a Platinum Subscription (4 Services). In the case of the Gold ABO or the Platinum ABO, the intervals between the individual services (= service intervals) are 12, 24 or 36 months.
The contractual relationship including additional options is concluded for a limited period for the quantity of the desired ABO (2/3/4 services) and ends with the last service.
The customer, who is a consumer within the meaning of § 1 para. 1 no. 2 KSchG, is free to withdraw from the contract during the statutory withdrawal period. After expiry of the period, withdrawal or premature termination of the contract is excluded. If the customer is an entrepreneur within the meaning of § 1 para. 1 no. 1 KSchG, there is no possibility to withdraw from or dissolve the contract.
The Company reserves the right to terminate the contractual relationship prematurely at any time for important reasons that lie in the sphere of the customer. This includes in particular a delay in payment despite a reminder. In the event of premature termination for important reasons for which the Client is responsible, the Company is expressly entitled to assert any claims for damages.
The prices shown by the Company are all-in prices for the respective subscription and package.
All prices are to be paid in euros (€).
In the event of monthly instalment payment in accordance with point E. (Payment), the Company's ABO's and packages are subject to an annual increase in value during the term of the contract. This is fixed at an amount of +3.9% up to an increase of 6%. From an increase of 6% onwards, this 6% increase or a higher one, if applicable, will be applied. The starting point for the prices in the following year are the prices shown in the previous year.
After placing the order, the customer is obliged to pay the deposit agreed in the contract without delay, at the latest, however, within seven days of placing the order. In the case of monthly or annual payment, an annual increase in value in accordance with point D. (Prices) shall be deemed to have been agreed.
The ABO starts one month after the order is placed. The individual services are carried out according to written agreements. A binding date commitment is made after the deposit/payment has been made.
The ABO's end automatically after the end of the contract.
In the event of a delay in payment, the statutory interest on arrears will be charged. In accordance with § 1000 ABGB (Austrian Civil Code), this amounts to 4 % for consumer transactions. In the case of a business-related legal transaction on both sides, the interest on arrears shall amount to 9.2 % above the base interest rate pursuant to § 456 UGB.
If the Customer is in default of payment under other contractual relationships existing with the Company, the Company shall be entitled, without prejudice to further claims, to suspend performance of its obligations under this contract until performance by the Customer.
In the event of default in payment, the Customer undertakes to reimburse the Company for the costs necessary and appropriate for collection (reminder costs, collection fees, lawyer's fees (RATG), etc.).
The Company expressly reserves the right to claim further damage caused by default.
If a reminder is issued by the Company, the Customer undertakes to pay an amount of € 20.00 per reminder from the second reminder onwards.
The Customer is not entitled to withhold payments. The customer has no right to offset any counterclaims.
F. Cooperation obligations of the customer
The Company's obligation to perform the service shall commence at the earliest as soon as all technical details have been clarified, the Customer has created the technical and legal prerequisites (which the Company will be pleased to provide on request), and the Customer fulfils its contractual obligations to provide advance services and to cooperate, in particular also those mentioned in the following subsections.
The Customer shall be liable for ensuring that the necessary structural, technical and legal prerequisites for the service offered are in place, as described in the contract or in information provided to the Customer prior to conclusion of the contract.
In the case of services to be carried out by the Company, the Customer is obliged to ensure that the work can be started immediately after the arrival of the Company's service personnel (uncover window sills, all elements are freely accessible for service).
If the contractual services cannot be provided for reasons for which the Customer is responsible, the Customer shall be obliged to pay the agreed fee to the Company despite the failure to provide the service.
Order-related details of the necessary information can be requested from the Company.
The Customer undertakes to provide water and electricity for the duration of the services.
Should additional work be required in this respect, the Company shall be entitled to charge this additional expenditure once only at a flat rate of 150 euros.
The Customer is not entitled to assign claims and rights arising from the contractual relationship to third parties without the express written consent of the Company.
The Company is only obliged to take into account subsequent requests for changes and extensions by the Customer if they are necessary for technical reasons in order to achieve the purpose of the contract.
Minor changes to the performance of services which are objectively justified and reasonable for the Customer shall be deemed to have been approved in advance.
For services specially ordered by the customer which are not covered by the original order, the customer shall be entitled to an appropriate fee.
If, after conclusion of the contract, the client requests performance of the service within a shorter period of time, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall be increased appropriately in proportion to the necessary additional expenditure.
H. Delivery and performance deadlines
Delivery/performance periods and deadlines are only binding for the Company if they have been specified in writing. Any deviation from this formal requirement must also be in writing.
The agreed customer deadlines shall be adhered to as far as possible without them acquiring the character of a transaction for delivery by a fixed date in accordance with § 919 ABGB (Austrian Civil Code). Claims of the customer for damages due to delay in performance caused by slight negligence are expressly excluded.
In the event of force majeure, strike, unforeseeable delays by the Company or its agents for which the Company or its agents are not responsible, or other comparable events beyond the Company's control, deadlines and dates shall be postponed for the duration of the event in question.
If the start of the performance or the performance is delayed or interrupted due to circumstances attributable to the customer, performance deadlines shall be extended accordingly.
Execution of services may be postponed by the customer free of charge up to 30 days before the start of execution. In the event of postponements within 30 days prior to the start of performance, 50% of the order amount shall be charged, and within 14 days prior to the start of performance, 80% of the order amount shall be charged.
I. Warranty and repair guarantee
In the event of defective performance (including improper services), the Company grants a 100% money-back guarantee for the services provided. However, the Company is entitled to make at least two attempts at improvement beforehand.
The Company offers to repair defective doors/windows against a deductible to be borne by the customer when taking out a Silver subscription (2 services), Gold subscription (3 services) or a Platinum subscription (4 services) with service intervals of 12, 24 or 36 months.
The deductible in the event of damage amounts to € 97.00 net per defective window or per defective door, with an annual value adjustment in accordance with point D. (Prices) (For explanation: It represents two cases of damage if the fittings are damaged on two windows).
The deductible includes the costs for travel to and from the customer (vehicle costs, travel time), materials (all hardware parts, auxiliary materials, consumables) as well as the working time for service technicians.
A claim to the repair guarantee exists only for those cases of damage that occur six months from the time of the first service or later. The repair guarantee is granted for the duration of the contractual relationship. Damage occurring to the Customer after the end of the contractual relationship with the Company shall be excluded from the repair guarantee.
In the event that the repair guarantee is otherwise excluded, the Customer shall be obliged to report the damage to the Company immediately upon becoming aware of it. Upon receipt of an application for the repair guarantee, the Company shall be entitled to check whether the conditions for the contractually guaranteed repair guarantee are met. It undertakes to have completed the examination within 14 days of receipt of the application.
The service guarantee is only granted in the event that it is possible for the Company to acquire the hardware parts on the market. There is expressly no entitlement to a repair guarantee if it is objectively impossible for the Company to acquire them. In cases where more than 30 years have elapsed since the installation of the defective window or door, no repair guarantee shall be granted in any case.
The repair guarantee is excluded if the damage to the window or door was caused by the customer intentionally or through gross negligence.
The execution of all services is carried out by skilled workers. The Company guarantees proper and careful execution of the work.
The warranty period for services provided by the Company shall commence on the first day of performance of the service (= time of handover).
Remedies of a defect alleged by the customer do not constitute an acknowledgement of a defect.
If a defect becomes apparent within six months of handover, it shall be presumed that the defect already existed at the time of handover. This shall not apply if the presumption is incompatible with the nature of the item or the defect.
In order to remedy defects, the customer shall make the system or equipment accessible to the Company without culpable delay and grant the Company the opportunity to have it inspected by the Company itself or by an expert appointed by the Company.
Entrepreneurs within the meaning of § 1 para. 1 subpara. 1 of the Consumer Protection Act (KSchG) may only assert warranty claims and other claims in accordance with § 377 para. 2 of the Austrian Commercial Code (UGB) if they submit a notice of defects within 14 days of acceptance of the service. Complaints must be made in writing at the registered office of the Company, describing the defect as precisely as possible and stating the possible causes.
For consumers in the sense of § 1 para. 1 no. 2 KSchG, the statutory warranty regulations shall apply.
If the Customer's claims of defects are unjustified, the Customer shall be obliged to reimburse the Company for any expenses incurred in ascertaining that the goods are free of defects or in rectifying the defects and for legal advice.
Any use or processing of the defective performance which threatens further damage or makes it difficult or impossible to remedy the cause shall be discontinued by the Customer without delay, unless this is unreasonable.
The warranty for defects or deficiencies attributable to improper operation, use or stress is excluded. Furthermore, no warranty is given for defects caused by external influences after performance or repairs or other work carried out by unauthorised third parties.
The customer must allow at least two attempts to remedy the defect.
In the event of a defect occurring during the warranty period, the Company shall be entitled to remedy the defects first either by improvement or replacement of the parts concerned. Only then is there the possibility of a price reduction or cancellation of the contract.
The circumstance that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on deviating actual circumstances from the information provided to the Company by the Customer at the time of performance.
The Company shall only be liable for breach of contractual or pre-contractual obligations and for deficiencies in performance or root defects, in particular due to impossibility, delay, etc.) in cases of intent or gross negligence due to technical peculiarities.
Liability shall be limited as far as legally possible to the maximum liability amount of any liability insurance taken out by the Company.
This limitation shall also apply with regard to damage to an item which the Company has taken over for processing.
Claims for damages shall be asserted in court within three years of knowledge of the damage and the damaging party, otherwise they shall be forfeited.
The limitations or exclusions of liability also include claims against employees, representatives, vicarious agents and other persons attributable to the Company.
Any liability of the Company is further excluded for damage caused by improper handling, overuse, non-compliance with operating and installation instructions, lack of or improper maintenance and/or servicing by the Customer or third parties not authorised by the Company or natural wear and tear, insofar as this event was causal for the damage.
If and insofar as the Customer can claim insurance benefits for damage for which the Company is liable through its own damage insurance policy or one taken out in its favour (e.g. liability insurance, hull insurance, transport, fire, business interruption and others), the Customer undertakes to claim the insurance benefit and the Company's liability towards the Customer shall be limited to the disadvantages incurred by the Customer as a result of claiming this insurance (e.g. higher insurance premium).
In principle, those product characteristics are owed which can be expected by the customer with regard to the approval regulations, operating instructions and other product-related instructions and notes (in particular also inspection and maintenance) of the Company, third party manufacturers or importers, taking into account their knowledge and experience.
The copyright to texts, graphics and images of the company is held solely by the company. Reproduction of such texts, graphics and images in other electronic or printed publications is not permitted without written consent.
M. Severability clause
Should individual parts of these GTC be invalid or unenforceable, this shall not affect the validity of the remaining parts. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision.
Right of withdrawal (right of revocation) SYMAK AUSTRIA GmbH
In principle, there is a right of withdrawal for contracts between entrepreneurs and consumers.
(as defined in §1 (1) KSchG), which were concluded outside business premises (AGV), there is a right of withdrawal.
Consumers generally have the right to withdraw from this contract within 14 days without stating any reasons. (according to § 11 FAGG)
2. The fourteen-day withdrawal period shall commence
2.1. in the case of a contract for a service, on the day on which the contract is concluded,
2.2. in the case of a contract of sale, on the day on which the consumer or a third party other than the carrier and indicated by him has taken possession of the goods,
2.3. in the case of a contract of sale covering several goods ordered by the consumer as part of a single order and delivered separately, on the day on which the consumer or a third party other than the carrier and indicated by him has taken possession of the last goods delivered; or
2.4. in the case of a contract for the supply of goods in several instalments, on the day on which the consumer or a third party other than the carrier and indicated by him has acquired possession of the last instalment delivered; or
2.5. in the case of a contract for the regular delivery of goods over a fixed period of time, on the day on which the consumer or a third party other than the carrier and designated by the consumer has acquired possession of the goods delivered first.
3. Exercise of the right of withdrawal
3.1 In order to exercise your right of withdrawal, you must inform SYMAK AUSTRIA GmbH of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) or verbally (e.g. by telephone) to the company address (see imprint).
3.2 The consumer may also use the enclosed sample cancellation form.
3.3 In order to comply with the withdrawal period, it is sufficient for the consumer to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period. If you make use of this option, we will send you confirmation of receipt of your withdrawal without delay (e.g. by email).
4. Consequences of revocation
4.1 If the Consumer withdraws from this contract, the Entrepreneur must repay all payments that the Entrepreneur has received from the Consumer, including all delivery costs (with the exception of additional costs resulting from the fact that the Consumer has chosen a type of delivery other than the cheapest standard delivery offered by the Entrepreneur), without undue delay and no later than 14 days from the day on which the Entrepreneur received notification of the withdrawal from this contract.
4.2 For this repayment, the Entrepreneur shall use the same means of payment that he used for the original transaction, unless expressly agreed otherwise with the Consumer and the Consumer does not incur any costs as a result.
4.3 In the case of sales contracts and other contracts for the purchase of goods, the trader is entitled to refuse repayment until he has either received the goods back or the consumer has provided him with proof that the goods have been returned; this does not apply if the trader has offered to collect the goods himself.
5.1 In the case of a service contract for future activity, the contract will simply be terminated retroactively and all payments refunded.
6. Exception to the right of withdrawal
6.1 The consumer has been informed and expressly acknowledges that he has no right of withdrawal in the following cases, if:
6.1.1. the trader has fully performed the service, provided that in those cases where the consumer is obliged to make a payment under the contract, the right of withdrawal shall only cease if, moreover, the trader has commenced performance of the contract with the consumer's prior express consent and if the consumer has either confirmed, before commencing performance of the service, that he was aware that he would lose his right of withdrawal on full performance of the contract or has expressly requested the trader to visit him in order to have repair work carried out.
6.1.2. the goods have been made to the consumer's specification or tailored to the consumer's personal needs (custom-made goods);
6.1.3. he has expressly requested the trader to carry out urgent repair or maintenance work.
6.2. the consumer expressly requests the trader to start the work before the expiry of the 14-day withdrawal period, takes note of the information on the right of withdrawal and knows that in the case of contracts for services (contract for work and services) which had started before the expiry of the withdrawal period and the service had already been provided in full, the right of withdrawal expires.
6.3 In the event of pro rata performance during the withdrawal period, a pro rata fee compared to the total scope of the contract shall be paid if the consumer subsequently withdraws from the contract.
(If you wish to cancel the contract, please fill in and return this form)
SYMAK AUSTRIA GmbH
Tel.: 0662 27 90 70
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
-Ordered on (*)/Received on (*)
-Name of the consumer(s)
-Address of the consumer(s)
-signature of the consumer(s) (only in case of paper notification)
(*) Delete as applicable.