Terms of service

TCoS

Fa. Thomas Kamsker Mechatronik 

Wiedner Hauptstrasse 49

A-1040 Wien

general terms and conditions

I. Content and termination of supply contracts

1. Our deliveries are exclusively subject to these terms and conditions 

2. Purchasing conditions and other business conditions of the customer are not binding for us, and do not have to be explicitly contradicted.

3. Our offers are not binding. The order is valid only upon receipt of our written confirmation of order or through implementation of the order as agreed.

4. The order confirmation stipulates the content and scope of the order. Information about technical data and/or documents, illustrations, drawings and brochures which were provided before or in connection with the order confirmation are only binding if explicitly confirmed in writing.

5. Deviations from these general conditions of sale, additional agreements and collateral agreements are only binding if explicitly confirmed by us. The same applies to subsequent modifications and additions of agreed supply contracts.

6. With regard to the continuous technical development and improvement of our products, we reserve the right to change the construction and design irrespective of the information contained in our various publications, provided that the value of the products offered is not affected by those changes.

II. prices

1. For delivery, the list prices at the time of order confirmation apply.

2. Prices are ex warehouse Vienna excluding packaging.

3. The transport packaging is charged at cost. The customer may choose to return packaging to us where ThoJoMech handles its correct disposal or re-use. While the cost for returning the packaging is carried by the customer, the cost for the correct disposal is born by the company. In any other case the responsibility for the correct disposal remains with the customer.

4. The applicable VAT and packaging costs will be charged separately in connection with the transport/postage costs as a lump sum.

III. delivery time

1. Provided or agreed delivery dates are estimates only and shall only be binding by prior written agreement.

2. An agreed delivery period begins on the date of receipt of the deposit or by an agreed date after receipt of our order confirmation. The deadline is met if the delivery item is dispatched before the deadline expires.

3. The delivery period as agreed by all parties presupposes that all commercial and technical questions between the parties have been clarified and the cutomer has met all his obligations such as provision of complete information and documentation, approvals and releases as well as any agreed downpayment. If this is not the case, the delivery period shall be extended by an appropriate time period.

4. All agreed delivery deadlines are subject to correct and timely self-delivery. Delivery time for machines (build to order) is currently about 4 weeks .

5. The delivery time is extended appropriately in circumstances of force majeur, labour disputes or other circumstances which are beyond our control, if these obstacles demonstrably delay the completion or delivery of the delivery item. The aforementioned circumstances also apply if they occur during an already existing delay. We share any such potential relevant delays with the customer as soon as possible.

6. Independent part-deliveries may not be rejected by the customer.

IV. Delivery, shipping , transfer of risk

1. We are entitled to partial deliveries , unless explicitly agreed otherwise. Payment obligations, transfer of risk and warranty obligations apply to partial deliveries as independent deliveries.

2. Decisions on mode of dispatch, route and shipping company, are at our discretion, if not instructed otherwise by the buyer.

3. The risk passes to the buyer as soon as the shipment with the delivery items leave our factory or warehouse . This also applies when using the buyers own transport.

V. Exchange or redemption

All Online Orders are covered by the European 'Distance Selling Act'.  Please note that our custom built machines are covered by §18 Paragraph 3 !!

For all other transactions the following is agreed: 

1. All deliveries to ThoJoMech are 'franco domicile' (carriage free delivery). Shipping costs of any kind can not be refunded.

2. Exchange of used goods is generally linked to an impairment allowance of 20 % of product value.

3. By opening the original packaging, respectively the plastic bag, the customer acknowledges our copyright protection and warranty conditions. Original packaging are all packages in the welded-in state .

4.  Refusing acceptance  of previously ordered goods (COD returns) will result in the customer having to refund ThoJoMech any delivery charge- and postage fee and a processing fee of 10 % of the product value.

VI. payment

1. Invoices are issued on the date of order.

2. ThoJoMech accepts advance payments via bank transfer.  No cash payments will be accepted .

3. We reserve the right to assign claims as applicable.

4. The customer will be charged interest at the rate of 3 % above the Bundesbank discount rate when payment is more than 10 days overdue despite a grace period. Furthermore we reserve the right to claim additional damages for late payment.

5. Bills of Exchange and cheques will only be accepted by prior agreement and reasons of payment. Discounts, fees, tax on drafts and bills of exchange and collection charges shall be borne by the customer. ThoJoMech does not assume liability for their timely submission.

6. In case of pyament by instalments, the instalments have to be paid in due time, otherwise the remaining amount will be due immediately. Upon slow payment patterns, late payments, bank drafts or cheques being returned unpaid or other concrete evidence of a significant deterioration of the customer's  assets we reserve the right to request immediate payment of all outstanding claims. Furthermore, delivery of ordered goods may be pending until pre-payment of the purchase price.

7. Offsetting the purchase price against counterclaims which are disputed by us and not legally established is prohibited. In commercial transactions, withholding of the purchase price due to such counterclaims is also excluded.

VII. Retention of title

1. We retain ownership of the delivered goods until full payment of all claims from the contract including secondary claims (eg change costs, financing costs, interest, etc.) has been made. Transfer of ownership of the goods to the customer according to § 950 BGB is excluded. Possiple processing of the machine by the customer is carried out on our behalf without us incurring any liabilities. Such an item serves as security for the reserved goods value amount. In conjunction with other items not belonging to the customer, we hold joint ownership in these  new items in the ratio of the value of the reserved goods subject to the rest of the processed goods at the time of processing, connecting, mingling or mixing. The customer is obliged to inform the owner of the other items of our co-ownership. Otherwise the same shall apply to any item which is newly created through processing as applies to the reserved goods..

2. In commercial business transactions, also we retain title to the supplied goods until all deliveries of goods and other claims arising from the business relationship have been paid in full. The retention of title expires with each full payment of the account for all goods delivered up to that point.

3. The customer shall not bond or transfer the delivery goods by way of security before full payment of all secured claims. ThoJoMech shall be notified immediatly of any attachments, confiscation or other threats to ownership by a third party through the provision of copies of the relevant documents (e.g. bailiff's return). Costs of an intervention shall always be borne by the customer.

4. The customer is entitled to process the delivered goods within the ordinary course of business and to resell .

5. In the event that the customer sells the goods delivered prior to payment of all secured claims, the customer at this point assigns all receivables accruing from the resale in the amount of the purchase price agreed between the company and the customer.in case the customer's debts from the re-sale are transferred to a current account, the customer at this point also assigns his claim against his customer from the current account to us. The customer may collect the assigned claims as long as we do not revoke this authorization. We are entitled to revocation, if our secured claims are endangered, especially if the customer is in arrears on payments. The right shall expire with no further at the time, in which the customer ceases payments or if asked about his assets by him or a third party application for commencement of insolvency proceedings. After the withdrawal or lapse of the debit authorization, we are entitled and the customer verpflichet, notify the assignment to the debtor. The customer has to refrain from any collection yet to segregate incoming amounts for us. The customer has to request at any time to tell us in writing to whom he resells the delivered goods and to give us all information and documents on the assigned claims.

6. If the value of existing secured claims exceeds 25 %, ThoJoMech will upon request release the excess security. The choice of securities to be released lies with us.

7. The customer waives the objection to the prohibition of issuance of a contract of assignment between him and a third-party customers in relation to our goods. He is obliged to agree with such customers a prohibition of assignment .

VIII. Warranty and liability for defects

1. We ensure that the delivery items are free of defects according to the current state of technology.

2. No guarantee is provided for damages resulting from inappropriate or improper use, failure to follow operating instructions or incorrect or negligent treatment. Technical advice is given to the best of our knowledge based on our experiences. However, all data and information on the suitability and application of our products are not binding and do not exempt the purchaser from own tests and trials. ThoJoMech's  liability shall be limited to the amount of any purchase. In no event will the company be liable for consequential or special damages arising from any defect or use of products or services. The company shall not be liable to the buyer, nor any customer of buyer, for loss of profits, lost data, lost products, loss of revenue, loss of use, cost of down time, business good will, or any other incidental or consequential damage, whether in an action in contract or tort, arising out of or related to the machine or components, or other products or services provided by ThoJoMech, or the failure of parts or products made using ThoJoMech machines or products, even if ThoJoMech has been advised of the possibility of such damages.

3. Obvious defects must be reported in writing immediately, but no later than two weeks after receipt of delivery. Otherwise all warranty claims are excluded. In commercial transactions §§ 377, 378 HGB shall apply in addition.

4. The purchaser must return to us the items notified as defect of delivery in original packaging. If the complaint was raised within the allowed period and is deemed valid, ThoJoMech may decide at their discretion to make improvements or deliver new fully functioning goods . If the repair or replacement fails, the customer may demand a price reduction or cancellation of the contract at his discretion.

5. As a rule and even with unsuccessful repair or replacement we shall be liable for damage only insofar as we can be charged with intent or gross negligence or lack of assured properties..

IX. Liability in other cases

1. In all other cases not covered by these Conditions of Sale claims by the customer for damages of any kind are excluded, irrespective of legal grounds on which  they were derived. This exclusion of liability applies in particular to bad performance and violation of pre and contractual obligations, and also applies to non-contractual claims, especially claims in tort and product liability . The exclusion of liability extends to our employees and agents. The exclusion of liability does not apply to intent or gross negligence and the lack of assured properties .

X. Withdrawal and compensation of unexecuted orders

1. We can withdraw from the contract if a suspension of payments, the opening of bankruptcy or judicial composition proceedings, the rejection of bankruptcy for lack of assets, exchange or check protests or other concrete indications about deterioration in the financial circumstances of the purchaser become known.

2. If we withdraw from the contract or if the order is not executed for reasons for which the customer is responsible, then the customer has to pay us for our expenses and loss of profit a lump sum compensation of 15 % of the purchase price. We retain the right to claim compensation for a detectably higher damage. The lump-sum compensation reduced to the extent that the customer can prove that expenses or damages have not occurred .

XI. Property and copyrights to documents

1. On drawings, sketches , specifications, samples , cost estimates and other documents we reserve our property- and copyright. They may not be made ​​available without our express permission and others are at our request, including all copies made and copies may be returned immediately .

XII. property rights

1. As far as programs are part of delivery, the purchaser acquires guilty of simple rights. The transferability of this right as well as making a backup depends on an individual basis according to the provisions of the suppliers. Making copies is strictly prohibited, unless, in individual cases, to make a backup copy has been expressly permitted. The customer will also respect all intellectual property rights to the goods and pass on in the case of resale, the right of use restriction effectively to its customers.

XIII. explanation

1. Customer in accordance with our conditions of any buyer of our products, whether buyer or purchaser .

XIV. Performance, Jurisdiction, Partial Invalidity, Applicable Law

1. The place of performance for all reciprocal services indicated in the contract services including any refund claims shall be Vienna . (in german language)

2. In business transactions with merchants that do not belong to the designated traders, and legal entities of public law shall be agreed as place of jurisdiction for all from the contract resulting litigation, including bills and checks Vienna . We are also entitled to sue at the customer's domicile .

3. Should any of the provisions contained in the Conditions be or become invalid, the validity of the remaining provisions shall not be affected. In place of ineffective regulations be replaced by a valid provision that most closely approximates the economic purpose of the invalid provision .