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General Terms of Delivery for agricultural machinery and vehicles

 

These General Terms of Delivery are basically designed for legal business-to-business contracts. If, in exceptional cases, these Terms form the basis of legal contracts with consumers in the sense of § 1 Sect. 1 No. 2 of the Austrian Consumer Protection Law, BGBI. Nr. 140/79, they are only valid insofar as they do not contradict the stipulations of the 1st Chapter of this law.

 

General stipulations:

These Terms of Delivery for agricultural machinery and vehicles (in the following called Terms of Delivery) stipulate the rights and obligations of the contracting parties. Thereby they form the legal fundament of such contracts and are the fundament of all business of Reform-Werke Bauer & Co. Gesellschaft m.b.H. (in the following called Supplier) with respect to agricultural machinery and vehicles, and furthermore with respect to spare parts, equipment and the fulfilment of work orders, unless explicit written special agreements are made. Deviating conditions specified by the Buyer are only valid with the explicit written confirmation of the Supplier.

 

1. Scope and acceptance of the order:

Orders require written acceptance by the Supplier. Acceptance at the Supplier's discretion. Orders shall assume binding status with the stipulations and scopes in the written acceptance of the order. Computer-generated order confirmations shall be valid without signature. Subsidiary agreements and changes shall be valid only if confirmed in writing by the Supplier. With acceptance of the delivery, the Buyer accepts that these Terms of delivery are part of the contract, and possible contradicting terms of purchase of the Buyer shall not be applied. Technical specifications (measurements, weights, performance, etc.) as well as illustrations shall be deemed approximate. Designs are subject to changes. If the Buyer withdraws from the contract after legally binding award of contract, for whatever reason, the Supplier shall be entitled to a cancellation fee at the amount of 10% of the sales price for standard, saleable merchandise. For non-saleable merchandise, the Supplier shall be entitled in addition to compensation of the hitherto accrued manufacturing costs; in this case the partially finished components shall be available to the Buyer.

 

2. Time of delivery:

All specified delivery times are non-binding and refer to completion at the works; times of delivery start with confirmation of the order, both under the condition that the Buyer has submitted all documents required for delivery and/or export (such as import licenses, bank guarantees, etc.) and has fulfilled his remaining contractual obligations.

Partial deliveries shall be permissible; unforeseen events such as force majeure, industrial action, disruption in operations and rejects shall extend the time of delivery at a reasonable rate insofar as the events affect the timely completion of the entire contract or of the portion of the contract to be due next. This is without prejudice to the Supplier's right to withdraw from the contract in the event of force majeure. Claims for damages due to delayed delivery shall be excluded. The contract shall be deemed fulfilled with readiness for shipment. If shipping is postponed at the request of the Buyer, he shall compensate the Supplier for the cost accrued by storage, but at least 0.5% of the invoice total amount per month. Invoicing and payment date shall remain unaffected by this.

 

3. Prices:

Unless otherwise stipulated, the prices are in Euro, plus VAT at the rate applicable by law, and all other fees, dues, taxes, customs duties etc. The prices are suggested prices ex works, exclusive of packaging, loading, and insurance. The price applicable at the time of delivery will be invoiced.

 

4. Terms of payment:

Unless otherwise agreed, payment must be rendered promptly in cash without discounts

free of transaction charges to the Supplier's designated account(s). Payments shall only be valid if rendered directly to the Supplier. In the event of delayed payment or delayed issuance of a bill of exchange, late interest will be accrued, without the need of a reminder, from the payment due date or specified time of issuance of the bill, at the bank's debit interest rate or a higher mandatory interest rate, plus cost and expenses. If bills and cheques are accepted, this is only on account of payment, and the Supplier is not liable for timely presentment and protest in case they are drawn to out-of-town places. If due payments are not rendered in time, and the Buyer fails to honour his obligation to pay despite a demand note with a notice period of 8 days, if agreed bills are not issued to the Supplier in time or a bill is protested due to failure of payment, the total remaining amount including the current bills shall be automatically due for immediate payment, without the need of a reminder. If the Supplier learns that the Buyer's creditworthiness does not constitute sufficient security for payment, such as in the case of bill protests, garnishments etc., all open receivables from the entire business relation shall become due immediately, without the need of a reminder. Subsequent deliveries may be made dependent on an advance payment by the Buyer. Possible complaints shall not entitle the Buyer to withhold due payments. Offsetting with unacknowledged counterclaims of any kind, exercising the right of retention or assignment of receivables of the Buyer against the Supplier shall be excluded. Costs for bank guarantees, collaterals, letters of credit, collection fees etc. are the liability of the Buyer, unless agreed otherwise. The discount condition can only be invoked by the Buyer if all previous invoices have been settled. Payments by Buyer without payment reference shall be used according to chronological due dates of receivables. The Supplier shall be entitled to assign the receivables from the Buyer. In all aforementioned cases, the Supplier shall be entitled to take back the delivered goods at the cost and risk of the Buyer, either in order to commercialise them in the best way possible at free disposition on account of the Buyer, or to hold them in safekeeping. This shall not release the Buyer from honouring the contract or entitle the Buyer to claim damages because of failure to perform. Spare parts are generally delivered cash on delivery only.

 

5. Right to withdraw from the contract:

The Supplier reserves the right to withdraw from orders entirely or in part prior to delivery in case the Buyer's creditworthiness seems doubtful to the Supplier, without giving the Buyer the right to claim damages even for pre-paid goods.

 

6. Reservation of proprietary rights:

6.1. The Supplier reserves the proprietary rights of all goods delivered until his receivables from the Buyer within the business contract are settled, including interest and fees. This shall apply also if some or all of the Supplier's receivables are carried in a current account which is balanced and the balance is acknowledged.

 

6.2. If the Buyer uses a financing company or a bank, he is obliged to inform this organization explicitly of the fact that the Supplier reserves his proprietary rights until the price total including accrued interest and cost has been paid.

 

6.3. The Buyer may not pledge the goods until full payment of the price. In the event of other third party dispositions, the Buyer shall inform the Supplier forthwith.

 

6.4. The reservation of proprietary rights shall not be rescinded by payments from third parties, in particular by payments from endorsers of bills. In this case, the Supplier's rights

are transferred to the payer.

 

6.5. Despite the reservation of proprietary rights, the Buyer bears the risk of destruction and deterioration of the goods. If the Buyer failed to insure the accepted

goods in a sufficient manner, the Supplier may insure the delivered goods in the usual way, at the expense of the Buyer.

 

6.6. Moreover, the goods under reservation of proprietary rights shall be used with due care and consideration, and properly maintained and serviced.

 

6.7. If goods are delivered for resale, an extended reservation of proprietary rights shall take effect. The Buyer may sell the goods under reservation of proprietary rights only if he

 

a) at the same time assigns to the Supplier the sales price receivable at the amount of the amount still owed to the Supplier and takes the assignment to record in his books.

 

b) in the case of payment in cash, has the buying price separately available for the Supplier.

 

6.8. This does not prejudice the Supplier's entitlement to claim receivables himself. If the Buyer does not honour his obligation to pay in a proper manner, the Supplier may demand that the Buyer disclose to him the assigned receivables and their debtors, discloses all necessary information for collection, submits the respective documents, and informs the debtors of the assignment.

 

6.9. If the delivered goods become constituent parts, the assignment is allocated according to their proportional value of the entire claim.

 

6.10. In the case of the Buyer being tardy in payment or his creditworthiness deteriorating, the Supplier shall be entitled to take back the goods under reservation of proprietary rights at any place and at any time, unless the Buyer furnishes suitable collateral accepted by the Supplier.

 

6.11. The Supplier undertakes to release the collaterals due to him by the amount as their value exceeds the unpaid receivables to be secured by more than 20%.

 

7. Transfer of risk, shipment:

The risk shall be transferred to the Buyer from departure ex works. Shipment shall be at the risk of Buyer even if it is carriage paid to Buyer.

 

8. Pre-emptive right:

In the event of liquidation, settlement, bankruptcy or shutdown of business, the Buyer shall grant the Supplier pre-emptive rights to the goods in inventory that were delivered by the Supplier.

 

9. Warranty:

 

9.1. The Supplier shall be obligated to rectify any defect impairing the usability that is caused by faulty design, material, or workmanship. Likewise, the Supplier is liable for defects of explicitly required features.

 

9.2. This obligation shall apply only to defects which occurred within the period of one year, with one-shift operation, from the date of transfer of risk, or in the case of delivery with installation, from completion of installation.

 

9.3 The Buyer shall be entitled to invoke this paragraph only if he informs the Supplier of the defect forthwith and in writing. The presumption rule [Vermutungsregel] of Section 924 ABGB [Austrian General Civil Code] shall be excluded. Having been informed in the described manner, in case a defect subject to warranty as defined in this clause exists, the Supplier shall, at his discretion:

 

a) improve the defective goods or the defective parts at the place of performance;

b) have the defective goods or the defective parts sent back to him for improvement;

 

c) replace the defective parts;

d) replace the defective goods.

9.4. If the Supplier has the defective goods or parts sent back to him for improvement or replacement, the Buyer shall bear the costs and risk of transport, unless otherwise agreed. The improved or replaced

goods or parts shall be sent back to the Buyer

at the cost and risk of the Supplier, unless otherwise agreed.

 

9.5. Defective goods or parts replaced in accordance with this clause shall become the property of the Supplier.

 

9.6. The Supplier shall be liable for the cost of an improvement of defects performed by the Buyer himself only if the former agreed to this in writing.

 

9.7. The warranty obligation of the Supplier shall only apply to defects which occur while complying with the operating conditions provided for the relevant delivered item and in the case of normal use. The warranty obligation shall not apply in particular for defects caused by: poor installation by the Buyer or a third party authorised by the Buyer, poor maintenance, poor repairs or alterations, or repairs or modifications carried out by a party other than the Supplier or a party authorised by him, and normal wear. The Supplier shall be liable for those parts of the goods which the Supplier purchased from upstream suppliers specified by the Buyer only to the extent of the Supplier's warranty claims visà-vis the upstream supplier. If goods are manufactured by the Supplier on the basis of design specifications, drawings or models supplied by the Buyer, the Supplier's liability shall not extend to the correctness of the design but only to the execution of the work according to the Buyer's specifications. In the possible case of infringement of industrial property rights, the Buyer shall hold the Supplier free from damages and claims. The Supplier shall not grant warranty when accepting repair orders, or for modifications or retrofits of old or third-party goods, as well as for delivery of pre-owned goods.

 

9.8. From the start of the warranty period, any liability of the Supplier going beyond that which is determined in these provisions shall be excluded.

 

10. Liability

 

10.1 It shall be deemed as expressly agreed that the Supplier shall not be liable for damages for personal injury and damaged goods that are not part of the contract, for other damage and for lost profit, unless the circumstances of the individual case indicate gross negligence on the Supplier's part. Reversal of the burden of proof as defined by Section 1298 ABGB [Austrian General Civil Code] shall be excluded.

 

10.2 The object of purchase offers only the safety that can be expected on the basis of licensing or registration regulations, operation instructions, directions by the Supplier on the handling of the object of purchase – especially with regard to possible mandatory inspections – and other information given by the Supplier.

 

 

 

10.3 All claims for damages from faulty or defective deliveries and/or services – if the defect is not explicitly recognised by the Supplier – shall be brought before a court of law within the period of one year from the expiration date of the contractually stipulated warranty period, otherwise the claims shall be forfeited.

 

11. Consequential damage

Unless stipulated otherwise in these Terms, the Supplier's liability vis-à-vis the Buyer for business interruption, lost profit, loss of use, contractual losses or any other economical or indirect consequential damage shall be excluded.

 

12. Processing fees:

 

12.1. For issuing a duplicate type approval certificate or issuing of vehicle documents for pre-owned imports EUR 120 excl. VAT.

 

12.2. For returned goods:

• up to a gross value of the returned goods of EUR 150 excl. VAT, a fee of EUR 13 excl. VAT.

• up to a gross value of the returned goods of EUR 400 excl. VAT,

a fee of EUR 32 excl. VAT.

• from a gross value of the returned goods of EUR 400 excl. VAT,

a fee of EUR 52 excl. VAT.

 

13. Goods on commission:

The Buyer shall be liable for the loss or damage of the goods in his care and for the effects of improper storage, unless the loss or damage is caused by circumstances which could not have been avoided by the due care and diligence of a prudent business person.

 

14. Place of fulfilment and jurisdiction:

Place of fulfilment and jurisdiction for delivery, payment, and all other mutual obligations is Wels, Austria. The legal relations shall be based on Austrian law. The Supplier shall be entitled also to go to the court in charge of the Buyer's domicile. If any provision of this contract becomes ineffective, the effectiveness of the remaining contract shall not be affected thereby.