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General Terms and Conditions of Sale and Delivery |
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for the
motor vehicle industry (as well as the trailer and body-building industry) of 1
January 1969 in the version of 15. February 2010
These general
terms and conditions of sale and delivery for the seller are basically
conceived for legal transactions between enterprises. If, in exceptional cases, they are used as a basis for legal
transactions with consumers as defined in § 1 Austrian Consumer Protection Act
(Konsumentenschutzgesetz),
Civil Code 140/79, they apply only to the extent that they do not contradict
the provisions of the first main part of said act.
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I. |
Scope of application |
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1. |
The scope of application of these
general terms and conditions of sale and delivery cover all bids, legal
transactions and other performances of the seller. In the course of ongoing business relationships, these general terms
and conditions of sale and delivery apply to future performances even if they
are not explicitly agreed in each case. Deviating agreements must be rendered in writing to attain validity. The applicability of any (general) business
terms and conditions of the buyer is hereby denied; they do not obligate the
seller even if the seller does not deny their applicability again on entering
into a contract. |
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2. |
All bids and cost estimates
and all specifications in brochures, advertisements or on the website of the
seller are given without engagement and are non-binding in nature. They are
meant solely as requests to submit an offer; no guarantee is given for the
correctness of cost estimates. |
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II. |
Prices |
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1. |
Prices from the seller are net prices (in euros) from the delivering factory/registered office of
the seller without packaging, discount and without value added tax plus any
price increases owing to an increase in initial cost (material prices, wages,
general overhead costs, etc.) occurring between the placement of the order
and delivery. |
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III. |
Payment conditions, reservation of
title |
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1. |
One third of the price is due (as
a down payment) when the contract is made and entered into; the remainder is
due at the latest upon delivery. All payments
must be rendered in cash, free of charge and without any deduction. Checks and bills of exchange are accepted
only by special agreement and only as payment, not in lieu of payment. The buyer shall bear all incidental costs
arising from this contract, such as shipping expenses, financing expenses,
cost of putting a lien in the Land Registry against the purchase price owed,
fees, interest and the like. |
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2. |
An offsetting of the
buyer’s receivables against the seller’s receivables is precluded. Further, the buyer is not entitled to
withhold payments on the grounds of warranty claims or other claims not
acknowledged by the seller. The buyer’s
payments are first offset against repair costs, then against receivables for
spare parts, then against interest and other incidental fees and only after
all those are covered, against goods subject to retention of title. |
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3. |
If after the contract is entered
into, circumstances become known that give rise to well-founded doubts
about the buyer’s ability or willingness to pay and if the buyer fails to
comply with a request for advance payment or the furnishing of appropriate
security (as stipulated by the seller), the seller is entitled to its choice
of either withholding performances or withdrawing fully or partially from the
contract without assuming any follow-up costs whatsoever. |
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4. |
In case of late payment and/or
violation of any other contractual provision by the buyer, an acceleration
clause is agreed to. Above and
beyond that, the seller is entailed to withdraw immediately from the
contract. In the case of default, the legal
rates for interest on arrears are agreed. The seller’s right to assert damages above and beyond that remains
unaffected. |
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5. |
The object being purchased and its
parts remain solely the seller’s property until the buyer fully satisfies all
its (payment) obligations connected to the given legal transaction (retention
of title), even if the individual parts are already paid for. As long as the retention of title is in
force, the object being purchased is not allowed to be sold, given in pledge,
transferred by way of security, leased out or otherwise relinquished without
written consent from the seller. If the buyer
fails to satisfy its payment obligations in part or as a whole, if excess
debt is outstanding or payment is suspended or if a petition is pending for
composition or bankruptcy proceedings against the buyer’s assets, the seller
is entitled but not obligated to take back the object being purchased and to
assert immediately any further rights arising from the retention of title. |
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6. |
The seller is entitled to keep the
type-approval certificate (Typenschein) until such time as the buyer has fully met
all its obligations connected with the given legal transaction. |
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7. |
If claims are asserted by third
parties against the seller’s retention of title, the buyer must notify the
seller thereof immediately by registered letter and reasonably defend the
seller’s retention of title at its own expense. |
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8. |
While the retention of title is in
force, the object being purchased must be insured by the buyer at the
seller’s request at its original price against all risks including fire. The transfer of the insurance policies must
be restricted to the seller. |
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9. 10. |
While the retention of title is in
force, the buyer is obligated to keep the object being purchased in proper
condition and to have any needed repairs, except in the case of emergency,
carried out at the seller's repair workshops or in a workshop recognized by
the seller. Any used material arising from
repairs and bodywork becomes the property of the seller without requiring
special notification of the buyer. |
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IV. |
Delivery |
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1. |
The seller’s delivery deadlines
are always non-binding. |
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2. |
The delivery periods do not begin
until the agreed down payment is rendered in full. |
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3. |
If a change is agreed in the given
order, the seller is entitled to set a new delivery deadline unilaterally. |
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4. |
The seller reserves the right to
make design and form changes during the delivery period. |
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5. |
The buyer is
precluded from asserting claims due to non performance or default unless the
seller is to blame for having caused these circumstances willfully or by
gross negligence. |
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V. |
Performance |
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1. |
The seller’s deliveries and services are
performed: |
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a) |
Ex works: |
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Upon submitting notification of a
readiness to ship the goods. The buyer
must take over the object being purchased immediately after being notified of
this readiness to ship.
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b) |
In the
case of agreed place of performance/shipment: |
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Upon leaving the delivering factory. |
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2. |
Upon this performance, risk and
dangers pass to the buyer, also in the event of accidental destruction. If the delivering factory sets a pick-up
deadline and the buyer exceeds that deadline, a fee can be charged for
storage. |
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VI. |
Warranty and liability |
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1. |
Unless deviating provisions are
provided below, the legal warranty and liability provisions apply. Warranted characteristics as defined in § 922 (1) Civil
Code are only characteristics expressly designated and warranted by the
seller. Product descriptions, brochures
and information from the seller (or a third manufacturer) etc. are not deemed
warranted characteristics. In the case of repair work, a
warranty exists only for replaced parts and only in the scope of the warranty
of the manufacturer or
supplier of such
parts. No warranty is granted for wearing
(parts) and used vehicles. The warranty period is set
at one year. For new motor vehicles, a warranty
exists only as stipulated in the provisions below and only for freedom from
defects in keeping with the state of the art: |
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a) |
New single-track motor vehicles
that have been driven up to 6,000 km at most; |
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b) |
New dual-track motor vehicles that
have been driven up to 10,000 km at most; |
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c) |
New utility vehicles (trucks,
buses and tractors) that have been driven up to 20,000 km at most. |
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2. |
The warranty period does not begin
until the contract has been performed. The warranty becomes null and void if the buyer subsequently sells the
purchased object, if the purchased object is changed by a third party or
changed as a result of parts produced by others being installed in it, if the
buyer does not follow the regulations on vehicle handling (operating
instructions) (in particular if the total admissible weight, axle pressure,
payloads or chassis carrying capacity are exceeded or required inspections
are not carried out).
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3. |
The seller is not liable for parts
he has not produced himself but is willing to assign to the buyer defect
claims against the manufacturer to which the seller is entitled. |
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3. |
The seller must be notified in
writing of warranty claims within 14 days of the defect becoming known,
indicating the type and scope of the defect (notification of defects);
otherwise the claim is forfeited. The
application of §§ 924, 933b Civil Code is precluded. The party taking over the object must prove that a defect
exists at the time of the handover. |
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4. |
There is no claim to a rescission
of sale or a lowering of the purchase price. The seller is free to satisfy a warranty obligation by means of improvement
or substitution/replacement. The buyer
must grant the time and opportunity needed for this improvement or
replacement to a reasonable extent. If the buyer
fails to do so or reduces this time or opportunity to an unreasonable extent,
the seller is exempted from warranty. In all cases, only parts are replaced. The buyer must cover the wages
and costs incurred for part installation and removal. |
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VII. |
Compensation for damage |
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1. |
Damage claims are precluded in
cases of ordinary negligence. The existence
of gross negligence must be proven by the damaged party. All damage claims become statute-barred in
each case from knowledge of the damage and damaging party within one year
after expiration of the warranty period. |
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2. |
Other damage claims of the buyer
of whatever kind are precluded with the exception of gross negligence on the
part of the seller. |
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3. |
If the
buyer of the purchased object is, in turn, a seller, its right of recourse in
accordance with § 12 Austrian Product Liability Act (Produkthaftungsgesetz) is
expressly precluded. |
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VIII. |
Avoidance
on account of mistake |
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Buyer
and seller mutually forfeit the right to contest legal transactions on
account of mistake as defined in § 871 Austrian Civil Code. |
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IX. |
Saving clause |
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Should
provisions of these general terms and conditions of delivery and sale
be/become ineffective in part or as a whole, all other provisions of these
general terms and conditions of delivery and sale shall remain effective. The ineffective provision shall be replaced
by another one that resembles as closely as possible the content and purpose
of the ineffective provision. |
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X. |
Legal venue |
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Austrian substantive law, except for its
conflict of law rules pertaining to foreign law, shall apply exclusively to
all orders, particularly those subject to these general terms and conditions
of delivery and sale.
If Austrian law
provides for the application of special international provisions of
substantive law also valid in |
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