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GENERAL TERMS & CONDITIONS of BERGER Fahrzeugtechnik Ges.m.b.H., 6241 Radfeld, Rettenbach 10a, Austria

I. General

  1. These General Terms & Conditions of Delivery and Sale (T&Cs) of BERGER Fahrzeugtechnik Ges.m.b.H., 6241 Radfeld, Rettenbach 10a, Austria, hereinafter referred to as BERGER, constitute an integral part of every business relationship between BERGER and the CLIENT. Once in force between BERGER and the CLIENT, these T&Cs are binding on all present and future business transactions between the same, even if no renewed express reference to BERGER's T&Cs is made. The T&Cs also apply in particular to any repeat orders placed by the CLIENT.

  2. Any deviating terms and conditions of the CLIENT are valid only if BERGER has expressly recognised them in writing.

  3. Verbal or telephone agreements, collateral agreements or amendments to the contract shall become binding only on confirmation in writing by BERGER.

  4. The assignment of claims against BERGER shall be permitted only with BERGER's written approval.

  5. The CLIENT must inform BERGER in writing of any changes to the CLIENT's address. Any written communication (e.g. invoices) sent by BERGER to

    the last address provided in writing by the CLIENT shall be deemed to have been received after the time it would normally take to arrive by post has elapsed.

  6. If individual provisions of these T&Cs or of a contract concluded with BERGER are legally ineffective, invalid and/or void or become so during the course of their term, the validity of the remaining provisions shall not be affected. The ineffective, invalid or void provisions shall be replaced by effective and valid provisions, the content of which best meets the sense and purpose of the ineffective, invalid

    or void clause.

II. CONCLUSION OF CONTRACT

  1. Offers from BERGER to the CLIENT are, unless expressly stated otherwise in writing, invitations to treat and non-binding.

  2. Technical information in brochures, catalogues, price lists or other marketing publications are non-binding and may

    be subject to change as required; BERGER is not liable for incorrect information.

  3. The CLIENT shall be bound by its purchase request (contract proposal) until it is accepted or rejected by BERGER, but for no longer than 6

    weeks; the acceptance period is extended by a further 8 weeks for requested special designs.

  4. In the event that there are still matters to be clarified pertaining to the order, or if the CLIENT has not provided specific documents,

    BERGER can merely confirm that an order has been received for the time being. However, such a “confirmation of the receipt of an order” by BERGER does not constitute acceptance

    of the CLIENT's offer. The order shall take effect only with the sending of the binding order confirmation.

  5. A binding contract shall take effect only once the parties have exchanged official written documents, i.e. once the CLIENT has signed a

    purchase request and this has been accepted in writing by BERGER.

III. PRICES

  1. Unless otherwise agreed in writing, the prices are net, plus the applicable VAT, without deductions, unpacked, duty unpaid, ex works from Radfeld.

  2. BERGER reserves the right to increase the prices as appropriate if cost increases arise for BERGER after the contract has been concluded, particularly due to price increases on the part of suppliers, or fluctuations in the exchange rate, changes to freight tariffs or customs duties etc. The CLIENT has no right of withdrawal if the price increases are due to factors beyond BERGER's influence.

  3. The CLIENT shall bear any costs for packaging, loading, transport, insurance, permits etc. The CLIENT shall bear all incidental costs arising from the contract.

IV. PAYMENT CONDITIONS AND DEFAULT

  1. The entire sale price shall be due for payment to BERGER and free of charges, unless otherwise agreed in writing, at the latest on the day the contract goods are handed over to the CLIENT, or when the obligation to take possession arises.

  2. All payments must be made free of charges and deductions into a bank account belonging to BERGER. Payments are deemed to have been made only once they can no longer be recalled from a bank account belonging to BERGER. BERGER may refuse to accept cheques, bills of exchange and other payment methods without giving reasons, or may accept them only by special arrangement and only as payment, not in place of performance.

  3. Payments made by the CLIENT are assigned to any outstanding claim at BERGER's discretion, unless otherwise agreed; this is usually done in chronological order from the oldest to the most recent claim, first to repair costs, then to spare part charges, then to interest and other additional fees, and only then finally to the contract goods subject to the retention of title.

  4. Late payment occurs without additional warning being given. Late fees are agreed as 10 % pa over the Euribor rate. Any higher interest loss or loss by exchange shall be compensated. In the event of late payment by the CLIENT, BERGER is also entitled to demand interest from the day of handover of the contract goods subject to retention of title.

  5. Moreover, if payment is late, the CLIENT is obligated to reimburse BERGER for any reminder and collection costs, providing these were necessary for appropriate legal action. This also includes a lump sum of €40.00 to cover operating costs. This does not affect the right to assert other rights and claims.

  6. In the event of the CLIENT's non-compliance with payment conditions, BERGER shall be entitled to demand compensation due to non-fulfilment. In addition, BERGER shall be released from all other obligations of performance and delivery and shall be entitled to withhold outstanding deliveries or performance, and to demand advance payment or securities, or to withdraw from the contract following a reasonable period of grace of 2 weeks. If BERGER declares its intention to withdraw from the contract for this reason, the CLIENT shall, at its own cost, immediately return any contract goods that have already been delivered, and shall compensate BERGER for any reduction in value and shall reimburse BERGER for all expenditure. As compensation for the damages incurred in such a situation, BERGER is entitled to demand that the CLIENT either reimburses the damages suffered and the lost profit, or pays a cancellation fee of 15 % of the net sales price with immediate effect with no right to reduction.

  7. In the absence of voluntary surrender of the contract goods following default in payment, BERGER is entitled to take possession of the goods itself, without this giving rise to any claims of restitution, injunctive relief, compensation, or other claims of any kind under civil law on the part of the CLIENT.

V. RETENTION OF TITLE

  1. BERGER retains the title to the sold and integrated goods until full and unconditional payment of all claims arising from the current contract and any supplementary agreements.

  2. For as long as BERGER retains the title, the CLIENT shall not sell, pledge, mortgage, lease or otherwise transfer the subject of the contract to third parties without BERGER's prior written consent, which may be withdrawn at any time. The consent shall lapse automatically in the event of insolvency or enforcement of a lien.

  3. If the contract goods have been resold with BERGER's authorisation before complete payment, then the CLIENT shall transfer its claim from the sale with regard to the third party to BERGER in advance. BERGER must also be informed in the event of such a sale; as must the third party be informed about the transfer of the claim.

  4. The retention of title must be noted on the certificate of conformity (or a comparable foreign vehicle document) and on the vehicle. BERGER is entitled to retain the certificate of conformity (or comparable foreign vehicle documents) until full settlement of all obligations arising from the legal transactions with the CLIENT.

  5. The CLIENT must at its own cost undertake all actions necessary to establish and enforce the title. During the period of retained title over the contract goods, BERGER is entitled in particular to demand that the CLIENT take out comprehensive insurance that fully covers the new value of the contract goods at the CLIENT's own cost; the CLIENT shall assign all claims arising from such an insurance policy to BERGER and restrict transferability in BERGER's favour when the policy is taken out.

  6. While the retention of title is in force, the CLIENT is obligated to maintain the contract goods in proper working order and to have repair work performed as necessary, except in an emergency, in a garage authorised or approved by BERGER. The CLIENT shall pay for the cost of repairs if the work is necessary because of circumstances for which the CLIENT is responsible.

  7. The CLIENT shall also bear the risk of accidental destruction of the subject of the contract. In the event of loss due to write-off or official order, the CLIENT must settle any outstanding payments immediately.

  8. If third parties are to access the contract goods delivered subject to the retention of title, then the CLIENT must report this to BERGER immediately in writing by registered letter. Moreover, the CLIENT must make BERGER's right of ownership known and must reimburse BERGER for all costs arising in relation to safeguarding this right. In the event of non-payment of one of BERGER's claims, suspension of payments, opening of bankruptcy or enforcement of a lien on any goods subject to retention of title, the CLIENT must immediately return all the goods subject to retention of title to the dealer. Unless stated otherwise, return of the delivered goods subject to the retention of title does not equate to withdrawal from the contract. If BERGER takes the goods subject to the retention of title out of service, BERGER is entitled to store these at the cost and risk of the CLIENT.

VI. RIGHT OF RETENTION

Regardless of any legal provisions or other agreements to the contrary, BERGER shall have a right of retention over all goods that are intended to be handed over to the CLIENT and that are still in BERGER's possession or under BERGER's ownership, until the CLIENT has paid all claims arising from the contract.

VII. TRANSFER OF RISK; PERFORMANCE AND DELIVERY

  1. Unless otherwise agreed in writing, BERGER delivers ex works from Radfeld, or in variation from this, from an alternative delivery location to be specified by BERGER. BERGER is entitled to pass all or part of an order to a third party, or to commission a third party to execute all or part of an order.

  2. Any shipping of the contract goods agreed with the CLIENT shall always be effected at the cost and risk of the CLIENT.

  3. The risk of total or partial destruction, loss, deterioration, damage, seizure, or requisition of the contract goods transfers to the CLIENT within 48 hours after notification of readiness to supply. The sending of an invoice, including by FAX, shall constitute notification of readiness to supply.

  4. A delivery date or delivery period is binding only if this commitment has been expressly specified in writing in the contract. BERGER's period for performance and delivery shall be extended as appropriate in the event of an unforeseen impediment that lies outside BERGER's control. In the event of operational disruptions, strikes, public unrest, lockouts, whole or partial closures of the production sites for whatever reason, or if such events affect the operations of significant suppliers, in the event of war, a terrorist attack or an official order, as well as in all other cases of force majeure (fire, flood, earthquake etc.), BERGER's period for performance and delivery shall be suspended for the duration of the disruption and until the operational consequences have been resolved. In these cases, BERGER shall not be liable for any legal consequences of any kind. Moreover, in such cases BERGER reserves the right to declare its withdrawal from the contract, which would require it to repay without interest any payments made; however, BERGER would not be liable to pay compensation.

  5. If changes to the contract goods are subsequently agreed, then the period for performance and delivery shall be extended accordingly.

  6. In the event that the agreed delivery period or date has been missed, default arises only once the CLIENT has submitted a written reminder, and the goods have still not been delivered after the expiry of a reasonable period of grace specified by BERGER. If BERGER has caused the default through gross negligence or deliberate intent, then the CLIENT is entitled – after a reasonable period of grace of at least two weeks has been set in writing and has expired – to demand fulfilment or to declare its withdrawal from the contract. The CLIENT shall declare this withdrawal by means of registered letter. The right of withdrawal applies only to the part of the delivery or performance affected by this default. The CLIENT has no right to claims for compensation due to default or non-fulfilment, providing BERGER has not caused these circumstances through gross negligence or deliberate intent. In particular, the CLIENT has no right to claims for compensation if the default of delivery or performance is due to non-delivery or late delivery on the part of one of BERGER's sub-suppliers (see X. 3., 4.).

  7. If the CLIENT fails to fulfil an agreed contractual obligation, BERGER is no longer obligated – without being subject to any consequences of default – to comply with the delivery period or the delivery date.

  8. BERGER reserves the right to withdraw from the contract if – after order confirmation and before readiness to deliver – it becomes aware of economic circumstances of the CLIENT that make it appear unlikely that the CLIENT will be able to meet its payment obligations to BERGER. In such circumstances, the performance or delivery of the contract goods may be made dependent on full advance payment or submission of an original copy of a suitable bank guarantee.

  9. BERGER reserves the right to make changes to design and form, providing that the function or appearance of the contract goods is not substantially altered as a result. Such changes and other changes to the performance or delivery obligation that are reasonable for the CLIENT are deemed to have been approved by the CLIENT in advance. The CLIENT has no right to demand specific colouring of supplied parts.

  10. The details of technical data for the contract goods merely constitute approximate details. The standard tolerance values for the industry apply.

  11. BERGER reserves the right to review the technical product specification provided by the CLIENT until the start of production. If the review reveals that the CLIENT's desired product specification does not meet the necessary safety standards, or that it does not comply with other technical or legal regulations, then BERGER has the right to withdraw.

VIII. CONDITIONS OF FULFILMENT & ACCEPTANCE

  1. BERGER has fulfilled its performance on notification of readiness to deliver; on agreed despatch of the contract goods when handed over to a haulier, or when the goods are made available at a nominated alternative place of delivery.

  2. The CLIENT is entitled and obligated to inspect the contract goods immediately on acceptance, but at the latest within 7 calendar days of notification of readiness to deliver, during normal operating hours at the Radfeld site or at a nominated alternative place of delivery. The CLIENT is obligated to take possession of the contract goods following this inspection, but at the latest by the expiry of the seven-day inspection period, providing the CLIENT does not discover serious defects during the inspection and report them to BERGER immediately in writing by registered letter. No notification of recognisable defects shall be accepted after this time. If the CLIENT expressly or tacitly waives the right of inspection, then the contract goods shall be deemed to be properly delivered and accepted; the CLIENT is thus obligated to take possession. The CLIENT is also obligated to take possession of the goods if the inspection has revealed only minor defects.

  3. If the CLIENT fails to take possession of the contract goods within 2 weeks of the obligation to take possession arising, BERGER is entitled – after a period of grace of 2 weeks – to withdraw from the contract and to demand compensation from the CLIENT for non-fulfilment. BERGER is similarly entitled if approval for a shipping order is overdue for the agreed despatch of the contract goods. If BERGER withdraws from the contract because of non-fulfilment on the part of the CLIENT, BERGER is entitled to demand from the CLIENT either the damages sustained and the lost profit, or a cancellation fee in the amount of 15 % of the net sales price due with immediate effect.

  4. In the event of late acceptance of the contract goods, BERGER is entitled to charge the CLIENT a late fee in the amount of €10.00 (plus any applicable VAT) per calendar day or fraction thereof after the expiry of 2 weeks from the obligation to take possession arising.

IX. GUARANTEE

  1. BERGER guarantees that the contract goods shall function properly for a period of 24 months from the transfer of risk. Proper function shall be measured by the standard of technology for comparable vehicles at the time of transfer of risk. This is a period of limitation.

  2. BERGER's guarantee obligation exists only if the CLIENT has fulfilled its contractual obligations, particularly with regard to payment and prompt inspection in accordance with VIII. 2. and if the CLIENT has identified a defect and reported the defect to BERGER immediately, specifically and in writing by registered letter, as otherwise the contract goods shall be deemed to be accepted unconditionally and free of defects. Claims arising from the guarantee shall lapse in each case within 6 months of timely notification.

  3. The CLIENT must make any guarantee claims to BERGER or to a firm authorised by BERGER to service the contract goods. In the second case, the CLIENT is obligated to inform BERGER of this immediately. The CLIENT must report defects to the authorised firm immediately in writing by registered letter, or have this firm inspect the goods.

  4. No presumption of defect to the detriment of BERGER shall be made. Presumption of defect in accordance with § 924 ABGB (Austrian General Civil Code) is excluded. The burden of proof lies with the CLIENT in each case, for the existence of a defect at the time of handover, when the defect is identified, and for the timeliness of the defect notification.

  5. The guarantee applies only if the defect relates to a fault of design, material or production. The respective supplier’s guarantee conditions, which may differ in each case, apply to tyres, axles and axle modules, brake systems and tail lifts.

  6. The guarantee consists, at the free choice of BERGER, of the repair or replacement of defective parts (rectification). Rectification shall take the form of replacement or repair of faulty parts as determined by the technical requirements. Replaced or removed parts become the property of BERGER.

  7. BERGER shall not reimburse additional expenditure incurred for the purpose of rectification, especially charges for the contract goods to be stored by the firm commissioned to perform the rectification work. Any parts installed during rectification work shall be guaranteed for the remainder of the guarantee period for the contract goods in accordance with the purchase agreement.

  8. If, despite repeated measures under the guarantee (rectification), the defect is still not resolved and further rectification work is not reasonable to expect the CLIENT to accept, then the CLIENT is entitled to demand a reduction in price. There is no claim to a replacement delivery or exchange.

  9. If BERGER does not fulfil an obligation under the guarantee, the CLIENT is entitled to withhold performance to a reasonable extent.

  10. If the CLIENT has undertaken unauthorised repair work, BERGER shall pay costs only if this work and the acceptance of costs have been expressly authorised in writing in advance.

  11. Used vehicles are sold as seen with no guarantee. BERGER guarantees repairs on used vehicles only if BERGER has expressly undertaken in writing to do so.

  12. Wear parts, normal wear and tear from proper use, and damage due to negligence, accidents or improper handling, are excluded from any guarantee.

  13. BERGER has no guarantee obligation if
    a. The CLIENT has not reported a defect immediately in writing by registered letter and BERGER has not been given an immediate opportunity to undertake rectification,
    b. Parts, the use of which BERGER has not authorised, have been installed in the contract goods, or the contract goods have been altered in a way that BERGER has not authorised,
    c. The CLIENT has had the contract goods repaired, serviced or maintained by a firm that BERGER has not authorised, or
    d. The CLIENT has not followed the provisions, warnings and instructions about handling, operation, maintenance and servicing for the contract goods, or has breached legal regulations.

  14. Guarantee obligations are not affected by a change in ownership of the contract goods.

X. LIABILITY & COMPENSATION

  1. The compensation obligations of ProdHaftG (Austrian Product Liability Act) apply without restriction. However, the liability and compensation exclusions of these T&Cs also apply without restriction, providing they are not contradicted by the legal regulations. The injured party bears the full burden of proof for all legal requirements arising from tort and damages law.

  2. BERGER is not liable for damage or consequential damage caused by defects, unless the defect has been caused due to gross negligence or deliberate intent on BERGER's part. No liability is accepted for any deterioration, loss or damage to the contract goods belonging to the CLIENT that occurs due to fire, water penetration, theft, looting or other causes for which BERGER is not responsible.

  3. BERGER is liable to the CLIENT for damages of any kind only in the event of gross negligence. BERGER is not liable for lost profit. Likewise, BERGER is not liable for damages that are asserted against the CLIENT by third parties.

  4. Claims for compensation must be made before the court within one year after the expiry of the guarantee period for the contract goods, unless BERGER has expressly recognised them; otherwise they shall expire.

  5. The contract goods provide only that level of safety that may be expected based on licencing regulations, operating instructions, regulations from BERGER or the supplier of the component, especially with regard to prescribed inspections, servicing and maintenance work, and other instructions that have been given.

  6. In the event of non-fulfilment or improper fulfilment of this contract, and in the event of an unjustified withdrawal from the contract by the CLIENT, the contractual parties hereby agree that the CLIENT shall pay liquidated damages in the amount of 15 % of the purchase price. The liquidated damages shall be paid regardless of culpability. BERGER reserves the right to claim damages in excess of the liquidated damages. It is expressly agreed that BERGER may deduct the liquidated damages from any down payment amount the CLIENT has paid.

XI. JURISDICTION

  1. The law of the Republic of Austria applies. The UN Convention on the International Sale of Goods does not apply.

  2. The Rattenberg Bezirksgericht court (Austria) and the Innsbruck Landesgericht court (Austria) are the sole places of jurisdiction.

Date: October 2016

General Purchase Conditions Berger Fahrzeugtechnik Ges.m.b.H.

I. General

1. The following Purchase Conditions apply exclusively to business transactions between the Supplier and Berger Fahrzeugtechnik Ges.m.b.H. (FN 108488t), hereinafter referred to as “Buyer” or “Berger Ecotrail”.

2. All other provisions that may deviate from or supplement these Purchase Conditions, especially the Supplier’s contradictory terms and conditions, are hereby expressly excluded. Such provisions become part of the contract only if they are expressly confirmed in writing by the Buyer.

3. These Purchase Conditions are binding for all current and future business between the Supplier and the Buyer, even if no express reference is made to the Purchase Conditions.

4. All transactions conducted under these conditions are subject exclusively to Austrian law, excluding conflict-of-law rules and the UN Convention on the International Sale of Goods. The Buyer’s registered office is the place of fulfilment and the sole place of jurisdiction for all disputes arising from these conditions or transactions subject to them.

 

II. Conclusion of contract (supply contract, call-off order)

1. Supply contracts (order and order confirmation) and call-off orders, as well as amendments and supplements to the same, must be in writing.

2. Insofar as a framework contract exists between the contracting parties, the Supplier is obliged to accept orders. The lead time agreed between the contracting parties in each instance is deemed sufficient for preparation of the consignment. Call-off orders become binding at the latest if the Supplier has not rejected the same within two weeks of receipt.

3. Insofar as the delivery item is intended for use and processing in a factory of a subcontractor of Berger Fahrzeugtechnik Ges.m.b.H, the call-offs are ordered and paid for by the Buyer.

4. The Buyer may request changes to the delivery item in terms of design and execution, insofar as this is reasonable for the Supplier. The resulting effects, especially with regard to additional and reduced costs and delivery dates, shall be appropriately resolved by mutual agreement.

 

III. Invoicing and payment

1. Payment is effected after receipt of the goods as agreed upon in the contract and after receipt of a verifiable invoice that complies with the legal provisions and pursuant to the agreed payment conditions. The agreed due dates are not affected by acceptance of an early delivery.

2. The Supplier shall define a reasonable grace period for the Buyer in writing if the Buyer defaults on payment. The Supplier may assert claims or take legal action against the Buyer only after the expiry of this grace period.

3. The Buyer is entitled to suspend its obligations arising from the contract if the Supplier breaches its contractual obligations. In particular, in the event of defective delivery, the Buyer may retain the payment or part thereof until proper fulfilment.

4. Without the Buyer’s prior written consent, the Supplier may not transfer its claims against the Buyer nor have these collected by third parties.

 

IV. Notification of defects

§ 377 UGB (Austrian Commercial Code) does not apply. Therefore, the Buyer is not obliged to inspect the supplied goods on delivery. The Buyer shall notify the Supplier about any defects within a reasonable period of their occurrence. The Buyer’s duty of inspection is limited to defects that become apparent through external examination during an incoming goods inspection (e.g. transport damage, incorrect and short deliveries). The Buyer shall notify the Supplier about any defects in the goods without delay as soon as they are identified in the ordinary course of business typical for the industry. In this respect, the Supplier waives any objection to delayed notification of defects.

 

V. Confidentiality

1. The contracting partners shall treat as confidential all commercial and technical information that is not in the public domain and that they become aware of in the course of the business relationship.

2. The contracting partners may advertise their business relationship only with the prior written consent of the other partner.

3. The Supplier shall maintain secrecy with regard to all data, information, goods and rights relating to the business relationship with the Buyer, especially concerning its company, business and operational secrets, its customers and business relationships or consignments, regardless of how these become known to the Supplier, and shall use the knowledge it gains only to fulfil the contract with the Buyer and shall not make and retain any copies of any documents without the Buyer’s written consent. Furthermore, the Supplier shall use the information only on a need-to-know basis and only within the framework of the concluded contract. The Supplier shall impose corresponding confidentiality agreements on all its subordinate employees and other persons with access to this data and shall ensure that these persons also comply with the confidentiality agreement.

4. The Supplier shall take reasonable precautions to ensure data protection pursuant to European data protection regulations. The Supplier consents to electronic data storage and processing by the Buyer and its affiliated companies of e.g. addresses, names and other information that are necessary for the conclusion of contract.

 

VI. Delivery

1. Delivery is effected to the address stipulated by the Buyer, unless otherwise agreed in writing. If no address is stipulated, delivery is effected to the Buyer’s registered office. The place of delivery is simultaneously the place of fulfilment.

2. The agreed delivery periods and dates apply. This also applies to partial deliveries. The delivery period and dates are fixed deadlines. The Supplier is in default if these deadlines are not met.

3. Partial, excess or short deliveries are permitted only if this has been agreed in writing in advance between the contracting parties. Such deviations shall never lead to any alteration to the agreed price or the agreed warranty periods.

4. As soon as the Supplier realises it will default on the delivery or performance, it shall inform the Buyer in writing without delay about the impending default and its likely duration.

5. If the Buyer is not able to accept a delivery after default by the Supplier on the (newly) agreed date, the Supplier shall postpone the delivery for a reasonable period and without additional cost for the Buyer.

6. Agreed dates and deadlines are binding. The date that goods are received by the Buyer determines compliance with the delivery period or deadline. The Supplier shall provide the goods in good time, taking into account the usual time for loading and shipping. The deliveries and packaging units with appropriate transport protection are agreed jointly between the Supplier and Buyer.

 

VII. Delivery default

1. The Supplier shall compensate the Buyer for damage caused by delay.

2. In the event of slight negligence, damage compensation is limited to additional transport charges, retrofitting costs and, after a grace period has expired unsuccessfully or there is no longer an interest in the delivery, to the additional expense of covering purchases.

 

VIII. Force majeure

1. “Force majeure” means incidents or circumstances or a combination thereof that temporarily prevent fulfilment of the contract, provided that their occurrence was not foreseeable and that the prevention of fulfilment is beyond the control of the contracting party invoking force majeure; this includes in particular strikes, official interference, armed conflicts and war, occupation, fire, natural disasters, pandemics, unforeseen shortages of raw materials or unforeseen transport problems.

2. If the delivery or a part thereof temporarily cannot be carried out because of force majeure, the Supplier has the right to suspend the delivery and the obligations arising from the contract while the force majeure persists, but not exceeding a period of four weeks, provided that the Supplier informs the Buyer of this in writing without delay, including details of the specific reasons for this. Both contracting parties are then entitled to suspend the obligations arising from their contract. If the Supplier is not in a position to fulfil the contract after the period of no more than four weeks has expired, the Buyer may withdraw from the contract with immediate effect with no obligation to reimburse the Supplier for any damages or costs it has incurred. The Buyer may also exercise this right of withdrawal if fulfilment is impossible from the outset because of force majeure. In this event, the Supplier shall also inform the Buyer without delay and in writing that performance is impossible due to force majeure, including details of the reasons for this.

 

IX. Quality

The Supplier shall comply with acknowledged rules of the technology, safety regulations and the agreed technical data with regard to its deliveries. Changes to the delivery item must be approved in advance in writing by the Buyer.

 

X. Guarantee

1. The Supplier shall ensure that all services it provides and goods it supplies comply with the agreed conditions, possess the agreed functionality and properties expected by the Buyer, are free from defects, comply with the provided documents, are suitable for their purpose and ready to use and comply with the applicable legal regulations at the time of delivery, especially EU legal provisions and legislation and national laws and ordinances, other regulations defined by the national authorities and industry standards and certifications relating to safety, the environment and quality.

2. The Supplier guarantees that the services are not encumbered and are free of third-party rights.

3. The Supplier guarantees that the services do not violate third-party rights, especially rights to intellectual and industrial property, know-how or other industrial trademark rights. The Supplier shall fully indemnify and hold the Buyer harmless in this regard.

 

XI. Warranty

1. The Supplier shall ensure that all goods and services for an order (a) are free from rights of lien or other third-party encumbrances; (b) are new, unused and of merchantable quality and not repaired or renovated goods, except where this has been expressly agreed with the Buyer in writing; (c) have no defects relating to production, design or other issues; (d) are suitable for the intended purpose and (e) correspond to all specifications, samples, sketches, designs, descriptions or other requirements agreed and stipulated by the Buyer.

2. Defects or deviations from the above requirements that arise within 24 months of acceptance by the Buyer or in the course of an acceptance inspection, must be rectified by the Supplier without delay in accordance with this provision of the contract. If the defect arises within six months of handover, the goods are assumed to be defective.

3. § 377 UGB (Austrian Commercial Code) does not apply. Therefore, the Buyer is not obliged to inspect the supplied goods on delivery. The Buyer shall notify the Supplier about any defects within a reasonable period of their occurrence.

4. Where the warranty applies, the Buyer is entitled to decide the manner of remedy (improvement, replacement, price reduction or change). The Supplier shall carry out the warranty remedy within the period set by the Buyer and in the manner chosen by the Buyer and in the location stipulated by the Buyer (usually the location of the supplied product), unless the Buyer announces that it intends to carry out the improvement or replacement itself. The Supplier shall bear all costs relating to the chosen warranty remedy (e.g. shipping costs, spare parts, tests, travel costs).

5. If the Supplier does not fulfil its warranty obligations (improvement or replacement) within a reasonable period or if the Supplier requires an unacceptably long time (e.g. due to particular urgency, threat to operational safety or imminent excessive damages) for the improvement or replacement, the Buyer is entitled, at the Supplier’s expense and risk, to carry out the repair itself or have a third party do so.

6. The Supplier becomes the owner and bears the risk with respect to replaced goods at the time of the replacement. It shall promptly collect or have these replaced goods collected, unless the Buyer has expressly requested otherwise. If the Supplier does not collect the goods within 14 days of the replacement, the Buyer is entitled to send the goods back at the Supplier’s expense and risk.

7. The warranty period is two years from acceptance of the delivery or service pursuant to these Purchase Conditions. By way of deviation, it is agreed that the limitation period for legal defects expires ten years after acceptance.

8. In the event of improvement or replacement during the warranty period, the warranty for the improved or replaced parts begins anew on the date of improvement or replacement.

9. Liability exclusions and liability restrictions on the part of the Supplier, especially arising from the title of warranty or compensation for damages, are not accepted by the Buyer.

 

XII. Liability

1. The Supplier is liable for all damages incurred by the Buyer or third parties because of defective performance (including but not limited to defects relating to the safety and operation of the products).

2. The Supplier is also liable for all damages incurred in connection with fulfilment of the contract and suffered by the Buyer or third parties because of action or failure on the part of the Supplier, its vicarious agents or other persons involved in fulfilment of the contract, or because of goods that the Supplier has used in the course of performance.

3. The Supplier shall fully indemnify and hold the Buyer harmless with regard to all third-party claims (demands, complaints, out-of-court settlements, losses, judgements, penalties, liabilities, costs including court and legal costs) that result from at least slight negligence on the part of the Supplier or persons attributable to it, unless the claims are based on blatant gross negligence on the part of the Buyer. The Supplier shall include a similar provision in all subcontracts it concludes, if these are related to contractual fulfilment for the Buyer.

4. The limitation period for claims for damages or reimbursement of expenses, as well as all other claims arising from the contract between the Supplier and the Buyer, expires within two years of the Buyer becoming aware of the damage and the damaging party.

 

 

XIII. Retention of title

In the event of an agreed retention of title, the Supplier also agrees to the delivery, expressly to the use of the delivery, in particular the processing and resale of the delivery or the Buyer’s end product. The Supplier has no claim to retention of title for partial deliveries for which payment has already been received.

 

XIV. Transfer, pledging, assignment

1. Without the Buyer’s express written consent, the Supplier is prohibited from transferring fulfilment of the contract or parts thereof to third parties, concluding agreements with subcontractors, or assigning or pledging claims that arise from the contract with the Buyer to third parties.

2. The Supplier may assert an offset against the Buyer’s claims only if the counter-claim is uncontested or legally recognised.

 

XV. General provisions

1. If a provision of these Purchase Conditions is or becomes, wholly or in part, legally ineffective, invalid and/or void or unfeasible, this does not affect the legal effectiveness and validity of all other terms and conditions. The contracting parties shall replace the legally ineffective, invalid, void or unfeasible provision with one that is legally effective and valid and that has the same commercial effect as the replaced provision – insofar as this is possible and legally permissible.

2. Amendments or supplements to a contract must be in writing. This also applies in particular to abandoning this written form requirement. Any alteration applies only to the contract in question. The contracting parties agree that correspondence sent electronically (e-mail, Internet, EDI and the like) and by fax also meets the written form requirement.

3. All deliveries arising from the contractual relationship will be made to the most recently provided address. The Supplier shall inform the Buyer about any changes to its delivery or e-mail address, as deliveries will otherwise be made to the Supplier’s most recently provided address or e-mail address.

4. These Purchase Conditions continue to apply even after a contract has ended.

 

 

 

Instructions for delivery notes and invoices

An invoice must be issued for each delivery note for settlement between the Supplier and Buyer, unless otherwise agreed.

Invoices are to be sent electronically and only as follows:

• directly by e-mail to: invoice@berger-ecotrail.com

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