of BERGER Fahrzeugtechnik Ges.m.b.H., 6241 Radfeld, Rettenbach 10a, Austria
1. These General Terms & Conditions of Delivery and Sale (T&Cs) of BERGER Fahrzeugtechnik Ges.m.b.H., D-6241 Radfeld, Rettenbach 10a, hereinafter referred to as BERGER, constitute an integral part of any business connection 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 explicit reference to BERGER's T&Cs has been made. The T&Cs also apply in particular to any repeat orders placed by the CLIENT.
2. Any deviating terms and conditions on the part of the CLIENT are only valid if BERGER has explicitly recognised them in writing.
3. Verbal or telephone agreements, supplementary agreements or amendments to the contract shall only become binding once confirmed in writing by BERGER.
4. No claims shall be asserted against BERGER without 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 assumed to have been delivered in accordance with the standard postal service.
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. An effective and valid provision shall take effect in place of the ineffective, invalid and/or void provisions, which best meets the sense and purpose of the ineffective, invalid and/or void clause.
II. CONCLUSION OF CONTRACT
1. Offers from BERGER to the CLIENT are, unless explicitly stated otherwise in writing, subject to change and non-binding.
2. Technical details in brochures, catalogues, price lists or other promotional publications are non-binding and may be changed as required; BERGER is not liable for incorrect information.
3. The CLIENT shall be bound to his purchase request (contract proposal) until it is accepted or rejected by BERGER, but at the longest for 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 confirm that an order has been received for the time being. However, such a confirmation of the receipt of an order does not constitute acceptance of the CLIENT's offer. The order shall only take effect once the binding order confirmation has been sent.
5. A binding contract shall only take effect 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.
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 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., to BERGER's detriment. 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 additional 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 only deemed to have been made 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 oldest to youngest claim, first to repair costs, then to spare part charges, then to interest and other additional expenses, 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 hand over 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 immediately return any contract goods that have already been delivered at its own cost, and shall compensate BERGER for any reduction in value and shall reimburse BERGER for all expenditure. A 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 earnings, or pays a penalty 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 on payment, BERGER is entitled remove the goods from the CLIENT's possession 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. Whilst 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 authorisation, which may be withdrawn at any time. Authorisation 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; the third party must 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 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 at the CLIENT's own cost, which fully covers the new value of the contract goods; the CLIENT shall assign all claims arising from such an insurance policy to BERGER and to 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 also bears the risk of accidental loss of the contract goods. 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 the goods subject to the retention of title are taken 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 and 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 deliver. Forwarding of an invoice, including by FAX, shall constitute notification of readiness to deliver.
4. A delivery date or delivery period is only binding if this commitment has been explicitly specified in writing in the contract. BERGER's period for performance and delivery shall be extended as appropriate in the event of an unforeseen hindrance, which 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 any 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 in advance by the CLIENT; BERGER would not be liable to pay compensation under these circumstances.
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 only arises once the CLIENT has submitted a written reminder, and the goods have still not been delivered after the reasonable period of grace BERGER has specified. 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 passed without success – 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 only applies 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 comply with 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 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, which 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. Standard tolerance values 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 ready at an 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 an alternative place of delivery that shall be specified. The CLIENT is obligated to take possession of the contract goods following this inspection, but at the latest after the seven-day inspection period has lapsed, providing the CLIENT has identified no serious defects during the inspection and informed BERGER of this immediately in writing by registered letter. No notification of defects shall be accepted after this time. If the CLIENT explicitly 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 only revealed minor defects.
3. If the CLIENT fails to take possession of the contract goods after two weeks once the obligation has arisen, 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 earnings, or a penalty fee in the amount of 15 % of the net sales price due with immediate effect.
4. 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 in the event of late acceptance of the contract goods.
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 technology for comparable vehicles at the time of transfer of risk. This is a period of limitation.
2. BERGER's guarantee obligation only exists 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 same 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 only applies if the defect relates to a fault of design, material or production. The suppliers' guarantee conditions, which may differ in each case, apply to tyres, axles and axle modules, brake systems and tail lifts.
6. To comply with the guarantee BERGER shall choose whether to repair or replace defective parts (rectification). Rectification shall take the form or replacement or servicing 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 unacceptable to the CLIENT, 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 only pay costs if this work and the acceptance of costs have been explicitly authorised in writing in advance.
11. Used vehicles are sold as seen with no guarantee. BERGER only guarantees repairs on used vehicles if this has been explicitly undertaken by BERGER in writing.
12. Wear parts, standard 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 have been installed in the contract goods that BERGER has not authorised, 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 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, which occurs due to fire, water penetration, theft, looting or other causes for which BERGER is not responsible.
3. BERGER is only liable to the CLIENT for damages of any kind in the event of gross negligence. BERGER is not liable for lost earnings. 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 guarantee period for the contract goods has lapsed, unless BERGER has explicitly recognised them; otherwise they shall expire.
5. The contract goods provide only that level of safety that may be expected based on licensing regulations, operating instructions, provisions from BERGER or the supplier of the component, especially with regard to prescribed services and maintenance work, and other warnings that have been given.
6. In the event of non-performance or omproper performance of this contract, and in the event of an unjustified withdrawal from the contract by the CUSTOMER, the contractual parties hereby agree that the CUSTOMER shall pay a contractual penalty in the amount of 15 / of the purchase price. The contractual penalty shall be paid regardless of culpability. BERGER reserves the right to claim damages in excess of the contractual penalty. It is explicity agreed that BERGER may deduct the contractual penalty from any down payment amount the CUSTOMER has paid.
As at: October 2016