Bauer & Co Gesellschaft m.b.H.
Tel.: +43 (0) 7242 / 232-0
Fax: +43 (0) 7242 / 232-4
Tel.: +41 (0)41 784 / 2020
Fax: +41 (0)41 784 / 2022
Commercial Register no. FN 139380 x
Registration court: Landesgericht Wels
Raiffeisenlandesbank Oberösterreich AG, A-4020 Linz
Kto. Nr.: 2.637.759 (BLZ 34000)
IBAN Nr.: AT02 3400 0000 0263 7759
VAT ID no. ATU40369007
REFORM-WERKE – Marketing Department
Idea, development, consulting, operations, hosting: XORTEX - Web agency
General Terms of Delivery for agricultural machinery and vehicles
These general terms and conditions of delivery are designed for legal transactions among companies. Should they exceptionally be applied for legal transactions in which consumers are involved according to art. 1 para 1 sub. 2 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz), BGBI. [Austrian Federal Law Gazette] Nr. 140/79, they only apply to the extent that they do not get in conflict with the terms and conditions of the first main section of the aforementioned Act.
The present terms and conditions of delivery for agricultural machinery and vehicles (hereinafter referred to as delivery terms) determine the rights and obligations of the parties to this contract. They therefore form the legal basis for each offer and every contract and are taken as a basis for all transactions taken by Reform-Werke Bauer & Co Gesellschaft m.b.H. (hereinafter referred to as REFORM) concerning agricultural machinery and vehicles as well as others concerning spare parts, accessories and the execution of orders, unless expressly written special arrangements are concluded. A legal obligation of REFORM only occurs via a confirmation of the offer by the company itself or signing the contract.
Other terms laid down by the contracting party will only become legally effective if confirmed in writing by REFORM. Without written authorisation by REFORM, it is prohibited to the employees of REFORM to make commitments which in whole or in part, replace, complement or modify these delivery terms; should such commitments be binding on mandatory statutory standards for REFORM, REFORM may at any time withdraw from the contract. Upon receipt of the goods at the latest, our general terms and conditions of delivery are considered accepted.
1. Scope and acceptance of the order:
Orders must be accepted in writing by REFORM. To REFORM, the acceptance remains free. Orders in accordance with and in the scope of the written confirmation of the order are binding. Computer-generated confirmations of orders do not require signatures. Subsidiary agreements and changes are only effective if they are confirmed in writing by REFORM.
The contracting party acknowledges by acceptance of delivery that the terms of delivery are part of the contract and conflicting purchasing conditions of the contracting party are not applicable.
Technical specifications (dimensions, weight, performance, etc.) as well as pictures are to be regarded as approximate. Design modifications are reserved.
REFORM reserves the right to change the design, without being obligated to incorporate such changes in products that have been completed before the design change took place.
If a contracting partner withdraws after a legally binding order - for any reason whatsoever – , REFORM shall have the right to demand expenses (cancellation fee) in the event of withdrawal for marketable products to the amount of 10% of the sales price, for non-marketable goods in addition to that the replacement of our accumulated production costs, whereas in this case, semi-finished parts are at the contractor's disposal.
2. Delivery date:
All mentioned delivery dates are not binding, relate to the completion of the work in the factory, delivery periods will commence with the order confirmation, both under the assumption that the contracting party provided all necessary documents for delivery or execution (such as import licences, bank guarantees, etc.) and otherwise has fulfilled its contractual obligations.
REFORM is entitled at any time to execute partial deliveries and create partial invoices; unforeseen events, such as cases of force majeure, strikes, equipment failure and exclusions – in-house or at the premises of subcontractors – extend the delivery period, provided that these events have an impact on the timely fulfilment of the whole contract or a part being due soon. The right to withdrawal by REFORM in case of force majeure remains thereby unaffected.
Claims for damages for late delivery are excluded. The contract is considered to be fulfilled with dispatch.
If shipment is delayed at the request of the contractor, he has to pay REFORM the costs incurred for storage, but at least 0, 5 per cent of the monthly invoice amount. Billing and payment date remain unaffected.
Goods that were ordered "on call“ or "pick on“ or the like, are stored from the agreed delivery date or pick-up at the expense and risk of the contractor at the premises of REFORM or at the option of REFORM at a third party's. At objective default of the contractor, REFORM is entitled upon notice, to utilize the goods on the open market, especially to sell them to third parties.
The prices are, unless otherwise specified, given in Euros and the VAT is added at the current statutory rate as well as any other fees, charges, taxes, duties. They are considered as guideline prices ex works, excluding packing, loading, and insurance.
If in individual cases not otherwise agreed, the current price is charged for the performance of orders at the point of time of the acceptance of the order or the acceptance of an additional order or the provision of additional services.
REFORM reserves – even after confirmation of the order - to charge price increases due to increases in production costs (material prices, wages, expenses etc.) between the conclusion and the fulfilment of the contract.
4. Terms of payment:
Unless otherwise agreed, payments are due to be paid to REFORM's payment office in cash without any deductions and free of transaction charges, upon receipt of the invoice. Only those payments are valid which are made directly to REFORM.
Was a payment period granted for cash discounts, allowances and other discounts, it is calculated beginning from the respective date of the invoice. A condition for cash discounts can only be claimed by the contractor, if previous invoices are paid.
Unless otherwise agreed, REFORM may reject the acceptance of exchanges, checks or other payment promises by third parties without giving any reasons. Exchanges and checks are accepted only after a separate written agreement and only accepted as payment by REFORM. REFORM is not liable if they are issued on minor courts, for timely presentation and protest.
Upon default of payment, default interest is due according to art. 352 UGB [Austrian Commercial Code] without the need for notice from the due date of payment. In addition, the contractor is obliged to compensate REFORM for any financing and collection costs and expenses, including attorney and court costs, costs for a security (possible judicial seizure or by securing land register), collection charges, fees and other expenses.
Are overdue payments not made on time and does the contractor not fulfil his payment obligation despite demand for payment within a grace period of 8 days, are the agreed exchanges not given to REFORM on time or is the exchange issued into protest for non-payment, then the entire outstanding amount, the current exchanges inclusively, is immediately due without further notice.
If REFORM comes to the conclusion that the creditworthiness of the contractor does not provide sufficient security for the payment, e.g. exchange protests, garnishments etc., immediate payment is due of all pending claims from the entire business relationship without the need for a notice of default. Additional deliveries can be made dependent on an advance payment of the contractor.
No complaints can justify the withholding of due payments. The offsetting of unrecognized counter-claims of any kind, the exercise of the rights of retention and assignment of claims of the contractor against REFORM are excluded.
Costs for bank guarantees, guarantees, letters of credit, collection fees etc. are in the absence of other agreements at the expense of the contractor. Payments of the contractor without indication of a specified payment are used in accordance with the chronological maturities of receivables. REFORM remains free to assign claims against the contractor.
REFORM is entitled to all the cases mentioned above, at any time, to either take back the delivered goods at the expenses and the risk of the contractor, in order to liquidate them free at disposal at the expense of the contractor best possible or just to store to secure, without to exempt the contractor from the fulfilment of the obligation to perform or demand compensation for non-performance.
The contractor agrees that all of his payments will be prorated first on interests and extra charges, then repair costs, following on claims for free delivery of goods and spare parts and will be charged only at last for goods delivered under retention respectively, taking into account older invoices.
Spare parts are only delivered against cash on delivery.
5. Right to withdraw from the contract:
REFORM reserves the right to cancel orders in full or partly before delivery if the creditworthiness of the contracting party is in doubt without the other contracting party, even with down payment, being entitled to compensation.
The contracting party may only avert the withdrawal of the contract by paying fully either by advanced payment or handing in an abstract bank guarantee of an acknowledged Austrian financial institution over the value of the order with adequate maturity to REFORM
6. Retention of title:
REFORM retains title to all delivered goods, until the claim is paid by the supplier to the contracting party from the business relationship including interests and costs. So even if some or all claims of the supplier are conducted in an open account and the balance is struck and acknowledged.
If the contractor employs a mediation of a finance company or a bank, he is obliged to expressly make notice to this bank that the supplier is entitled to the goods until the whole price is paid with interests and costs.
Until full payment of the price the contracting party may not pledge or sell the goods nor make disabling dispositions to REFORM's access at any time. The contractor must immediately notify REFORM of any access by third parties (e.g. execution) for the protection of shareholders' rights through full and comprehensive information.
The retention of title will not be overridden by payments of third parties, in particular by payments of exchange endorsers. In the case of payment by a third party, the rights REFORM is entitled to are subrogated to the payer after appropriate agreement, as far as no case of subrogation exists.
Despite the retention of title, the contractor bears the risk of loss and deterioration of the goods as well as the risks of accident, force majeure, loss and theft. Unless the contractor has insured the accepted goods adequately, REFORM may, without being obliged to it, insure the goods delivered at the expense of the contractor against claims in a reasonable scale and scope. As long as the retention of title exists for REFORM, the costs of necessary repairs are borne by the contractor.
Moreover, the goods under the retention of title have to be used in due care and respect, have to be serviced and maintained properly and have to be protected from damages, value decreasing events and theft to a reasonable scope.
If the goods are delivered for resale, an extended retention of title is applicable and the contractor is only allowed to a sale of goods under retention of title, if he
a) cedes the purchase price from the supplier to the extent of the outstanding amount to the supplier and notes the assignment in his books;
b) holds the purchase price in cash separately for REFORM.
The right to collect all receivables itself to which REFORM is entitled to, remains unaffected. If the contractor fails to meet his payment obligations, REFORM may request that the contractor makes the assigned receivables and their debtors known, provides all information necessary for collection, surrenders the relevant documents and informs the debtors of the assignment.
If the delivered goods according to 414 ABGB [Austrian Civil Code] become components of a different good and a back transfer is not possible or economical, REFORM is entitled to the co-ownership resulting from the relation to the value of the whole good.
REFORM is entitled to collect the goods under reservation for tardiness of the contractor with payments or for deterioration of creditworthiness at any time and any place, provided that the contractor does not offer any adequate securities.
REFORM is obliged to release any granted securities to the extent that they exceed the secured, outstanding claims by more than 20 %.
The start-up of delivered equipment, machinery and vehicles is only allowed after full and conscientious review of the relevant manual and only under attention paid to the latter. This commitment is about to tie in the case of resale from the contractor to his customers.
8. Passing of risk and shipping:
The risk passes from the moment leaving the factory to the contractor. Delivery is also at the contractor's risk for free delivery of any freight.
9. Right of first refusal:
The contractor acknowledges the right of first refusal for the event of liquidation, compensation, bankruptcy or closure of his business to REFORM to the existent inventories of REFORM's products.
REFORM is required to correct any defect which is affecting the usability according to the following provisions which is based on a faulty design, material or workmanship as well as it has to stand up for defects concerning expressly requested properties.
This obligation applies only to these defects which have occurred during a period of one year from the date of transfer of risk or for delivery with installation from completion of the assembly.
The contracting party may rely only on this article if he has immediately indicated the defects in writing to REFORM. The contractor must provide evidence contrary to § 924 ABGB that there has been a defect at the time of delivery. If deficiencies are to be remedied by REFORM, it is entitled at its own option:
a) to repair the defective goods on site;
b) to make repairs at a place designated by REFORM;
c) to let the defective goods or defective parts sent for repair;
d)to replace the defective parts;
e) to replace the defective goods.
If REFORM lets the defective goods or parts be returned for repair or replacement, the contractor bears, unless otherwise agreed, the costs and risk of transport. The costs and risk for the return of the repaired and replaced goods to the contractor are, unless otherwise agreed, borne by REFORM.
The replaced goods or parts according to this article are at the disposal of REFORM.
For the costs of a self-administered resolution of defects by the contractor, the seller has to pay only if he has given his written consent to that.
The warranty given by REFORM is valid only for defects that occur in compliance with manuals and normal (intended) use. It in particular does not apply for defects which are based on incorrect assembly or improper operation by the contractor or his agent, poor maintenance, improper repairs or repairs which were executed without prior written consent by REFORM or tampering by anyone other than REFORM or its agents, an operation of the equipment, machinery and vehicles with insufficient or other lubricants/oils other than the prescribed ones and normal wear and tear.
For those parts of the goods which REFORM purchased from a subcontractor of the contractor, REFORM is only entitled to a guarantee to the extent of the guarantee claims it has against the subcontractor. If a product of REFORM was made on the basis of design information, drawings or models of the contractor, REFORM is not liable for the correctness of the design, but only that the execution was carried out as specified by the contractor. The contractor shall indemnify and hold REFORM for any infringement of intellectual property rights without complaint.
For unauthorized modifications, additions or remodelling of the delivered products by REFORM, REFORM neither guarantees nor assumes liability for use, durability or any resulting damages. The only exception shall be a competent repair shop using the original spare parts and accessories provided by REFORM according to the instructions by REFORM regarding repair and reconstruction works.
When accepting repair jobs or reworking or modifying old and foreign goods as well as delivery of used goods, REFORM assumes no responsibility.
From the beginning of the warranty period, REFORM is no further liable than determined in this article.
11. Liability (compensation):
It is expressly agreed that REFORM does not have to pay the contractor any compensation for personal injury or damage to goods that are not subject matter, for other damages and loss of profit, unless it is clear from the circumstances of the case that REFORM is responsible for gross negligence.
Reversal of the burden of proof according to § 1298 ABGB is excluded.
The purchased object provides only the safety that can be expected on the basis of licensing regulations, manuals, and regulations by REFORM about the treatment of the purchased goods, in particular with regard to any possible inspection or other instructions given.
Any claims of the contractor must – if the claim was not expressly recognized by REFORM – be made in writing to REFORM within 1 year of becoming aware of the damage as well as the striking fault be made in writing against REFORM, otherwise the claims will be withdrawn. In the event of a timely written claim, a statutory period for legal assertion is observed.
After 10 years from delivery claims for damage whatsoever cannot be asserted by the contracting partner against REFORM (absolute limitation).
12. Consequential damages:
Except if otherwise provided by these terms, the liability by REFORM against the contracting party for production downtime, loss of profits, loss of use, loss of contracts or any other economic or indirect consequential damage is excluded.
13. Handling fees:
For issuing a duplicate or bogus-type of vehicle documents used for import and returned goods by REFORM, handling fees are charged according to the current price list.
14. Consigned goods:
The contractor is liable for the loss and damage of the goods which he stored as well as any consequences of improper storage, unless the loss or damage results from circumstances which could not have been averted by a diligent businessman.
15. Requirement for the written form:
Any waiver, amendment or modification of contracts between REFORM and its contractors requires to be made in a written form. The requirement of the written form is also fulfilled by the use of fax or e-mail. However, the sender bears the risk of receipt by the recipient by proving acceptance.
16. Severability clause:
If any provision of objective sales conditions is void, the contracting parties hereby expressly commit to agree on provisions with legal effect which come the closest to the commercial purpose of the invalid provision. The effectiveness of the other provisions shall not be affected by the invalid provision.
17. Place of performance and court jurisdiction:
Place of performance and jurisdiction for delivery, payment and all other synallagmatic obligations is Wels. However, REFORM is entitled to call upon the contracting party's seat's competent court. The legal relationships are based on Austrian law, with the exception of the UN Convention on the Sales of Goods (CISG). In addition, INCOTERMS shall apply in the actual version in force on the day that the contract was signed.