These General Terms of Delivery are basically designed for legal business-to-business contracts. If, in exceptional cases, these Terms form the basis of legal contracts with consumers in the sense of § 1 Sect. 1 para. 2 of the Austrian Consumer Protection Law, BGBl. no. 140/79, they are only valid insofar as they do not contradict the stipulations of the 1st Chapter of this law.
These Terms of Delivery for agricultural machinery and vehicles (Terms of Delivery) stipulate the rights and obligations of the contracting parties. Thereby they form the legal basis of every offer and every contract and are the basis of all business of Reform-Werke Bauer & Co. Gesellschaft m.b.H. (REFORM) with respect to agricultural machinery and vehicles, and furthermore with respect to spare parts, equipment and the fulfilment of work orders, unless explicit written special agreements are made. A legal commitment by REFORM is only effected on firm confirmation of the offer or signing of the contract. Different conditions specified by the Contracting partner are only legally valid if they are confirmed in writing by REFORM. Without written authorisation by REFORM, its employees are not allowed to make commitments which annul, amend or change these Terms of delivery in its entirety or in part. Should said commitments be binding for REFORM due to obligatory legal norms, REFORM shall be entitled to withdraw from the contract at any time. With the acceptance of the merchandise at the latest, our Terms and Conditions are deemed as accepted.
1 Scope and acceptance of the order:
Orders require written acceptance by REFORM. Acceptance is at REFORM's discretion. Orders shall assume binding status with the stipulations and scopes in the written acceptance of the order. Computer-generated order confirmations shall be valid without signature. Subsidiary agreements and changes shall be valid only if confirmed in writing by REFORM.
With acceptance of the delivery, the Contracting partner accepts that these Terms of delivery are part of the contract, and possible contradicting terms of purchase of the Contracting partner shall not be applied.
Technical specifications (measurements, weights, performance, etc.) as well as illustrations shall be deemed approximate. Designs are subject to changes.
REFORM reserves the right to change designs at any time, without being obliged to implement such changes in products that have been completed prior to the design change.
If the Contracting partner withdraws from the contract after legally binding award of contract, for whatever reason, REFORM shall be entitled to a cancellation fee at the amount of 10% of the sales price for standard, saleable merchandise. For non-saleable merchandise, REFORM shall be entitled in addition to compensation of the hitherto accrued manufacturing costs; in this case the partially finished components shall be available to the Contracting partner.
2 Time of delivery:
All stated delivery dates are non-binding and relate to completion at the factory, delivery periods begin with the order confirmation, both on condition that the Contracting partner has provided all documents required for delivery or execution (e.g. import permits, bank guarantees, etc.) and has otherwise fulfilled its contractual obligation.
REFORM shall be entitled to perform partial deliveries in justified cases at any time and issue corresponding partial invoices. Unforeseen events such as force majeure, industrial action, disruption in operations and rejects – in its own works or at sub-suppliers – shall extend the time of delivery at a reasonable rate insofar as the events affect the timely completion of the entire contract or of the portion of the contract to be due next. This is without prejudice to REFORM's right to withdraw from the contract in the event of force majeure.
Claims for damages due to delayed delivery shall be excluded. The contract shall be deemed fulfilled with readiness for shipment.
If shipping is postponed at the request of the Contracting partner, it shall compensate REFORM for the cost accrued by storage, but at least 0.5% of the invoice total amount per month. Invoicing and payment date shall remain unaffected by this.
Goods ordered "on call", "on collection" or similar shall be stored at REFORM or, at REFORM's discretion, with a third party from the time of the agreed call-off or collection date, at the expense and risk of the Contracting partner. Even in the case of a merely objective delay in acceptance by the Contracting partner, REFORM shall be entitled, after corresponding notice, to dispose freely of the merchandise, especially to sell it to third parties.
Unless otherwise stipulated, the prices are in Euro, plus VAT at the rate applicable by law, and all other fees, dues, taxes, customs duties etc. The prices are suggested prices ex works, exclusive of packaging, loading, and insurance.
Unless otherwise agreed upon in individual cases, the price allocated to the order of merchandise shall be the price in effect at the time of the order acceptance or the acceptance of an additional order, or in the case of additional services rendered the price effective at the time when the service is rendered.
REFORM reserves the right – also after order confirmation – to charge the Contracting partner for price increases caused by increased production costs (materials prices, wages, overheads, etc.) during the time between conclusion and fulfilment of the contract.
4 Terms of payment:
Unless there are other agreements, payments are due on receipt of invoice in cash without any deductions to the account of REFORM. Payments shall only be valid if rendered directly to REFORM.
If a payment period is granted for discounts, rebates and other reductions, this period is counted starting at the corresponding invoice date. The discount condition can only be invoked by the Contracting partner if all previous invoices have been settled.
Unless otherwise agreed, REFORM shall be entitled to refuse acceptance of bills of exchange, cheques or other third-party payment bonds without giving a reason. Cheques and bills of exchange shall be accepted by REFORM only after special written agreement and only on account of payment. REFORM is not liable for timely presentment and protest in case they are drawn to out-of-town places.
In the event of default in payment, interest on arrears in accordance with Section 352 of the Austrian Commercial Code (UGB) shall be charged from the due date of payment without any notice of default being required. In addition, the Contracting partner is obliged to reimburse REFORM for all financing and operating costs and expenses, including legal and court costs, costs for a (possibly also judicial or land register) security, collection expenses, fees and other expenses.
If due payments are not rendered in time, and the Contracting partner fails to honour its obligation to pay despite a demand note with a notice period of 8 days, if agreed bills of exchange are not issued to REFORM in time or a bill is protested due to failure of payment, the total remaining amount including the current bills of exchange shall be automatically due for immediate payment, without the need of a reminder.
If REFORM learns that the Contracting partner's creditworthiness does not constitute sufficient security for payment, such as in the case of bill protests, garnishments etc., all open receivables from the entire business relation shall become due immediately, without the need of a reminder. Subsequent deliveries may be made dependent on an advance payment by the Contracting partner.
Possible complaints shall not entitle the Buyer to withhold due payments. Offsetting with unacknowledged counterclaims of any kind, exercising the right of retention or assignment of receivables of REFORM against the Contracting partner shall be excluded.
Costs for bank guarantees, collaterals, letters of credit, collection fees etc. are the liability of the Contracting partner, unless agreed otherwise. Payments by the Contracting partner without payment reference shall be used according to chronological due dates of receivables. REFORM shall be entitled to assign the receivables from the Contracting partner.
In all aforementioned cases, REFORM shall be entitled to take back the delivered goods at the cost and risk of the Contracting partner, either in order to commercialise them in the best way possible at free disposition on account of the Contracting partner, or to hold them in safekeeping. This shall not release the Contracting partner from honouring the contract or entitle the Contracting partner to claim damages because of failure to perform.
The Contracting partner agrees that all payments that is makes are first offset against interest and ancillary charges, then against repair costs, thereafter against claims for free deliveries of goods and for spare parts and only lastly against payment for goods delivered under reservation of proprietary rights, in each case taking into account the older invoices.
Spare parts are generally delivered cash on delivery only.
5 Right to withdraw from the contract:
REFORM reserves the right to withdraw from orders entirely or in part prior to delivery in case the Contracting partner's creditworthiness seems doubtful, without giving the Contracting partner the right to claim damages for downpayments made.
The Contracting partner can avert a withdrawal from the contract only by advance payment of the total amount or submitting to REFORM an abstract banker's guarantee over the order value, issued by an acknowledged Austrian financial institution and furnished with sufficient duration.
6 Reservation of proprietary rights:
REFORM reserves the proprietary rights of all goods delivered until its receivables from the Contracting partner within the business contract are settled, including interest and fees. This shall apply also if some or all of the Supplier's receivables are carried in a current account which is balanced and the balance is acknowledged.
If the Contracting partner uses a financing company or a bank, it must inform this organisation explicitly of the fact that the Supplier reserves its proprietary rights until the price total including accrued interest and cost has been paid.
Until the price is paid in full, the Contracting partner shall not pledge or sell the goods, or dispose of the goods in a way that would impede REFORM's access at any time. Prior to the access of third parties (e.g., impounding), the Contracting partner shall notify REFORM immediately, comprehensively, and in full, to safeguard proprietary rights.
The reservation of proprietary rights shall not be rescinded by payments from third parties, in particular by payments from endorsers of bills. In the event of payments by a third party, the rights due to REFORM will be ceded to the paying party only with a corresponding agreement with said party, unless in cases of legal subrogation.
Despite the reservation of proprietary rights, the Contracting partner bears the risk of destruction and deterioration of the goods as well as for accident, force majeure, loss and theft. If the Contracting partner failed to insure the received merchandise sufficiently, REFORM shall be entitled, without being obliged to do so, to insure the delivered merchandise against damage in adequate amount and extent at the cost of the Contracting partner. As long as REFORM's reservation of proprietary rights exists, the costs of necessary repairs shall be borne by the Contracting partner.
Moreover, the goods under reservation of proprietary rights shall be used with due care and consideration, properly maintained and serviced, and protected against damage, value impairing events and theft to a reasonable extent.
If goods are delivered for resale, an extended reservation of proprietary rights shall take effect. The Contracting partner may sell the goods under reservation of proprietary rights only if it
a) at the same time assigns to the Supplier the sales price receivable at the amount of the amount still owed to the Supplier and takes the assignment to record in its books.
b) in the case of payment in cash, has the buying price separately available for REFORM.
This does not prejudice REFORM's entitlement to claim receivables himself. If the Contracting partner does not honour its obligation to pay in a proper manner, REFORM may demand that the Contracting partner disclose to him the assigned receivables and their debtors, discloses all necessary information for collection, submits the respective documents, and informs the debtors of the assignment.
If the delivered merchandise becomes part of another object as per § 414 ABGB and a return is not possible or economical, REFORM shall be entitled to the resulting shared ownership in the proportion to the value of the whole object.
In the case of the Contracting partner being tardy in payment or its creditworthiness deteriorating, REFORM shall be entitled to take back the goods under reservation of proprietary rights at any place and at any time, unless the Contracting partner furnishes suitable collateral accepted by REFORM.
REFORM undertakes to release the collaterals due to him insofar as their value exceeds the unpaid receivables to be secured by more than 20 %.
Commissioning of delivered devices, machines and vehicles must only be performed after complete and thorough study of the pertinent operating instructions and only under consideration of those. In the event of resale, the Contracting partner must pass on this commitment to its customers.
8 Transfer of risk, shipment:
The risk shall be transferred to the Contracting partner from departure ex works. Shipment shall be at the risk of Contracting partner even if it is carriage paid to Contracting partner.
9 Pre-emptive right:
In the event of liquidation, settlement, bankruptcy or shutdown of business, the Contracting partner shall grant REFORM pre-emptive rights to the goods in inventory that were delivered by REFORM.
REFORM shall be obligated, according to the following stipulations, to rectify any defect impairing the usability that is caused by faulty design, material, or workmanship. REFORM shall also be liable for defects of explicitly required features.
This obligation shall apply only to defects which occurred within the period of one year from the date of transfer of risk, or in the case of delivery with installation, from completion of installation.
The Contracting partner shall be entitled to invoke this paragraph only if it informs REFORM of the defects forthwith and in writing. In deviation from § 924 ABGB, the Contracting partner shall be obliged to furnish proof in all cases that the defect existed at the time of transfer. If defects shall be remedied by REFORM, REFORM shall be entitled at its discretion to:
a) improve the defective merchandise at the place of performance;
b) improve the merchandise at a place defined by REFORM;
c) have the defective merchandise or the defective parts sent back to him for improvement;
d) replace the defective parts;
e) replace the defective merchandise.
If REFORM has the defective merchandise or parts sent back to him for improvement or replacement, the Contracting partner shall bear the costs and risk of transport, unless otherwise agreed. The improved or replaced merchandise or parts shall be sent back to the Contracting partner at the cost and risk of REFORM, unless otherwise agreed.
Defective merchandise or parts replaced in accordance with this clause shall become the property of REFORM.
The Supplier shall be liable for the cost of an improvement of defects performed by the Contracting partner himself only if the former agreed to this in writing.
The warranty obligation of REFORM shall only apply to defects which occur while complying with the operating conditions provided for the relevant delivered item and in the case of normal use. The warranty obligation shall not apply in particular for defects caused by: wrong assembly or improper commissioning by the Contracting partner or its agent, poor maintenance, improper repairs or manipulation or repairs or maintenance carried out by another person than REFORM or its agent without written agreement by REFORM, operation of devices, machines and vehicles with inadequate or other than the specified lubricants/oils etc., normal wear.
REFORM shall be liable for those parts of the merchandise which REFORM purchased from upstream suppliers specified by the Contracting partner only to the extent of the warranty claims that REFORM is entitled to vis-à-vis the upstream supplier. If merchandise is manufactured by REFORM on the basis of design specifications, drawings or models supplied by the Contracting partner, REFORM's liability shall not extend to the correctness of the design but only to the execution of the work according to the Contracting partner's specifications. In the possible case of infringement of industrial property rights, the Contracting partner shall hold REFORM free from damages and claims.
REFORM does not accept any warranty, liability for usability, durability and possibly resulting damage in the event of unauthorised changes, additions or retrofitting of products delivered by REFORM. Excepted is only repair and retrofitting work done by an authorised workshop according to REFORM's instructions and using original spare parts and options provided by REFORM.
REFORM shall not grant warranty when accepting repair orders, or for modifications or retrofits of old or third-party merchandise, as well as for delivery of pre-owned merchandise.
From the start of the warranty period, any liability of REFORM going beyond that which is determined in these provisions shall be excluded.
11 Liability (damage claims):
It shall be deemed as expressly agreed that REFORM shall not be liable for damages for personal injury and damaged merchandise that are not part of the contract, for other damage and for lost profit, unless the circumstances of the individual case indicate gross negligence on REFORM's part.
Reversal of the burden of proof as defined by Section 1298 of the Austrian General Civil Code (ABGB ) shall be excluded.
The object of purchase offers only the safety that can be expected on the basis of licensing or registration regulations, operation instructions, directions by REFORM on the handling of the object of purchase – especially with regard to possible mandatory inspections – and other information given by REFORM.
All claims for damages by the Contracting partner –if the defect is not explicitly recognised by REFORM –shall be brought before REFORM in writing within the period of one year from the first knowledge of the damage and REFORM's fault, otherwise the claims shall be forfeited. In the case of a timely, written claim, the legal period for a claim before a court of law is deemed as observed.
After 10 years from delivery, damage claims of any kind cannot be brought forward any longer by the Contracting partner against REFORM (absolute statute of limitation).
12 Consequential damage:
Unless stipulated otherwise in these Terms, REFORM's liability vis-à-vis the Contracting partner for business interruption, lost profit, loss of use, contractual losses or any other economical or indirect consequential damage shall be excluded.
13 Processing fees:
Issuance of a duplicate type approval certificate or of vehicle papers for previously owned imports and for returned merchandise by REFORM will be billed with processing fees as per the pertinent current price list.
14 Goods on commission:
The Contracting partner shall be liable for the loss or damage of the merchandise in its care and for the effects of improper storage, unless the loss or damage is caused by circumstances which could not have been avoided by the due care and diligence of a prudent business person.
15 Written form requirement:
Any cancellation, amendment or change of contracts between REFORM and its Contracting partners requires the written form to be valid. This written form requirement shall be deemed to have been observed also by the use of telefax or electronic mail. However, the sender shall bear the risk of arrival at the recipient by proof of access.
16 Safeguarding clause:
Should a provision of objective terms and conditions of sale be invalid, both contracting parties herewith undertake expressly to agree on legally valid provisions closest to the economic purpose of the invalid provision. The validity of all remaining provisions shall not be affected by the invalid provision.
17 Place of fulfilment and jurisdiction:
Place of fulfilment and jurisdiction for delivery, payment, and all other mutual obligations is Wels, Austria. REFORM shall, however, be entitled also to go to the court in charge of the Contracting partner's domicile. The legal relations shall be based on Austrian law, except for CISG. Moreover, the INCOTERMS in the version in effect at the day of conclusion of contract shall be valid.