Delivery and Sales Conditions Including Remote Sales
of Traktorenwerk Lindner Gesellschaft m.b.H.
FN 39278 m (Regional Court of Innsbruck)
(hereafter known as "Lindner" for short)
for all contracts between Lindner and the Third Party
(hereafter known as "Contracting Partner" for short)
Issued: August 2002
I. Area of Validity of the Delivery and Sale Conditions
1. These delivery and sale conditions form an integral part of every offer and every contract. Lindner concludes contracts with its contracting partners solely on the basis of these delivery and sale conditions. Contrary conditions of the contracting partner are only applicable with a separate written agreement. The relevant contracting partner refutes changing these delivery and sale conditions by sending their own conditions. Nevertheless, if the relevant contracting partner sends conditions, they waive any ensuing legal effects.
2. Delivery and sale conditions of Lindner, once enforced between Lindner and the relevant contracting partner also apply to all future contracts between the same.
3. The contracting partner is prohibited from transferring its rights and obligations from a contract with Lindner to a third party without the permission of Lindner. All commercial and technical documents compiled and/or submitted by Lindner are product support and remain the property of Lindner. Any distribution and evaluation needs the written permission of Lindner. Product supports must only be used for presentation and marketing of Lindner products. In particular, such documents must not be made accessible to third parties. Lindner is free to request the return of such documents and sales information at any time without giving reasons, and at the expensive of the contracting partner.
4. Any lifting, extension or amendment to contracts between Lindner and its contracting partners needs to be made in writing to be valid.
5. Without the written authorisation by Lindner, colleagues are prohibited from making promises, which raise, extend or amend these sale and delivery conditions either in whole or in part; if such promises are binding on Lindner due to compelling legal standards, Lindner may withdraw from the contract at any time.
6. The legal remedy for lifting each contract concluded on the basis of these delivery and sales conditions due to curtailment of more than half is excluded.
II. Offers
1. Offers Lindner receives from its contracting partners - this in particular via the Internet or by E-mail - shall only be accepted by him by written confirmation, in particular also via the Internet or by E-mail, or by fulfilment of the contract; the contracting partner making the offer is bound by its offer for a period of 12 weeks from receipt at Lindner.
2. Explanations of Lindner not representing an acceptance of the previously successful offer of the contracting partner, as also the content of other business documents are - even if they are designated as an offer - are in principle remaining free and non-binding and also amendable and/or irrefutable even after a statement of the contracting partner for Lindner has been arrived at. All information in brochures, circulars, catalogues, displays, price lists etc. are non-binding in any case.
III. Pricing
1. Technical alterations or discrepancies from specifications of any kind are to be accepted by the contracting partner at the list price, unless contrary to the intended use of the same.
2. Unless otherwise expressly agreed, Lindner prices are net prices from delivery site, in particular without packaging and without discount. Price increases due to an increase in production costs (material prices, wages, general oncosts etc.) between conclusion and fulfilment of the contract are billed to and to be paid by the contracting partner.
3. Prices announced by Lindner are applicable unless otherwise determined, up to 31/01/2001 in Schilling and from 01/01/2002 in Euros.
4. All supplementary costs of the contract, in particular financing costs, costs of securing the purchase price owed against property, feeds, interest etc. are at the expense of the contracting partner.
IV. Payment Conditions
1. A third of the purchase price is, unless otherwise agreed in writing, due within a week of the existence of the contract between Lindner and the relevant contracting partner. The remaining purchase price is due at the latest on delivery.
2. All payments have to be made in cash, free of fees and without deduction. Cheques and bills are only accepted by separate written agreement and only payable to Lindner. Withdrawal and discount fees are at the expense of the contracting partner. Linder may reject payments offered in cheques or bills without giving reasons.
3. Insofar as the contracting partners have not paid on the due date or with the acceptance in delay, the contracting partner is in arrears with their payment without a new request being necessary and Lindner is entitled to charge arrears interest amounting to 12 % p.a.; Lindner is to replace a higher interest rate.
4. On non-fulfilment of the contract by the contracting partner, regardless of any withdrawal, Lindner is entitled either to claim the damage suffered and the profit lost or a contractual penalty amounting to 10 % of the agreed purchase price; this is in addition to the arrears interest.
5. With an arrears in payment of more than 14 days and on infringement of a special contractual term by the contracting partner, a loss of an instalment is incurred, Lindner is entitled to withdraw from the contract.
6. Compensation for stated counterclaims of the contracting partner against the claims of Lindner, in particular purchase price instalments or claims for compensation or a right of retention against Lindner are hereby expressly excluded.
7. If the relevant contracting partner declares they withdraw of the contract, already supplied goods are to be returned forthwith at the expense of the contracting partner, any reduction in value and reasonable usage fee compensated for and Lindner is to be compensated for all sundry expenses. Regardless of that, the contracting partners have to pay, for compensation of the damage incurred in this context, a cancellation fee of 20% of the gross invoice amount not under the court right of restraint, without further evidence, due immediately; damages beyond this are to be compensated for.
8. Where not contrary to the compulsory legal provisions, the contracting partner is not entitled to a retention or lien right to Lindner goods.
V. Reservation of Property
1. Until complete unreserved payment of all claims of Lindner from a contract including interest, costs and fees and up to complete fulfilment of all such present and future financial obligations of the contracting partner, in combination with the relevant supply and on the basis of all special supplies and services, the object of the purchase remains the property of Lindner without restriction. Even the property in goods from future deliveries is only transferred if the claims from the earlier supplies are fully compensated for. The contracting partner has to act in all steps and make declarations at his own expense, which steps or declarations are necessary depending on the state of affairs to give grounds for or obtain the reservation of property.
2. An alienation or pledging of goods under reservation of property before the complete fulfilment of all financial obligations is only permitted with the express written permission of Lindner, whereby the contracting partner in this case has to indicate Lindner's reservation of property to the purchaser; the permission expires automatically in case of an insolvency or a warrant of distress; regardless of that, the contracting partner hereby provides irrevocably, in the event of further alienation of these goods, to cede all the ensuing claims to Linder to its satisfaction and in terms of payment; Lindner may accept this offer of cession at any time without time limitation, in which all associated fees and costs are at the expense of the contracting partner.
3. Until the complete fulfilment of all financial obligations, the customer is furthermore not entitled to process or work supplied goods or join them to other items; in case of contravention, Lindner is give the sole ownership of the items emerging from the processing, working and joining.
4. In the event of pledging or other claim of the supplied goods by a third party, the contracting partner is obliged to inform Lindner forthwith by means of registered letter to the last known address of Lindner and take any measures to keep Lindner's right of ownership at his own expense. If the goods under reservation of property are rejected, Lindner may make a deposit at the cost and risk of the contracting partner. The contracting partner must compensate Lindner for any expenses incurred with the enforcement of the ownership.
5. The contracting partner declares that he agrees that all payments he makes are made initially for repair costs, then for spare parts claims, then for interest and other ancillary costs and only finally for the purchase price for the goods under reservation of ownership.
6. The reservation of ownership is to be marked in the model certificate (individual permit) and on the vehicle, as Lindner desires. Lindner is entitled to retain the model certificate (individual permit) up to the complete coverage of all obligations of the contracting partner ensuing from the contract.
7. For the duration of the reservation of ownership, the object of the purchase by the contracting partner is to be insured at the request of Lindner for the full value against all risks including fire and the insurance policies are to be tied in favour of Lindner.
8. The contracting partner has the duty, for the duration of the reservation of property, to keep the object of the purchase in a proper condition and have required repairs carried out forthwith - except in emergencies, in the repair shops of Lindner or in a shop recognised by Lindner.
9. In the event of non-payment of a claim due by Lindner, cessation of payment, opening insolvency proceedings or the seizure of goods coming under a reservation of property, the contracting party must return all goods under a reservation of property to Lindner.
VI. Delivery, Fulfilment, Transfer of Risk and Transfer Conditions
1. Delivery periods and times are subject to alteration and are non-binding, unless otherwise agreed in writing. The delivery time starts with the legally-effective conclusion of the relevant contract, but never before the down payment of the first instalment agreed. In the event of a subsequent amendment to the relevant contract, Lindner is also entitled, by a binding written promise, to re-assess unilaterally the delivery period and time.
2. Lindner reserves the right to change the design and shape up to delivery. The information in the descriptions about powers, weights, operating costs, speeds etc. are to be treated as approximate data.
3. The place of fulfilment for all obligations of Lindner and its contracting partners is 6250 Kundl/Tyrol/Austria.
4. Any dispatch of goods is always made from Lindner's factory and is at the expense and risk of the contracting partner. The supply for deliveries from the factory by Lindner is fulfilled on giving the announcement of readiness to dispatch by Lindner. The contracting partner has to check and accept the object of the purchase forthwith, after he has obtained the indication of readiness, at the agreed place of fulfilment. If this transfer is not made within eight days, then the object of the purchase is deemed to be properly accepted.
5. If a performance or supply is delayed by a circumstance not attributable to Lindner, the performance and/or delivery time nevertheless reasonable extended without separate written or verbal declaration, without Lindner ever having to be responsible for any kind of legal consequences; this is only if Lindner for its part is already delayed with other obligations; with unreasonable deterioration of the fulfilment of the contract on the part of Lindner, they are entitled to withdraw under the exclusion of claims for compensation.
6. If Lindner is responsible for the delay, the contracting partner can either demand fulfilment or withdraw from the contract, after a written statement and a reasonable period of notice of at least four weeks has elapsed.
7. A claim for compensation of the contracting partner for non-fulfilment or for delay by Lindner is expressly excluded, insofar as Lindner has not been culpable for the damage either deliberately or through gross negligence.
8. Lindner reserves the right to withdraw from the contract, insofar as it is known to him, after the order confirmation and before the complete payment, that there are circumstances in the economic conditions of the contracting partner, by which his claim no longer appears to be sufficiently secured.
9. Any risks, also those of the coincidental decline, are transferred to the contracting partner at the time of fulfilment. The contracting partner has to provides the necessary insurance cover himself and at his own expense. At the time of fulfilment, the object of the purchase in the sense of Section 6 of the Product Liability Law (in the version of the Federal Gazette 1994/510) is transferred to the power of disposal of the contracting partner and therefore brought into circulation. Insurance cover is only provided by Lindner, inasmuch as this has been expressly agreed in writing in the individual case. This also applies to vehicles submitted for repair at the time of transfer up to the time of fulfilment. If a collection time is set by Lindner, and this is exceeded by the contracting partner, then a storage fee may be calculated.
10. If it is not possible to supply and/or perform, all contractual obligations are relinquished. If the impossibility - but also a delay in delivery and/or performance - conditioned by non-delivery and or late delivery of a Lindner supplier, the contracting partner is in any case not entitled to any claim for compensation against Lindner.
11. Lindner is entitled to carry out partial deliveries at any time, and furthermore also submit partial invoices; the payment conditions listed in point IV. are equally applicable to these partial invoices.
12. If the contracting partner does not accept the contractual goods and/or service at the right location or at the right time, Lindner may withdraw from the contract by settlement and after a period of notice of 14 days has elapsed. If there is a risk of delay, Lindner may, as it sees fit, make a settlement or an assessment at the expense and costs of the contractual partner, without being required to compensate.
VII. Warranty and Guarantee
1. The warranty period for all shortcomings is six months from transfer of risk. For replacement parts and improvement, the warranty period is three months, calculated from transfer. In a warranty case, Lindner has no obligation to compensate, or other obligation to pay for any damages whatsoever.
2. Damage visible from the outside and/or wrong quantities of goods supplied are to be censured in writing by the contracting party immediately after transfer with any loss of entitlement; the accept can therefore not be refused.
3. Visible shortcomings or missing parts with any warranty exclusion are to be censured forthwith, at the latest, however, within eight days of the start of the warranty period, concealed shortcomings within eight days of their discovery, each arriving by means of registered letter at the last reported address of Lindner; otherwise the goods are deemed to be accepted without reservation and fault.
4. Towards consumers in the sense of 1 (1) Z 2 of the latest applicable version of the Consumer Protection Law (KSchG, Federal Gazette 1983/135 (hereafter known as "Consumer" for short"), the guarantee period is two years for brand new goods and one year for used goods, each from transfer.
5. The warranty shall be fulfilled according to Lindner's choice, either by repair of the parts send post and packing free, or by replacement of the same. In all cases, parts will only be replaced if an error in the material or in the working has occurred. Unless otherwise agreed in writing, all old material occurring for repairs and bodywork is transferred to the property of Lindner, without there being a need for a separate notification of the contracting partner. Lindner does not grant any warranty for parts it has not produced itself, however, unless otherwise agreed in writing, which has been ceded to the contracting partner to the manufacturer due to existing claims due to shortcomings.
6. An exchange is given to the contracting partner only on submission of an essential and irrevocable shortcoming; usually Lindner can fulfil warranty claims conclusively as it sees fit by
a) Supplementing the shortcoming;
b) Improving the goods on site;
c) Improving at a site designated by Lindner or by
d) Replacement of the faulty goods and/or the parts themselves.
7. There are no warranty claims for used vehicles, used and consumable parts, for repair work or in the event of glass breakage and, if the permitted overall weight, the axle load or the useful load and/or chassis load capacity forming the basis of the contract is exceeded.
8. Lindner shall grant a warranty exclusively for its immediate contracting partner for the fulfilment of all payment obligations for a lack of fault corresponding to the state of the air of the vehicle in material and work for
a) Single track vehicles for a period of six months from delivery, however, at the most up to a total distance travelled of 6000 kilometres;
a) Double track vehicles for a period of six months from delivery, however, at the most up to a total distance travelled of 6,000 kilometres;
c) Lorries, buses and tractors for period of twelve months from delivery, however, at the most up to a total distance travelled of 20,000 kilometres.
9. In the event of an onward sale within the warranty period, the warranty obligation of Lindner is relinquished.
10. All warranty or guarantee claims are relinquished if the contracting partner does not follow the regulations of Lindner on the treatment of the vehicle (operating instructions) and, in particular, has not properly carried out the checks prescribed in the customer service documents published by Lindner, if the object of the purchase has been used in an unusual way, the shortcoming was caused by the contracting partner and/or third party, has undertaken manipulations or repairs on the goods themselves, or as long as the contracting partner does not meet his obligations, in particular, his payment obligations.
VIII. Compensation and Product Liability
1. Lindner is not liable for minor negligence and compensation for consequential and material damage, loss of interest and damages from the claims of third parties against the contracting partner are excluded. In the event that an extensive exclusion of liability is permitted in the individual case, this is deemed to be agreed. The object of the purchase therefore provides only that security which can be expected on the basis of permit regulations, operating instructions, regulations of the delivery site on handling the object of supply (operating instructions), in particular with respect to the prescribed checks, or other instructions given.
2. In the event of gross negligence, the liability for damage is, in any case, restricted to the fifth of the net invoice amount of the supplied goods related to the damage.
3. If the contract is dissolved, in the event of gross negligence, Lindner is obliged to apply interest to the amounts to be repaid.
4. Unless contrary to compelling legal provisions, liability for damage in accordance with the product liability law and other comparable standards is excluded, regardless of from which legal regulation they arise. The contracting partner undertakes to impose this exclusion of liability in favour of Lindner on its relevant purchaser, compel them to further impose this onto the end purchaser and provide documentary evidence of this. The contracting partner is obliged to inform its colleagues constantly and with proof of all the information and instructions which Lindner supplies with its products, as well as legal regulations and sovereign regulations; this also applies to his purchasers. The contracting partners are furthermore obliged to retain all documents, certificates and evidence for a minimum of ten years from they come into force or forwarding of the products, and to publish them completely and forthwith on the request of Lindner.
IX. Right to Withdraw from Distance Selling Contracts
1. Distance selling contracts are contracts between Lindner and consumers who at no point are personally encountered between Lindner and the relevant contracting partner up to conclusion of the contract, and Lindner concludes the relevant contract in the context of a sales or service provision system organised for distance selling.
2. For contracts in accordance with paragraph 1 of this point, consumers are granted a special right of withdrawal. On the basis of this right of withdrawal, the relevant contracting partner is entitled to withdraw from the contract, within seven working days of obtaining the goods, without giving reasons and without obligation to pay; for the processing of this withdrawal, the provisions of point IV paragraphs (6) to (8) of these delivery and sales conditions are applicable; the consumer is, however, not obliged to pay a cancellation fee.
3. The remaining provisions of these delivery and sales conditions are applicable to such contracts.
X. Choice of Law, Place of Jurisdiction and Escape Clause
1. For all contracts concluded between Lindner and the relevant contracting partner, and all claims ensuing from the legally effective persistence or non-persistence of this contract, material Austrian law is applied, with the exclusion of the provisions of Austrian international private law and those of the UN Purchasing Right (UNCITRAL) are agreed.
2. As sole place of jurisdiction for any legal disputes from a contract concluded or to be concluded on the basis of these provisions between Lindner and the relevant contracting partner, the relevant civil court competent for 6250 Kundl/Tyrol/Austria is agreed. However, Lindner may pursue the contracting partner at another domestic or foreign place of jurisdiction.
3. Where a provision of the objective sales and delivery provisions is void, the contracting parties are hereby expressly obliged to agree the legally effective provisions which come closest to the economic purpose of the invalid provision. The effectiveness of all other provisions is not affected by the ineffective provision.
XI. Data Protection
On conclusion of the contract, the relevant contracting partners agree that personal data given in course of ordering shall be stored and processed electronically by Lindner.