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Conditions générales

 

Conditions générales

(Sales, delivery and payment conditions)

The following conditions apply for all completed business with us. 

1. General remarks/contract formation

a) Supply agreements are contracted only according to the following conditions.

b) We keep intellectual property rights on exemplary, quotations, drawings and the like, information of physical and non-physical kind – also in electronically form. They must not be made approachable to third parties.

c) Our offers are without obligation. For the scope of delivery of the service, a written representation of both parties is binding. Subsequent changes require a written form. Oral information and promises only apply, if they are confirmed in written form.

d) Contradictory requirements of the purchaser, or requirements differing from our conditions, are not acknowledged by us, not even if we have notice of the requirements of the purchaser and the delivery is conducted unconditionally, unless the requirements of the purchaser have been acknowledged by us in written form.

e) Our terms and conditions apply for everyone contracting deals with us. They also apply for all future deals with the purchaser from current business connections. 

2. Offer, contract formation, written form

a) As far as we did not submit a binding offer, the contract is realized in form of our confirmation in written form, after the purchaser has ordered.

b) A binding offer is only present, after we explicitly indicated our offer as mandatory.

c) Validity of the offer lasts for 3 months, if not defined otherwise in a written form.

d) Offers are non-binding, quotations are without any commitment. The costs for the refunding of a quotation are, if not defined otherwise, cleared by the purchaser.

e) Statements of our employees for the purpose of quotation processing, especially on measurements, weight, performance and consumption data, are only roughly representative, if they have not been confirmed by us within our binding offer in written form.

3. Prices

a) The calculation of our prices is done in Euro.

b) Our prices are valid ex works, excluding packaging costs and VAT.

c) If order-specific costs change essentially after the contract is concluded, the affiliates are obliged to inform each other on an adaption of the prices.

d) If increases of material costs, labor costs, taxes or charges occur after the contract is concluded, we are able to carry out a price adjustment according to these factors, unless the products will be delivered within 3 months after the contract is concluded. 

4. Obligation of supply and obligation to accept

a) We will keep the delivery times mentioned by us to the best of our efforts. However, deadlines and dates only display an expected time of delivery, not a fixed or stipulated delivery time according to the calendar.

b) Delivery times start after all details of the order have been clarified and the purchaser has fulfilled all of his obligations. As long as not agreed otherwise, the delivery day is the day of shipping. If the shipment is being delayed through no fault of ours, the day of allocation applies as delivery date. Part deliveries are acceptable, unless the customer has an obvious intent to the contrary.

c) If we are prevented from delivering on time by force majeure or due to unforeseeable circumstances for which we are not responsible, such as official measures, civil unrest, failure of suppliers to make deliveries etc., the delivery time is extended for as long as such circumstances prevail. If the impediment lasts longer than 6 months we and the customer may withdraw from the contract, with respect to that part of the agreement which has not been fulfilled, with no right to claim compensation.

d) In case we are in default, the ordering party in entitled to grant us a reasonable grace period and after this period has passed uneventfully, the purchaser is entitled to withdraw from the contract. Claims for damages instead of the performance are limited in the case of our slight or simple negligence on the damage typical or predictable for the contract.

e) In the case of make-and-hold-orders without agreement on duration, production lot size and acceptance schedule date, we can demand a mandatory determination, latest three months after order confirmation, as long as it has not been agreed on otherwise in written form. If the ordering party does not fulfill this demand within a period of three weeks, we are entitled to set a final deadline of two weeks. After expiration of this deadline we are entitled to withdraw from the contract and claim compensation.

f) If the purchaser wants us to conduct essential examinations, the type and extent of these examinations has to be declared. If this is not done the latest when the contract is completed, the costs are chargeable to the purchaser.

g) If the delivery should take place on the basis of a prototype created by us, the purchaser has to inspect and decontrol this prototype at our site promptly after announcement of completion of the prototype. If the decontrol does not take place, even after a final deadline has been set, because of reasons which have to be represented by the purchaser, we are entitled to send or store the prototype at the cost and danger of the purchaser; Thereby, the prototype is considered as decontrolled.

h) If the shipment is delayed on the purchaser’s desire or because of another reason represented by the purchaser, we are entitled to charge the incurred costs, though at least a warehousing charge of 1% of the amount invoiced, for each commenced month, starting one month after announcement of readiness for delivery. 

5. Mail-order and passing of risk

a) The risk passes over to the ordering party as soon as the goods leave our factory.

b) If the shipment is being delayed by reasons which have to be represented by the purchaser, the risk passes on the day of allocation.

c) The ordering party bears the risk according to the general terms laid down in law, including the risk of breaking and loss during the shipment.

d) The ordering party needs to account for possible insurances of the freight.

e) At insignificant imperfections of the delivery, the purchaser is obliged to accept the supply, without prejudice to his warranty rights.

6. Warranty

a) The ordering party is obligated to immediately inspect the delivered goods.

b) Notices of defects must be argued in written form without delay and before they are processed or mixed.

c) We must be given the opportunity to check the reported shortcoming at the place and position. We shall be obliged to carry out such an inspection without delay, provided that the purchaser declares his desire of an immediate execution.

d) Warranty claims shall not exist in cases of insignificant deviations of quality or insignificant impairment of the usefulness.

e) All our specifications constitute performance specifications only and no guarantees, unless expressly otherwise agreed.

f) If the purchaser unjustly blames us for a defect for which we are not responsible, we are entitled to charge the customer for any reasonable expenses incurred for the identification or rectification of the alleged defects.

g) We are at liberty to charge the customer for additional expenses necessarily incurred for the purpose of subsequent performance, in particular shipping, infrastructure, labor and material costs, if additional expenses is incurred as a result of the delivered goods being transported to a location other than the delivery address, unless such transportation is in accordance with the terms of the contract for the use stipulated in the contract. 

h) Contribution claims of the purchaser of consumer goods are if and when barred with respect to the agreement of the purchaser with his customers, which exceed the legal claims for defects on the customers. The purchaser shall inform us immediately about any warranty rights of his customers so that we may satisfy, a tour option, the claims of the customers of our purchaser instead of our purchaser.

i) Warranty claims shall become time barred 12 months from delivery, unless we caused the defects intentionally or grossly negligently or we maliciously none-disclosed defects. This limitation also applies to claims from warranties we provided or which bind us, unless otherwise stipulated. If, owing to faulty delivery, subsequent performance is required the period of limitation will not start again at the date of subsequent performance.

j) We cannot be made responsible for damages caused by careless storage or irregular processing or manipulation.

k) Before the customer may assert further claims or rights (recession, withdrawal, reduction of price, damages or reimbursement of expenses) we shall initially be given the opportunity to effect subsequent performance within a reasonable period of time, unless a guarantee to the contrary has been given by us. In case where subsequent performance is unsuccessful despite a minimum of two attempts, or if we deny subsequent performance, or if subsequent performance is impossible or unacceptable to the purchaser, then the purchaser is entitled to withdraw from the contract or to reduce payment (curtail).

l) Complaints in respect to the defects shall not release the parties hereto from adherence to the delivery and payment conditions.

m) All parts, which are subject to competition, as well as parts used for performance enhancement, shall principally not be subject to warranty claims.

n) All motorsport parts conduce to the operation of sporty activities and are therefore excluded from warranty after they have been used first-time.

o) The installation and the use of motorsport parts are to be made exclusively according to the instructions given in the document „assembly and operating instruction”.

7. Compensation

a) The assertion of damage claims or claims for reimbursement (hereinafter referred to as „damages“) based on defects of the items delivered (claims based on defects) shall be excluded insofar as we cannot effect subsequent performance for reasons beyond our control. The assertion of damage for defects and for damages caused by defects, which is based on the delivery of defective goods, requires basically that we caused the defects intentionally, by gross negligence or by negligent violation of our duties, unless otherwise agreed. The same is true for exercising damages for a breach of a guarantee of durability given by us or for us.

b) Otherwise, claims for damages and compensation for expenses (hereinafter referred to as “damage claims”) of the purchaser – irrespectively of the legal grounds – particularly for the violation of duties from and in connection with the contract, from fault occurred prior or upon the conclusion and from tort, shall be excluded

c) We shall in no event be liable in excess of the statutory claims. In case of negligence our liability is limited to predictable and characteristically to be expected damages.

d) To the extent that our liability is excluded or limited, this applies equally to the personal liability of our employees, workers, personnel, legal representatives and vicarious agents.

e) The statutes of limitation between the supplier and the purchaser go according to section 6 lit. i. This limitation applies especially as well for consequential harm caused by a defect. 

8. Terms of payment

a) Invoices to moneys due have to be paid immediately after billing without deduction, if not otherwise agreed on in written form. Costs of drafts and check are accepted only for processing – if at all. Costs of drafts and check are charged to the debit of the purchaser.

b) Costs associated with workpiece models and manufacturing equipment must always be paid in advance, unless otherwise agreed.

c) If the purchaser is in default of payment, we are entitled to charge interest on arrears at the rate of 10% annually above the respective base interest rate.

d) If the purchaser is not known to us, we will deliver the goods against cash on delivery or payment in advance.

9. Reservation of proprietary rights

a) We retain title on goods delivered up to receipt of all payments arising from the business relationship with the buyer, until settlement of the balance acknowledged. If the purchaser acts in a way contrary to the contractual obligations, in particular in the event of a default in payment after setting a deadline, we are entitled to take back the delivered items. After taking back the delivered items, we are entitled to liquidate them; the liquidation process is counted against the purchaser’s liabilities, less reasonable costs of realization.

b) The purchaser is obliged to handle the delivered goods with care; in particular he must, at his own costs, sufficiently insure the delivered item against fire, water, theft and larceny at its value when it’s new. Provided that maintenance and inspection work is required, the customer must carry out such work at his own expense and in due time.

c) In case of seizure or intervention by third parties, the purchaser has to immediately inform us in written from. The purchaser is liable towards us for court and out-of-court costs of a possibly necessary lawsuit.

d) The purchaser is entitled to resell the delivery item in the ordinary course of business, however, he herewith already assigns to us all claims to the amount of the invoice sum total (including value-added tax) accruing to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after having been processed. The purchaser shall remain authorized to collect this amount receivable even after assignment. However, we shall be authorized to collect the claim ourselves if the purchaser does not perform his obligation to pay from the collected proceeds, defaults in payment or has filed a petition for the institution of insolvency proceedings or such a petition has been filed or suspense payment. In these cases, we may demand that the customer identifies the assigned receivables and their debtors, makes any statements necessary to collect on such accounts, delivers all related documents and informs the debtor (third parties= about the assignment. However, we shall not be entitled to collect the claim if this is precluded by the Insolvency Statute.

e) The processing or modification of the delivered goods by the purchaser is always performed on our behalf. If the delivered goods are manufactured and integrated with items not belonging to us, we acquire co-ownership of the new item according to the relation of the value of the delivered goods to the value of the other manufactured items at the time of manufacturing. As for the rest, the same applies to the item arising due to the processing as to the goods delivered. 

10. Alterations of construction

a) We reserve the right to make alterations and improvements in construction and execution, with regards to latest experiences. 

11. Models and production facilities

a) Insofar as we manufacture or procure designs or manufacturing facilities at the purchaser’s request, the purchaser shall reimburse us for any costs thereby incurred. If costs are not charged in full, the purchaser shall also bear the residual costs if he does not take delivery of such number of items as promised by him upon conclusion of the contract. Any models and manufacturing equipment made or procured by us remain our property. They will be used exclusively for goods delivered to the purchaser during the term of contract. If 3 years have passed since the last delivery, we are no longer obliged to continue to store the equipment. If, in derogation of the above, the contracting parties agreed that the purchaser would become owner of the facilities, title shall pass to him upon payment of the purchase price. The handover of the facility is being substituted by our duty to preserve records. The storage relationship may be terminated by the purchaser at the earliest 2 years after the title transfer, unless other agreements have been made.

b) All models and manufacturing equipment are handled by us with the care which we apply in our own dealings. Upon request by the purchaser, we are obliged to insure the models and equipment provided by the purchaser at the latter’s expense. Claim to substitutions for consequential damages are excluded under number 5 lit.

c) If deliveries are made on the basis of drawings or other information of the purchaser and if, as a result, protected privileges of third parties are violated by this, the purchaser shall indemnify us against all claims of third parties.

d) and number 6 of our general terms and conditions.  

12. Collection and repair

a) If goods, which are property of the purchaser, are undertaken by us for repair or other treatments, the purchaser is obliged to come for these goods the latest 6 months after the takeover. After the expiry of the mentioned period we are entitled to use the goods otherwise and to offset the proceeds of sale with storage costs and an accrued utilization effort. 

13. Place of fulfillment and legal domicile, applicable law

a) Legal domicile is our corporate headquarters; this applies for liabilities on bills and checks as well. Nevertheless, we are entitled to sue the purchaser at his legal domicile as well.

b) In case of default of payment, the purchaser is obliged to pay all full accrued dunning costs and collection expenses, as well as miscellaneous pre-trial costs.

c) The contractual relationship is exclusively subjected to the right of Austrian law.