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General Terms and Conditions

1. General

  1. These General Terms and Conditions (= GTC) apply between us (Mitterdorfer Fahrzeugbau GmbH) and natural and legal persons.
  2. We work exclusively on the basis of these General Terms and Conditions. They form an integral part of every offer and contract or our order acceptance (order confirmation, delivery) and also apply to subsequent and replacement deliveries as well as supplementary and follow-up orders, even if no express reference is made to them. They may only be amended by express written agreement.
  3. The version of our GTC applicable at the time the contract is concluded shall apply, available on our website (www.mitterdorfer-fzb.com).
  4. By signing the order confirmation, accepting an offer submitted by us, sending an order or taking over a delivery or service provided by us, our contractual partner declares that they agree to the content of these General Terms and Conditions.
  5. The customer's terms and conditions or amendments or additions to our GTC require our express consent to be effective; such consent must be in writing in relation to business customers.
  6. For transactions with consumers, the provisions of the Consumer Protection Act shall apply only insofar as they deviate from our General Terms and Conditions as mandatory law or contain provisions extending beyond them as mandatory law.
  7. The entry of a third party into the contract, in particular the entry of a leasing company, shall only be permitted if the contractual conditions agreed with the purchaser remain unchanged. In particular, the entry of a leasing company shall not result in an extension of the payment periods.
  8. Our contractual partner must notify us immediately in writing of any changes to their name, company name, address, legal form or other relevant information. If notification is not given, declarations shall be deemed to have been received even if they are sent to the last address notified to us.

2. Offer / Conclusion of contract

  1. All offers and cost estimates are non-binding and do not oblige us to deliver. Offers and contracts shall only become legally effective for us upon express written confirmation.
  2. Information about our products and services stated in catalogues, price lists, brochures, advertisements on exhibition stands, circulars, advertising mailings or other media which is not attributable to us must be brought to our attention by the customer if the customer bases their decision to place an order on such information. In this case, we may comment on its accuracy. If the customer breaches this obligation, such information shall be non-binding unless it has been expressly declared to form part of the contract, in writing in relation to business customers.

3. Prices

  1. All prices are net prices in euros ex works of Mitterdorfer Fahrzeugbau GmbH, excluding packaging, loading, transport and discounts. VAT shall be added to the prices at the statutory rate applicable from time to time.
  2. For services ordered by the customer which are not covered by the original order, there shall be an entitlement to reasonable remuneration in the absence of an agreement on remuneration.
  3. We shall be entitled, and shall also be obliged at the customer's request, to adjust the contractually agreed remuneration if changes of at least 5% have occurred since the conclusion of the contract in respect of
    - labour costs as a result of legislation, regulations, collective agreements, works agreements or
    - other cost factors necessary for the provision of the service, such as procurement costs of the materials used, based on recommendations of the Joint Commissions or changes in national or world market prices for raw materials, exchange rates, etc.
    The adjustment shall be made to the extent that the actual manufacturing costs at the time of conclusion of the contract have changed compared with those at the time the service is actually provided, provided that we are not in default.
  4. Remuneration under continuing obligations shall be agreed as value-adjusted in accordance with the CPI 2015, resulting in an adjustment of the remuneration. The month in which the contract was concluded shall be used as the basis.
  5. The customer shall arrange for the proper disposal of old materials in accordance with technical and environmental requirements. If we are commissioned to do so, the customer shall pay additional remuneration in the amount agreed for this purpose or, in the absence of an agreement on remuneration, reasonable remuneration.

4. Delivery and delay in delivery

  1. Unless otherwise agreed, we shall deliver the products ex works (A-9990 Nußdorf-Debant). Delivery shall be deemed completed upon notification that the goods are ready for dispatch and, in the case of deliveries to an agreed destination, upon departure from the supplying works.
  2. Delivery dates and delivery periods are always non-binding. The delivery period shall also be extended appropriately during a delay in delivery if unforeseeable and unavoidable obstacles occur which cannot be prevented despite reasonable care, such as shortages of raw materials, operational disruptions, the effects of industrial disputes or similar events. If delivery or performance becomes impossible due to the circumstances stated above, we shall be released from our obligation to deliver.
  3. Six weeks after a non-binding delivery date or delivery period has been exceeded, the purchaser may request the seller in text form to deliver within a reasonable period. The seller shall be in default upon receipt of this reminder. In the event of default, the purchaser may also grant the seller a reasonable grace period in text form, stating that they will refuse to accept the subject matter of the purchase after expiry of the period. After the grace period has expired unsuccessfully, the customer shall be entitled to withdraw from the purchase contract by declaration in text form. Further claims, in particular for damages due to impossibility of performance, delay, positive breach of contract, culpa in contrahendo and tort, shall be excluded unless they are based on intent or gross negligence on the part of Mitterdorfer Fahrzeugbau GmbH.
  4. The delivery period shall commence when the order enters into force, but never before payment of the agreed deposit or provision of the agreed means of payment.
  5. If, for whatever reason, the order is amended or supplemented after it has been placed, the delivery/performance period shall be extended by a reasonable period.
  6. We reserve the right to make minor changes to the design and form during the delivery period.
  7. If import and/or export licences or foreign exchange authorisations or similar permits, official or judicial approvals or any other permissions are required for the performance of the contract, it shall, unless otherwise agreed in writing in an individual case, be the sole responsibility of our contractual partner to obtain the required licences, approvals or permits in good time.

5. Acceptance by the purchaser

  1. The customer shall inspect and take over the subject matter of the purchase immediately after receiving notification that it is ready for dispatch, at the agreed place of acceptance or at the supplying works. If this takeover does not take place within 8 days, the subject matter of the purchase shall be deemed to have been accepted in good order. This shall also apply if the purchaser waives the inspection either tacitly or expressly.
  2. Unless otherwise agreed in writing in advance in an individual case, all costs and expenses associated with carrying out the acceptance inspection shall be borne by our contractual partner.

6. Transfer of risk

  1. Irrespective of the time of performance, all risks shall pass to the customer as soon as the subject matter of the order leaves our works or is made available to the customer.
  2. If dispatch is delayed through the purchaser's fault, the risk shall pass to the purchaser on the day the goods are ready for dispatch.
  3. Insurance against transport damage shall only be taken out on the purchaser's instructions and at the purchaser's expense.

7. Withdrawal from the contract

  1. If, after the order confirmation and before delivery, we become aware of circumstances in the contractual partner's financial circumstances which call into question settlement of the claim, we reserve the right to withdraw from the contract without the customer thereby acquiring any claim.
  2. If the order is revoked or the customer withdraws from the transaction for a reason which does not already entitle them to withdraw under the law, Mitterdorfer Fahrzeugbau GmbH shall, without prejudice to its right to insist on performance, be entitled to demand a cancellation fee in the amount of the lost profit and any costs incurred, but at least 15% of the purchase price. The customer shall have no right of choice in this regard.

8. Payment terms

  1. Unless other payment terms have been agreed in writing, claims of Mitterdorfer Fahrzeugbau GmbH shall be payable immediately, free of charges and without deduction.
  2. Bills of exchange and cheques shall only be accepted following a special agreement and only on account of payment. All associated charges shall be borne by the customer. We may refuse offered payments in the form of cheques or bills of exchange without giving reasons.
  3. If the payment deadline is exceeded, in the event of default in acceptance or loss of a deadline, we shall be entitled to charge interest on arrears at a rate of 5% per annum above the applicable bank interest rate.
  4. In the event of default in payment, the customer undertakes to reimburse us for the necessary and appropriate costs of recovery (reminder costs, collection fees, legal fees, etc.).
  5. Warranty and/or guarantee claims asserted by the purchaser shall not entitle them to withhold agreed payments. The customer's possible counterclaims may not be set off against the purchase price.

9. Retention of title

  1. All goods delivered by us shall remain the property of Mitterdorfer Fahrzeugbau GmbH until all obligations of our contractual partner arising from the purchase contract have been settled in full. The customer shall store them free of charge.
  2. For as long as retention of title exists, the sale, pledging, transfer by way of security, letting or other transfer of the subject matter of the purchase shall be prohibited without our express written consent.
  3. For the duration of the retention of title, the purchaser shall insure the subject matter of the purchase for its full value against all risks, including fire, and assign the insurance policy in favour of Mitterdorfer Fahrzeugbau GmbH.
  4. It is expressly established and agreed between the purchaser and seller that the subject matter of the purchase shall not become an accessory to a lorry or any other vehicle, even if it is fitted to one, and that retention of title shall remain in force until the purchase price has been paid in full.
  5. The purchaser shall be obliged to keep the subject matter of the purchase in proper condition for the duration of the retention of title and to have any necessary repairs carried out immediately.
  6. The application to open insolvency proceedings against the customer shall entitle us to withdraw from the contract and demand the immediate return of the delivered goods.
  7. In the event of third-party access, in particular seizure of the subject matter of the purchase or exercise of a workshop's statutory lien, the purchaser must notify the seller immediately in text form and inform the third party without delay of the seller's retention of title.
  8. The purchaser shall bear all costs which must be incurred to remove the third-party access and recover the subject matter of the purchase, insofar as they cannot be recovered from third parties.

10. Warranty, product liability and damages

  1. The purchaser shall inspect the subject matter of the purchase immediately upon takeover with the diligence required under sections 377 and 378 of the Austrian Commercial Code (UGB) and record any identifiable defects on the delivery note, failing which all claims shall be excluded.
  2. If immediate inspection is not possible upon takeover, this circumstance must be noted on the delivery note, failing which all claims shall be excluded, and any defect detectable during a subsequent inspection must be notified in writing within 8 days of takeover. If notice of defects is not given in good time, the goods shall be deemed approved.
  3. The period for asserting warranty claims is mutually agreed to be 12 months.
  4. The customer shall bear the burden of proving that a defect existed at the time of handover.
  5. If the goods delivered are defective, the customer shall be entitled to rectification or replacement within a reasonable period. At the discretion of Mitterdorfer Fahrzeugbau GmbH, this may be carried out by repairing the subject matter of the purchase or replacing the parts sent to us.
  6. There shall be no further claim, in particular for a reduction in price or rescission of the contract, irrespective of the legal basis. There shall be no entitlement to compensation for any consequential damage. Loss of profit shall not be compensated in any circumstances.
  7. In the event of replacement or rectification carried out by us, the agreed warranty period shall not recommence and shall not be extended.
  8. If the customer's allegations of defects are unjustified, they shall be obliged to reimburse us for the expenses incurred in establishing that the goods were free from defects or in rectifying the fault.
  9. The customer shall comply with all instructions for use provided to them, in particular the manufacturer's operating instructions and maintenance regulations, and shall seek our advice in the event of any uncertainty. Mitterdorfer Fahrzeugbau GmbH shall in no circumstances be liable for operating errors, defects or damage resulting from failure to observe the instructions or from unauthorised or third-party modifications to the subject matter of the purchase.
  10. Wear parts and accessories, as well as equipment and other materials supplied by the customer, are excluded from the warranty.
  11. Our warranty obligation shall in any event and without exception expire if
    - at the request of our contractual partner, the subject matter of the purchase is modified without our express, written and prior consent, irrespective of when, how, by whom or to what extent this occurs (it shall be the responsibility of our contractual partner to prove that no modification was made);
    - defects occur in the case of self-collection and these defects are attributable to improper packaging, improper loading, improper transport or any modification of the goods made after loading the means of transport, regardless of its form or extent (it shall be the responsibility of our contractual partner to prove that proper transport and loading took place and that no modification was made);
    - the subject matter is resold within the warranty period.
  12. Warranty claims for used vehicles are excluded in their entirety.
  13. It shall be the sole responsibility and sole risk of our contractual partner to ensure that the goods supplied by us can be used in the manner and to the extent desired by them and in the countries where they wish to use them.
  14. It shall further be the sole responsibility and sole risk of our contractual partner to obtain the necessary statutory, official or other approvals and permits for the intended installation and use of the goods at the location intended by them.
  15. The customer shall only be entitled to claims for damages if we are guilty of gross negligence or intent. Rescission on grounds of mistake is expressly excluded.
  16. Our liability is excluded for damage caused by improper handling or storage, excessive use, failure to comply with operating and installation instructions, defective assembly, commissioning, servicing or maintenance by the customer or third parties not authorised by us, or natural wear and tear, provided that this event was causally responsible for the damage. Liability is likewise excluded for failure to carry out necessary maintenance.
  17. The products provide only the level of safety which may be expected, when viewed carefully and diligently, on the basis of approval regulations, operating instructions, regulations of the supplying works or company concerning handling, and with regard to the prescribed inspections and other instructions. The purchaser is prohibited from presenting the goods in such a way as to create an expectation of safety beyond this.
  18. The place of performance for the warranty is Nußdorf-Debant.

11. Guarantee

  1. In the event of a guarantee granted separately to the customer, we shall be obliged during the guarantee period to carry out rectification or supply replacement parts within a reasonable period, unless otherwise provided by special guarantee conditions agreed with the manufacturer.
  2. A claim under a guarantee shall in any event be excluded if the customer has used replacement parts not supplied by Mitterdorfer Fahrzeugbau GmbH.

12. Place of performance, jurisdiction and applicable law

  1. The place of performance shall be our registered office (A-9990 Nußdorf-Debant).
  2. The contracting parties exclusively agree on the jurisdiction of the court in Lienz for all legal disputes arising from this contract.
  3. Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.

13. Confidentiality, plans and documents

  1. Plans, sketches, cost estimates and other technical documents, which may also form part of the offer, as well as samples, catalogues, brochures, illustrations and the like, shall always remain our intellectual property. Any use, duplication, reproduction, distribution and handing over to third parties, publication, presentation, imitation or adaptation may only take place with our express written consent.
  2. All such documents may also be reclaimed by us at any time and without giving reasons and must in any event be returned to us unsolicited if no contract is concluded with us.
  3. The customer further undertakes to keep confidential from third parties the knowledge acquired by them through the business relationship.
  4. It is expressly stated that the information in the descriptions concerning performance, weights, operating costs, speeds, etc. is to be regarded as approximate and non-binding.

14. Data protection

  1. We shall be entitled to store, transmit, process and delete all data relating to business dealings with us, including personal data of our contractual partners.
  2. Our contractual partner expressly undertakes to maintain absolute confidentiality towards third parties regarding the knowledge acquired by them through the business relationship.

15. Severability clause

  1. If provisions of these General Terms and Conditions are or become wholly or partially invalid, all remaining provisions of these General Terms and Conditions shall remain effective. The invalid provision shall be replaced by another provision which is valid and comes closest to the invalid provision in terms of its content and purpose.