The following terms and conditions shall apply to all deliveries and services rendered within the scope of our company’s activities. All future transactions shall also be deemed completed and discharged under the condition that these terms and conditions are also applicable, even if these terms and conditions not be explicitly provided in each individual case. Auxiliary agreements shall only be considered valid on a case-by-case basis and only if put in writing.
In default of any other agreement in writing, the delivery of the merchandise shall be effected as deemed appropriate at the central warehouse located at Leobersdorfer Straße 24, 2552 Hirtenberg, Austria. Delivery and invoicing shall be transacted in accordance with the prices valid on the day of delivery and under the conditions indicated in the prevailing price lists. Costs for shipping and any shipping risks shall be borne by the purchaser. Any prior weight indications are not binding. All shipments, including delivery free domicile, shall always be at the risk of the recipient. Any damage occurring during transport is to be reported to the shipper in writing upon receipt of delivery by the recipient of the merchandise and/or the invoice. Any such claims are to be asserted vis-á-vis the shipper.
III. DELIVERY PERIOD
We shall do our utmost to uphold the confirmed delivery periods; however, we refuse to accept any claims for damages for exceeding the delivery times.
V. TERMS OF PAYMENT
In the event of a failure to pay 30 days after the invoice date, interest for delay of 2% above the currently prevailing bank interest rates, albeit at least in the amount of 12% p.a., excluding value-added tax, shall be deemed agreed to. In such an event the purchaser shall undertake to reimburse ALCAR WHEELS GMBH for all reminder and collection agency fees incurred, in particular any costs incurred by any legal action taken by an attorney if necessary in the amount indicated by the currently prevailing schedule of attorneys’ fees. Bills of exchange shall only be accepted upon prior explicit agreement and only for payment, excluding any cash discounts. Discount interest and any fees shall be borne solely by the person liable under the bill of exchange
VI. RETENTION OF TITLE
VI.1 The following agreed retention of title arrangement shall secure any and all of our current and future claims against the purchaser arising out of the business relationship between the parties, including accessory claims, claims for damages, claims out of cheques and bills of exchange and balances of current accounts in relation to the business relationship.
VI.2 The goods delivered by us to the purchaser (Retained Goods) remain our property until full payment has been made of all secured claims. The retention of title shall continue to exist, even if some of our claims are included in a current account and a balance has been drawn.
VI.3 The purchaser stores the Retained Goods for us for no consideration and insures them at its own costs against all usual risks, such as for example water, fire, theft etc. to the extent usual within the industry, but at least at the amount of the purchase value. The purchaser already now, up to the amount of our secured claims including VAT, hereby assigns to us all claims for payment and compensation, which the purchaser obtains from insurance companies or other liable parties as a result of the damages set forth above. We accept the assignment. We are entitled to pay the insurance premiums on the account of the purchaser.
VI.4 If the purchaser converts Retained Goods into a new movable item, the conversion takes place on our behalf, without ourselves getting committing therefrom. We become the owners of the new item. In case of conversion, blending or comingling with goods not owned by us, we acquire co-ownership in the new item in proportion of the invoice value of the Retained Goods in relation to the total value.
VI.5 For the duration of the retention of title arrangement, the purchaser may not pledge or assign as a collateral the Retained Goods or the assigned claims.
VI.6 Should third parties lay claim to Retained Goods, specifically by attaching them, the purchaser will immediately point to our ownership rights and will immediately notify us thereof, including name and address of the pledgee, in order to enable us to enforce our ownership rights.
VI.7 The purchaser shall only be entitled to resell, process or install the Retained Goods in its normal course of business subject to the following provisions and with the proviso that the claims pursuant to VI.9 do in fact pass to us.
VI.8 The right of the purchaser to sell, process or install the Retained Goods in the ordinary course of business terminated when revoked by us, and irrespective of a revocation at the latest at the cessation of payments by the purchaser or the filing, or the opening, respectively, of bankruptcy proceedings over the assets of the purchaser. We are entitled to a revocation in case of a substantial deterioration in the financial situation of the purchaser.
VI.9 If the resale does not occur against payment in cash, the purchaser already now assigns to us as collateral all claims against the acquirer, including accessory rights – including balances from current accounts – arising out of the resale of the Retained Goods. The same applies to other claims which replace the Retained Goods or which otherwise arise in relation to the Retained Goods, like for example insurance claims or claims arising out of prohibited actions in case of loss or destruction. We accept the assignment. If the Retained Goods have been processed, comingled or mixed, and if we have obtained co-ownership therein in the amount of the invoice value, we are entitled to the claim for payment of the purchase price in proportion to the value of our rights in the respective goods. If the purchaser has sold the claim in the course of a true factoring, our claim becomes due immediately, the purchaser assigns the claim against the factor which replaces the claim to us and immediately forwards the proceeds arising out of the sale of the claim to the factor to us. We hereby accept the assignment.
VI.10 The purchaser is authorised to collect the assigned claims (in particular arising out of the resale). We can revoke this authorisation to collect at any time if the contractual partner does not satisfy its payment obligations, there is a delay in payment, a motion for the opening of bankruptcy proceedings over the assets of the purchaser has been filed, bankruptcy proceedings over the assets of the purchaser have been opened or the are enforcement actions of third parties against the purchaser. Upon our request the purchaser has to name the debtors of assigned claims, has to notify them of the assignment or has to provide us the with the assignment notifications. In case of a revocation of the authorisation to collect we are hereby authorised by the purchaser to inform its customers of the assignment and to collect the claims by ourselves. As long as the purchaser satisfies its payment obligations, we will not disclose the assignment. The purchaser is obliged to provide us upon our request with a detailed scheduled of the claims we are entitled to, including names and addresses of the customers, amount of the individual claims, invoice date and the like and to provide us with all information required for the enforcement of the assigned claims and to allow a review of such information.
VI.11 If, due to a breach of obligations of the purchaser, in particular in case of a delay of payment, we withdraw from the contract, we are entitled to claim that the Retained Goods are returned to us. The purchaser is obliged to return the Retained Goods. We can satisfy ourselves out of the returned Retained Goods through private sale.
VI.12 If the value of the collateral in our favour exceeds the secured claims by more than 20%, we are, upon request of the purchaser or by a third party affected by the over-securement of the purchaser, obliged to release collaterals to such extent at their election.
Any claims of defects shall only be recognized if asserted without delay upon the immediate inspection of the merchandise and only if they indicate the exact reason for the complaint. In the event of any kind of defect – substantial or insubstantial, rectifiable or unrectifiable – we shall reserve the right to provide for a rescission of the sale, an improvement or replacement delivery. Should an improvement be unsuccessful, additional attempts at improvement shall be permitted. We shall be held responsible for quality defects caused by our suppliers or producers to the extent and for those times that our suppliers and producers can provide compensation. Vehicle parts are to be examined to ensure the proper fit on the vehicle type in question before mounting and finishing. Wheels are to be examined for fit and freedom of motion before mounting. Wheels or vehicle parts that have already been either mounted or finished cannot be returned. Returns can only be accepted upon prior agreement. The merchandise must be in impeccable condition, in its original packaging and free of any labelling or writing. The utilisation of non-serial vehicle parts requires the entry of this information in the Certificate of Conformity by the competent authorities. An expert assessment from a neutral party (recognized expert) is to be obtained by the customer for the entry of this information for vehicle parts that have not been approved by the vehicle manufacturer. Therefore, generally speaking, we are unable to provide for the entry of this information in the Certificate of Conformity.
ALCAR WHEELS GMBH shall assume no liability for slight or severe negligence. Our liability is essentially limited to the amount that is covered by our insurance policies, or the amount for which our suppliers and producers can be held liable for damages in the event of any fault on their part. Any claims for damages can only be paid in these cases as soon as we have the complete monetary amount at our disposal. We are only liable vis-à-vis our contractual partner who hereby explicitly waives in advance all claims for damages against us asserted by third parties (such as resellers, end consumers, their family members, employees and other aggrieved parties). The purchaser shall undertake to resell the merchandise only on condition of this waiver of third-party claims against us and shall remain liable to us for any failure to do so and for any services we are obliged to render to third parties.
IX. DATA HANDLING
ALCAR WHEELS GMBH shall be entitled to utilise and store any personal data regarding the purchaser.
X. APPLICABLE LAW, LEGAL VENUE AND PLACE OF PERFORMANCE
We hereby agree that Austrian law shall be applicable in any case. Legal venue shall be deemed agreed as the competent court in Vienna, Austria.