General Business and Delivery Conditions
of Arctic Cat GmbH, Industriestrasse 43, 5600 St. Johann /Pg. Austria.
The General Business and Delivery Conditions (AGB) valid at the particular time apply to all our offers, sales and deliveries as well as other legal transactions and govern the entire business relation.
Any deviations from these General Business and Delivery Conditions are permissible only if agreed in writing, except for the case in paragraph 1.7.
General conditions of the Importer, the Customer of the other party, (herein after referred to as the Customer) are not applicable except if these conditions are accepted by us in writing.
If the competent court should find that one of the clauses of these General Conditions is invalid or as a result of certain circumstances is not binding, then all other clauses of these Conditions will remain in full force.
Should one or several provisions of these General Business and Delivery Conditions be void, ineffective or contestable, the other stipulations will remain effective and binding.
When placing an order for contractual goods at the latest, the Customer declares that he accepts these General Business and Delivery Conditions and he accepts that these General Business and Delivery Conditions will also apply to all business transactions with us in the future.
The necessary data obtained in the course of the business relation are stored with the consent of the Customer and processed observing the legal regulations.
We have the right if necessary to modify the General Business and Delivery Conditions at any time, entirely or in part. The new General Business and Delivery Conditions become effective after the proven delivery to the Customer.
Ordering of contractual goods has to take place at least quarterly. Intermediate orders are possible.
II. Conclusion of the Agreement
The agreement is considered concluded when we, after having received a telephone, electronic or written order from a Customer, issue a written order confirmation to the Customer, or effect delivery.
Our offers refer to the price lists, catalogues and brochures valid at the time our offer is made. Any differing price quotations are valid only if confirmed in writing.
The statements about our contractual products contained in catalogues, leaflets and other illustrations describing the quality, structure, dimensions, color and paint are approximate only.
We retain the right to alter any technical specifications which constitute an improvement of the contractual products or which are reasonable for the Customer.
All prices issued by us refer to our company’s head office at St. Johann/Pg., Austria, and are exclusive of VAT, costs of packing, transport, loading and forwarding.
Except if otherwise agreed in writing, we will on principle not take back any packing material.
The invoiced prices correspond to the price list valid on the date of delivery.
If a modification of the price basis occurs between our order confirmation and the date of delivery, we have the right to adapt the agreed prices accordingly. If the order is secured by a letter of credit, we will invoice the price valid on the date when the order was placed. We shall inform the Customer of any modification of the price list 4 weeks in advance.
Delivery dates and delivery terms are binding only if expressly confirmed by us in writing. On principle, delivery dates and delivery terms are to be considered as approximate information. The delivery term starts from the date of dispatch of our order confirmation.
If an additional down payment for the hedging of the purchase price claims for the contract commodity is agreed upon, the time for delivery begins only after receipt of the down payment and/or after receipt of the proof over hedging of the purchase price claims. The delivery terms are suspended as long as the Customer is in default of fulfilling his obligations, also from other orders.
If the customer does not supply a confirmation for the hedging of purchase price claims within five days after transmission of the pro forma invoice and the information that the vehicles are ready for supply or pick up, these vehicles can be used by us for other orders and we also reserve the right to charge storage fees at a value of EUR 1,00/day/ATV starting from that day.
If we are not able to keep the agreed delivery term, the Customer shall grant us an extension of at least 12 weeks. If we do not perform delivery within this extended period either, the Customer has the right to rescind from the contract, if the non-delivery within the granted time extension is due to our own fault, but in such a case the Customer has no right to claim penalty or damages from us. We will be released from our delivery obligation if our suppliers should have stopped production, or in cases of superior force, provided that such circumstances have occurred after conclusion of the contract and we are not liable for the non-delivery. If such circumstances should occur, we will inform the Customer without delay.
In this case, liability for compensation because of non-fulfillment of orders received and accepted by us is excluded.
Partial deliveries are permissible, insofar as the Customer does not insist on complete delivery.
The delivery of the goods is made at our choice ex works (EXW, as defined in the Incoterms 2000) to the delivery address indicated by the Customer. We will tell the Customer in the order confirmation whether the goods will be made available for pickup or the transport of the goods will be commissioned by us at the expense of the Customer to the mentioned delivery address.
In case of delivery of goods to the Customer, we may choose the mode of shipment and means of transport.
We will conclude the appropriate transport contracts and transport assurance according to the circumstances and every other necessary agreement. The customer will assume all transportation and additional transport expenses in accordance with the price list for transport costs communicated constantly to the Customer.
If sale is ex works, delivery is considered to have taken place on the date on which the Customer is informed that the goods are ready for pickup and/or delivery. From this time, the risk passes on to the Customer. If the Customer is told in the order confirmation that the goods may be picked up at the mentioned day, we are justified to charge storage costs at a value of EUR 1,00/day/ATV, if the goods are not picked up after ten days starting from the time of the information to the Customer that the goods are ready to be picked up.
If the particular goods are ready for dispatch and forwarding, or the acceptance of the goods is delayed for reasons which we are not responsible for, the risk passes over to the Customer on the date when the goods were ready for dispatch. We do not assume liability for damage and loss of the goods during transport.
Upon delivery ex works, in case of damage during transport, the Customer remains liable to pay the goods according to the agreements at due date.
Delivery and transport always take place to the expense and risk of the Customer.
Returns are accepted only after express written agreement in advance, and in any case only in original packing.
If after valid conclusion of the contract, the Customer should express new requirements regarding the design of the contract goods, this will have to be confirmed by us in writing, and the delivery term will run again, starting from such confirmation.
All orders are to be secured by letter of credit in the agreed amount accepted by us.
All sums are payable on the date when the contract goods are handed over or when the Customer is advised that they are ready for delivery, in cash or by payment into our company’s account current. The account number is stated on our order confirmation. The due amount is payable without any deductions.
We have the right to decide the mode of payment.
We always have the right to ask the Customer for payment in advance – either of the entire amount of the order, or of a certain part – whether the contract has already been completely fulfilled by us or not.
5.4. In all cases, in which payment in cash is not necessary because a different mode of payment has been agreed according to clause 5.2, the invoice amount is due for payment without deduction within 30 days from the date of invoice.
In case the Customer delays payment, we have the right to charge interests of 8% over the basic interest rate according to § 352 UGB per month.
In the case of abnormal termination of the contract all demands from our side will become due immediately.
VI. Cancellation – Impossibility
If the Customer, after expiry of a reasonable extension of time granted to him, refuses to accept the contract goods or previously declares that he does not wish to accept the goods, we may request adherence to the contract or cancel the contract and request damages for non-performance.
In case we cancel the contract, the Customer has to pay a penalty for non-fulfilment of the contract at the rate of 25% of the gross order price, which is not subject to the judicial right of moderation. We are, however, free to claim damages beyond that.
We have the right to cancel the purchase contract if the Customer, although he was granted a reasonable respite of three weeks, delays payment or if facts have come to our knowledge which indicate that the Customer is in a bad financial situation and let us fear that he will not be able to pay the purchase price; also in cases of insolvency, bankruptcy proceedings, or shutdown of the company. In all such cases we have the right to refuse delivery of the goods and after delivery, to request restoration of the goods delivered under retention of title, while maintaining our damage claims.
VII. Superior Force
In case of superior force, we are authorized either to postpone the performances to be rendered by us for up to six months, or to cancel the contract completely or in part. The Customer shall be informed in writing of the complete or partial cancellation of the contract. In both cases we have no liability for any damages incurred by the Customer.
Superior force includes, among others, war, natural disasters, fire, strike, theft, etc. – thus all circumstances which are a disturbance to the normal production process in our works and which we are not responsible for.
VIII. Retention of Title
The delivery of the contract goods is always under retention of title, with the following preconditions:
We retain title of the goods until full payment of all our receivables from the commercial relationship, in any case however, until full payment of our receivables from the particular contractual connection.
During the duration of the retention of title the customer is entitled to the possession and use of the purchased objects as long as he meets his obligations resulting from the retention of title and is not in delay of payment.
The resale of contract goods being under retention of title is allowed only in the context of his usual business and the right of resale of the purchased goods granted by us. As a precaution, the customer surrenders all demands resulting from the resale of the purchased goods in advance to us. The customer is entitled and obligated to collect demands assigned to us as long as this authorization is not expressly recalled and the buyer punctually meets his liabilities. The general permission of resale takes place under the condition that the customer has not surrendered and will not surrender the above mentioned demands neither at the time of resale nor later on to third.
If the goods in possession of the customer are judicially seized, we have to be informed immediately and the customer has to do everything to assure that the goods are handed out to us. The customer is obligated to inform us immediately about accesses of third to goods being in our property, even if these are only approaching. He must inform also third, that take/want to take access to our goods about the fact that it concerns our property. The customer bears any cost of the pursuit of our property rights or of interventions.
During the duration of the retention of title, the customer is obligated to maintain the contract goods being under retention of title in correct condition, to have fulfilled all necessary maintenance and repair work immediately and to insure the contract goods against fire, damages caused by water, theft etc..
If the customer is in delay with payment or violates these substantial obligations from the agreement of the retention of title, we are entitled to demand the goods from the customer and to recall the authorization for the collecting of the surrendered demands. In addition to this, we are entitled to collect the surrendered demands in our own name.
During the duration of the retention of title for a motor vehicle, we have the right to possess the vehicle papers.
If no other clause is agreed upon, the provisions of law apply.
Claims for Defect:
The customer is obligated to examine the supplied contract goods immediately, at all events however, within three days after handing out by the carrier in each regard and for any violation of the terms of the agreement and to indicate in writing any violation to the terms of the agreement and/or warranty defects within further eight days, whereby the violation to the terms of the agreement and/or defectiveness is to be specified accurately. If the customer omits this notice of defect, the contract goods are considered as accepted and thus, the customer loses the right, to appeal to theses violations to the terms of the agreement and/or to the defects.
Delivery differences, which should result from a deviation between supply and calculation, are also to be indicated in writing.
Hidden defects are excluded hereof.
At the time of the risk passage, the contract goods must correspond to the generally recognized rules of technology and - if there are involved vehicles, that are intended for the use in public traffic – be registered by a competent authority. For further, special characteristics of the contract goods, we are responsible only if they were assured by us in writing. Further requirements of the customers are expressly excluded, without consideration of the legal nature of the asserted requirement. This does not apply, if there is rough negligence or premeditation or if substantial contract obligations are violated.
We must be given the opportunity to inspect the defective goods within a reasonable period of time. Any defective goods returned to us must be packed appropriately. The costs of transport have to be paid by the Customer if warranty claims are not justified.
The legal remedies appertaining to the Customer in case of violations to the terms of agreement and/or defectiveness become stale after two years from the delivery of the contractual goods to the Customer.
For the sales of vehicles, the warranty period for the customer is extended by six months at the most (thus thirty months altogether), in order to consider storage times accordingly. The extension of the warranty period does not apply to demonstration vehicles.
The contract goods are to be regarded as non-contractual if at the time of the risk passage they deviate not insignificantly from the contractually agreed requirements, are unfit to the intended use or do not exhibit eventually assured characteristics.
Within an appropriate period of four months at our choice we are entitled to repair a violation to the terms of the agreement or a defectiveness of the contract products by replacement or rework, which encloses the supply of spare parts without exchange of the contract product of contract as such. The rework has to take place at the place determined by us. If this place of delivery is different from the delivery address, we will bear the costs of the transport and the return transport. Any claim of the customer on purchase price reduction is limited anyhow with the damage caused by the depreciation of the product that is contrary to the terms of the agreement or defective.
Further Customer claims, in particular damage claims for impossibility of performance, for delay, for positive infringement of a claim, for negligence, are excluded as far as lawful – unless they are the result of willfulness or gross negligence on our part.
X. Withdrawal Campaigns
Should it become necessary to launch a withdrawal campaign for the Contract Products, or to take other actions within the framework of product liability, the Customer is responsible to carry them out in compliance with our instructions.
XI. Intellectual property rights
The Customer covenants to use our intellectual property rights or the ones of ARCTIC CAT USA Inc. only in the context of the present agreement and according to our instructions. The Customer is not allowed to have registered patent rights, e.g. brands, within our outside the contract area that are totally or partly identical to or may be confused with the intellectual property rights or the ones of ARCTIC CAT USA Inc.. The use of all provided documents is strictly limited to the fulfillment of the obligations of the present agreement.
XII. Compensation and retention
Compensation by the Customer against our claims is inadmissible. The Customer has no right of retention.
The Customer undertakes to observe strict secrecy respecting all business secrets (including the design, manufacture, development and pricing of the contract products, suppliers etc.) which become known to him due to his activity under this Agreement. This obligation shall survive termination of the business relations. In the event of infringement of the secrecy obligation the Customer shall pay a penalty to the amount of € 10,000.00 which is not subject to the court’s right to reduce or abate. Our right to assert any other claims for loss remains unaffected thereby.
XIV. Place of Performance, Jurisdiction and Applicable Law
The place of performance for our deliveries and services is our respective delivery and production warehouse which will be identified in the order confirmation.
The place of jurisdiction for all disputes arising from the contractual relationship as well as over its development and effectiveness is the court in the city of Salzburg which has jurisdiction in rem.
This Agreement is governed by Austrian law.
The application of a uniform law regarding the international purchase of movable and physical goods (UN Purchase Law) is excluded.