1.1 The following general terms and conditions (the “Terms and Conditions”) shall apply to all present and future business relationships in which we, VAN DEER-Red Bull Sports Equipment GmbH (hereinafter “we”, “our”, “us”, “VDRBS”), act as the seller/supplier and the dealer (the “Dealer”) is legally regarded as trader in the meaning of § 1 para 1 lit. 1 Consumer Protection Act. Amendments to the Terms and Conditions shall be sent to the Dealer by e-mail and can be called up on the website and saved. If the Dealer does not object within 6 weeks of the receipt of the amended terms, their silence shall be deemed agreement to the amended Terms and Conditions. The General Terms and Conditions which are valid on the day the conclusion of the contract shall apply, even if an update has been made in the meantime.
1.2 Deviating, conflicting or supplementary terms and conditions of the Dealer shall not become part of the contract, even if we have knowledge thereof, unless we expressly consent to the application of such terms and conditions in writing. We have the right to withdraw from the contract if the Dealer objects to the validity of our terms of sale and delivery.
1.3 If there is a written individual contractual agreement between the Dealer and us (in particular a dealer agreement or a central settlement agreement with an association to which the Dealer belongs or something similar), the provisions of such an agreement shall take precedence over these provisions insofar as there is a contradiction between the respective provisions.
2.1 Our quotations shall be non-binding. The delivery dates quoted on orders or order confirmations shall be non-binding. Agreed dates shall only be binding if they have been expressly confirmed as fixed dates in writing.
2.2 By ordering a product, the Dealer makes a binding offer to contract. A sales contract is only considered concluded – even within ongoing business relationships – once we confirm the order of the Dealer in writing (incl. email). This can also be replaced by our delivery, whereby shipment of the delivery is decisive to the conclusion of the contract.
2.3 By placing an order with us, the Dealer agrees to accept invoices and, where applicable, credit notes in electronic form.
2.4 We shall reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents. This shall also apply to written documents that are identified as confidential. Before they are passed on to third parties, the Dealer requires our express, written consent.
2.5. We reserve the right to make technical improvements and other reasonable changes or deviations from the models shown in our catalogues and brochures. This also applies to all technical specifications.
3.1 The prices stated in the order confirmation apply, plus the respective statutory Value Added Tax. Additional deliveries and services are charged separately.
3.2 The prices quoted by us are subject to the conditions set out in the respective price lists, which we may amend prior to the conclusion of a sales contract.
3.4 In case of partial deliveries, we have the right to make corresponding partial invoices.
3.5 Incoming payments shall be credited against costs that have already been incurred (reminders, record keeping, collection etc.), then against interest that has already accrued and finally against the outstanding capital; in all cases, the payments shall be credited against the debt with the oldest due date first.
3.6 We are not obliged to accept bills of exchange or cheques. If, however, we accept such documents, this shall always take place on account of payment and exclusively against the settlement of any discount and collection expenses by our Dealer. The acceptance of the above documents shall not be regarded by us as a cash payment, for which reason no discount can be granted on this payment. A postponement of the originally agreed due date shall not take place upon the acceptance of the documents by us. We are entitled, at any time, to demand the outstanding amount against the return of these documents.
3.7 We are not obliged to perform any further delivery from any ongoing contract before the payment in full of the invoice amounts that are due, including default interest, other expenses and costs. If the Dealer is in default with a payment that is due or if a substantial deterioration in his/her financial experiences occurs, we may demand a cash payment for any outstanding deliveries from any ongoing contract before the delivery of the goods. In the event that the Dealer is in default with a due payment, all other payments that are not yet due shall become due immediately, e.g. including any current bills of exchange. If the financial circumstances of our Dealer deteriorate significantly, we reserve the right to withdraw from all orders.
3.8 The Dealer shall only have a right of set off if his/her counterclaims have been legally established by a competent court, or have been recognised by us in writing.
3.9 The Dealer undertakes to bear all the costs associated with the collection of the amount receivable, in particular collection expenses or other costs for an appropriate prosecution.
4.1 We shall retain the ownership of the delivered goods until the purchase price including all balance claims has been paid in full. The Dealer is not entitled to pledge the goods subject to the retention of title or use them as security for the benefit of a third party or in any other way to use them in favour of a third party.
4.2. The Dealer shall be entitled to sell the reserved goods in the ordinary course of business, as long as he/she is not in default. He/she hereby assigns to us all amounts receivable which he/she accrues as a result of a resale to a third party, to the amount of the invoice total, and undertakes to add a corresponding note in his/her books or on his/her invoices. We accept the assignment.
After the assignment, the Dealer shall be authorised to collect the receivable. We reserve the right to inform the re-purchaser of the goods of the due notice that has been issued and to collect the amount receivable ourselves once the Dealer fails to comply with his/her payment obligations and is in default of payment.
4.3 The Dealer must inform us immediately, in writing, of all third party access to the goods, in particular of enforcement measures, as well as of any damage to or the destruction of the goods. The goods delivered subject to retention of title must be kept safe and insured sufficiently against all risks that are foreseeable in the ordinary course of business.
4.4 The treatment and processing of the goods by the Dealer shall always take place in our name and on our behalf. If the goods are processed, we shall acquire co-ownership of the new item in proportion to the value of the goods delivered by us. The same shall apply if the goods are processed or mixed with other goods which do not belong to us.
4.5 In the event of conduct by the Dealer that is contrary to the contract – in particular a delay in payment – we shall be entitled to withdraw from the contract and to demand the return of the goods or, if applicable, the assignment of the claims for the return of the goods.
4.6 The Dealer is obliged to handle the goods with care. As long as our right of ownership exists, the goods shall be insured by the Dealer against loss and depreciation, against vandalism, fire, theft and transport risk, as well as water damages. The Dealer shall bear the costs for the storage of our reserved goods.
4.7 The Dealer expressly agrees that in the event of an imminent impairment of our security rights, we have the right to collect the reserved goods or otherwise secure them, whereby this security does not constitute infringed property rights. For this purpose, we have the right to enter all the storage and business premises of the Dealer, inasmuch as it is necessary to enforce our rights. The Dealer undertakes to cooperate fully in this respect.
5.1 The Terms of Delivery are set out in the respective price list
5.2 We are only obliged to execute the contract once the Dealer has complied with all his/her obligations that are necessary for the delivery (e.g. receipt of the agreed down payment). The delivery periods and dates shall be adhered to by us as far as possible. They shall not be binding, unless they are expressly agreed as binding, and shall always be understood as the provisional time for the provision and handover to the Dealer. A withdrawal from the contract by the Dealer on account of a default in delivery shall only be possible by setting an appropriate grace period of at least 4 weeks. The withdrawal must be asserted in writing. The right of withdrawal shall refer only to the part of the delivery or service affected by the default.
5.3 The risk of the accidental loss or destruction of the goods shall be transferred to the Dealer upon the handover of the goods, or – in the event of a shipment – upon the delivery of the item to the forwarding agent, the carrier or any other person or institution designated to perform the shipment.
5.4 If the shipment is delayed at the request of the Dealer, the risk shall be transferred to the latter with the notification of the readiness for shipment. The Dealer must reimburse the costs caused by the delayed shipment.
5.5 We shall not be responsible for delays in delivery and performance due to force majeure, and due to events that make our performance considerably more difficult or impossible on more than a temporary basis – including, in particular, fire, flood, earthquake, storms or other natural disasters; war, threat of war, armed conflict; imposition of sanctions, embargo, civil unrest or insurrections; nuclear, chemical or biological contamination; pandemics and epidemics, breakdown of plant machinery, equipment, computers or vehicles; labour disputes including but not limited to strikes, employer-employee disputes or lockouts, administrative orders etc., even if they occur at the premises of our manufacturers or suppliers or their sub-suppliers – even in the case of bindingly agreed periods and dates. They shall entitle us to postpone the delivery or performance by the duration of the hindrance plus a reasonable starting-up period or to withdraw from the contract, in full or in part, on account of the part that has not yet been fulfilled. The Dealer does not have the right to compensation claims unless the delay is due to gross negligence on our part. In case of such event, we will promptly notify the Dealer in writing of the nature and extent of the event which has led to its failure or delay of performance. If the event continues persistently for more than six months, the Dealer may terminate this contract with fourteen (14) days’ written notice.
5.6 Compliance with our delivery and performance obligations presupposes the timely and proper fulfilment of the obligations of the Dealer.
5.7 Re-orders as well as all other modifications to a former order desired by the Dealer are considered new orders. In the case of orders blocked for creditworthiness reasons, the confirmed delivery deadlines are invalid. After the suspension has been lifted, we will confirm new delivery dates in writing.
5.8 If the delivery is delayed for other reasons for which the Dealer is responsible, he shall be in default of acceptance. In such cases, we have the right to demand storage costs of 1 % of the value of the goods to be stored on the basis of the specific order executed per expired calendar week.
6.1 We shall provide a warranty for accepted defects in the goods through rectification, replacement or a credit note. If a rectification or a replacement is not possible or feasible, the Dealer may, at his/her discretion, demand a price reduction or, insofar as it is not a matter of a minor defect, the rescission of the contract (cancellation).
6.2 The limitation period for the enforcement of claims for defects is 24 months from the delivery of the products. If the purchase is a business-related transaction for both Parties, the Dealer must inspect the goods immediately after delivery by us, inasmuch as this is feasible in the ordinary course of business, and if a defect appears, he must inform us immediately. For products used in rental, the limitation period is reduced to 12 months from delivery.
6.3 For the condition of the goods, only the product description as agreed shall apply. Public statements, promotions or advertising shall not constitute an indication of the quality of the goods in accordance with the contract. No “purchase on the basis of samples” shall be agreed as the result of the provision of samples prior to or on the occasion of the conclusion of the contract, i.e. these shall only be illustrative samples which show the approximate character of the goods. Particular characteristics are not agreed as a result of these.
6.4 No warranty, guarantee or liability of any kind shall be assumed for reduced price goods, for refurbished and for B-grade or rejected goods delivered in accordance with the contract.
6.5 In case of wrong delivery or over-delivery, the Dealer is obligated to return the corresponding goods to us in their original packaging without delay and without any changes to the original condition.
6.6 Liability for normal wear and tear is excluded.
6.7 The Dealer must notify us immediately of any defects, over- or under-deliveries as well as incorrect deliveries.
6.8 If our operating or maintenance instructions are not followed or changes are made to the products or parts are replaced or consumables used that do not correspond to the original specifications, any warranty or right to claim for defects of the products lapse immediately.
7.1 We shall be liable exclusively in cases of intent or gross negligence except in cases within the scope of the Product Liability Act or cases of personal injuries. Liability for lost profits, indirect damages and consequential damages shall be excluded except in cases of intent or gross negligence. The amount of our liability shall be limited to the value of the respective goods, in any case limited with the amount covered by our liability insurance or in cases where higher liability amounts are mandatory by law.
7.2 We are not liable for any damages caused by improper or abnormal use, natural wear and tear or inaccurate or careless handling or storage.
7.3 All damage claims against us out of or in connection with the relevant individual contract shall come under the statute of limitation after the expiry of one year from the day on which the damage became known to the Dealer (or should have become known to the Dealer, if the Dealer had been acting diligently), in any case not later than three years from the day on which the reasons or incident giving rise to damage occurred , unless statutory law provides otherwise.
7.4 Inasmuch as our liability is excluded or limited, this also applies to our salaried employees, workers, representatives and vicarious agents.
7.5 The above limitation of liability does not apply if we have concealed a defect in a malicious manner, for which the Dealer bears the burden of proof or if we have given an express written guarantee on the characteristic features and functions of the specific goods. The same applies to liability arising from applicable mandatory legal provisions, such as the Product Liability Act as well as in the event of a delay in delivery if a fixed delivery date and/or fixed date of performance was agreed on.
8.1 VDRBS hereby grants to the Dealer a royalty free, non-exclusive, non-sublicensable, revocable, and non-transferable right to use the VDRBS name, trademarks, designs, and other forms of identification that are provided to Dealer by VDRBS in writing (“VDRBS Logo”) solely for the purpose of advertising the products and, in any case, in the sole and exclusive interest of VDRBS, as foreseen in this contract. Any other use of the VDRBS Logo for any other purposes is prohibited. The Dealer shall not be entitled to pledge the right or otherwise encumber the right with effect in rem in the VDRBS Logo granted to it under this contract. To ensure compliance with the brand requirements, any advertising material shall be submitted to VDRBS for approval, such documents submitted for approval shall not contain information on the pricing of the products. This shall not restrict the use of the trademarks and trade names within the scope of the principle of exhaustion under trademark law to the extent necessary to sell the products.
8.2 The Dealer may only use the VDRBS Logo as provided by VDRBS in the original colours and is not entitled to change the VDRBS Logo, not even slightly, or to use individual elements of the VDRBS Logo separately. The Dealer agrees not to use any other trademark, service mark, logo, prefix, suffix, or other modifying words, terms, designs, or symbols including but not limited to those owned by a third party so as to modify the VDRBS Logo. Further, each time the VDRBS Logo and/or any other trademarks and/or other intellectual property owned by VDRBS is used, the prior written consent of VDRBS shall be obtained. Email suffices the requirement of written form.
8.3 The Dealer undertakes not to acquire its own trademark rights which are identical or similar to the VDRBS Logo, either through registration or use, during the term or after the termination of this agreement. The Dealer shall not derive or assert any future rights against the VDRBS, the VDRBS’s affiliated companies and/or the VDRBS Logo itself from the use of the VDRBS Logo.
8.4 This license shall terminate when Dealer has sold all products purchased by VDRBS or upon written notice from VDRBS. Dealer shall immediately cease any use of VDRBS Logo upon termination or expiration of these Terms and Conditions.
8.5 VDRBS shall not assume any warranty and/or any liability for the validity of registrations for the VDRBS Logo, in particular that the VDRBS Logo may be used in any parts of the Territory. Further, the VDRBS assumes no warranty for the existence or non-existence of any third-party rights that are contrary to the registration and/or use of the VDRBS Logo and will not be liable towards the Dealer for any kind of indemnification.
8.6 The Dealer shall notify the VDRBS without delay of any unauthorized use of the VDRBS Logo and/or VDRBS’s other industrial property rights (hereinafter “VDRBS’s IP”) by any third party promptly as it comes to the Dealer ’s attention. The VDRBS shall have the sole right and discretion to take any action concerning any unauthorized use of the VDRBS’s IP, as well as to retain any and all awards therefrom. The Dealer agrees to provide assistance to the VDRBS, as reasonably requested by the VDRBS, in connection with any proceeding initiated by the VDRBS concerning any unauthorized use of the VDRBS’s IP.
9.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of the products by Dealer, Dealer will obtain the same at its expense, and if necessary, provide evidence of the same to VDRBS on request. Failure to do so will entitle VDRBS to withhold or delay shipment, but failure to do so will not entitle Dealer to withhold or delay payment of the price therefor. Any expenses or charges incurred by VDRBS resulting from such failure will be paid for by Dealer within ten (10) days of receipt of VDRBS´s written request.
9.2 The Parties shall comply with applicable trade regulations governing export, import, re-export and in-country transfer of products, technologies and/or services covered by this Agreement (“Trade Regulations”).
9.3 The Dealer is prohibited from selling, supplying, transferring, exporting and re-exporting to Russia or Belarus, or for use in Russia or Belarus, the products, technologies and/or services covered by the contract, if such Goods are subject to Article 12.g) of Regulation (EU) 833/2014 of July 31, 2014, as amended from time to time (“No Russia Goods”), and subject to Article 8.g) of Council Regulation (EC) No. 765/2006 of May 18, 2006, as amended from time to time (“No Belarus Goods”). No Russia Goods and No Belarus Goods referred thereafter “No Re-Export Goods”. The Dealer shall undertake its best efforts to ensure that the purpose this section is not frustrated by any third parties further down the commercial chain and set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain that would frustrate the purpose of this section. The Dealer is responsible for determining whether the products, technologies and/or services are (i) subject to Trade Regulations and/or (ii) No Re-Export Goods.
9.4 The Dealer warrants and represents that it is and will be compliant with all economic or financial sanctions and/or restrictive measures, as revised from time to time, (i) applicable to Dealer, to VDRBS and to the relationship concluded under this Terms and Conditions and the contract and those (ii) set forth under the United Nations (UN) Security Council regulations, EU regulations (such as but not limited to the Council Regulation (EU) No. 269/2014 and subsequent modifications, the Council Regulation (EU) No. 833/2014 and subsequent modifications and the Council Regulation (EC) No. 765/2006 and subsequent modifications), the US OFAC Executive Orders (such as but not limited to SDN Executive Orders) and UK regulations. For avoidance of doubts, the sanctions include all the trade regulations governing export, import, re-export and in-country transfer of goods, technologies covered by this Terms and Conditions and the Contract (hereinafter Sanction(s)”) and/or all applicable Trade Regulations, as they may be amended or revised from time to time. The Dealer further warrants and represents not to sell, supply, transfer, export and re-export No Re-Export Goods, covered by this contract to Russia or Belarus, or for use in Russia or Belarus.
9.5 The Dealer further warrants and represents that products, technologies and/or services will not be sold, supplied or delivered by the Dealer directly or indirectly (i) to territories or (ii) any natural or legal persons, entities or bodies that, at the time of such sale, supply or delivery, is subject to an embargo or subject to sanctions or other restrictive measures adopted by any nation, governmental body or intergovernmental international organization (including, but not limited to, the (a) European Union and any other European Union member state (b) the United Nations Security Council, (c) the US Treasury Department’s Office of Foreign Assets Control (OFAC) and any other US governmental agencies, (d) the United Kingdom, (e) Switzerland, Norway, Canada, New Zealand and Japan) and to any legal person, entities or bodies directly or indirectly owned 50 percent or more, or controlled, individually or collectively, by natural or legal persons, entities or bodies is subject to an embargo, sanctions or other restrictive measures.
9.6 Within two (2) days after VDRBS’s request, Dealer will provide VDRBS with appropriate documentation to verify the final destination of any products, technologies and/or services delivered hereunder.
9.7 The Dealer represents and warrants that at the time of entering into this contract, the Dealer, its ultimate beneficiary owner(s) (UBOs), any individuals, entities and/or companies owning, individually or collectively, directly or indirectly, shares of the Dealer and the individuals able to exercise control, individually or collectively, directly or indirectly, over the Dealer are not, as of the date of this Contract, and have not been in the previous 5 (five) years:
a) Restricted Person(s), meaning (i) a person, entity or organization designated as a sanctioned person, entity or organization within a sanctions list adopted by any governments, international organizations (such as UN or EU) or country containing the list of subjects with whom/which is prohibited to engage with at all or in certain areas or sectors and (ii) an entity or organization, directly or indirectly, individually or collectively, owned or controlled by, or acting on behalf of, any of the designated person, entity or organization at point (i);
b) located, organised or resident in any country or territory that is, or whose government is, targeted by a general export, import, financial or investment embargo under Sanctions, including but not limited to the called Donetsk People’s, Republic, the so-called Luhansk People’s Republic, the areas of the Kherson and Zaporizhzhia regions of Ukraine, the Crimea region, Cuba, Iran, North Korea and Syria (hereinafter “Restricted Territory”), to the extent prohibited by Sanctions.
The Dealer shall promptly notify to VDRBS in writing in case the any representations and warranties cannot be upheld due to, facts or circumstances occurring, or economic or financial sanctions and/or restrictive measures adopted, after the conclusion of this contract. Upon VDRBS’s request, the Dealer shall provide without delay reasonable information in connection with such matter.
9.8 The Dealer shall promptly make available to VDRBS detailed information concerning its ownership and control structure upon VDRBS’s request and shall make available information concerning compliance with Sanctions. If the Dealer does not provide such information to VDRBS, VDRBS is entitled to suspend all of its obligations without liability and to terminate this Contract with immediate effect.
9.9 VDRBS is entitled to suspend all of its obligations without any liability and to terminate this contract with immediate effect at its sole discretion:
a) if the Dealer, any of its direct or indirect minority or majority shareholder(s), or any individual(s) able to exercise control, directly or indirectly, over the Dealer become(s) a Restricted Person during the term of the Contract;
b) if the Dealer or its affiliated companies will be located, organised or resident in Restricted Territory(ies) during the term of the contract, to the extent allegedly or actually in breach of Sanctions;
c) in the case of an alleged or actual breach of Sanctions or Trade Regulations by the Dealer;
d) if No Re-Export Goods covered by this Contract, are sold, supplied, transferred, exported or re-exported to Russia or Belarus, or for use in Russia or Belarus, directly or indirectly by third parties further down the commercial chain;
e) if VDRBS believes, at it its sole discretion, that the continuation of the relationship with the Dealer is, or may be at risk of being, in breach of (i) Sanctions applicable to VDRBS, its parent company, or its affiliated companies or (ii) internal sanctions policies with which VDRBS must comply as part of the Red Bull Group.
9.10 The Dealer shall pay a contractual penalty corresponding to the 50 % of the total value of the contract or price of the products or technologies exported, whichever is higher if the Dealer breaches, allegedly or actually, any Sanctions related to trade regulations governing the export, import, re-export and in-country transfer of goods, technologies and/or services covered by this Contract or No Re-Export Goods covered by this Contract, are sold, supplied, transferred, exported or re-exported to Russia or Belarus, or for use in Russia or Belarus, directly or indirectly by third parties further down the commercial chain. This contractual penalty shall not depend on any actual damage suffered, but be due for each instance of infringement, regardless of negligence. Payment of the contractual penalty shall not affect VDRBS’s right to claim further damages.
9.11 The Dealer shall indemnify VDRBS, its parent company, its affiliated companies and their respective officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, penalties, fines, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or resulting from the breach of any representations and warranties or any other contractual obligations regarding Sanctions.
9.12 The Dealer covenants, warrants and undertakes that it complies with all applicable anti-money laundering laws and regulations and associated rules and regulations (in force from time to time).
9.13 Dealer covenants and warrants being not aware and having absolutely no reason to suspect that the money used for payment has been or will be derived from or related to any money laundering or other activities deemed illegal under applicable laws or regulations or otherwise prohibited under any international convention or agreement and Dealer agrees to promptly provide VDRBS with all information that VDRBS may reasonably request in order to comply with all applicable laws and regulations relating to anti money laundering.
10.1 Austrian law shall apply exclusively, without giving effect to its conflict of laws provisions. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
10.2 The local and competent Austrian court for our registered place of business is agreed as the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract. We shall, however, have the right to also sue the Dealer at his/her general place of jurisdiction.
10.3 If individual provisions of the contract with the Dealer, including the present Terms and Conditions, are or become invalid, in part or in full, this shall not affect the validity of the remaining provisions. The completely or partially invalid provision shall be replaced by a provision which comes as close as possible to the invalid provision in terms of its economic result.
10.4 The data related to our business relationships (in particular name, address, telephone and telefax numbers, e-mail addresses, order, delivery and billing addresses, order date, ordered or delivered products or services, number of pieces, price, delivery dates, payment and reminder data , etc.) are stored and processed in accordance with Article 6 of the EU GDPR (https://policies.vandeer-redbull-sports.com/r/e4537a63-eef7-4e65-9e0d-6e3ed762c47b/privacy/en). We have, as well as the Dealer has, the right of withdrawal at any time. We take all technically reasonable measures to protect the Dealer data stored with us. The data will not be shared with third parties and will only be used for the purpose of doing business.
