Terms and Conditions

1. Scope
   1. These general terms and conditions apply to legal transactions between companies, namely for the delivery of goods and, accordingly, also for the provision of services.
2. Services
   1. Offers from the seller are subject to change.
   2. All offer and project documents may not be copied or made available to third parties without the consent of the seller. They can be requested back at any time and must be returned to the seller immediately if the order is placed elsewhere.
3. conclusion of contract
   1. The contract is deemed to be concluded when the seller has sent a written order confirmation or a delivery after receiving the order.
   2. Neither warranty claims nor liability can be derived from information in catalogues, brochures, advertising material and written or oral statements that have not been included in the contract.
   3. Subsequent changes and additions to these terms and conditions require written confirmation to be valid.
4. Delivery
   1. The delivery period begins at the latest of the following dates:
      1. date of order confirmation
      2. Date of fulfilment of all technical, commercial and other requirements incumbent upon the Buyer;
      3. Date on which the seller receives a deposit or security payable before delivery of the goods.
   2. The buyer is responsible for obtaining any official permits or third-party permits required for the construction of the installations. If such permits are not obtained in a timely manner, the delivery period will be extended accordingly.
   3. The seller is entitled to make and invoice partial or advance deliveries. If delivery on demand is agreed, the goods are deemed to have been called off no later than 1 year after the order.
   4. If unforeseeable circumstances or circumstances beyond the control of the parties, such as all cases of force majeure, occur that prevent compliance with the agreed delivery period, the delivery period shall be extended by the duration of these circumstances; these include in particular armed conflicts, official interventions and prohibitions, delays in transport and customs clearance, transport damage, energy and raw material shortages, labour disputes and the failure of a key supplier who is difficult to replace. These aforementioned circumstances also entitle the delivery period to be extended if they occur with suppliers.
   5. If a contractual penalty for late delivery was agreed between the contracting parties at the time of conclusion of the contract, this shall be paid in accordance with the following regulation, whereby any deviation from this in individual points shall not affect its application in other respects:
      A delay in performance that can be proven to have occurred solely through the fault of the Seller shall entitle the Buyer to claim a contractual penalty of a maximum of ½% for each completed week of delay, but a maximum of 5% in total, of the value of that part of the total delivery in question that cannot be used as a result of the failure to deliver an essential part on time, provided that the Buyer has suffered damage of this amount.
      Further claims based on delay are excluded.
   6. If acceptance has been agreed, the goods shall be deemed to have been fully accepted at the latest when they begin to be used in the context of their business operations.
   7. The Seller has the right to use subcontractors for all deliveries and service components, provided that he notifies the Buyer of this.
5. Transfer of Risk and Place of Performance
   1. Unless otherwise agreed, delivery of the goods shall be deemed to be sold EXW in accordance with INCOTERMS® 2010.
   2. For services, the place of performance is the place specified in the written order confirmation, and secondarily the place where the service is actually provided by the seller. The risk for a service or an agreed partial service passes to the buyer upon its provision.
6. Payment
   1. If no payment terms have been agreed, 1/3 of the price is due upon receipt of the order confirmation, 1/3 halfway through the delivery period and the remainder upon delivery. Irrespective of this, the sales tax included in the invoice must be paid no later than 30 days after invoicing.
   2. In the case of partial billing, the corresponding partial payments are due upon receipt of the respective invoice. This also applies to billing amounts that arise from subsequent deliveries or other agreements beyond the original final amount, regardless of the payment terms agreed for the main delivery.
   3. Payments are to be made without any deductions to the seller's payment office in the agreed currency. Any acceptance of checks or bills of exchange is always only for payment. All related interest and expenses (such as collection and discount charges) are to be borne by the buyer.
   4. The buyer is not entitled to withhold or offset payments due to warranty claims or other counterclaims.
   5. A payment is deemed to have been made on the day on which the seller can dispose of it.
   6. If the buyer is in default with an agreed payment or other performance from this or other legal transactions, the seller may, without prejudice to his other rights
      1. postpone the performance of its own obligations until such payment or other performance has been made and request a reasonable extension of the delivery period,
      2. make all outstanding claims arising from this or other legal transactions due and charge statutory default interest plus VAT for these amounts from the respective due date, unless the seller can prove additional costs,
      3. In the event of qualified insolvency, i.e. after two defaults in payment, other legal transactions can only be carried out against advance payment. In any case, the seller is entitled to invoice pre-litigation costs, in particular reminder fees and lawyer's fees in accordance with the applicable statutory provisions.
   7. The seller reserves title to all goods delivered by him until full payment of the invoice amounts plus interest and costs.
      The buyer hereby assigns to the seller his claim from the resale of goods subject to retention of title, even if these have been processed, transformed or mixed, to secure the seller's purchase price claim. The buyer is only authorized to dispose of the goods subject to retention of title in the event of resale with a deferral of the purchase price on the condition that he informs the second buyer of the security assignment at the same time as the resale or notes the assignment in his business books. On request, the buyer must inform the seller of the assigned claim and its debtor and provide all information and documents required for his claim collection and notify the third-party debtor of the assignment. In the event of seizure or other claims, the buyer is obliged to point out the seller's right of ownership and to inform the seller immediately.
   8. The seller has the right to send the invoice electronically.
7. Warranty and liability for defects
   1. If the agreed payment terms are complied with, the seller is obliged to remedy any defect affecting functionality that exists at the time of delivery and is based on a fault in the design, material or workmanship, in accordance with the following provisions. No warranty claims can be derived from information in catalogues, brochures, advertising material and written or oral statements that have not been included in the contract.
   2. Unless otherwise agreed, the statutory warranty period applies. This also applies to delivery and service items that are firmly attached to a building or land. The warranty period begins at the time of transfer of risk in accordance with point 5.
   3. If the delivery or service is delayed for reasons beyond the control of the seller, the warranty period begins 2 weeks after the seller is ready to deliver or provide the service.
   4. The warranty claim requires that the buyer has reported the defects in writing within a reasonable period of time and that the seller receives the notification. The buyer must prove the existence of the defect within a reasonable period of time, in particular by making the documents or data in his possession available to the seller. In the event of a defect subject to warranty in accordance with point 7.1, the seller must, at his discretion, repair the defective goods or the defective part at the place of performance or have them sent to him for repair or make an appropriate price reduction.
   5. For warranty work at the buyer's premises, the necessary assistants, lifting equipment, scaffolding and small materials, etc. must be provided. Replaced parts become the property of the seller.
   6. If goods are manufactured by the seller on the basis of design information, drawings, models or other specifications provided by the buyer, the seller's liability shall only extend to execution in accordance with the conditions.
   7. Unless otherwise agreed, the warranty does not cover defects that arise from arrangement and assembly not carried out by the seller, inadequate installation, failure to comply with installation requirements and conditions of use, excessive use of parts beyond the performance specified by the seller, negligent or incorrect handling and use of unsuitable operating materials; this also applies to defects that are attributable to material provided by the buyer. The seller is also not liable for damage that is attributable to the actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not cover the replacement of parts that are subject to natural wear and tear.
   8. The warranty expires immediately if the buyer himself or a third party not expressly authorized by the seller makes changes or repairs to the delivered items without the written consent of the seller.
   9. Provisions 7.1 to 7.8 shall also apply mutatis mutandis to any liability for defects arising from other legal grounds.
8. Cancellation of the contract
   1. The prerequisite for the buyer's withdrawal from the contract is, unless a more specific arrangement has been made, a delay in delivery that is due to gross negligence on the part of the seller and the unsuccessful expiry of a set, reasonable grace period. The withdrawal must be asserted by means of a registered letter.
   2. Irrespective of his other rights, the Seller is entitled to withdraw from the contract,
      1. if the execution of the delivery or the start or continuation of the service is impossible for reasons for which the buyer is responsible or is further delayed despite setting a reasonable grace period,
      2. if concerns have arisen regarding the buyer's ability to pay and the buyer, at the seller's request, neither makes an advance payment nor provides suitable security before delivery,
      3. if the extension of the delivery period due to the circumstances listed in point 4.4 amounts to more than half of the originally agreed delivery period, but at least 6 months, or
      4. if the Buyer does not comply or does not properly comply with the obligations imposed on him by point 13.
   3. Withdrawal may also be declared with regard to any outstanding part of the delivery or service for the above reasons.
   4. If insolvency proceedings are opened against the buyer's assets or an application to initiate insolvency proceedings is rejected due to insufficient assets, the seller is entitled to withdraw from the contract without setting a grace period. If this withdrawal is exercised, it will take effect immediately upon the decision that the company will not be continued. If the company is continued, a withdrawal will only take effect 6 months after the insolvency proceedings have been opened or after the application for opening has been rejected due to insufficient assets. In any case, the contract will be terminated with immediate effect unless the insolvency law to which the buyer is subject precludes this or if the termination of the contract is essential to prevent serious economic disadvantages for the seller.
   5. Without prejudice to the seller's claims for damages, including pre-litigation costs, in the event of withdrawal, services or partial services already provided must be invoiced and paid for in accordance with the contract. This also applies if the delivery or service has not yet been accepted by the buyer and for preparatory actions carried out by the seller. Instead, the seller also has the right to demand the return of items already delivered.
   6. Other consequences of withdrawal are excluded.
   7. The assertion of claims due to laesio enormis, error and loss of the basis of the transaction by the buyer is excluded.
9. Disposal of waste electrical and electronic equipment The buyer, who is based in Austria, must ensure that all information is made available to the seller in order to be able to fulfil the seller's obligations as a manufacturer/importer in accordance with the legally applicable regulations.
10. Seller's Liability
    1. The seller is only liable for damages outside the scope of the Product Liability Act if it can be proven that he acted intentionally or with gross negligence, within the framework of the statutory provisions. The seller's total liability in cases of gross negligence is limited to the net order value or EUR 500.000, whichever is lower. The seller's liability is limited to 25% of the net order value or EUR 125.000, whichever is lower, per case of damage.
    2. Unless otherwise agreed, liability for slight negligence, with the exception of personal injury, as well as compensation for consequential damages, pure financial losses, indirect damages, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, lost profits, savings not achieved, loss of interest and damages resulting from third-party claims against the buyer are excluded.
    3. Unless otherwise agreed, any compensation for damages is excluded in the event of non-compliance with any conditions for assembly, commissioning and use (such as those contained in operating instructions) or the official approval conditions.
    4. If contractual penalties have been agreed, any further claims by the buyer arising from the respective title are excluded.
    5. The provisions of Section 10 shall apply conclusively to all claims of the Buyer against the Seller, regardless of the legal basis and title, and shall also apply to all employees, subcontractors and sub-suppliers of the Seller.
11. Industrial Property Rights and Copyright
    1. If goods are manufactured by the seller on the basis of design information, drawings, models or other specifications provided by the buyer, the buyer must indemnify and hold the seller harmless in the event of any infringement of intellectual property rights.
    2. Execution documents such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations, etc. always remain the intellectual property of the seller and are subject to the relevant legal provisions regarding reproduction, imitation, competition, etc. Point 2.2 also applies to execution documents.
12. assertion of claims
    1. All claims of the buyer must be asserted in court within 3 years of the performance of the services, otherwise the claim will be lost, unless mandatory legal provisions stipulate other deadlines.
13. compliance with export regulations
    1. When passing on the goods delivered by the seller and the associated documentation to third parties, regardless of the manner in which they are made available or the services provided by the seller, including technical support of any kind, the buyer must comply with the applicable national and international (re)export regulations. In any case, when passing on the goods or services to third parties, the buyer must observe the (re)export regulations of the country in which the seller is based, the European Union, the United Kingdom of Great Britain and Northern Ireland and the United States of America.
    2. If necessary for export control checks, the Buyer must, upon request, immediately provide the Seller with all necessary information, including information on the final recipient, final destination and intended use of the goods or services.
14. General Questions
    1. If individual provisions of the contract or these terms and conditions are invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid one that comes as close as possible to the intended purpose.
    2. The German language version is considered to be the authentic version of the conditions and is also to be used for the interpretation of the contract.
15. Jurisdiction and Law
    1. The court with jurisdiction over all disputes arising from the contract - including those concerning its existence or non-existence - shall have exclusive jurisdiction over the matter at the seller's headquarters, in Vienna the court in the district of the Innere Stadt district court. The contract is subject to Austrian law, excluding the rules on referral. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
16. Conditional clause
    1. The Seller's performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international (re-)export regulations, in particular no embargoes and/or other sanctions.

Issue April 2017