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Terms & Conditions

Status 2023

1. Scope of Application
These General Terms and Conditions for the Sale of Equipment and Services (hereinafter referred to as “Terms and Conditions”) shall govern all deliveries (hereinafter referred to as “Equipment”) and services, even if these Terms and Conditionsare not expressly incorporated by reference. Buyer acknowledges these Terms and Conditions with placing an order or signing an offer (hereinafter referred to as “Contract”). Any amendment or side agreement shall be effective only if it is approved by Seller in writing and shall apply only in a particular case, unless expressly otherwise agreed. Buyer’s terms and conditions in derogation of these Terms and Conditions are expressly excluded. Should any term or part of a term of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining terms and the agreements concluded on the basis thereof. The parties will replace the invalid term by a valid term which closest reflects the meaning and purpose of the invalid term.

2. Orders and Specifications
Orders placed by Buyer are binding upon Buyer and will be accepted by Seller only by i) a written confirmation of order or ii) a Contract signed by Buyer & Seller. Seller is entitled to accept only parts of Contracts or to refuse Contracts without stating any reason.
Specifications (e.g. dimensions, weights) are binding upon Seller only if they are expressly mentioned in Seller’s confirmation of order or in the Contract. Any specification shall be strictly confidential and shall not be disclosed to third parties. Seller reserve the right to modify the specifications of the goods to the extent that it is necessary to comply with statutory requirements and to the extent such modifications will not result in a deterioration of the quality and usability of the goods.

3. Prices
All prices are binding only if expressly incorporated by reference in the Contract. All prices are exclusive of taxes and transport based upon delivery “ex works” as set out in the Incoterms applicable from time to time, unless expressly otherwise agreed.

4. Delivery, Delivery Period
The delivery period will commence only after all technical and commercial details have been finally settled. Delivery dates are “ex works”, unless expressly otherwise agreed.
All circumstances outside the parties’ control, e.g. force majeure, unforeseeable loss of delivery or production, governmental measures, delays in transport and customs clearance, transport damage, defect of significant manufacturing parts and labor conflicts, will extend the delivery period for as long as such impairment continues.
Seller may carry out partial deliveries.

5. Completion and Transfer of Risk
Delivery is performed:
a) For deliveries “ex works”: upon sending the notice that the Equipment is ready for delivery.
b) For deliveries to an agreed place of delivery: upon handing over of the Equipment to the first forwarding agent or carrier.
In case of any default in delivery for which Seller is not responsible, delivery shall be deemed completed if Buyer is notified by Seller via E-Mail that the Equipment is ready for collection.

Service is performed:
Upon completion of the service and written notification via E-Mail of the Buyer.

6. Notice of Defects and Warranty
Buyer shall inspect the delivered Equipment within a reasonable time after receipt as to completeness, accuracy and other absence of defects, and Buyer shall give written notice of defects to Seller, if any, at least five working days after receipt of the Equipment.
Provided that Buyer timely gives notice of defects, Seller warrants that the Equipment is free and clear of any defects of material and workmanship for the earlier of 12 months after delivery as per article 4. or no more than 18 months after written notice of Seller to Buyer that the Equipment is ready for delivery.
This warranty shall not cover defects of or damages to the delivered Equipment which are due to
a) normal wear and tear of parts whose normal life expectancy is less than the warranty period, and / or
b) improper assembly or maintenance, negligence or other improper application of the Equipment by Buyer.
Supplies and maintenance materials, such as filters, lubricants, spark plugs, exhaust gas and gas contacting parts etc., are excluded from warranty.
Buyer’s right to claim warranty is subject to:
a) appropriate storage, use and maintenance/repair of the delivered Equipment by Buyer and / or any authorized third party in strict accordance with Seller’s instructions;
b) signing of the acceptance protocol;
c) fulfillment by Buyer of all contractual obligations, in particular all payment obligations;
d) Buyer’s written notice of defects to Seller;
Warranty is in Seller’s sole discretion and – as the case may be – restricted to the replacement and / or improvement of Equipment. If services are provided as indicated and instructed by Buyer, Seller shall only warrant for proper compliance with these indications and instructions. The replacement or improvement of Equipment shall not extend the warranty period. The defect Equipment must be delivered to Seller’s warehouse in 6135 Stans, Sportplatzweg 2, Austria free of charge.

7. Damages
Buyer may not claim damages for any legal ground whatsoever, in particular for default, impossibility of service, positive breach of an obligation, consequential damage caused by defect, defects, tortuous damage or other violations of a Contract, unless the foregoing is due to our intent or gross negligence. Buyer shall prove the existence of intent or gross negligence. These restrictions apply in particular also to any consequential damage, such as but not limited to lost profit, production standstill, loss of use etc.
Buyer shall comply with the instructions Seller has issued for the use of the delivered Equipment. Seller shall not be liable in case of non-compliance with these instructions or governmental conditions.
The limit of liability for damage claims is 10 % of the total Contract value unless exceeding amounts are covered and paid out under our liability insurance.
To the extent permitted by law, Buyer may not avoid this Contract (e.g. for mistake).

8. Payment Terms
In case there is no differing written agreement, half of the Contract value payable by Buyer according to the Contract shall be due and payable upon signing of the Contract by Seller and Buyer; the remainder shall be payable upon notice that the Equipment is ready for delivery. Services shall be payable when Seller issues the invoice(s).
In case Buyer defaults in payment, Buyer shall be subject to default interest at a rate of 5 % above the 3-months-Euribor – unless Seller incurs higher costs – but at least 10 % p. a. of the outstanding amounts. If Buyer is in any default in payment, Seller may demand immediate payment of the entire Contract value; this shall not affect Seller’s right to prematurely rescind the Contract for default in payment. If Seller retains a collection agency, an attorney or other third parties to collect outstanding claims, all such collection charges (in particular but not limited to legal fees) shall be borne by Buyer.
Drafts and checks will not be accepted in lieu of payment. Buyer may not set off own claims against Seller’s payment claims. To the extent permitted by law, Buyer shall have no right of retention.
When placing the order or signing the Contract, Buyer shall take the measures agreed with Seller to secure payment (e.g. a bank guarantee, letter of credit, etc.).
If Buyer is in default with payment or any other services, Seller is entitled – not withstanding any other claims – to retain delivery of the Equipment until the agreed counter-service has been provided or to rescind the Contract for non-performance after granting a reasonable grace period and assert damages (in particular for nonperformance). In this event, the delivery period Seller has to comply with shall be extended as long as Buyer is in default. If Seller rescinds the Contract, Buyer shall return to Seller Equipment which Seller has already delivered at its own cost and expense and at its own risk. If Buyer fails to do so, Seller may disassemble and remove the Equipment from Buyer at its own cost and expense and at its own risk.
In this event, Buyer will not assert any retention rights.

9. Retention of Title
Until Seller has received full payment for the Equipment, Seller shall retain title to the delivered Equipment. Buyer shall inform its customers in writing of such extended retention of title.
If Buyer resells Seller’s delivered Equipment to third parties, Buyer shall assign to Seller his purchase price claim in the amount of Seller’s outstanding claims (extended retention of title).

10. Supplementary Provisions for Services
Seller’s service staff will be assigned to carry out services only subject to the following conditions:
a) The service staff will be chosen in accordance with the information provided by Buyer and at Seller’s own free discretion.
b) Buyer shall procure and is solely responsible for compliance with all local safety provisions. Before any service is commenced, Buyer shall comprehensively inform Seller’sservice staff of all applicable local safety measures and all existing risks, and Buyer shall maintain appropriate insurance.
c) Buyer shall give immediate written notice, also by facsimile, of all accidents Seller’s service staff had when providing the services.
d) Buyer shall bear all costs which may be necessary to carry out the services (in particular cost of material and transport).
e) Buyer shall, at his own cost and risk, take all measures which may be necessary for properly and undisturbedly providing and completing the services. Any scaffold, ground, foundation and mortise work, etc. to be carried out shall be timely completed before the services are commenced. All supplies (in particular fuel, petrol, electricity, compressed air, etc.) shall be timely provided by Buyer at its own cost and expense before the services are commenced. Seller is only obliged to provide the tools required for assembly. Buyer shall provide any other special tools or special devices at his own cost and expense. Buyer will make available free of charge the rooms required for the accommodation and stay of the service staff, and Buyer will pay for any heating and lighting expenses that may arise in this context.
f) Buyer shall take care of all resources and items Seller’s service staff has brought along until the services are fully completed. Buyershall be liable towards Seller and our service staff for any damage to, destruction or loss of these items.
g) The compensation of Seller’s service staff is exclusively based on the respective compensation rates arising from the “cost rates for service staff “. Seller expressly reservesthe right to replace offered materials by equal materials and to make constructive changes.

11. Intellectual Property Rights
If Seller manufactures Equipment on the basis of Buyer’s construction information, drawings, models or other information, Buyer shall hold Seller harmless and indemnify Seller for any infringement upon third party intellectual property rights.

12. Privacy Policy
Seller may store, transmit, process and cancel Buyer’s personally identifiable information in the course of business.
Buyer undertakes not to disclose to third parties any information Buyer becomes aware of in connection with the business relation.

Buyer may have access to information that is confidential to Seller (“Confidential Information”). Confidential Information shall include, but not be limited to, the terms and pricing under a Contract, the technical and other specifications for the Equipment and all information clearly identified as confidential. Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of Buyer;
(b) was in the Buyer’s lawful possession prior to the disclosure and had not been obtained by Buyer either directly or indirectly from the Seller;
(c) is lawfully disclosed to the Buyer by a third party without restriction on disclosure; or
(d) is independently developed by Buyer. Buyer agrees to hold Confidential Information in confidence during the term of a Contract and for a period of five years after termination of a Contract. Buyer agrees, that unless required by law, it shall not make Confidential Information available in any form to any third party or to use Confidential Information for any purpose other
than the implementation of a Contract. Buyer agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, representatives or agents in violation of the terms of a Contract.

14. Applicable Law, Place of Performance, Place of Jurisdiction
The legal relationship between Buyer and Seller shall be exclusively governed by and construed in accordance with Austrian law, to the exclusion of the UN Sales Convention.
Place of performance for all obligations arising from a Contract shall be Stans, Austria.
All disputes up to an amount in dispute of EUR 100,000 arising out of or in connection with these Terms and Conditions shall be referred to the court having local and subject-matter jurisdiction for Seller’s registered offices. However, Seller may also refer disputes to a court having jurisdiction for Buyer.
All disputes in excess of an amount in dispute of EUR 100,000 arising out of or in connection with these Terms and Conditions shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with these rules. Where the Rules of Arbitration of the International Chamber of Commerce contain no provisions, Austrian procedural law shall be applicable. The place of arbitration shall be Innsbruck, Austria. The language to be used in the arbitral proceedings shall be English. The relevant amount in dispute shall be determined based on the respective applicable provisions of the Austrian law on civil proceedings.

15. Miscellaneous
Seller is entitled to replace materials offered by equivalent materials and to make changes. Seller retains title to all intellectual property rights and to all technical information made available to Buyer.
Rights arising from a Contract concluded with Seller may be transferred to third parties only with Seller’s prior written consent.