1 AREA OF APPLICATION
1.1 These General Terms and Conditions, together with the operating instructions included in the Annex, constitute an inseparable integral part of the sales contract that has been or will be concluded and shall be applicable unless the parties to the contract have expressly and in writing agreed otherwise. Any supplemental oral agreements are null and void.
1.2 The following provisions for the delivery of goods shall apply accordingly for other services as well.
1.3 These provisions also apply specifically to replacement part deliveries and to deliveries resulting from warranty claims to the extent that such claims are not excluded in the following provisions.
2. ESTABLISHMENT OF THE CONTRACT
2.1 The contract is established when the written order confirmation is sent to Customer; the order confirmation is the sole standard for the scope and execution of the order. Additional oral or written agreements outside of the order confirmation are themselves valid only when confirmed in
writing by Seller.
2.2 Seller’s quotations are subject to change without notice. The right to prior sale is reserved.
2.3 Customer shall notify Seller prior to contract conclusion of the legal, official and other regulations that relate in particular to the execution of the delivery, the operation, the prevention of sickness and accidents, provisions restricting the import or export of foreign currencies, and all other official provisions that may delay, prevent or otherwise affect the delivery in a manner adverse to Seller; Customer is responsible for the timely acquisition of all necessary official permits under penalty of the legal consequences of Sections 12.2 and 12.3 of these Terms and Conditions.
Product, quotation, operating instructions, function, descriptions, illustrations and the like are the intellectual property of Seller and may not be copied, reproduced, made known to third parties in any manner or used without authorization to manufacture a product or components. They must be returned to Seller upon request if the order is not executed.
4.1 Unless otherwise agreed, Seller’s prices shall be valid ex works and excluding packaging, shipping insurance and freight.
4.2 Taxes, contract fees, stamps, import/export/transaction fees, discount interest fees, customs and duties, official factorages and the like shall be borne by Customer.
4.3 Seller’s prices are drawn up according to the wage and material expenses applicable at the time of order confirmation; should these expenses rise between order confirmation and order execution, Seller shall be entitled to pass on these increases to Customer. The same applies to other increases beyond the control of Seller that arise due to new taxes, duties or shipping tariffs.
4.4 If the contract is concluded with price disclosure, Seller is entitled to charge the sales prices applicable on the day of delivery.
4.5 Should an appreciation or depreciation alter the ratio of one or the other of the currencies in the in invoice, the ratio of the two currencies on the day of contract conclusion shall be used as a basis for calculating the sales price.
5. PAYMENT TERMS
5.1 Payments shall effect a discharge of debt only when made to Seller’s account at the bank indicated on the invoice or order confirmation and in the currency defined in the quotation and order confirmation.
5.2 In the absence of a written order confirmation specifying otherwise, half of the sales price shall be due and payable upon receipt of the order confirmation and the remainder when the notification is given that the order is ready for dispatch.
5.3 The payment date is the day payment is received at the paying agent named by Seller.
5.4 Customer is not entitled to withhold or offset payments as a result of possible warranty claims—should such claims even be allowed at all—or other counterclaims, including those from other transactions.
5.5 If Customer is in arrears with an agreed payment or other service, Seller can either insist on the performance of the contract and
- postpone the performance of its own obligations until the payments or other services in arrears are carried out;
- demand payment of the entire outstanding sales price;
- if Customer is at fault under the terms of the Austrian General Civil Code (ABGB), assess default interest from the due date at a rate of 7.5% above the current bank rate of the Austrian National Bank; or declare a withdrawal from the contract, granting an appropriate grace period..
5.6 If Customer has not rendered the payment or other service in arrears when a grace period granted by Seller has elapsed, Seller may withdraw from the contract by means of a written notification. Upon Seller’s request, Customer shall return to Seller any goods already delivered and compensate Seller for the resultant depreciation of the goods as well as all legitimate expenses Seller was forced to incur in executing the contract. As regards goods not yet delivered, Seller is entitled to provide Customer with the finished or partially manufactured parts and to demand in return the corresponding portion of the sales price.
6. RETENTION OF TITLE
6.1 Prior to the complete performance of all obligations of Customer, Seller reserves the property rights to the goods it has supplied. Customer must comply with all necessary formal requirements to protect the retention of title. In the case of attachment or any other claims, Customer must assert the property rights and notify Seller without delay.
7. DELIVERY PERIOD
7.1 In the absence of any agreement to the contrary, the delivery period shall commence with the latest from among the following points in time:
7.1.1) Date of order confirmation;
7.1.2) Date of the completion of all technical, business and financial requirements for which Seller is responsible;
7.1.3) Date on which Seller receives a down payment due prior to delivery of goods and/or a pending letter of credit has been opened.
7.2 Seller may, at its discretion, extend the delivery period or withdraw from the contract:
7.2.1) if information required by Seller for execution of the order is not received by Seller in a timely manner or is subsequently changed by Customer;
7.2.2) if obstacles arise that are outside the control of Seller, irrespective of whether they arise with Seller, Customer or a third party. Such obstacles might be epidemics; mobilizations; war; rioting; severe interruptions of operations; accidents; labor disputes; late or defective supply of necessary raw materials, semi-finished or finished goods; official measures or acts of nature;
7.2.3) if Customer is in arrears with the work it is to carry out or with the performance of its contractual obligations, in particular if it fails to adhere to the payment terms, in which case Seller may also claim damages as well as lost profits for each instance of fault.
7.3. In no instance shall there be interest paid on the payments already received from Customer. Customer shall, from this point on, relinquish any possible compensation exceptions and retention rights. The provisions of Section 12.2 apply analogously.
7.4 Seller is entitled to make partial or preliminary deliveries.
8. SHIPPING AND PACKAGING
8.1 Packaging shall be according to normal trade practice in order to prevent the weather conditions from affecting the delivery contents under normal shipping conditions. No further packaging shall be undertaken by Seller, even if Incoterms specifying otherwise are agreed.
8.2 Seller must be notified in a timely manner of any special requests regarding packaging. Such notification is timely if the desired packaging instructions can be carried out without causing delay and without difficulty. If the request of a spezial packaging type is not made in a timely manner or requires a significant expense, Seller is entitled to reject the special packaging request without any legal consequences. Such a rejection shall be made immediately and in writing.
8.3 In any event, shipping and packaging are invoiced separately to Customer, and the packaging will not be taken back.
9. SHIPPING AND INSURANCE
9.1 The shipping arrangements are made by Customer at its own risk and expense. If the carrier is hired per agreement by Seller and at the expense of Seller, Customer shall still bear the risk and is required to bear responsibility for properly securing the delivery en route from warehouse to warehouse against slippage and shifting, tipping, possible external mechanical impacts, and the like.
9.2 Complaints associated with shipping must be directed by Customer to the last carrier immediately upon receipt of the delivery or the shipping documents. Customer is further obligated to claim any shipping damages to the carrier without delay under the terms of the carrier agreement and the General Carrier Terms and Conditions. Seller shall be notified concurrently of any such complaint.
9.3 Customer is obligated to purchase at its own expense warehouse-towarehouse transit insurance with a value corresponding to that of the delivered goods. Even if this insurance is to be purchased by Seller per agreement, it shall be at Customer’s risk and expense; in no instance, however, shall Seller be liable for shipping damages.
9.4 If delivery with service has been arranged, the prices do not include unloading.
10 TRANSFER OF RISK AND USE
10.1 The moment of the passing of risk takes place “ex works” such that the risk passes from Seller to Customer when the goods are provided to Customer. Seller must notify Customer of the time from which Customer may dispose of goods. Said notification must take place in time for Customer to take the customary requisite measures. In the case of “Railway carriage, truck, barge” (agreed dispatch location), “Border,” “Destination” or “Freight free to…” (“Free to…”) sales, risk passes from Seller to Customer at the moment in which the means of transport loaded with the goods is taken over by the first carrier.
10.2 Unless otherwise agreed in writing, the goods are considered sold “ex works.”
10.3 Seller is only required to purchase insurance if and to the extent this has been agreed in writing.
10.4 In other respects, the Incoterms shall be applicable in the current version of the day of contract conclusion.
10.5 In the case of a delay in dispatch ex works that is not the fault of Seller, risk passes to Customer on the day of notification of readiness for dispatch.
11 ACCEPTANCE OF THE DELIVERY
11.1 The delivery is to be inspected immediately upon receipt by Customer, any defects being made known to Seller without delay and in writing. Failure to do so excludes any claims.
11.2 If, at time of acceptance, the delivery does not correspond to the terms of the contract, Customer must promptly provide Seller with the opportunity to repair the defects. Seller shall enjoy sole discretion as to the manner and location of repair.
11.3 Customer may not decline to accept the delivery due to its defectiveness.
11.4 Should Customer nevertheless decline to accept, the provisions of §373 of the Austrian Commercial Code (HGB) shall apply.
12. DELAY OF PERFORMANCE
12.1 If Seller intentionally caused a delay in delivery, Customer may either demand compliance or, setting an appropriate grace period for making up the delivery, declare withdrawal from the contract under the terms of the following. In the case of customized designs, calculation of the grace period must take into consideration that Seller will not have any other use for parts already finished.
12.2 If the grace period provided under 12.1 for Seller’s intentional negligence has not been met, Customer may, by means of written notification, withdraw from the contract as regards all goods not yet delivered and all delivered goods that Customer cannot use in an appropriate manner without the goods that were not delivered. In this case, Customer has a right to a refund of the payments for the undelivered goods or for the unusable goods (without interest and in consideration of the following deductions) and—if the delay in delivery was a result of intentional negligence on the part of Seller—to compensation for legitimate expenses that were necessary for the execution of the contract until its dissolution and that have no further application. In the case of a withdrawal, Customer must surrender to Seller goods which were received and cannot be used, compensating for their interim depreciation (relinquishing any compensation or right of retention) and reimburse Seller for all outlays, in particular for transportation costs, duties, fees, travel expenses, construction and administration expenses, etc. The outlays also include expenses Seller had to incur or must still incur for the purchase of parts of the delivery from third parties (subcontractors). Depreciation is equal to 3% of the purchase price monthly applied proportionately to the service already provided. In the case of customized designs, Seller may present Customer with the manufactured parts and demand in return the appropriate share of the sales price.
12.3 Customer is not entitled to claim damages for the late performance of a fixeddate transaction.
12.4 Claims due to default by Customer against Seller other than the above-named shall be excluded.
12.5 Should Customer fail to accept the contractually provided goods at the contractually agreed location or at the contractually agreed time, and if the delay is not due to an action or omission on the part of Seller, Seller may either demand compliance or withdraw from the contract after setting a deadline for acceptance. If the goods were set aside, Seller may carry out the restocking of the goods at the expense and risk of Customer. Seller is also entitled to demand reimbursement due to a delay for all legitimate mandatory expenses for the execution of the contract that were not reflected in the payments received.
12.6 Except in cases of intent, Seller shall in no instance be liable for damage claims for delivery (performance) that is late or otherwise in breach of contract.
12.7 Should Customer withdraw from the contract under the terms of these provisions, it shall have a claim to the payment rendered to Seller but not to any interest accumulated thereon. Customer must for its part surrender what it has received from Seller through this contract, relinquishing any possible compensation and retention rights. The return of the mutual payments shall be carried out concurrently.
12.8 If a previously rendered partial delivery has already been put into operation by Customer and if this partial delivery is basically still usable by Customer, a withdrawal in regard to this partial delivery shall be excluded.
13.1 For deliveries that Seller makes, Seller shall commit to repair or replace as quickly as possible all parts that are determined by a court-sworn expert approved by both contract parties to be defective or unusable due to poor material, faulty construction or imperfect workmanship. Seller shall enjoy sole discretion over the manner and location of repair. The replaced parts shall become the property of Seller.
13.2 Other warranty claims by Customer shall be excluded, including those for expressly or implicitly promised properties of the delivery (“dicta et promissa”).
13.3 Unless otherwise agreed, Seller shall bear only the costs that arise as a result of repairing or replacing the defective parts in Seller’s workshops. If defective parts cannot be repaired or replaced in Seller’s workshops for reasons beyond the control of Seller, such as parts manufactured to Customer specifications in departure from the delivery contents in the catalog, Customer shall bear all resulting additional expenses.
13.4 Customer shall be obligated to inform Seller immediately and in writing of all defects that appear. Failure to do so shall result in the loss of all warranty claims.
13.5 The warranty period is 2 years. It begins upon dispatch of the delivery ex works or, if Seller is also monitoring the initial operation, with the completion thereof. If the dispatch or initial operation are delayed for reasons other than intentional misconduct by Seller, the warranty period shall end no later than 2 years after notification of readiness for dispatch.
13.6 The warranty period per 13.5 shall be extended by defect repair or acknowledgment—even in the case of the insertion of new parts into the main delivery—neither for the main delivery nor for new parts.
13.7 If defects should appear in the product of Seller or a third party determined by Seller, Customer shall be obligated upon request to return the defective goods or the defective parts to said party for the purpose of repair or replacement; here, Customer shall assume the cost and risk of the transport to Seller as well as of the return transport of the repaired or replaced parts to Customer.
13.8 Damages due to normal wear and tear, insufficient maintenance, disregard of operational instructions, non-compliance with operating instructions/improper use, excessive strain, inappropriate equipment, chemical or electrolytic influences, as well as damages due to other reasons not resulting from fault by Seller, shall be excluded from the warranty.
13.9 The warranty shall expire if Customer or third parties make changes or repairs to the delivery without the written consent of Seller, in particular operation that deviates from the operating instructions or improper use of the product, of the product’s deployment or another installation of the product; the warranty shall also expire if Customer does not immediately take appropriate measures to limit the damage and Seller can repair these defects.
13.10 If an order is manufactured according to Customer’s construction specifications, drawings or models, Seller’s liability shall not include the structural integrity but only the design according to Customer’s specifications. Customer shall indemnify Seller from any infringement of third-party protected rights.
13.11 Seller shall assume no liability of any kind in taking on repair orders or in changing or structurally altering old or third-party products. Old products are those for which the warranty period per Section 13.5 has elapsed or which, with the knowledge of Customer, had already been in use at Seller or a third party.
13.12 Seller shall be liable for parts it purchased from subcontractors only within the scope of Seller’s own warranty rights vis-à-vis the subcontractor.
13.13 If the delivery as a whole or components thereof are taken back, Customer shall be assessed a depreciation fee equal to 3% monthly from the total or partial price for the duration of use of the retracted whole or partial delivery.
13.14 After the start of the warranty service, Seller shall assume no additional liability beyond that determined in this clause, not even for defects whose origin predates the passing of risk.
14.1 Seller shall incur liability for damages only in cases cwhere Seller’s intent can be demonstrated. Damages for clost profits shall be excluded in all instances. If the defect cappears in the object or product delivered by Seller, cSeller’s sole obligation under the warranty in cases of cirreparability shall be an exchange.
14.2 The object of sale offers only the safety that can be cexpected on the basis of Seller’s permit regulations, coperating instructions and regulations regarding the chandling of the object of sale—in particular with regard to cuniversally prescribed inspections—and any other cindications. It shall be established through the presence of ca CE label that the product is in compliance with the cregulations on which this label is based and also offers the csafety stipulated thereby.
14.3 All damage claims due to defects in deliveries and/or cservices must be asserted by legal process within the ccontractually established warranty period, or shall cotherwise expire, unless the defect is expressly crecognized by Seller.
15 PLACE OF PERFORMANCE AND VENUE
15.1. The place of contract performance is the corporate cheadquarters of the company active photonics, even if the ctransfer is agreed to take place elsewhere.
15.2. Customer may not transfer its rights under the contract to third parties without Seller’s consent.
15.3. The contract shall remain binding even if individual points of its provisions are ineffective.
15.4 This contract is subject to Austrian law to the exclusion of the UN Convention on the International Sale of Goods.
15.5 The court in the headquarters of active photonics having jurisdiction as regards the subject matter is locally competent for all disputes that result directly or indirectly from this contract. Seller may, however, also seek redress in a different court competent for Customer.
16.1 Changes and deviations from Seller’s General Contract and Delivery Terms and Conditions shall be valid only upon express written agreement. Any other terms and conditions of Customer in conflict with Seller’s General Contract and Delivery Terms and Conditions shall apply only if and to the extent that Seller has expressly recognized them in writing.
16.2 Promises and agreements of Seller’s employees are legally binding only if confirmed by at least one institution authorized to represent the company.
16.3 Customer’s claims for damages shall be excluded in all instances, except in cases of intentional damage by Seller. Seller shall never be liable for any type of consequential damages, in particular for loss of profits.
16.4 Seller is entitled to store, transmit, process and delete personal data of Customer within the context of the business transactions.
16.5 The contract parties agree not to disclose to third parties any of the knowledge they obtain through the business dealings.
16.6 It shall be established that the company active photonics will provide the product active head-up without the helmet. The contract parties shall exclude any liabilities that may arise through a connection of the helmet or another object to the active head-up. By signing the sales contract, Customer states expressly that it has been instructed in operation and has been notified that in connecting active head-up to a helmet or other object, changes may occur, but that no liability shall be assumed by Seller.