Terms and Conditions

Scope of Application

1.1 These Terms and Conditions shall apply to all transactions between businesses, including the supply of goods and, where applicable, the provision of services.
Software deliveries shall primarily be governed by the Software Terms and Conditions issued by the Austrian Electrical and Electronics Industry Association. Installation work shall be governed by the Installation Terms and Conditions of the Austrian Electrical and Electronics Industry or, where applicable, the Installation Terms and Conditions for Medical Electrical Engineering issued by the Austrian Electrical and Electronics Industry Association.

1.2 Any deviation from the terms referred to in Section 1.1 shall only be valid if expressly confirmed by the Seller in writing.

Quotations

2.1 All quotations submitted by the Seller are non-binding and subject to change without notice.

2.2 All quotation documents, proposals, and project-related documentation remain the property of the Seller and may neither be copied nor disclosed to third parties without the Seller’s prior written consent. Such documents may be requested back by the Seller at any time and must be returned immediately if the order is awarded to another supplier.

Formation of Contract

3.1 A contract shall be deemed concluded when the Seller, following receipt of an order, issues a written order confirmation or dispatches the goods.

3.2 Information contained in catalogues, brochures, promotional materials, or any other written or verbal statements shall only be binding if expressly referenced in the order confirmation.

3.3 Any amendments or additions to the contract shall require written confirmation by the Seller in order to be valid.

Prices and Payment

4.1 Unless otherwise agreed, all prices are quoted ex works or ex warehouse of the Seller and exclude packaging, loading, transportation, and value-added tax (VAT). Any duties, taxes, fees, or other charges arising in connection with the delivery shall be borne by the Buyer. Where delivery to the Buyer’s premises has been agreed, transportation costs and any transport insurance requested by the Buyer will be charged separately. Such charges do not include unloading, installation, or on-site handling of the goods. Packaging will only be taken back if expressly agreed in writing.

4.2 If an order differs from the scope or quantities specified in the original quotation, the Seller reserves the right to adjust the prices accordingly.

4.3 Prices are based on the cost situation prevailing at the date of the original quotation. Should costs increase prior to delivery, the Seller shall be entitled to adjust the agreed prices accordingly.
This applies in particular to goods sourced in foreign currencies.
For transactions involving US dollars (USD), the exchange rates published by the European Central Bank (ECB) shall apply and may be accessed at: https://www.ecb.europa.eu

4.4 For repair orders, the Seller shall perform all work deemed necessary and appropriate and shall invoice such work based on the actual time and material expenditure incurred. This also applies to additional services or work that becomes necessary only during the execution of the repair. In such cases, no separate notification to the Buyer shall be required. For goods not specifically quoted, the Seller’s current list prices shall apply. The preparation of repair quotations, inspections, technical assessments, or evaluations shall be charged to the Buyer.

4.5 Unless otherwise agreed, deliveries shall be made only against advance payment or cash payment. For projects, one-third (1/3) of the total contract value shall be due upon receipt of the order confirmation, one-third (1/3) at the halfway point of the agreed delivery period, and the remaining balance upon delivery.
Irrespective of the foregoing, any value-added tax (VAT) stated on the invoice shall be payable in full no later than 30 days from the invoice date. In the case of partial invoicing, the corresponding partial payments shall become due upon receipt of the respective invoice. This shall also apply to additional charges resulting from subsequent deliveries or other agreements exceeding the originally agreed contract value, regardless of the payment terms agreed for the main delivery.

4.6 All payments shall be made without deduction, free of charge to the Seller’s designated place of payment and in the agreed currency. Any acceptance of cheques or bills of exchange shall be for payment purposes only and shall not constitute satisfaction of the payment obligation until cleared. All related costs, charges, fees, and interest, including collection and discounting charges, shall be borne by the Buyer. The Buyer shall not be entitled to withhold payments or set off claims against amounts due on account of warranty claims or any other counterclaims.

4.7 A payment shall be deemed received on the date on which the Seller has unrestricted access to the funds.

4.8 If the Buyer defaults on any agreed payment or other contractual obligation arising from this or any other transaction, the Seller shall, without prejudice to any other rights or remedies, be entitled to:

a) suspend the performance of its own obligations until the outstanding payment or obligation has been fulfilled and claim a reasonable extension of the delivery period; and/or
b) declare all outstanding amounts arising from this or any other transaction immediately due and payable and charge default interest of 1.25% per month plus VAT from the respective due date, unless the Seller can demonstrate higher actual costs.

In all cases, the Seller shall be entitled to recover pre-litigation costs, including, without limitation, reminder fees and legal expenses.

4.9 The Seller shall retain title to all goods supplied until all outstanding invoice amounts, including any accrued interest and costs, have been paid in full. As security for the Seller’s purchase price claim, the Buyer hereby assigns to the Seller all claims arising from the resale of goods subject to retention of title, including where such goods have been processed, modified, combined, or mixed with other products. The Buyer undertakes to make an appropriate record of such assignment in its accounting records and/or invoices. Upon request, the Buyer shall provide the Seller with details of the assigned claims and the respective debtors, together with all information and documentation required for collection of such claims, and shall notify the third-party debtor of the assignment. In the event of seizure, attachment, or any other claim by third parties against the goods, the Buyer shall inform such third parties of the Seller’s ownership rights and shall notify the Seller without undue delay.

Delivery

5.1 The delivery period shall commence on the latest of the following dates:

a) the date of the order confirmation;
b) the date on which all technical, commercial, and other requirements to be fulfilled by the Buyer have been satisfied;
c) the date on which the Seller receives any advance payment or security to be provided prior to delivery.

5.2 The Buyer shall be responsible for obtaining all governmental approvals and any third-party permits required for the execution of an installation or project. If such approvals or permits are not obtained in due time, the delivery period shall be extended accordingly.

5.3 The Seller shall be entitled to make and invoice partial deliveries or advance deliveries. Where delivery on call has been agreed, the goods shall be deemed called off no later than one (1) year after the date of the order.

5.4 If unforeseeable circumstances beyond the reasonable control of the parties prevent compliance with the agreed delivery period, such period shall be extended for the duration of the impediment.
Such circumstances include, but are not limited to:

force majeure events;
armed conflicts;
governmental interventions or prohibitions;
transport or customs clearance delays;
transport damage;
shortages of energy or raw materials;
labour disputes;
and the failure of a key supplier whose replacement cannot reasonably be secured.

The foregoing shall also apply where such circumstances affect the Seller’s suppliers.

5.5 Where the parties have agreed a contractual penalty (liquidated damages) for delay in delivery at the time of contract formation, such penalty shall be governed by the following provisions. Any deviation from individual provisions shall not affect the validity of the remaining provisions. Where a delay is demonstrably caused solely by the Seller’s fault, the Buyer shall be entitled to claim liquidated damages of up to 0.5% of the value of the affected part of the delivery for each completed week of delay, subject to a maximum aggregate amount of 5%. Such claim shall be limited to the portion of the overall delivery that cannot be used due to the delayed delivery of an essential component, provided that the Buyer has actually incurred damages in the corresponding amount. Any further claims arising from or relating to delivery delays shall be excluded.

Transfer of Risk and Place of Performance

6.1 The use of and risk associated with the goods shall pass to the Buyer upon dispatch from the Seller’s premises or warehouse, irrespective of the agreed delivery terms (e.g. freight prepaid, CIF, or similar terms). This shall also apply where delivery forms part of an installation project or where transportation is carried out, organized, or supervised by the Seller.

6.2 For services, the place of performance shall be the location where the service is rendered. The risk associated with a service, or any agreed partial service, shall pass to the Buyer upon completion of such service.

Warranty and Liability for Defects

7.1 Subject to compliance with the agreed payment terms, the Seller shall remedy, in accordance with the provisions set out below, any defect existing at the time of transfer of risk that materially impairs the functionality of the goods and is attributable to faulty design, defective materials, or improper workmanship.
No warranty claims may be derived from information contained in catalogues, brochures, advertising materials, or any written or verbal statements that have not been expressly incorporated into the contract.

7.2 Unless otherwise agreed for specific items, the warranty period shall be twelve (12) months. This warranty period shall also apply to goods and services permanently attached to a building or real property. The warranty period shall commence on the date of transfer of risk in accordance with Section 6.

7.3 Any warranty claim shall be subject to the Buyer notifying the Seller in writing of the defect without undue delay. The Buyer shall promptly provide evidence of the defect and, in particular, make available all relevant records, documentation, and data in its possession. Where a defect covered by warranty exists in accordance with Section 7.1, the Seller shall, at its sole discretion and at the place of performance, either:

repair the defective goods or component;
require the defective goods or component to be returned for repair; or
grant an appropriate reduction in price.

7.4 All ancillary costs incurred in connection with the rectification of defects, including but not limited to installation and removal costs, transportation, disposal, travel expenses, and travel time, shall be borne by the Buyer.
For warranty work performed at the Buyer’s premises, the Buyer shall provide, free of charge, all necessary personnel, lifting equipment, scaffolding, consumables, and other support required for the performance of the work. Any parts replaced under warranty shall become the property of the Seller.

7.5 Where goods are manufactured by the Seller on the basis of designs, drawings, models, specifications, or other instructions provided by the Buyer, the Seller’s liability shall be limited exclusively to compliance with such specifications.

7.6 The warranty shall not cover defects resulting from:

installation or assembly not carried out by the Seller;
inadequate setup or commissioning;
failure to comply with installation requirements or operating instructions;
use beyond the performance limits specified by the Seller;
improper, negligent, or incorrect handling;
use of unsuitable operating materials; or
materials supplied by the Buyer.

The Seller shall likewise not be liable for damage resulting from:

actions of third parties;
atmospheric discharges, including lightning strikes;
electrical surges or overvoltage;
chemical influences; or
other external factors beyond the Seller’s control.

The warranty does not extend to the replacement of parts subject to normal wear and tear. No warranty shall be provided for used goods.

7.7 Any warranty obligation shall immediately cease if the Buyer or any third party not expressly authorized by the Seller carries out modifications, repairs, or other interventions on the delivered goods without the Seller’s prior written consent.

7.8 Any claims pursuant to Section 933b of the Austrian Civil Code (ABGB) shall, in any event, become time-barred upon expiry of the warranty period specified in Section 7.2.

7.9 The provisions set out in Sections 7.1 to 7.8 shall apply mutatis mutandis to any liability for defects arising under other legal grounds.

Termination of Contract

8.1 Unless otherwise provided by a specific contractual provision, the Buyer shall only be entitled to withdraw from the contract if:

the Seller is in delay with delivery due to gross negligence; and
a reasonable grace period granted by the Buyer has expired without result.

Any notice of withdrawal must be submitted by registered mail.

8.2 Without prejudice to any other rights or remedies, the Seller shall be entitled to withdraw from the contract if:

a) the delivery or the commencement or continuation of services becomes impossible, or is further delayed despite the granting of a reasonable grace period, for reasons attributable to the Buyer;
b) doubts arise regarding the Buyer’s creditworthiness and, upon request by the Seller, the Buyer neither makes an advance payment nor provides adequate security prior to delivery; or
c) the delivery period is extended due to the circumstances set out in Section 5.4 by more than one-half of the originally agreed delivery period, and in any event by at least six (6) months.

8.3 The Seller may also declare withdrawal from the contract with respect to any outstanding part of the delivery or services for the reasons stated above.

8.4 If insolvency proceedings are initiated against the assets of either party, or if an application for insolvency proceedings is rejected due to insufficient assets, the other party shall be entitled to withdraw from the contract without granting a grace period.

8.5 Without prejudice to the Seller’s claims for damages, including pre-litigation costs, any services or partial services already performed shall, in the event of withdrawal, be invoiced and paid in accordance with the contract. This shall also apply where the Buyer has not yet accepted the delivery or services, as well as to preparatory work already carried out by the Seller. Alternatively, the Seller shall be entitled to demand the return of goods already delivered.

8.6 Any further consequences of withdrawal from the contract are excluded.

Liability

9.1 Except within the scope of mandatory product liability legislation, the Seller shall only be liable for damages to the extent permitted by law where such damages are caused by wilful misconduct or gross negligence on the part of the Seller. Liability for slight negligence is expressly excluded. Furthermore, the Seller shall not be liable for:

consequential damages;
indirect or economic losses;
loss of profits or anticipated savings;
loss of interest; or
claims asserted by third parties against the Buyer.

9.2 Any claim for damages shall be excluded where the Buyer fails to comply with applicable conditions relating to installation, commissioning, operation, or use of the goods or services, including those contained in operating manuals or required by official approvals and regulatory authorisations.

Assertion of Claims

10. Unless shorter limitation periods are required by law or agreed separately in an individual case, any claims by the Buyer must be brought before a competent court within three (3) years from the date of transfer of risk. Failure to assert such claims within this period shall result in their forfeiture.

Intellectual Property Rights and Copyright

11.1 Where goods are manufactured by the Seller based on designs, drawings, models, specifications, or other instructions provided by the Buyer, the Buyer shall indemnify and hold the Seller harmless against any claims arising from the infringement of intellectual property rights or proprietary rights of third parties.

11.2 All project and execution documents, including but not limited to plans, drawings, sketches, technical documentation, samples, catalogues, brochures, illustrations, and similar materials, shall remain the exclusive intellectual property of the Seller. Such materials are protected by the applicable laws governing copyright, intellectual property, reproduction, imitation, and unfair competition. The provisions of Section 2.2 shall apply accordingly to all project and execution documents.

General Provisions

Should any provision of the contract or these Terms and Conditions be held invalid, unenforceable, or ineffective, the validity of the remaining provisions shall remain unaffected. Any invalid provision shall be replaced by a valid provision that most closely reflects the economic and commercial intent of the original provision.

Governing Law and Jurisdiction

These Terms and Conditions shall be governed exclusively by the laws of Austria. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
The place of performance shall be the Seller’s registered office in A-8160 Weiz, Austria. The competent court having jurisdiction over the Seller’s registered office shall have exclusive jurisdiction over any disputes arising out of or in connection with the contractual relationship or any future agreements concluded between the Seller and the Buyer acting in the course of business.

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Version dated: April 1, 2010