General terms and conditions

(hereinafter referred to as “General Terms”) of PowUnity GmbH (hereinafter referred to as “Contractor”) for all legal transactions between Contractor and third parties (hereinafter referred to as “Contracting Party”), status 2016.

  1. General
  2. Offer, pricing
  3. Commercial and technical document
  4. Delivery
  5. Delay, loss
  6. Terms of payment
  7. Seller’s lien, return of goods
  8. Warranty, Liability
  9. Damages, product liability
  10. Place of performance, place of jurisdiction, data protection
  1. General

(1) Contractor accepts performance of orders from its Contracting Parties, and deliveries to the same, exclusively on the basis of the present General Terms. Any general or special terms and conditions of a Contracting Party which depart therefrom and any special agreements shall only apply if agreed upon separately in writing.

(2) If the dispatch of such terms and conditions of a Contracting Party is made or has been made or should be made, the same hereby waives any legal consequences that may arise therefrom.

(3) If Contracting Party intends not to allow Contractor’s General Terms to act for and against itself, Contracting Party shall make reference thereto in a separate letter, so that subsequently negotiations can be conducted between Contractor and Contracting Party. The present General Terms shall apply in any case until any departing written agreement has been reached.

(4) The present General Terms shall also remain in force in the event of any legal invalidity of individual provisions.

(5) Any General Terms of Contractor that have once taken effect between Contracting Party and Contractor shall apply without any further notification to all future contracts between the same.

(6) The present General Terms shall apply to all legal transactions; consumer transactions within the terms of the Austrian Act on Consumer Protection („Konsumentenschutzgesetz“) shall only apply insofar as they do not contradict the provisions of the first main body of said act.

(7) Contractor’s employees are prohibited from cancelling, supplementing or amending the General Terms without prior written authorisation by Contractor of such promises under the Austrian Act on Consumer Protection are binding on Contractor, Contractor shall be free to rescind the contract at any time.

(8) Contracting Party is prohibited from assigning to third parties its rights and duties from the present contract with Contractor without the written consent of the same.

(9) The annulment, amendment or change of contracts shall require written form for their validity.

(10) In countries where PowUnity GmbH is situated, their own general terms and conditions of contract, sale and delivery are relevant.

2.  Offer, pricing

(1) Offers to Contractor can be accepted by the same only by written declaration of acceptance or by actual performance. Offerer is bound to the same for a period of four weeks from receipt by Contractor.

(2) Contractor’s offers are principally without obligation. Contractor is entitled at any time, even after receipt of a statement given by Contracting Party, to change or revoke its offers. Any placement of order by Contracting Party shall obligate Contractor, irrespective of any preceding acts undertaken by the same, only if and when Contractor sends a written order confirmation to Contracting Party or actually undertakes the performance.

(3) Cost estimates provided by Contractor are principally without obligation. They merely represent an invitation to Contracting Party to make an offer. The provision of a cost estimate shall be free of charge, unless previously agreed otherwise by the contractual parties. Services that go beyond the usual scope of a cost estimate such as planning work, construction plans, business trips, etc. shall be charged according to the calculation principles usually applied by Contractor.

(4) Contractor need not take into account any undisclosed order-specific circumstances in the production of the cost estimates. Contracting Party undertakes to inform Contractor comprehensively about all facts which may have an influence on the scope of the job assignment and the costs.

(5) Information contained in cost estimates, brochures, circular letters, catalogues, advertisements, illustrations, price lists, etc. on the nature, scope, equipment and prices of the goods, services, etc. are without obligation.

(6) Unless agreed otherwise, prices are in Euro net excluding VAT, packaged ex storehouse Innsbruck without freight, insurance, customs duties, fees and other ancillary costs. Any increase in production costs (wages, materials, administration, power, changes in form supplements, etc.) between the time of the conclusion of the contract and its performance by Contractor shall entitle the same to make a respective increase in the price. Orders without agreement on the price are calculated on basis of the prices applicable on the date of invoicing by taking production costs then applicable into account.

(7) Technical changes and departures from plans and default values of all and any kind shall be accepted by Contracting Party insofar as they do not contravene the purpose thereof as intended by Contracting Party.

3. Commercial and technical documents

(1) All commercial and technical documents produced or presented by Contractor shall remain the Contractor’s property. Any publication, dissemination and other utilisation of such documents may only be made with Contractor’s prior written consent. Such documents may not be made accessible to third parties in particular.

(2) Contractor is free to demand the return of all documents at any time at Contracting Party’s expense without statement of reasons.

4. Delivery

(1) Unless agreed otherwise, performance and delivery shall be „ex works (storehouse)“. Any assembly shall be charged according to Contractor’s calculation principles, unless included in the price as a result of a separate agreement.

(2) If the merchandise is to be delivered to a specific location as a result of a separate agreement, the delivery thereto shall not be regarded as „carriage paid“ without any further agreement. Contractor shall be free to choose the means of transportation. Contractor shall be entitled, without being given separate instructions for this purpose, to effect insurance (in particular transport or erection all risks insurance) for Contracting Party’s account. The costs for such insurance are not included in the price and can be charged when the insurance is effected.

(3) All risks shall pass to Contracting Party not later than upon performance by Contractor. This shall also apply to partial deliveries with respect to the same. When performing deliveries „ex works (storehouse)“ the time shall be regarded as time of performance at which Contractor notifies Contracting Party of its readiness to dispatch. Otherwise, risk shall pass to Contracting Party, irrespective of the respectively agreed delivery clause (Incoterms, etc.), when the merchandise leaves Contractor’s plant or storehouse.

5. Delay, loss

(1) The delivery date is stated as the calendar week within which it must be fulfilled and shall apply „ex works (storehouse)“. It is only binding if expressly designated as such.

(2) If Contracting Party is absent on the delivery date or is in default with the precautions required for performing the delivery, the performance or delivery shall be regarded in any case as accepted by the same. This also applies to partial deliveries.

(3) If a performance or delivery is delayed by circumstances not caused by Contractor, the performance and delivery period shall be extended to a reasonable extent without any separate announcement on the part of Contractor without the same being responsible for any consequences of the delay whatsoever, which shall also apply in the event that Contractor on its part is already in default. In the event of unreasonable hardship in the fulfillment of the order as a result of such delay Contractor shall be entitled to rescind the contract under exclusion of any claims for damages. If the execution of a contract due to force majeure, the contractor is free from his contractual obligations. In such an event Contractor shall be entitled to perform the delivery or performance once the obstruction has been eliminated.

(4) If Contractor has caused the delay, Contracting Party can either demand the performance thereof after grant of a reasonable grace period of not less than four weeks or, only in the event of any fault on the part of Contractor, to declare the rescission of the contract. Such a declaration must be issued by Contracting Party in writing, unconditionally and definitely upon making the grant of grace period.

(5) Without leading to any consequences from default, Contractor can in any case make the observance of the performance and delivery date dependent upon the receipt of agreed advance payments, the timely payment of other outstanding receivables, from the clarification of any subsequently arising questions, from the availability of all necessary tools (e.g. models, drawings, drafts, etc.), from the fulfilment of all technical requirements and the fulfilment of all other contractual obligations.

(6) Claims for damages from delay in deliveries shall be excluded to the extent as are legally permissible, which shall apply in any case to slight negligence.

(7) Contracting Party shall ensure at its own expense the procurement of official permits, permits of third parties and the submission of reports to authorities.

(8) Unless agreed otherwise in writing, Contractor is entitled to perform partial or advance deliveries and to submit partial invoices commensurate with the same.

(9) Any damage or losses shall be determined in writing by the recipient of the merchandise or performance simultaneously with the acceptance by asserting claims against the deliverer (e.g. carrier). It is neither possible to refuse acceptance of the merchandise nor to refuse recognition of the invoice due to transport damage or any deficiency.

(10) An acceptance of the merchandise manufactured by Contractor by both parties hereinunder after the delivery shall only be made with express agreement. In this event Contracting Party shall bear the costs incurred by either party, unless agreed otherwise.

(11) If Contracting Party does not accept the contractual merchandise or performance at the correct location or at the correct time, Contractor may also rescind the contract by granting a reasonable grace period. Contracting Party shall be liable for the entire damage thus incurred. In the case of imminent danger Contractor can perform an exploitation „in the best possible way“ for Contracting Party’s account without causing any obligation for payment of damages to Contracting Party. Contractor can also perform warehousing of the merchandise with a third party for Contracting Party’s account.

6. Terms of payment

(1) Unless agreed otherwise in writing, payment must be effected within 30 days from date of invoice without any deductions. 2% cash discount is permitted in case of payment within 14 days from date of invoice if at such time all outstanding receivables are paid.

(2) Payments by cheque or B/E are made in lieu of payment. All fees and bank commissions in connection with the bank transfer and in connection with producing or encashing B/Es or cheques shall be borne by Contracting Party.

(3) In the event of a protest of a bill, the recourse to a party liable on a bill or the non-payment of an outstanding invoice, all invoices shall be due for immediate payment without requiring any express. The same shall apply in the event of any relevant deterioration in the Contracting Party’s financial standing.

(4) The delay in payment shall occur automatically without any further notification. In the event of default of payment all existing or future possible claims of Contracting Party’s claims from agreed contractual penalties shall be null and void.

(5) In the event of default of payment interest in arrears in the amount of 12% p.a. are agreed upon, with any higher damage from interest or loss from foreign exchange rates having to be compensated.

(6) Once the rescission of the contract takes effect, Contracting Party shall immediately return to Contractor without delay and without any further invitation any merchandise already delivered by Contractor, shall effect compensation for any loss in value and compensate all and any expenses incurred by Contractor in the course of the performance of the contract and its reversal. For compensating the damage incurred in this connection, Contracting Party shall immediately pay a cancellation fee in the amount of 20% of the gross invoiced sum without any further evidence being required. The cancellation fee shall not exclude the assertion of damage exceeding the aforementioned sum.

(7) Contracting Party may not offset its claims against Contractor’s claims.

7. Seller’s lien, return of goods

(1) The supplied merchandise, even if already mounted and installed, shall remain the Contractor’s unrestricted property until the complete payment of the invoiced sum including interest, costs and fees and until the fulfillment of all other present and future financial obligations of Contracting Party in connection with the delivered merchandise and as a result of all other deliveries and performances. Contracting Party shall voluntarily take all measures at its expense which are required depending on the location to establish or maintain the seller’s lien.

(2) Any sale or pledging of the reserved merchandise shall only be permitted with Contractor’s express consent and shall not be permitted in any case after cessation of payments. In this event Contracting Party shall notify its purchasers about Contractor’s seller’s lien. Apart from that, Contracting Party already irrevocably offers at this point to assign to Contractor for its satisfaction and in lieu of payment all claims arising from the merchandise in the event of the re-sale of the same. Contractor may accept this offer of assignment at any time without any time limitation whatsoever. All fees and costs in connection with such assignment shall be borne by Contracting Party.

(3) Until all financial obligations have been completely fulfilled, Contracting Party is further not entitled to work or process the supplied merchandise or to join the same with other chattels. Otherwise, Contractor shall have the sole ownership in the chattels produced from the working, processing and joining.

(4) In the event that the supplied merchandise is pledged, or claims are made against the same, Contracting Party undertakes to notify Contractor without delay and to take all measures at its expense to protect Contractor’s rights of ownership. If the reserved merchandise is sorted out by Contractor, the same can perform warehousing at the Contracting Party’s expense and risk. The latter shall reimburse Contractor with all expenses in connection with the assertion of the ownership.

(5) If supplied merchandise is taken back, this shall not constitute any rescission of the contract unless expressly declared otherwise by Contractor.

8. Warranty, Liability

(1) Visible defects or missing parts shall be claimed immediately, but not later than within eight days from the commencement of the warranty period, under the threat of exclusion of warranty otherwise. Hidden defects must be claimed within a period of eight days following discovery, with such claim having to be received by Contractor within the aforementioned periods in form of a letter sent by registered mail. Such claims must be accompanied by immediate cessation of any processing, as otherwise the merchandise shall be regarded as having been unconditionally and duly accepted free from any defects.

(2) Contractor who has been legally effectively notified about any defect can fulfil its war ranty obligation at its discretion in the following ways:

rectification of any defects in the merchandise on site;

b.rectification of any defects at Contractors plant or any other location designated by Contractor, preceded by a respective dispatch on the part of Contracting Party;

replacement of the defective merchandise which thus passes into Contractor’s ownership or

replacement of the defective parts of the merchandise which thus passes into Contractor’s ownership.

In the event that the aforementioned measures are not performed or performed only defectively, despite reminders being sent and a grant of a reasonable grace period being made, Contracting Party shall have the right to a price reduction the right of cancellation of the sale shall only be granted in the event of lack of agreement on the scope of price reduction or in cases of relevant irreparable defects. Contractor shall not be subject to any further obligations under warranty.

(3) The costs incurred by the measures pursuant to Subsection 3 of the present Article shall be borne by Contracting Party, which excludes dispatch costs for replacement merchandise and spare parts. Scope of warranty is principally limited for merchandise dispatched to foreign customs territories to performance which in the event of warranty would have arisen at the place of border crossing.

(4) Contractor shall provide advance notification of not less than five days for rectification of defects or replacements. If Contracting Party is not present at such date for reasons for which Contracting Party is responsible or if the same obstructs the rectification of defects or the replacement or renders such rectification or replacment impossible, then this shall apply as a waiver of the claims to warranty.

(5) Contractor’s warranty shall be excluded if and when Contracting Party has failed to observe Contractor’s instructions and operating conditions, the defect was caused by the Contracting Party or a third party, the same have performed manipulations or repairs on the merchandise, or had someone else perform such manipulations or repairs, Contracting Party does not offer the required possibility for performing repairs or as long as Contracting Party has not fulfilled its obligations, which relate to its payment obligations in particular. Warranty shall further be excluded for consumables and parts subject to wear and tear (membranes, rubber elements, gaskets, etc.). Warranty shall further only apply to defects which occur during normal use under observance of the usual operating conditions.

(6) Unless specifically agreed otherwise, Contractor shall not assume any warranty for conversions or modifications of merchandise of an older nature or from other suppliers and for deliveries of second- hand goods.

(7) Within the scope of warranty there shall be no claims against Contractor for compensation and damages of any kind whatsoever (e.g. follow-up costs, costs for laying or exchange, lost profits, freight and access costs, etc.).

9. Damages, product liability

(1) In the event of damages Contractor shall only be liable for intent and gross negligence. Liability for slight negligence is excluded, as are the compensation of consequential damage and economic loss, interest loss and damage from third-party claims against Contracting Party.

(2) In the event of gross negligence, liability for damage shall be limited in any case to ten times the net invoiced sum of the supplied merchandise that caused the damage.

(3) In the event of failure to comply with Contractor’s terms, if any, for assembly, start-up and use, any damages whatsoever shall be excluded.

(4) Unless prohibited by mandatory legal regulations, liability for any damage under the Product Liability Act and other comparable norms, irrespective of the regime of law they are derived from, shall be excluded. Contracting Party undertakes to assign this exclusion of liability for Contractor’s benefit to its respective purchasers, to obligate said purchasers to assign on their part such exclusion of liability right up to the end user, and to execute documentary evidence thereon. Any third-party claims from the title of product liability shall be borne in the internal relationship by Contracting Party, so that the same shall immediately indemnify and hold Contractor harmless from any claims therefrom. Contractor shall not assume any liability for products or information on products brought into circulation by Contracting Party.

(5) In the course of marketing Contractor’s products, Contracting Party shall ensure that the sale of the products can evidently be retraced, particularly concerning the purchaser‘s name and address, type of product and date of sale. Contracting Party undertakes further to notify its employees continually and evidently about all and any information and instructions supplied by Contractor with its products, which shall also include information about legal regulations and territorial requirements. This shall also apply to Contracting Party’s purchasers, so that Contracting Party undertakes to comprehensively inform and advise its purchasers by giving respective instructions to its sales staff. Contracting Party undertakes to immediately notify Contractor about any and all faults in Contractor’s products or errors in product information which come to Contracting Party’s attention and to monitor the consistency of the product information, laying and transfer instructions, possibilities for application, etc. concerning the Contractor’s products with the respective state of the art and technology and to immediately inform Contractor about any contradictions and, if so, to immediately desist from any further circulation of products.

(6) Contracting Party undertakes to keep all materials, legal instruments and supporting documents for a period of not less than 10 years from the time at which the products were put into circulation or sold, and to completely surrender the same without delay upon first invitation.

10. Place of performance, place of jurisdiction, data protection

(1) Place of performance for all deliveries and payments shall be Innsbruck, even if the delivery was made at another place.

(2) The application of Austrian material law is agreed upon for all and any contracts concluded between Contractor and its Contracting Parties and all and any claims arising from the legally effective existence or non-existence of such contracts.

(3) The court respectively competent for such cases is agreed upon as exclusive place of jurisdiction for all and any legal disputes arising hereunder. Contractor may also sue Contracting Party at any other foreign or domestic venue.

(4) All data of Contracting Party which is relevant for the business relationship will be stored with computer support by taking the Austrian Data Protection Act into account.