Terms and conditions

Business conditions and terms, dated 1. 1. 2002

1. General:

The terms for sales and delivery exposed here constitute the basis for all offers and agreements concerning our delivery services, exclusively. The terms are regarded as accepted once an order has been placed or a shipment has been accepted. Deviating terms by the ordering party which we do not expressedly accept in writing, are non-binding for us. Termination or alteration of individual terms does not impact the validity of the remaining terms of sales and delivery. Oral agreements or ones reached by telephone must be confirmed by us in writing, including any agreements with representatives or employees.

2. Offers, Confirmation of Orders:

All offers remain subject to change. An order is only considered as accepted once the delivering party has confirmed it in writing. Changes, alterations, or oral agreements on the side require confirmation in writing by the delivering party. We reserve the right to intermediary sales.

First offers are usually made free of charge. Further offers and conceptual work will only be conducted free of charge, once the delivery contract has been legally finalized and remains.

If not expressedly stated otherwise as binding, the documents belonging to the offer, including illustrations, drawings, weights and measurements, are only estimated variables. The delivering party retains all rights of ownership and copyrights of offers, drawings, and any other documents: these may not be made available to third parties. The delivering party is obliged only to make plans declared confidential available to third parties with the expressed consent of the customer.

3. Scope of Delivery:

The written confirmation of the order by the delivering party is decisive for the scope of delivery. Agreements on the side and changes require written confirmation by the delivering party.

4. Delivery Period

a) The delivery period starts with the dispatching of the confirmation of the order, however, only after the ordering party has submitted all documents, permits, and authorizations required, as well as a previously agreed upon pre-payment.

b) Due to a lack of an agreement otherwise for orders subject to recall, it is hereby agreed upon, that the recall must be conducted within 12 months from the confirmation of the order.

c) The delivery period has been abided, once the delivery item has left the plant before the period expires, or if notification of availability for delivery has been issued.

d) In case of unforeseen events – regardless if these occur at the plant of the delivering party or at the respective suppliers‘ - which are

e) Not the intention of the delivering party, the delivery period will extend accordingly; e.g., operating troubles, industrial rejects, delay in supply of essential raw material and components, loss of an employee in a key position, strike and blockade, as long as these events can be proven as having an essential impact on the completion or the dispatch of the delivery item.

f) The events mentioned in the above must also not be represented by the delivering party if they occur during an already existing delay in delivery. In important cases, the delivering party will notify the ordering party about the beginning and the end of such events, as soon as possible.

g) If the ordering party sustains damages because of a delay by the delivering party, due to their own fault, then compensation for delay may be claimed by the ordering party, under exclusion of any other claims. For each full month of delay after expiration of a period of grace set up by the ordering party, acc. to number 11b of these terms, 0.5 percent, in total, however, a maximum 3 percent of the value of the part of the overall delivery which was not able to be used on time or in appropriate manner, due to the delay, will be charged.

h) If delivery is delayed upon request of the ordering party, the costs of storage – when stored in the plant – will be charged to the ordering party starting one month after notification of availability for delivery, however, a minimum of 0.5 percent of the invoicing amount for each month will be charged. After the deadline has been set up and has elapsed, the delivering party is free to process the delivery item for other purposes and to deliver to the ordering party within an acceptable deadline extension.

i) The delivering party is permitted to conduct partial shipments and to invoice these, so that the portion of the price in respect to the partial shipment conducted, becomes due. Pre-Payments are calculated proportional to the partial shipments.

j) The fulfillment of the contractual obligations by the ordering party constitutes the prerequisite for the adherence to the delivery period.

5. Transition of Risk and Acceptance:

a) The risk transfers to the ordering party at the latest when the delivered parts are dispatched, even if partial shipments are conducted or if the delivering party has accepted further services, for example the costs of delivery or shipment and assembly.

b) The shipment will be insured against damage in transit by the delivering party, and charged to the account of the ordering party.

c) In the event that shipment is delayed due to circumstances not defendable by the delivering party, the risk transfers to the ordering party, starting from the day of availability of delivery; however, the delivering party will organize the insurance coverages requested and paid for by the ordering party.

d) Goods delivered are to be accepted by the ordering party unharmed, acc. to the rights from claims for damaged shipments, even if the items show minor flaws.

e) Any deviations from the invoice or from the bill of delivery must be reported immediately upon receipt of the goods in writing.

6. Reservations:

Due to alterations of models and configurations we cannot ensure a precise match with the illustration. The same is true for weights and measurements. Any modifications requested by the ordering party after the order has been confirmed, must be submitted in writing and will only be accepted after having been confirmed in writing by the delivering party.

7. Customized Products:

If customized or specialty models are ordered, which deviate from the usual range, then a proportional pre-payment must be rendered. The order may not be terminated, as the respective item cannot be applied otherwise. The project drawings submitted by the delivering party regarding customized or specialty products must be examined by the ordering party and confirmed in writing.

8. Price and Payment:

a) If not agreed otherwise, the prices are valid ex works, including loading at the factory, however, not including packaging.

b) If not agreed otherwise, payments must be balanced in cash without any deductions to the account of the delivering party; as follows: 1/3 pre-payment after receipt of the confirmation of order,1/3 as soon as the ordering party has been notified regarding the availability of main components for shipment,1/3 will become due within one additional month.

c) In the event that payment deadlines are exceeded, an annual interest of 2% above the respective basic interest rate, however, at least 5% will be charged, without requiring a reminder. In the event of a delay, the delivering party is further permitted to invoice the respective rates for current account overdraft charged by the bank. Furthermore, the ordering party is obliged to balance any additional expenses which arise, e.g. for reminders and especially for collection procedure items. Hereby, establishing claims for further damages is not excluded. The entire remaining amount of the back payment will become due without requiring any further notification/reminder, once the deadline for one payment by instalment has been exceeded. (loss of payment terms)

d) Reserving payments or calculating them based on possible counter claims of the ordering party dispted by the delivering party, are not permissible, not even in the event that claims to compensation are enforced.

e) The prices are calculated ex-works and are goods-only prices in Euros. Sales tax will be invoiced separately. The prices valid on the day of delivery are applied to all products which are purchased. If the manufacturing costs should increase due to a rise in prices for raw material, application of other material resulting in the modification of the configuration, change in wages, etc., then the prices will be adjusted correspondingly.

f) In those cases where payments are conducted as bill of exchange or via cheques, the delivering party does not accept any liability for the proper presentation in time and for the protest. Bills of exchange and cheques are only accepted on behalf of payments. Any discount or other expenses will be invoiced to the ordering party. Interest on arrears, losses and such will be balanced to the expense of the remittor.

g) If the solvency of the buyer turns to worse terms or if the terms of payment which had been agreed upon should not be adhered to, then the delivering party is permitted to change these. The purchasing price becomes due immediately, if payments are halted, in the event of a settlement or of a bankruptcy.

9. Title:

a) Retention of Title:
The delivering party retains title to the goods pending the balancing in full of any accounts receivable from the ordering party in the course of the current commercial relation, including any future accounts receivable resulting from contracts finalized at the same time or at a later time, as well as any accounts receivable calculated as a result of a delay in payment, including any legal costs. This also remains valid, if individual or all accounts receivable of the delivering party have been integrated into a current invoice and the balance has been made. If the shipment consists of machine parts, the retention of title does not submerge in the event that the parts are built in. The delivering party is entitled to take back the shipped goods, if the ordering party infringes the contract, especially in the event of a delay in payment. Taking back the item or having it impounded by the delivering party only constitutes a withdrawal from the contract, if it is expressedly stated in writing by the delivering party. In the event of impounding or other interference by third parties, the ordering party must notify the delivering party in writing, immediately. The ordering party is liable for all loss of capital on behalf of the delivering party, should notification be neglected.

b) Extended Retention of Title:
The ordering party is permitted to resell the delivered items in the course of its respective commercial trading business; however, only under the premise that its customers are irrevocably instructed to pay the open accounts receivable - the amount of which is determined by the delivering party - directly to the account of the delivering party, on behalf of the ordering party’s account. The ordering party is not permitted other forms of disposition, especially pledging or transfer of safeguarding.

Has the ordering party sold off the retention matter to a third party, and should this third party not complete payment of the retention matter immediately, then the ordering party must inform the third party in writing, that it has retention of title in the name of the delivering party over the retention matter; furthermore, that all payments must be made directly to the account of the delivering party by the third party, in the name of the ordering party, until all accounts receivable - the amount of which is determined by the delivering party – have been balanced. The ordering party must notify the supplier. Once the ordering party revokes payment, the right to resell automatically expires.

The ordering party already cedes all accounts receivable to the supplier, which may result from the resales to customers or third parties; regardless, if the retention goods have been resold before or after processing. The ordering party is not permitted to make arrangements with its buyers that could exclude or infringe the rights of the supplier in any manner whatsoever. The ordering party is especially prohibited from entering an arrangement, which may destroy or inhibit the previous cession of accounts receivable by the delivering party. Even after the cession, the ordering party remains authorized to collect the accounts receivable ceded to the delivering party. The delivering party’s right to collect the accounts receivable on its own remains unaffected by this; however, the delivering party hereby agrees not to confiscate accounts receivable as long as the ordering party conducts its payments properly. The delivering party is authorized to request that all data required for collection, including respective documents, be submitted from the ordering party, and that it shall notify the debtors about the cession. If the shipped items are resold along with other goods, which do not belong to the delivering party, then the accounts receivable of the delivery price agreed upon by the delivering party and the ordering party is regarded as ceded to the buyer from the ordering party.

Processing or reconfiguration of retention items is always conducted by the ordering party om behalf of the supplier. If the retention item is processed with or fixedly arranged with goods which do not belong to the supplier, then the delivering party attains co-ownership of the new product, corresponding to the value of the retention matter in proportion to the other goods processed or fixedly arranged, at the time of processing or mounting. If goods of the supplier are connected or fixedly mounted to a uniform matter with other moving components and if the new matter is designated as main product, it is hereby agreed, that the supplier is awarded proportional co-ownership by the ordering party, as long as the main product is owned by it. The ordering party will store the the property or co-property of the supplier. The same is valid for the product developing from processing or connecting, as well as through mounting, as for retention matter.

The delivering party is obliged to release its securities in so far as the value of the accounts receivable to be safeguarded are exceeded by more than 50%, and in so far as these have not been balanced yet.

The retention to title by the delivering party is limited pending the fully payment of the accounts receivable including attachments, hence, immediately transferring the ownership of the retention matter to the ordering party; it is further entitled to the ceded accounts receivable.

The retention to title and the securities to which the delivering party is entitled are regarded as contingency liabilities, which the supplier has agreed to on behalf of the ordering party, until complete release has taken place. The delivering party is permitted to insure the delivered goods against theft, mechanical damages, fire, water, or other damages, at the expense of the ordering party, unless the ordering party has proof of sufficient insurance coverage.Costs incurred by the revocation of the retention goods are charged to the account of the ordering party.

10. Liability for Defective Goods, Warranty:

The delivering party is liable for defective shipments, including the expressedly guaranteed features, excluding the right to further claims, as follows:

a) a) All parts, which provenly do not function or are at least limited severely in their operations, due to circumstances which occured before the transition of risk - especially due to flaws in construction, use of poor material, or lacking equipment - must be repaired or replaced in a cost-efficient selection made by the supplier, if the defect is determined within a period of 12 months (6 months for multiple-shift operations) after dispatch, and it must be done free of charge. The supplier must be notified immediately upon discovery of such defects. Parts which have been replaced become property of the supplier. In the event of a delay of shipment, assembly, or of commissioning, wherein the delivering party is without fault, liability will expire at the latest 12 months after the transition of risk.

Concerning outside products, the liability of the supplier is limited to the cession of rights to claims which it is entitled to from the suppliers of the outside product. The same is valid for transportation services. Cession of claims to liability is conducted without liability for yielding.

b) In any event, the right to make claims from defective products by the ordering party expires 12 months after the date of dispatch.

c) No liability is accepted for damages resulting from the following causes.Unusual or improper application, faulty assembly or commissioning by the ordering party or by a third party, wear and tear, erraneous or careless handling – especially excess capacitating – unsuitable means of operating, substitute material, lacking construction work, unsuitable construction property, chemical, electro-chemical or electric influences, as long as these are not traced to be the fault of the delivering party, as well as damages resulting from the continued use of a delivered item, even though a defect has been assessed previously according to number 10 lit a.

d) The ordering party must grant the delivering party sufficient time and opportunity to be able to conduct the required repairs and spare-parts deliveries in a cost-effective manner, otherwise the supplier will be released from any liability of defective parts. Only in urgent cases which present a hazard to operational safety, whereupon the delivering party must be notified immediately, or if the delivering party is running behind schedule in regard to repairing the defect, the ordering party then has the right to repair the defect themselves or have repair work conducted by a third party, and to request adequate coverage of these expenses from the delivering party.

e) The delivering party will cover the costs of the spare part including shipment – as long as the objection proves legitimate – from all costs which arise as result of repairs and spare-part delivery. All remaining costs, including costs for assembly and disassembly - travelling expenses, working time, allowance – will be paid for by the ordering party.

f) Liability of the spare part and of the repairs is only accepted until the expiration of the warranty period of the delivery item, acc. to number 10a and b of these terms.

g) The delivering party may refuse the repair of any defects in the event that the ordering party has not yet fulfilled its duties.

h) No liability exists for damages resulting from changes made or maintenance work conducted by the ordering party or by a third party in an improper manner, without prior consent of the delivering party.

i) Any further claims of the ordering party, especially a claim to compensation for damages which did not occur within the delivered item, do not exist.

j) Hereby, the ordering party explicitly renunciates the application of § 933b ABGB (special regress) and this is expressedly agreed to by the delivering party.

11. Withdrawal Right of the Ordering Party:

a) The ordering party is permitted to withdraw from the contract, if the delivering party is definitely unable to render complete services before transition of risk. It is also permitted to withdraw from the contract, if the supply of a part of the amount of same items ordered is not possible and it has a legitimate interest in denying a partial shipment; should this not be the case, the ordering party may decrease the reciprocal service accordingly.

b) The ordering party is further entitled to withdraw from the contract, if there is a delay in shipment corresponding to number 4 of the terms of delivery, and if the ordering party has granted the supplier in delay a reasonable period of grace – a minimum of 1 month is to be allowed for serial production and a minimum of 3 months for customized production – including the expressed statement of withdrawal from services ordered due to the misconduct on behalf of the delivering party.

c) If impossibility occurs during the delay in acceptance or through misconduct on behalf of the ordering party, it remains obliged to render reciprocal services.

d) Any further claims by the ordering party, especially those involving alteration, termination, or decreasing, as well as the compensation of any damages, including such damages which did not occur on the delivery item itself, are excluded.

12. Withdrawal Right of the Delivering Party:

The delivering party has the right to withdraw from the contract fully or in part, in the event of unforeseen occurances according to number 4 of above stated terms of delivery, as long as these alter the commercial meaning or the service contents noticeably, or if these have an essential impact on the business of the delivering party, as well as if impossibility of fulfillment is discovered in the course of production.

Such a withdrawal does not constitute grounds for any claims to compensation by the ordering party. If the delivering party should wish to make use of the right to withdrawal, then the ordering party must be notified immediately after the scope of events has been determined; even if an extension of the delivery period had been arranged previously with the ordering party.

13. Liabilities of the Contract:

The terms of the contract remain binding, even if individual points become invalid or are modified. Austrian law is relevant for the interpretation of this contract, exclusively.

If the delivering party has to conduct any form of compensation - which has not been included in the afore stated terms of sales and delivery - due to other guidelines or correponding to the legislation of Austrian courts, the amount of compensation to be rendered will be limited by the contracting parties to 3% of the final invoicing value, however, to a maximum of € 2.000,-.

14. Place of Jurisdiction:

According to § 104 JN, the place of jurisdiction for any disputes resulting from the contractual relations is determined to be A-4650 Lambach, regardless of the total amount of the dispute.