AVL is a trade mark of AVL List GmbH.
On the pages of the AVL Legal Information area AVL has the following meaning:
AVL List GmbH and its associated companies as defined in §115 österr. GmbHG.
All information on the www.avl.com website (i.e. texts, graphics, videos, music etc.) are protected by copyright. The information published here may not be used either directly or indirectly for commercial purposes and may only be used for private purposes by natural persons. All utilization rights, of any sort whatsoever, are exclusively reserved by the copyright owner. The copyright owner reserves the rights in particular to copy, distribute, lease, lend and transmit website information in any way. AVL reserves all rights. Legal action will be taken against infringements of copyright.
3. Data Protection
AVL's Data Protection Policy is based on the principle of maintaining data confidentiality and has the protection of personal data as its central concern. Please read the Privacy Statement.
4. Linking and Framing
The use of linking and framing is subject to the terms on Linking and Framing:
a. Links from other Websites to www.avl.com
AVL permits all links which do not alter the content of the www.avl.com website in any way, which keep the source of the contents fully identifiable, and which present the linked AVL website in its entirety. The content of websites containing links to www.avl.com must comply with the applicable laws, especially those regarding competition, copyright, trademark and criminal law. Such websites must not misrepresent the relationship with AVL and the website may only claim that it is supported by AVL provided that AVL's prior consent has been obtained. The AVL logo may only be used with AVL's prior permission. The use of frames to display the content of the AVL website is prohibited. The linking of websites with illegal content is prohibited. AVL reserves all rights in the event that websites are linked which contain material that violates competition, copyright or trademark law or any other illegal content. The linking of websites with offensive, distasteful, obscene or in any way controversial content is prohibited.
b. Links from www.avl.com to other Websites
When links are made from www.avl.com to other websites, the content of the other websites shall not be altered in any way, the sources of the other content shall remain fully identifiable and the linked website shall be represented in its entirety. A new browser window is always opened when third-party content is displayed and framing technology is not used. AVL accepts no responsibility whatsoever for the legality of the content of third-party websites to which AVL creates links. In particular AVL accepts no responsibility for any subsequent alterations made to the content.
c. Publication of Links on www.avl.com
AVL website users may, among other things, publish links to other websites. Such link are transferred by means of electronic data transfer. AVL is not in a position to verify the legality of links transmitted in this way or to have any influence over the transfer process. AVL accepts no responsibility for links that become published on the AVL website in this way and which refer to websites that contain illegal, offensive, distasteful, immoral or in any way controversial material. The sole responsibility for such links lies with the user who transmitted the link. AVL reserves all rights in respect of such persons.
5. Use of Software
The AVL websites feature software that you can download. This software is subject to both the copyright terms and the terms of the Software License Agreement. You may not download or use the software until you have signed an appropriate Software License Agreement.
Users may transmit information to and from the AVL websites. Information can be transmitted, for example, by transferring text contributions or links. Only the expressly authorized users are permitted to access the various communities of the AVL Extranet.
6.1 User Content
When users transfer information or provide user content in any way on the AVL websites, they automatically grant AVL a cost-free, world-wide, non-exclusive license for any kind of use whatsoever, in so far as no other contractual arrangements exist. AVL shall have the right in particular to copy, distribute, delete or alter the transferred information or to publish it elsewhere. Users are prohibited from transferring information or publishing information on the AVL websites that contains material that violates anti-competition or trademark law, that is discrediting, libelous or offensive to common decency, or any other illegal contents. The transfer and/or publication of content is deemed equivalent to the transfer and/or publication of hyperlinks. Please read also the terms on Linking & Framing Statement.
6.2 User Conduct
Users are prohibited from causing damages to other users when using the AVL websites or from impeding the operation of these websites or from disrupting the communication flow in any way whatsoever. Furthermore users are prohibited from using information about other users of the AVL websites or information published by third parties on the websites in any way that is at discrepancy with the purpose of these websites. AVL reserves all rights in the event of violation. AVL will pursue infringement of rights with criminal and civil legal action and will recover damages from any infringer in respect of all claims, costs, losses, obligations and expenses, including the usual legal costs. AVL is not obliged but has the right to monitor and check all transferred and/or published information irrespective of its intended purpose. AVL reserves the right to prevent the publication of or to delete information irrespective of its content without providing any reason.
Messages published on AVL web platforms shall be considered successfully delivered at the end of the next working day after being posted. All users of an AVL web platform shall be obliged to access the platform at regular intervals and retrieve the new information published there. Any eMail messages advising platform users about material published on AVL web platforms are of an informative nature only and not therefore associated with any legal consequences whatsoever.
6.3 Exemption from Liability
Every user is obliged to employ the latest available virus scanning programs to protect their own hardware and software and to check the data and software transmitted by other users or deposited on the AVL web platform. AVL accepts no liability for damages due to the occurrence or transmission of computer viruses with the exception of the following, a) in situations where AVL used no virus scanning program of any kind or b) arising from actions carried out with intent by AVL employees.
The user shall in any case indemnify AVL against any claims from third parties arising from the infringement of the rights of third parties by the data transferred by the user.
The hyperlinks that appear on the www.avl.com website are a service provided by AVL website users. They help you to access information quickly and simplify the search for contents. AVL accepts no liability whatsoever for the linked websites and their contents. AVL has no influence of any kind over the design of or modifications to these websites, nor over the content they offer. Hyperlinks to www.avl.com simply refer to third-party contents, but do not make any evaluation of that content. In particular AVL accepts no liability whatsoever for the correctness, completeness, legality, objectivity or up-to-dateness of the content. Users take sole responsibility when accessing information from hyperlinks on www.avl.com.
Please read also the terms on Linking & Framing Statement.
8. Conclusion of Contract
The information displayed on the www.avl.com website for the purchase of products and services and for downloading software merely represents a request for submission of a quotation. The quotation is drawn up by the www.avl.com website user. AVL explicitly reserves the right to decline submitted quotations without stating any reason. The absence of a response does not mean that the quotation has been accepted.
AVL offers no guarantee of any kind for the correctness, completeness, legality, objectivity or up-to-dateness of the content offered on the www.avl.com website. AVL reserves the right to carry out adjustments, alterations and deletions to the website in its entirety and the content presented on it at any time and without notice. No guarantee is offered in particular for the correctness, completeness and up-to-dateness of the content displayed on the Website relating to products and prices or for the availability of the advertised products (goods, services, software etc.). AVL would like to emphasize that users in countries where the legislation does not permit such caveat emptors or only permits them to a limited extent, are not affected by the above provision (Para. 9) or only affected to a limited extent.
AVL or third persons or companies who have a business or other relationship with AVL accept no liability whatsoever for damages of any kind (including actual damages, lost profits, frustrated applications, damage to data, loss of data, loss of trade, legal expenses and drawing up of contract), arising from use of the website, from temporary or long-term inability to use the website (downtime), from limited availability of the website or its content, from errored representation of contents, from the display of third-party contents or from the display of hyperlinks at www.avl.com. AVL accepts no liability whatsoever in the event of damage to or destruction of hardware, software and other system data resulting from the use of the www.avl.com website or its contents. This provision (Para. 10) shall apply irrespective of the legal basis used to make the claim, irrespective of the degree of fault and irrespective of the question as to whether AVL or the third parties in a business or other relationship with AVL were or should have been aware of the possibility of damage. In particular no liability is accepted for contractual or extra-contractual claims. AVL explicitly emphasises that users in countries where the legislation does not permit such liability disclaimers or permits them only to a limited extent are in no way affected by the above provision (Para. 10) or affected only to a limited extent.
11. Application of Law
The www.avl.com website is supervised, operated and administrated by AVL Head Office which is located in Austria at 8020 Graz, Hans-List-Platz 1. The www.avl.com website and the content it displays are accessible and can be used all over the world. AVL accepts no liability whatsoever for the legality of the www.avl.com website and the content displayed on it from the point of view of other legal systems and their relevant statutory provisions. The use of the www.avl.com website and its content in countries other than Austria is the sole responsibility of the user. The user also assumes sole responsibility for observing the relevant statutory provisions of other legal systems. In particular, users are responsible for observing the respective export regulations when using the www.avl.com website. AVL reserves all rights in the event of contraventions and will instigate both criminal and civil legal action in pursuit of legal infringements. Use of the www.avl.com website is subject to Austrian Law. Sole court of jurisdiction for any claim arising from and in respect of the use of the website, and for any dispute arising in respect of the use of the website shall be that of the head quarters of AVL LIST GMBH. AVL LIST GMBH shall also be entitled to institute legal proceedings at the place of residence or business of the user of the www.avl.com website.
General Terms and Conditions Powertrain Engineering Division
1.1 These General Terms and Conditions apply to all deliveries of work, services, testing, goods and deliverables (the "Project") which are provided by AVL Power¬train Engineering Division of AVL List GmbH (the "Supplier") to the customer (the "Customer"). The work, services, testing, goods and/or deliverables to be supplied pursuant to the Project are referred to as "Products". In case of software licensing, deliveries and installations, specific Supplier Conditions for Software, Licenses and Installations are also applicable.
1.2 Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise that are different, or vary from or are in addition to the General Terms and Conditions and any such terms or conditions shall be null and void and of no effect whatsoever.
2.1 Offers by Supplier are made without obligation, except if stated to the contrary in writing signed by the parties.
2.2 Specifications and quotes in catalogues, brochures, etc., are only binding if expressly referred to in the offer or Order Confirmation Form.
2.3 The Project concept and content of the offer is Supplier's intellectual property. Therefore, the offer and/or Project documentation must neither be reproduced nor disclosed to third parties without Supplier's written consent. The documentation remains Supplier's property and must be returned to Supplier upon its request.
2.4 Supplier will not disclose the content and existence of the offer to third parties without Customer's consent.
3. Conclusion of Contract
3.1 The contract is effective only upon the signature of the contract by both parties, or Customer's receipt of Supplier's written confirmation of a purchase order issued by Customer, and, if agreed upon, Supplier's receipt of the down payment and/or notification of a (confirmed) letter of credit to Supplier.
3.2 No contract may be cancelled or altered by Customer except on terms and conditions acceptable to Supplier, as evidenced by Supplier's written consent.
3.3 Any costs of a modification requested by Customer or caused by circumstances not known to Supplier at the time of the signing of the contract shall be priced separately and are Customer's responsibility.
4.1 Prices are quoted for delivery ex Supplier's works, plant, office or warehouse and excluding packaging, shipping and VAT. Any fees, taxes, duties and other expenses except only taxes computed on Supplier's income are Customer's responsibility.
4.2 The prices quoted are based on the assumption that:
a) The Project work will commence at the date confirmed by Supplier and will be performed according to the time schedule set forth in Supplier's offer, and
b) In case the start or execution of the entire Project or parts thereof is delayed for reasons outside Supplier's control prices will be adjusted according to any increases reflected in the latest Austrian Consumer Price Index published by the Central Office for Statistics in Vienna and/or the wage index of the applicable collective labor agreement, whichever is higher.
4.3 The prices quoted do not include, unless stated otherwise:
a) License and/or engineering fees levied by component or system supplier(s).
b) Materials and components supplied by component or system supplier(s).
c) Unforeseen and unplanned charges due to delays or additional work caused by Customer and/or component or system supplier(s).
d) Effect(s) of revisions of the Project requested by Customer and agreed to by Supplier.
e) Travel, accommodation and subsistence costs for Customer's personnel participating in Project meetings and witnessing of results in Graz, and
f) Travel, accommodation and subsistence costs for any Supplier personnel travelling beyond the scope of the Project.
4.4 All prices quoted are payable in EURO.
5.1 Unless agreed otherwise, the contract price shall be paid as follows:
a) A down payment of 25 % of the total price shall be made within 30 days after the effective date of the contract (as per 3.1) or, if agreed, against submission of a bank guarantee by Supplier's bank. Payments for the remaining 75 % are due in monthly instalments over the duration of the Project.
b) The payments for the amount of 75 % of the total contract price shall be secured by an irrevocable, confirmed letter of credit, to be issued by a prime bank within 30 days after the effective date of the contract or Customer's signing of the order, which shall provide for payment against Supplier's invoice, and shall be in form and substance satisfactory to Supplier.
5.2 All payments for Supplier's Products supplied pursuant to the con¬tract are due within 30 (thirty) days net upon receipt of Supplier's in¬voice. Interest will be charged on overdue accounts at the Rate of
4 (four) % over the EURIBOR 12 Months in effect at the time a payment is due. In case of delayed payment Supplier is, in addition to the interest charged, entitled to postpone its own obligations until receipt of the payments due.
5.3 Customer shall not be entitled to withhold or reduce any payments due because of alleged claims against Supplier.
5.4 Until Customer has fulfilled all financial obligations, the Products supplied shall remain Supplier's property. Customer shall be obliged to meet all legal requirements in order to safeguard Supplier's property or security interest. In case of attachment or other kinds of seizure Customer shall evidence Supplier's title and notify the latter immediately. The retention of title shall not affect the passing of risk under 6.1.
6. Delivery, Passing of Risk
6.1 Delivery of Products to a carrier by Supplier shall constitute delivery to Customer; all risk of loss or damage in transit shall be borne by Customer. This also applies if, after arrival at Customer's site, Supplier still has to perform installation work.
6.2 If delay in delivery is caused by any of the circumstances mentioned in Clause 12 or by an act or omission of Customer, including the failure to procure any required permits for delivery in Customer's country, the time for delivery shall be extended by a period which is reasonable considering all the circumstances.
6.3 If delivery of Products ready for shipping is not possible or not desired by Customer, the Products can be stored at Customer's cost and risk, and delivery shall then be considered as performed.
7. Intellectual Property Rights
7.1 Any existing ideas, know-how and patents (and applications thereof) owned by Supplier, not resulting from work carried out under the contract, but introduced into the Project by Supplier, shall remain Supplier's exclusive property.
7.2 Any ideas, know-how and inventions made by Supplier's employees as a result of work carried out under the contract shall be Supplier's exclusive property.
7.3 Any drawings and technical documents relating to the Project in any manner submitted by one party to the other, prior or subsequent to the conclusion of the contract, shall remain the exclusive property of the submitting party and shall be treated as confidential information by the receiving party, and may be utilized only for work performed pursuant to the contract.
7.4 Notwithstanding the provisions of 7.1 through 7.3, upon fulfillment of its financial obligations under the contract, Customer acquires:
a) A non-exclusive license to use the ideas, know-how and inventions, whether patented or not, described in 7.1 and 7.2 for all purposes included in the subject matter of the Project, but for no other purposes, and
b) The right to use the results and documentation of the Project, it being understood that Customer is obligated to treat any Project documentation it receives from Supplier as confidential information.
8. Third Party Patents, Trademarks, Copyrights
8.1 Supplier shall use reasonable efforts to determine that Products designed and developed pursuant to the contract will not infringe any intellectual property rights of third parties.
8.2 In the event the normal intended use of a Product leads to a claim alleging infringement of a third party's intellectual property right, Customer shall give Supplier immediate notice in writing of any such suit. Supplier shall provide Customer with reasonable non-financial assistance in the defence of any such claims. If the use of a Product is permanently enjoined by reason of an infringement of a valid third party's intellectual property right, Supplier will use commercially reasonable efforts to:
a) Modify or replace the Product to render it non infringing, or
b) Get a license from the third party who is the owner of the intellectual property right.
Supplier's obligation as set out above is conditional upon being notified of an infringement claim within the periods set forth in 9.6.
8.3 Notwithstanding the foregoing, Supplier shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination- or process patents covering the use of the Products in combination with other goods or materials not furnished by Supplier. The foregoing 8.2 states the entire liability of Supplier for infringement, and in no event shall Supplier be liable for
a) Any direct damages or consequential damages attributable to an infringement,
b) Customer's cost of litigation and/or negotiation, or
c) Compensation of any damages awarded to third parties.
8.4 Supplier shall not be liable, and Customer shall indemnify and hold Supplier harmless against all losses and expenses incurred by Supplier as a result of any claim for infringement of any proprietary right of third parties relating to any:
a) Products furnished by Supplier to Customer, based on drawings, designs or specifications proposed or supplied by Customer, or
b) Products, systems, components, parts, etc. which are specified by Supplier but furnished by third parties, or
c) Products, vehicles, systems, components, parts, etc. which are furnished by Customer to Supplier, or
d) Claims of inducement of infringement or contributory infringement resulting from the implementation, use, development or modification of Supplier's Products by Customer or customers of Customer.
9.1 Supplier warrants that any technical targets set out in its offer will be achieved, provided that:
a) Technical specifications of the Products suggested by Supplier within the limits of state of the art in Supplier's industry are accepted by Customer, and
b) Any systems or components supplied by Customer or its designated component or system supplier meet and perform within their specifications.
9.2 Supplier warrants that it will execute the Project work in a professional and competent manner according to state of the art in Supplier's industry. The Products will be in compliance with Austrian laws, standards, and regulations as well as with those regulations in countries pertinent for Customer's purposes to the extent they have been communicated in writing to and accepted by Supplier. No warranty is made for the compliance with any law, standard, regulation or any condition imposed by a foreign authority not communicated in writing to Supplier and confirmed by Supplier prior to the formation of the contract. All documentation for work rendered pursuant to the contract will be according to the existing general practice for comparable engine design and development projects in the engine and vehicle industry and will be subject to Customer supervision and final validation.
9.3 Customer shall examine Products provided under the contract upon receipt and shall notify Supplier in writing of any defect within 10 (ten) working days. Unless this duty of examination and immediate written notification is adhered to, warranty claims are forfeited.
9.4 Customer shall arrange for the recording of all required operating conditions, characteristic data and results of analyses for the du¬ration of the warranty period to be able to document any warranty claim under 9.1. In case of deficiencies of Products (including incomplete or incorrect documentation) Supplier will either repair such deficiencies (complete or correct documentation) or replace deficient goods (parts) with new ones. Any warranty claims shall be forfeited if a Product is modified or repaired without Supplier's prior written consent.
9.5 THE WARRANTY CONTAINED IN THIS CLAUSE 9 IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SPECIFICALLY EXCLUDED ARE DAMAGES CAUSED BY NON-OBSERVANCE OF INSTRUCTIONS FOR USE AND MAINTENANCE OF PRODUCTS, WARNING, SAFETY AND OTHER REGULATIONS PROVIDED BY SUPPLIER, AND IMPROPER HANDLING OF PRODUCTS. SUPPLIER SHALL NOT BE LIABLE FOR FURTHER (CONSEQUENTIAL) DAMAGES RESULTING FROM DEFICIENT PRODUCTS, UNLESS SUPPLIER IS HELD RESPONSIBLE FOR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE. FURTHER, SUPPLIER DISCLAIMS ANY LIABILITY FOR DAMAGES OR MALFUNCTION THE CAUSE OF WHICH DOES NOT LIE WITHIN THE SCOPE OF WORK TO BE PERFORMED BY SUPPLIER UNDER THE CONTRACT.
9.6 Unless provided otherwise, the duration of the warranty will be 12 (twelve) months after the signing of the acceptance protocol under Clause 10, if applicable, or delivery of the Products as provided in 6.1, which ever is earlier. Any warranty claims not received by Supplier within 7 (seven) working days after the expiration of such period are forfeited. The performance of a warranty obligation does not prolong the original warranty period.
10. Fulfillment of Contract
10.1 The contract is fulfilled on one or both of the following events, depending on the scope of the Project:
a) Supplier's delivery of the reports and documentation containing the results of the Project as well as any hardware that may be agreed upon between Customer and Supplier, subject to the terms of Clause 6.
b) Performance of a formal acceptance test conducted at Supplier's plant.
10.2 Conditions for a formal acceptance test and warranted technical targets to be achieved shall be defined in the contract. Supplier shall notify Customer of the acceptance test in sufficient time to permit Customer to be represented at the test. A protocol stating the results of the acceptance test will be drawn up and signed by authorized representative(s) of Supplier and Customer. If Customer is not represented, the protocol will be sent to Customer and accepted as accurate. If the warranted technical targets are met, a particular phase of the contract or the entire contract, as the case may be, is fulfilled.
11.1 SUPPLIER SHALL BE LIABLE FOR DAMAGES ONLY IF SUPPLIER IS HELD RESPONSIBLE FOR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE. ANY LIABILITY FOR INDIRECT AND/OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROPERTY OR PROFIT, COSTS OF PRODUCT RECALL, IS SPECIFICALLY DISCLAIMED.
11.2 SUPPLIER SHALL NOT BE SUBJECT TO ANY OBLIGATIONS ARISING FROM PRODUCT LIABILITY CLAIMS. CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS THE SUPPLIER AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES AND EXPENSES THAT SUPPLIER MAY INCUR AS A RESULT OF ANY PRODUCT LIABILITY CLAIM OF A THIRD PARTY.
12. Force Majeure
In the event Supplier or one of its component or system suppliers is subject to an event of force majeure or an event beyond the control of Supplier or its component or system suppliers, such as war, acts of terrorism, natural disasters, governmental interventions and bans, energy and raw-material shortages, strikes, civil unrest, transport damages or delay, Supplier shall be entitled to extend the time of delivery set forth in Supplier's offer, provided Supplier notifies Customer within 10 (ten) days in writing of such event.
13. Premature Termination of Contract
13.1 Either party may immediately terminate the contract by giving written notice to the other party if any of the following occurs:
a) A bankruptcy proceeding is instituted against either party's assets, or such proceeding is not instituted because of insufficient assets;
b) Such other party materially breaches the contract and fails to remedy such breach within 60 days after written notice is given.
13.2 In addition to the circumstances set forth in 13.1 Supplier may immediately terminate the contract by giving written notice to Customer, if
a) Delivery or performance becomes impossible for reasons attributable to Customer, or is delayed due to such reasons beyond a reasonable grace period established in writing;
b) Customer's financial situation has worsened notably after signing the order and Customer is unable or unwilling to provide adequate security for payment of its financial obligations under the contract;
c) Payments are not received when due from Customer despite Supplier's fulfillment of its obligations and Customer fails to pay within a reasonable grace period established in writing; or
d) A change of Customer's ownership takes place which has a substantial impact on Supplier's interests;
e) Supplier has reasonable cause to suspect that the delivery of Products by the Supplier or any of its affiliates or any other performance of the contract infringe any sanctions, prohibitions or restrictions under resolutions of the United Nations or laws and regulations of the European Union, the Republic of Austria or any other state which are applicable to the Supplier and/or any of its affiliates;
f) Supplier's Products become subject to the restrictions imposed by the EC-Dual-use-Regulation
No. 428/2009 as amended after the contract has been concluded if the Supplier does not obtain an export license under the EC-Dual-use-Regulation.
13.3 In case of premature termination, all performances or parts thereof, which have already been fulfilled by Supplier, shall be settled and paid according to the contractual provisions. This also applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by Supplier. Any other consequences resulting from a premature termination of contract are excluded.
14. Applicable Law and Jurisdiction
14.1 The contract shall be construed and interpreted according to Austrian law. It is mutually agreed that the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL) does not apply.
14.2 In case of controversies or disputes between Supplier and Customer the competent courts for Supplier's seat in Graz, Austria, shall have jurisdiction. Supplier shall, however, also have the right to bring a claim before another court which has jurisdiction for Customer's seat or domicile.
General Terms and Conditions Instrumentation and Test Systems
1.1 These General Terms and Conditions apply to all deliveries of goods, works or services by AVL List GmbH (the "Supplier"). In case of software deliveries and of installations, specific Supplier Conditions for Software and Conditions for Installation and Commissioning will be applicable.
1.2 Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise, that are different, or vary from or are in addition to these General Terms and Conditions and any such terms or conditions shall be null and void and of no effect whatsoever.
2. Offer and Acceptance
2.1 Offers by the Supplier are made without obligation and any sales contract shall become effective and binding on Supplier only when Supplier delivers to Customer its written Order Confirmation Form and Customer countersigns and delivers to Supplier the return portion of Supplier's Order Confirmation Form, or if Supplier, at its election effectively delivers the goods to Customer.
2.2 Specifications and quotes in catalogues, brochures etc., are only binding if expressly referred to in the Order Confirmation Form.
2.3 Supplier's offer and project documentation must not be reproduced nor disclosed to third parties without the Supplier's written consent. The documentation remains the Supplier's property and must be returned to Supplier upon Supplier's request.
3.1 Prices are quoted ex Supplier's works or warehouse, excluding packaging, dispatch and VAT. All expenses, duties, tariffs, and taxes related to the delivery are paid by Customer.
3.2 If a Customer's order should differ from the offer, the Supplier reserves the right to change prices accordingly.
3.3 Prices are based on the material and labour costs valid at the time of the first offer. Any changes to these costs prior to the date of delivery entitle the Supplier to change prices accordingly.
4. Delivery and Dispatch
4.1 Delivery periods do not start to run before the date of the Order Confirmation Form and are deemed to be fulfilled when the goods are dispatched from the Supplier's factory or warehouse.
4.2 If not explicitly agreed to otherwise by Supplier, any governmental or other permits required for delivery in the Customer's country may delay, unless received in time, delivery dates. Such governmental or other permits must be obtained in the Customer's country by Customer.
4.3 Terms and obligations of delivery may at the election of Supplier be suspended during any period in which Customer's payments are in arrears.
4.4 Supplier, at its election, may ship all or part of its goods and immediately invoice Customer for such partial or preliminary shipments.
4.5 The agreed delivery periods are subject to events of force majeure, or unforeseen events or events beyond the control of the Supplier, such as war, terrorism, Acts of God, governmental interventions and bans, energy and raw material shortages or outages, strikes, transport damages or delays. These events entitle the Supplier to extend the time of delivery, also if they affect any of its sub-suppliers.
4.6 In case delivery of the goods ready for dispatch is not possible or not desired by Customer, the goods will be stored at the Customer's cost and risk. The delivery shall then be considered as performed and Supplier may, at its election, invoice for such delivery.
4.7 Compensation for commercially unreasonable delays in delivery by Supplier shall be payable only upon separate agreement, and shall be limited to an eventual monetary penalty in an amount to be agreed to by the parties, even if delays are caused by the Supplier's negligence.
5. Performance of Contract and Transfer of Risk
5.1 Costs and all risks of loss are transferred to the Customer at the time of dispatch of the goods from the Supplier's factory or warehouse, in default of the agreed delivery terms. This also applies in case of installations at the Customer's premises and transport by the Supplier.
5.2 If delivery is delayed by Customer, transfer of costs and risk of loss shall become effective when the goods are ready for dispatch.
5.3 All periods depending on the Supplier's performance of contract begin on and run from the dates specified in this section, irrespective of any quality tests or trial runs.
6.1 Unless otherwise agreed in writing, one third of the contract price shall be paid by Customer upon receipt of the Order Confirmation, one third after half of the delivery period and the remaining third at the time of delivery. All invoices of the Supplier shall be due and payable within 30 days from the date of invoice.
6.2 Partial invoices are due immediately upon receipt. This also applies to payments which have to be made for additional performances, beyond the initial terms of contract, regardless of the conditions of payment applicable to the main performance.
6.3 Payment shall be made without any deduction in the agreed currency to the Supplier's bank. Cheques or bills of exchange shall be accepted on account only, and all connected expenses shall be charged to the Customer's account.
6.4 Customer shall not be entitled to any right of set off or to withhold or reduce any payments due because of warranty or compensation claims.
6.5 In case of delayed payment the Supplier is entitled at its election to do any of the following:
a) postpone performance of its own obligations until receipt of the payments due
b) accelerate and fix a due date for all outstanding payments (cancellation of periods for payment by Customer)
c) charge to Customer from such due date or maturity interest at the current discount rate (main refinancing operations) of the European Central Bank plus 8 percent per year or
d) rescind and cancel the contract if the Customer fails to pay within a reasonable period of grace.
6.6 Until Customer has fulfilled all financial obligations, the goods supplied shall remain the Supplier's property. Customer shall be obliged to meet all legal requirements in order to safeguard Supplier's property or security interest. In case of attachment or other kinds of seizure Customer shall evidence Supplier's title and notify the latter immediately. By signing and returning to Supplier the Customer Order Form or by accepting delivery of goods Customer hereby agrees that it has granted Supplier a secured interest in the goods until such time as Supplier is paid in full.
7.1 Unless otherwise agreed to in writing the warranty period shall be six months from the date of transfer of risk as stated in 5.1, regardless of the legal qualification of goods delivered or works performed.
7.2 Claims will be accepted only if Supplier is immediately notified of the defect in writing. Supplier's obligations for such claims are restricted to the repair or replacement of the defective goods. All other costs are to be borne by Customer.
7.3 Defects which are due to abuse, misapplication, failure to follow the instructions for use, warnings, safety or other regulations provided by Supplier, improper or prolonged storage or other mistakes on the part of the Customer, are excluded from the warranty. In case of products which have been produced at the order of or according to the Customer's instructions or formulae, warranty will only cover the proper production of the goods. Normal wear will not be covered under warranty.
7.4 Supplier's warranty obligations cease if any changes or repairs are caused by Customer or a third person without Supplier's prior written consent. The performance of a warranty obligation does not prolong the original warranty period.
8.1 The Supplier's liability and obligations according to the Product Liability Act or any other products liability acts or laws in any jurisdiction is excluded if specific provisions regarding the handling of the products, instructions for their use and/or warning and safety regulations as specified by the Supplier have not been observed.
8.2 Outside the scope of the Product Liability Act or other products liability acts or laws in any jurisdiction, damages shall be compensated only if the Supplier is held responsible for willful intent or gross negligence. In this case, however, Supplier's obligations for such claims are limited to personal injury and material damage resulting directly from a defect in the products. All other claims, such as consequential loss of property or profit are explicitly excluded. Claims must be made in writing to Supplier within a period of six months from the date of occurrence of the damage, but not later than two years from the date of delivery, otherwise they are forfeited.
8.3 Customer is liable to subject its customers to the limitations of etc. liability contained in this paragraph.
9. Rescission of Contract
9.1 Customer at its election may rescind the contract if delivery is delayed more than 60 days because of gross negligence of the Supplier and despite a reasonable period of grace granted in writing.
9.2 Apart from the case of delayed payment according to Para 6.5 d) the Supplier can rescind the contract if
a) delivery or performance becomes impossible for reasons attributable to the Customer, or is delayed beyond a reasonable period of grace established in writing;
b) the Customer's financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide sufficient security
c) the Supplier has reasonable cause to suspect that the delivery of goods, works or services by the Supplier or any of its affiliates or any other performance of the contract infringe any sanctions, prohibitions or restrictions under resolutions of the United Nations or laws and regulations of the European Union, the Republic of Austria or any other state which are applicable to the Supplier and/or any of its affiliates;
d) Supplier's goods, works and/or services become subject to the restrictions imposed by the EC-Dual-use-Regulation No. 428/2009 as amended after the contract has been concluded if the Supplier does not obtain an export license under the EC- Dual-use-Regulation.
Such rescission of contract shall also be permissible if only parts of the delivery or performance, which are still to be fulfilled, are affected.
9.3 In case that, due to events indicated in Para 4.5, the agreed delivery times are delayed by more than one half of the period, but at least six months, either party shall be entitled to rescind the contract with respect to those parts of the delivery or performance which have still to be fulfilled.
9.4 If bankruptcy proceedings are instituted against either party's assets, or these proceedings are not instituted because of insufficient assets, the other party may rescind the contract with immediate effect.
9.5 In case of rescission of contract for other reasons than the one stated in 9.1 all performances or parts thereof which have already been fulfilled by Supplier, shall be settled and paid according to the contractual provisions, notwithstanding and in addition to Supplier's claims for damages. This also applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by the Supplier. Alternatively, Supplier is entitled to claim the restitution of products already delivered. Any other consequences resulting from a rescission of contract are excluded.
10. Patent Rights, Copyright
10.1 If a product is produced according to the Customer's construction, drawings or specifications, Customer agrees to indemnify and hold the Supplier harmless for any infringement of patent rights of third parties.
10.2 All technical documents, in particular plans, drawings, technical descriptions, as well as catalogues, brochures, pictures or models etc. are the Supplier's exclusive property and are subject to legal and statutory restrictions on copy, reproduction, competitive use etc.
Para 2.3 also applies to such documents.
11. Place of Jurisdiction, Applicable Law
11.1 In case of controversies arising from the contract the venue of legal proceedings shall be the Austrian tribunal at the Supplier's registered place of business. The Supplier shall, however, also be entitled to take action before a competent tribunal at the Customer's place of business.
11.2 The parties may also agree to have controversies settled by arbitration.
11.3 The contract shall be construed and interpreted according to Austrian law. It is mutually agreed that the UNCITRAL Agreement of the United Nations on the law of international sales of goods does not apply.
12.1 Supplier in its sole discretion may assign or delegate any of its duties or rights under the order or contract at any time without prior notice to or consent of Customer. The order or contract may not be assigned by Customer without Supplier's prior written consent, and in any event shall be binding on Customer's successors and assigns.
12.2 No covenant, term or condition of this order or contract can be waived by Supplier except by its written consent. This order or contract may be amended or modified only by a written instrument signed by Supplier and Customer.