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Terms and Condition

GENERAL SALES AND DELIVERY TERMS
XeNTiS Composite Entwicklungs- und Produktions GmbH

I. Realm of application
These general sales and delivery terms of XeNTiS are an integrated part of every
business relationship, particularly of every offer and every contract. They apply insofar as
the parties to the contract have not specifically agreed otherwise in writing, including to
all further orders, even if reference is not made to such orders. Purchasing terms
respective to other general terms of customers that read differently do not oblige us,
even if the customer has informed us of them and we have not refuted them. All orders
that we receive are accepted only conditionally with respect to the recognition of these
sales and delivery terms. Special agreements with our representatives that differ
considerably from normal business practice or the General Terms also require the written
authorisation of the management.
II. Offer, order confirmation and trademark rights
All specifications in our offers are non-binding. In particular price changes stipulated by
pre-suppliers, changes in law, administrative regulations and new collective contractual
wages as well as basically all circumstances imposed upon us from outside and that take
effect between the time when an offer is made and the time when work is performed
shall be passed on. This stipulation applies correspondingly for exchange rate
fluctuations, changes in material costs or on the basis of changes in the world market
price for raw materials that have an effect upon the materials that we use. Also nonbinding
are data specified in catalogues, brochures, advertisements, circulars, price lists
and our cost proposals. All orders only become legally valid by way of our written order
confirmation or our unconditional and unlimited delivery. Similarly, changes made
pursuant to the establishment of a contract or cancellations of parts of already confirmed
orders also require our explicit written authorisation. The client continues to be bound to
an order until it is rejected or executed by us.
If an offer comprises contract objects that must be executed according to drawings,
models, or samples provided by the client, the client must see to it that no rights of third
parties are infringed upon as a result of the use of these drawings, models or samples.
The client is obliged to indemnify us against all claims or demands for damages that may
be imposed upon us as a result of such an infringement. We are not obliged to verify
accuracy, legality and completeness of documents transferred by the client to us. Our
own drawings, samples, models, plans, sketches and other technical documents as
(delete "as") remain our intellectual property even after the purchase has been
concluded, as well as being covered by all legal stipulations with respect to adaptation
reproduction, copying, competition and amongst others. These items may not be made
available to third parties under penalty of the payment of full damages. They must be
returned upon our request.
Our brands respectively our product- and company-attributes are protected by patent
rights and copyrights, so that every unauthorised usage respectively any type of
imitation, illegal usage and/or reproduction is an infringement upon the protection of
commercial law, patent and copyright, which will cause claim for damages and
respectively criminal prosecution.
If in the course of execution of an order it should prove that for technical or economic
reasons the order must be changed (enlarged upon), the contractor is authorised to
execute the order in that scope that he may assume according to his professional
judgement is in the interest of the client. The written authorisation of the client is
required for an order scope that goes beyond this. If the client does not agree with such
a change in the order, the contractor is authorised to issue an invoice for the work
carried out up to that point and to refuse any further execution of the order.
III. Prices
The prices listed in the price lists and brochures are non-binding and, if nothing is
specifically agreed to the contrary, net prices ex factory without packaging, assembly and
transport costs. With respect to general price changes that occur after an order has been
established, the above specifications under point II apply correspondingly. If - after an
order has been established - the client specifically requests that the order has to be
executed urgently, so that we are forced to have our employees work also during the
weekend or during the evening, the client must pay the extra costs incurred for the
necessary overtime and therefore the prices in the order shall be increased
correspondingly.
IV. Payment terms
Insofar as nothing is agreed to otherwise, a payment deadline of 14 days from the date
of invoice applies. Invoices are considered to have been approved if they are not
disputed In writing within 8 days of the date of invoice. Any complaints of defects have
no effect upon the payment deadlines. Incoming payments are first applied to interest
and secondary costs, even if this should not match the payment requests of the client.
We are authorised to demand immediate cash payment and guarantees for open invoices
at anytime, if the credit worthiness of the client declines or is no longer evident, in the
absence of which payment we shall withdraw from the contract and may demand that
goods already delivered but unpaid be returned to us.
In case of even only partial payment delays and in case of delays with regard to receiving
goods, interest on late payments in the amount of 7.5% per year over the current
interest base of the European Central Bank shall be charged. In addition to this we are
authorised to immediately demand all open payments and to withhold deliveries still
open as per § 1052 ABGB until the amount of the invoice is received. This also applies to
one-time deliveries insofar as we were informed the uncertain financial situation of the
client after the contract is established. Should the client default, the risk of possible
decline or worsening in the quality of goods transfers to the client upon their default.
Payments that will decrease the balance owed may only be paid into one of the accounts
mentioned on the invoices or to a representative whom we have especially authorised in
writing to receive them.
Only cash payments and unconditional credits into our accounts are considered to
represent effective payment. We reserve the right to accept drafts, but in any case only
with respect to payments. Discount fees, exchange tax and interest on late payments
must be paid immediately in cash. We are not responsible for timely notification,
protests, notification or tracing back a draft if it is not cashed. Set-offs because of alleged
counterclaims or because of warranty claims or others which are not recognized by us
and/or the retention of payments are excluded. Payment obligations, in particular
established monetary values, are considered to have been agreed upon in Euros.
V. Delivery
The delivery date is the day of shipment. The delivery date basically commences on the
day on which we confirm an order, insofar as the order is clear and the client fulfils the
agreed upon financial obligations. We are authorised to make partial deliveries. Delays
that are not attributable to us, in particular in situations of force majeure or difficulties
with our subsuppliers, extend the delivery date by the duration of the events plus a
suitable start-up time, without the client having any right to withdraw from the contract.
Specifically considered as force majeure are, in particular, interventions by the
authorities, power supply and raw materials difficulties, labour conflicts, accidents,
unforeseeable production difficulties and all other events that make delivery considerably
more difficult or impossible, insofar as no gross negligence is attributable to us with
regard to these events. The delivery date is also extended if the client defaults with
respect to the fulfilment of the above-mentioned obligations, for example the
presentation of documents or other types of cooperation. In case of the agreed upon
changes in the order we are authorised to re-calculate the delivery date.
In any case claims for damages due to late delivery or non-delivery are ruled out if we
cannot be accused of intent or gross negligence. The client is obliged to accept goods
delivered late and declares that he is also prepared to accept partial or advance
deliveries. Significant changes in the person of the client that occur and become known
after the contract is established, in particular with respect to the company circumstances
and the financial situation, justify our immediate withdrawal from the contract.
The client must immediately take receipt of goods that are delivered and must store
them in dry rooms that can be locked. Should the client refuse to accept delivery he is
subject to the consequences of § 1419 ABGB. The agreed upon ordered goods shall be
stored at the expense of the client and we are authorised to invoice them for the goods
as though they had been delivered, with the addition of all additional costs. In addition
the client must pick up the agreed upon ordered goods. This does not affect our rights to
claim damages. The client may not withdraw with regard to already delivered partial
deliveries upon the delivery of partial deliveries still open. The client must always pay
any extra costs incurred due to a delay caused by the client.
VI. Shipment
The time at which the risks transfer with respect to shipment is the time at which goods
are given to the relevant forwarding company. In the absence of special shipment
regulations of the client, we are obliged to effect the shipment in the manner that we
consider to be the best, without being responsible for using the most economical
forwarding method or forwarder. We are not liable with regard to damage and loss during
transport; this must be immediately recorded on the freight documents. The client
himself is responsible for obtaining and paying for the necessary insurance coverage. The
transfer of the goods to the relevant transport company represents the fulfilment of
delivery, at which time the agreed upon goods have transferred into the possession of
the client in the context of production liability as per § 6 and thus placed into circulation.
VII. Complaints and guarantee
The guarantee period for each article commencing at the shipment of the goods applies
in terms of properties that we specifically guarantee in writing, and with regard to the
absence of faults in accordance with the current state of technology. The client must
provide the following data for the handling of any complaints within the guarantee
period: article number, description, units, reason for complaint, date on which the article
was installed, repair date and complaint date.
Should the goods be used excessively or inappropriately, the guarantee deadline shall
decrease to one-half in each instance. Finishing and installation costs, travel time and
travel expenses are the responsibility of the client. No rights to non-payment or
discounts exist unless we are unable to correct a fault or replace defective goods. The
guarantee becomes null and void if the delivery object is changed by being installed
incorrectly or changed by the installation of parts of foreign origin, if installation and
handling instructions are not followed, or if the results are not used according to their
purpose. In addition natural wear and tear and damage due to unprofessional handling
are excluded from the guarantee. When parts are replaced, the guarantee is only granted
with respect to replacement parts. Once payments become due, guarantee claims can
only be made after those payments have been made. If, after a fault has been corrected,
it should prove that no right to a claim had existed, the client must pay for the work that
we have performed.
VIII. Notice of defects and guarantee
After the goods are delivered the client must immediately inspect them. We specifically
extend a guarantee with respect to defects already present at the time of delivery that
are based on material and processing errors. We must be informed of such defects in
writing immediately after individual deliveries are made, since otherwise the delivery
shall be considered to have been unconditionally accepted and the client to have
relinquished all claims in the context of the guarantee and with respect to damages. The
nature and scope of the defect is to be delineated such that we can clearly determine the
reason for the claim. The client is obliged to temporarily store the goods in question and
to forward the goods in question on first call to us at his own expense, to double-check
them.
Our guarantee specifically does not apply to defects that are based on unprofessional
use, excessive use, or that are based on abrasion (the guarantee applies only to rusting
through, nor to surface rust). Basically all guarantee rights and rights to damages in
connection with the relevant parts become null and void in case of unprofessional
assembly or changes in the goods or their components. If defects occur, the client is
obliged to immediately allow an improvement in the form of free replacement or
improvement of the goods in question and must set a suitable deadline for this in writing.
Only if we do not make the improvement within the established deadline can the client
demand a proportionate price decrease. In any case a claim of defects cannot be made if
special versions of any nature whatsoever requested in the order by the client do not
meet his expectations upon delivery. Minimal deviations in drawings, models and
samples that do not lead to any change in the goods themselves do not represent
defects. Further demands by the client for replacements of any type whatsoever are
ruled out unless the contractor or his personnel can be accused of intent or gross
negligence.
Defects in individual pieces only authorise a rejection of an entire shipment if the nature
of a defect makes the entire shipment useless. Return shipments require our prior
authorisation in all cases. The guarantee period equals 24 months, calculated from the
date of delivery, and applies to all parts which can be proven to be unusable before the
transfer of risks, particularly due to incorrect design, poor materials or defective
construction, or if their usefulness is considerably compromised. Replaced parts become
our property when replacement shipments are sent or credit invoices issued and have to
be returned to us upon request The regulation on presumption of § 924 ABGB is ruled
out. The client must give evidence of the presence of a defect at the time of transfer.
IX. Reservation of ownership
All delivered goods remain our property until the complete payment of the purchase price
and the secondary cost caused by any delay in payment, even if they have already been
processed by the client or professionals hired by him. The client is forbidden to mortgage
the goods, or give them as security, that are under reservation of ownership without our
specific written permission, and such action is therefore invalid. Should said goods be
illegally alienated, the purchase price claim that takes the place of the reservation of
ownership against the third party shall be considered to have been relinquished to us and
the purchase price paid to the client shall be viewed as having been entrusted to him or
he must inform the debtors of said relinquishment. The client must suitably insure the
goods that are under reservation of ownership against theft and fire at his own expense
and indemnify us against their loss and respective damage. We hold the rights contained
in this insurance contract and/or those insurance policies should be written in our favour.
The client must immediately inform us of any mortgaging, insolvency proceedings, or
other legal events that could influence our rights, and he must indemnify us in terms of
demands for payment of damages or claims. Should a bailiff wish to mortgage the
delivered goods, that bailiff must be informed of our ownership rights with a specification
of our company name and our address. In addition the client is obliged to maintain the
delivered goods in proper conditions for the duration of the reservation of ownership. In
case of bankruptcy we hold the right to immediately collect the goods under title
retention. The client withdraws from any objections in particular from intrusion
entitlements.
X. Withdrawal
A withdrawal from an already established purchase contract by the client is only
permissible due to impartial significant grounds and authorises us to make a financial
adjustment by way of a re-endorsement of at least 25% of the order volume, as well as
to remunerate further loss.
XI. Damages and product guarantee
It is specifically agreed that we do not need to pay the client any damages for injuries to
persons, damage to goods that are not an object of the contract and for other damages,
insofar as gross negligence or intent cannot be attributed to us in individual cases. The
liability for lost profit is generally excluded. All claims for damages must be legally
claimed – if we do not specifically acknowledge the defect in writing – within one year
after the termination of the contractually established guarantee deadline; otherwise
rights to claims become null and void on its merits.
XII. General stipulations
The client can only transfer rights from the contract at hand to third parties with our
specific authorisation in writing. Place of fulfilment for delivery and payment is solely
Bärnbach, even if it is agreed that these activities should take place elsewhere. With
respect to all disputes that may directly or indirectly arise from this contractual
relationship, depending upon actual authority, the District Court Voitsberg or the
Regional Court for ZRS Graz are specifically agreed upon. Insofar as this is not agreed
otherwise by written agreements, for all contracts and disputes solely Austrian law
applies, with UN purchase law respectively other international rules of conflict of laws will
be ruled out.
To be legal, changes in this contract must specifically be in writing, including a change
effecting a change in this form requirement. Oral agreements are invalid. Should
individual stipulations in these sales and delivery terms be or become invalid, this does
not effect the validity of the other stipulations, and the contract otherwise remains legally
valid. Any non-functional stipulations should be replaced by stipulations of a type that
comes as close as possible to the legal intentions of the parties to the contract or be
reduced to the legal permitted degree (reduction with conservation of repute).
(Issue October 2011)