General Terms and Conditions of Sale and Delivery

1. Obligations of the general terms and conditions of sale and delivery

1.1 Deliveries shall only be made on the basis of the following general terms and conditions of sale and delivery, which shall be deemed to have been accepted when the order is placed and which shall be binding for both the supplier and the customer. Deviations from these terms and conditions shall only be effective if we have expressly confirmed and acknowledged them in writing. This shall also apply to provisions to the contrary in the General Terms and Conditions of Business (Conditions of Purchase) published by the customer.

1.2 The following agreements shall also apply to all future deliveries and orders without special notice unless otherwise agreed in writing.

2. Offer/order placement

2.1 Prices are quoted ex works, exclusive of packaging, transport insurance and other ancillary costs and taxes.

2.2 All information such as illustrations, drawings, pauses, measurements and weights in catalogues, offers, advertising material, brochures etc. are only approximate; we reserve the right to make changes.

2.3 Orders (verbal, telephone, written) are binding for the customer. The order shall be accepted by our order confirmation or execution. Until the express rejection of the order, the customer remains bound to it.

2.4 Conclusions and other agreements, in particular verbal subsidiary agreements, promises, assurances and guarantees of our employees shall only become binding for us through our written confirmation.

2.5 Force majeure shall release us from the contract. Even in the case of measures taken by one or more governments or by any institution/association etc. which affect business life, we reserve the right to define these as force majeure or not.

2.6 Changes in construction and/or form and colour of the ordered goods do not entitle the customer to withdraw from the contract – insofar as this does not fundamentally impair their use or application or does not affect the technical information contained in our documents (taking into account point 2.2).

2.7 The customer shall not acquire ownership of plans, sketches, software and other technical documents provided. These may not be passed on and/or duplicated, except for the internal use of the customer.

3. Delivery and transfer of risk

3.1 Delivery dates shall be adhered to as far as possible. The agreed delivery date is not a fixed date. Delay in delivery shall only be deemed to have occurred if a reasonable period of grace, to be set in writing by the customer, corresponding to our procurement and production possibilities has elapsed without success.

3.2 The delivery period begins with the date of the order confirmation, but not before receipt of the down payment and final clarification of all technical details.

3.3 Force majeure, such as labour disputes, in particular strikes and lockouts, shall extend the delivery period.

3.4 Subsequent changes made at the customer’s request release us from the originally agreed delivery period. The delivery period shall also be extended – without prejudice to our rights arising from the Customer’s default – by the period of time by which the Customer is in default with its obligations (e.g. down payments) arising from this or other discharges to us. This applies accordingly to delivery dates.

3.5 The delivery period shall be deemed to have been met if the delivery item has left the factory/warehouse by the end of the delivery period or if the delivery item has not been delivered by the end of the delivery period.

readiness for dispatch has been notified.

3.6 Any claims for damages on the part of the customer in the event of non-compliance with the delivery date are excluded.

3.7 Unless otherwise agreed in writing, shipment shall be at the expense and risk of the customer, even if partial deliveries are made or if we have undertaken other services such as shipment, export, installation or commissioning.

3.8 If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are ready for dispatch, but we shall be obliged, at the customer’s request and expense, to effect the insurance requested by the customer.

3.9 If dispatch is delayed at the request of the customer, the customer shall be charged, starting one week after notification that the goods are ready for dispatch, for the costs incurred by storage, in the case of storage in our works/warehouse at least 0.5% of the invoice amount for each month.

4. Complaints and notices of defects

4.1 Complaints and notices of defects must be made in writing immediately and demonstrably, otherwise any warranty is excluded.

4.2 If we are notified in good time, we shall be obliged to make subsequent deliveries or provide a warranty in accordance with Section 5.

4.3 If the customer does not immediately give us the opportunity to convince ourselves of a notified defect, in particular if he does not immediately make the rejected goods or samples thereof available to us upon request, all warranty claims in this respect shall lapse.

5. Warranty

5.1 Unless expressly agreed otherwise, the warranty period for goods supplied by us shall be 12 months from delivery. The legal presumption of § 924 ABGB does not apply. The customer must prove that the delivered goods were already defective at the time of delivery.

5.2 All claims arising from the warranty shall be asserted in court within this period, otherwise excluded.

5.3 Place of performance for the warranty is Graz, Austria. The warranty claim shall only arise if the defect that has occurred is immediately notified in writing and described in detail. If a service is produced on the basis of design data, drawings, models and other specifications of the customer, liability shall only extend to execution in accordance with the conditions.

5.4 We may, at our discretion, remedy the defects reported with justification,

(a) be repaired on the spot,

b) have the defective goods or defective parts returned for the purpose of rectification,

c) replace the defective goods,

(d) replace the defective parts.

e) via an Internet connection with a static IP address via a VPN tunnel from another location, for which the prerequisites are to be created by the customer.

If we carry out repairs on site, the customer shall bear the travel and overnight costs.

5.5 There shall be no right to rescission or reduction unless we are unable to remedy the defect or deliver a replacement within a reasonable period of time.

5.6 The warranty shall expire if the delivery item is modified by third parties or by the installation of parts of third party origin, if installation and treatment instructions are not followed, or if the product is not used in accordance with its intended purpose. Natural wear and tear and damage due to improper handling, faulty assembly or commissioning, unsuitable operating materials, unsuitable subsoil, chemical, electrochemical or electrical influences are also excluded from the warranty.

5.7 The warranty also expires through coupling with other IT components not included in the scope of delivery.

5.8 Liability for failure and/or consequential damage is excluded.

5.9 The repair or improvement does not interrupt the warranty period but only extends it to replaced parts.

5.10. The downtime begins with the first notification of the problem to MAM, whereby an exact description of the problem – what happened where and how – is to be sent to the e-mail address and the time of the establishment of the VPN connection if this was disconnected.

5.11. After maturity of the payment obligation warranty claims can only be asserted after payment has been made.

5.12. If a warranty claim is not made as a result of the rectification of the defect, our services shall be subject to payment.

5.13. No warranty is assumed for used machines or used parts.

5.14. If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, we shall, at our expense, procure the right for the customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer in such a way that the infringement no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. We shall also be entitled to withdraw from the contract under the aforementioned conditions. In addition, we shall indemnify the customer against undisputed or legally established claims of the respective owners of the industrial property rights.

5.15. Subject to the provisions of Clause 6, our obligations set forth in Clause 5.12 are final in the event of an infringement of copyright. They only exist if

– the customer notifies us immediately of any claimed infringements of industrial property rights or copyrights,

– the customer supports us to a reasonable extent in defending the asserted claims or enables us to carry out the modification measures in accordance with clause 5.12.,

– we reserve the right to take all defensive measures, including out-of-court settlements,

– the defect of title is not based on an instruction from the customer and the violation of rights was not caused by the fact that the customer changed the delivery item on his own authority or used it in a manner that was not in accordance with the contract.

6. Liability

6.1. Claims for compensation of any kind, in particular for damages due to delay and consequential damages due to culpa in contrahendo, are excluded, except in the case of our gross negligence or our intent as the cause of the damage, unless mandatory statutory provisions conflict with this.

6.2. In particular, any compensation for damage not caused to the delivery item itself or for consequential damage due to machine downtime or downtime of the delivery item is excluded.

6.3. Unless claims for damages are excluded anyway, they shall in any case only include the costs of pure damage repair, but not consequential damages and loss of profit. They shall become statute-barred – unless the statute of limitations has already expired earlier – at the latest two years after delivery has been made, unless mandatory statutory provisions conflict with this.

7. Retention of title and payment

7.1. We retain title to the delivered goods until the purchase price due thereon has been paid in full. In the case of a uniform order – also in the case of partial deliveries and partial invoices – the reservation of title to all goods shall only expire when all our claims arising from the uniform order have been settled. The reservation of title can be asserted – with or without withdrawal from the contract – over the entire delivery or over individual goods.

7.2. If the goods subject to retention of title are resold, Customer hereby assigns to MAM its claims against the purchaser in the amount of the respective liabilities still owed to MAM; MAM accepts this assignment. At the request of MAM, Customer shall be obligated to inform MAM of the assigned claims and their debtors, to provide all information required for collection, to hand over the associated documents, and to inform the purchasers of the assignment. In the event of cash proceeds, MAM shall receive ownership of the sales proceeds instead of ownership of the reserved goods. Customer undertakes to keep any sales proceeds received separately and to hand them over to MAM when the claim becomes due. If the goods are processed with other items not belonging to MAM, MAM shall acquire co-ownership of the new item in the ratio of the value of the goods to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods subject to retention of title.

7.3. The application for the opening of insolvency proceedings or the opening of insolvency proceedings against the assets of the customer shall entitle us to withdraw from the contract and to demand the immediate return of the delivery item.

7.4. In the event that the Customer acts in breach of contract, in particular in the event of default of payment, MAM shall be entitled to take back the goods. Taking back the goods shall not constitute a withdrawal from the contract. MAM shall be entitled to liquidate the goods, the proceeds of which shall be credited against Customer’s liabilities, less liquidation costs. In addition, if Customer is in default of payment or other performance, MAM shall be entitled to postpone the fulfillment of its obligations until the outstanding payment or other performance has been effected, to claim a reasonable extension of the delivery period, to declare the entire outstanding balance due, or to withdraw from the contract if a reasonable grace period is not met, whereby MAM may claim the same rights as in the case of cancellation on the part of Customer.

7.5. Unless otherwise agreed in writing, our invoices are due net without discount immediately after invoicing. Invoicing takes place by post or by e-mail to the known address of the customer or his contact person. The transmission is valid as soon as the delivery is completed.

7.6. Default interest of 1.1% per month from the due date and reimbursement of all intervention costs (including out-of-court costs, if any) shall be deemed to have been agreed, even in the event of a delay in payment for which the Supplier is not responsible. The right to claim further damage caused by default is reserved.

7.7. The withholding of payments due to warranty claims or other counterclaims of the Customer not recognized by MAM shall be excluded.

8. Cancellation

8.1. In the event of cancellation on the part of the client, a lump-sum compensation for the expenses incurred by us or damage in the amount of any advance payment made, but at least in the amount of 25% of the order value affected by the cancellation, shall be deemed to have been agreed.

9. Place of performance and jurisdiction

9.1. The place of performance and jurisdiction is Graz. All legal disputes arising from the contracts concluded with us shall be governed by Austrian law to the exclusion of the provisions of the IPR. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.

10. Other

10.1. Should any provision of these terms and conditions or of any other agreement reached be invalid due to statutory provisions, this shall not affect the validity of the remainder of the contract and, instead of the invalid provision, a provision shall be deemed to have been agreed which comes as close as possible to it in terms of economic success.