Kategorie

TERMS &
CONDITIONS

November 2015

STANDARD TERMS OF DELIVERY AND PAYMENT

I. SCOPE OF APPLICATION

  1. The following General Terms and Conditions shall apply to all business relationships between ARIAN Gesell-schaft m.b.H., Wünschendorf 160, 8200 Gleisdorf, Austria (hereafter: ARIAN) and their Customers. In each case, the valid version at the time of the conclusion of the contract is binding.
  2. The term “Customer” includes consumers in the sense of the consumer protection law (Konsumentenschutzgesetz – KSchG) as well as business owners. If necessary, consumers and business owners shall be referred to separately below; otherwise the provisions apply to all Customers.
  3. Our offers, deliveries, services, contracts and all other agreements are made exclusively within the provisions of these General Terms and Conditions. The validity of our General Terms and Conditions constitutes an essential and fundamental prerequisite for the conclusion of a legal transaction with us. Our General Terms and Conditions shall be valid even if we do not expressly refer to them in the context of an ongoing business relationship in subsequent contracts.
  4. The validity of General Terms and Conditions of the Customer is expressly excluded. Conflicting or deviating conditions of the Customer will in no way become part of the contract.
  5. Transactions with consumers shall be subject to the provisions of the Consumer Protection Act (KSchG), insofar as mandatory provisions thereof deviate from our General Terms and Conditions.

II. CONCLUSION OF CONTRACT

  1. Our offers and quotations are subject to change and without obligation.
  2. A contract shall be considered concluded only with our confirmation in writing. We reserve the right to refuse the acceptance of an order, for example, after checking the creditworthiness of the Customer. The acknowledgment of receipt of an order does not represent a binding acceptance of the order.
  3. We may legitimately assume that our Customer representatives have the necessary power of attorney and the power of representation to be able to conclude the respective transactions, and to make and to receive legal declarations of all kinds.
  4. Employees of ARIAN who do not hold a procuration registered in the Austrian Commercial Register are not entitled to agree to terms deviating from these General Terms and Conditions. Such agreements shall not be binding, unless the Customer has received written authorization signed by a managing director of ARIAN.

III. CHANGE REQUESTS

  1. Subsequent changes and/or additions to a confirmed order shall only be valid if ARIAN has confirmed them in writing.
  2. In case of complaint, the Customer shall notify ARIAN immediately in writing of any deviations of our order confirmation from a quotation or an order, and no later than within two days, otherwise the content of our or-der confirmation applies.
  3. Subsequent changes at the instigation of the Customer (for example also in the context of the so-called author correction), including the resulting machine downtime, shall be charged to the Customer at the appropriate rate.
  4. Costs for designs, proofs, patterns, final artwork and all other special requests are not included in the standard product prices and shall be charged to the Customer separately.
  5. If the order is not executed, all samples, designs, drafts, plans, drawings and other objects produced in the preparation of the order and sent to the Customer shall be returned to ARIAN in their entirety and unchanged without undue delay, and at the latest within 14 days. Any use, transmission or imitation of these objects, as well as their reproduction or copying is not permitted. The Customer shall have no rights of use for these objects; all industrial and intellectual property rights re-main with ARIAN. The Customer is liable to ARIAN for any damage resulting from the prohibited use of these objects including negligence, and is liable for the loss of profits.
  6. The Customer shall bear the risk and costs of data transmissions initiated by them (eg via the Internet). ARIAN assume no liability for transmission errors.

IV. PRICES

  1. The prices stated in our offers and order confirmations are subject to the condition that the underlying order data remains unchanged. Stated prices are net, plus the legally valid value added tax (VAT).
  2. Our prices are ex works (EXW Incoterms 2010). They do not include freight, postage, insurance and other ship-ping costs.
  3. Unless otherwise specified in the offer, the prices for all order-related materials such as printing materials (pa-per, cardboard, wood, plastics, metal, etc.), printing equipment (films, repro, plates, cutting dies, etc.) and bookbinding materials, as well as all special sales costs (special packaging, etc.) are set daily, and may be adjusted to the respective price level at the time of production.
  4. Our prices include only simple packaging (wrapping) of products. Special packaging requested by the Customer (cardboard, carton, pallet, box, etc.), shall be charged separately to the Customer.
  5. All deliveries and services shall be invoiced to the Customer on the day on which they are – even partially – delivered, stored or made ready for collection by the Customer.
  6. In the case of subsequent changes in the calculation basis or the order specification, the final price invoiced to the Customer may deviate from the price stated on the offer / order / order confirmation.

V. TERMS OF PAYMENT

  1. The invoiced amount (in accordance with the invoice and including VAT) is due for payment in full within 30 calendar days from the invoice date without any right to discount. Decisive for the timeliness is the crediting of the payment in our favor to our bank account.
  2. If the due date depends on the completion of works or an acceptance date, and such date is delayed where the fault does not lie with ARIAN, then the invoice shall be-come due for payment on the originally planned date, regardless of the actual completion or acceptance, and at the latest 6 weeks after the notification of readiness for delivery.
  3. Any pre-agreed discount shall only be applied to contractual products or services, but not to additional costs such as freight, postage, insurance, other ship-ping costs or the ARA license fee.
  4. Bills of exchange and cheques shall only be accepted by special agreement and on account, provided that the bank has confirmed the acceptance. The Customer shall bear any refinancing costs and expenses and shall pay such costs and expenses without undue delay. For the timely presentation, protest, notification and re-turn of the bill of exchange in the event of non-payment, we accept liability only in the case of intent or gross negligence on our part or on the part of our agents working remotely.
  5. The Customer agrees without exception that all payments made by him shall be allocated firstly to incidental charges and costs (such as collection fees), then to interest, and to the price of the sold goods and services last.
  6. If the Customer refuses to accept delivery of or to collect the goods, despite notification of readiness for de-livery, we reserve the right to issue the invoice immediately and the Customer shall be obliged to pay the in-voiced amount within the agreed payment period.
  7. Regardless of the agreed terms of payment, we reserve the right to deliver only against advance payment or presentation of a bank guarantee, if we become aware of circumstances that are likely to reduce the credit-worthiness of the Customer.
  8. In the case of the provision of large quantities of paper, cardboard or other materials, special materials or in-puts, we may request that the relevant payment be made in advance.
  9. We are not obliged to execute the order before receiving the pre-agreed advance payment. The Customer is responsible for any consequences arising from this (eg delivery date is later than planned).
  10. In the event that goods are to be delivered to a third country outside the European Union, we reserve the right to subsequently charge statutory value added tax if the Customer fails to comply with his obligation to duly export the goods.

VI. SET-OFF / RIGHT OF RETENTION

  1. The consumer shall have a right to compensation in case of ARIAN’s insolvency or for counterclaims which are legally connected with the liability of the consumer, or which have been judicially determined or acknowledged by us. Business owners have a right to compensation only if their counterclaims are legally binding and determined by a court, or acknowledged by us in writing.
  2. Business owners are not entitled to withhold payment.
  3. We are entitled to offset any claims made by the Customer (in particular to include claims resulting from re-bate agreements).
  4. We are entitled to a right of retention according to § 369 UGB (Austrian Commercial Code – Unternehmensgesetzbuch) for all submitted receipts, slides, clichés, films and reproductions, manuscripts, data storage, raw materials and other items until all due claims have been settled.

VII. DELAYED/DEFAULT PAYMENT

  1. In the case of a payment default or a delay in the acceptance of delivery, we shall be entitled to charge de-fault interest at a rate of 12 % per annum.
  2. If the payment reminder system is operated by our-selves, the Customer shall pay a collection fee of € 20 for each reminder. In addition, the Customer shall compensate us for all reasonable legal fees, payment re-minder and collection costs incurred during the legal process.
  3. We shall be entitled to make all demands for payment due immediately if the Customer does not comply with the terms of payment or other circumstances become known which could affect the Customer’s creditworthiness. In addition, we shall be entitled to withhold further deliveries and services and to suspend further work on current orders until full payment of all out-standing claims has been made.

VIII. DELIVERY TIME

  1. The delivery times and dates stated in our order documents serve only as an indication and are always provisional and non-binding.
  2. The delivery periods shall begin from the date of our order confirmation at the earliest, but not before the order has been agreed and all necessary documents and an agreed advance payment or guarantee has been provided by the Customer. Delivery times and dates are ex works. If the goods cannot be collected or dis-patched in a timely manner and we are not at fault, the delivery periods and dates shall be deemed to have been met with our notification of delivery readiness.
  3. The delivery time shall be suspended for the duration of the inspection of proofs, hard-proofs or reference samples sent by the Customer. An agreed delivery date shall be extended according to the length of the inspection period.
  4. In the event of an agreed order modification, we shall be entitled to redefine the delivery periods or dates.
  5. In the event of force majeure or other unforeseeable, extraordinary or involuntary circumstances (eg strike, machine breakage, lockout, lack of transport, official interventions, energy supply difficulties, supply bottle-necks in production, etc.), even if they occur with our suppliers or subcontractors, we reserve the right to postpone delivery or service in accordance with the du-ration of the hindrance plus a reasonable production lead time. If the delivery or service becomes impossible or unreasonable because of these circumstances, our obligation to perform the delivery or service shall cease. If the delivery or service delay lasts longer than two months, the Customer shall be entitled to with-draw from the contract. If the delivery time is extended or if we are released from our obligation to perform the delivery or service, or if the Customer withdraws from the contract after a delay of more than two months, the Customer shall not be entitled to a claim for damages.

IX. DELIVERY / ACCEPTANCE / RISK

  1. All deliveries are ex works (EXW Incoterms 2010). If a delivery is commissioned on behalf of the Customer to a certain place of delivery as specified by the Customer, such delivery shall take place at the sole expense and risk of the Customer.
  2. Transport insurance shall be provided only upon the timely written request and expense of the Customer.
  3. Risk is transferred to the Customer as soon as the de-livery has been handed over to the person carrying out the transport or when it leaves our warehouse for the purpose of dispatch. If delivery is delayed for reasons within the scope of the Customer, the risk shall pass to the Customer at the point that notification of readiness for delivery is given.
  4. The Customer must immediately accept and take responsibility for the goods at delivery or when they are made ready for collection in accordance with the con-tract. If the Customer does not comply with this requirement, the delivery shall be deemed to have been made and all risk shall pass to the Customer.
  5. Excess and short deliveries shall be invoiced on a pro rata basis depending upon additional production costs (print run etc) with a deviation allowance of up to 5 % for straightforward orders and up to 10 % for more difficult or multi-colored work. In the case that materials have been provided, the tolerance rates of the supplier industry shall also be taken into account. For deliveries of customized products, the afore-mentioned percent-ages shall increase to 10 % and 20 % respectively.
  6. In the event of default of acceptance of delivery by the Customer or in case of inability to deliver on account of force majeure or other unpredictable or extraordinary circumstances that have occurred and we were not at fault, ARIAN shall be entitled to store goods onsite or with a freight forwarder at the expense and risk of the Customer.
  7. Partial deliveries are always permitted and must be accepted by the Customer.
  8. Upon receipt of delivery, the Customer shall notify the freight carrier or other person responsible for delivery immediately and in writing of any obvious damage caused during transportation. Damage caused in transportation that is not immediately visible whilst items are still packaged must be reported to us, as well as to the freight carrier, transport company or other person authorized to carry out the transport, within 7 days from receipt of the goods, together with a detailed description of the damage including photographs of the damage. If the Customer fails to comply with this obligation within the prescribed time, any attempt to claim for damages or other claims related to the damaged delivery shall be rejected.

X. PENALTY CLAUSES

  1. If a contractual penalty is agreed with the Customer, and delivery of goods is delayed as a result of late de-livery of necessary purchased parts from our suppliers and where we are not at fault, the period of delivery agreed with our Customer shall be extended in accordance with the period of delivery delay from our sup-plier.

A penalty clause shall be deemed invalid if a pre-agreed advance payment or guarantee is not made by the Customer in good time or if a delay in delivery or performance of contractual services is caused by the Customer.

XI. ERRORS IN TEXT AND PRINTING

  1. Textual errors shall be corrected free of charge if they occur as a result of our work.
  2. Changes to the print template or the order will be charged to the Customer according to the costs incurred (author, correction).
  3. No liability for accuracy will be accepted by ARIAN as a result of changes made by telephone, e-mail or fax.
  4. Proofs will only be submitted at the express request of the Customer.
  5. We reserve the right to submit proof copies and release samples to the Customer for their mandatory approval. The customer shall provide written, formal approval of proofs and samples at our request.
  6. We reserve the right to set a reasonable deadline of 24 hours from the date of provision of the proof for correction or release by the Customer. In urgent cases, this period may be shortened. We have the option to either insist on the release or to automatically accept the expiration of the deadline. We will inform the Customer of the need for release and the respective deadline, together with the provision of the proof. If we insist on the Customer`s express release, a delayed release will extend our delivery period accordingly.
  7. In the event that the Customer fails to submit a proof or release, we shall accept liability only for mistakes in the print version if there is gross negligence on our part.
  8. We assume no liability for the orthographic correctness of printed text. The obligation to alert the Customer in the case of obvious spelling mistakes is expressly excluded and waived by the Customer.

XII. WARRANTY / DAMAGES / LIABILITY

  1. With regards to business owners, statutory warranty obligations (gesetzliche Gewährleistung) shall only apply for faults that are reported in writing within a period of three months from the date of delivery or acceptance. In addition, ARIAN must be notified of warranty claims in writing within a period of eight days after detection or identification of the fault. In deviation of § 924 of the Austrian Civil Code (ABGB), the existence of a fault at the time of delivery must be proven by the business owners without exception.
  2. In transactions with business owners, the warranty period shall not be renewed after the correction of faults.
  3. If ARIAN are obliged to rectify faults in accordance with the statutory warranty, we may have the faulty goods or their faulty part sent to us for rectification or we will replace the faulty goods or their faulty part.
  4. If goods are sent back to our factory as faulty, the Customer shall bear the costs and risk of transport.
  5. For the examination of faults, as well as for the rectification of faults or replacement delivery, the necessary and reasonable time shall be granted to us.
  6. Only after delayed, omitted or unsuccessful rectification or replacement delivery (“primary warranty”), shall the Customer be permitted to demand a reasonable price reduction or withdraw from the contract (“secondary warranty”).
  7. If the Customer or a third party resolves the fault, we shall only be obliged to provide a refund for the costs incurred, if we have given our previous written con-sent. Only reasonable costs necessary for rectification of a fault shall be refunded.
  8. The warranty shall apply only for faults that occur in compliance with the intended operating conditions and normal use.
  9. If the order or the additional processing thereof has been subcontracted, we shall not be liable for the resulting impairment of products to be processed or further processed.
  10. If our products are mounted on special materials, either provided by or specified by the Customer (eg film gluing on glass, etc.), the Customer shall bear the risk for the suitability of the substrate and releases ARIAN from any obligation for quality control. If, due to a lack of suitability of the substrate, there is damage to the delivered product, the surface, consequential damage or other damage from third parties, the Customer may not assert any claims against ARIAN and the Customer shall indemnify and hold us harmless against all third party claims.
  11. In the case of partial deliveries, these regulations shall apply in each case to the delivered part. A fault identified in a single part of the delivered goods as a whole does not justify a claim for the entire delivery.
  12. For color reproductions in all printing processes, slight deviations from the original may not be disputed. The same applies to the comparison between proof and print runs, especially if the proof and paper overlays do not match. A guarantee for the accuracy of properties of paints, bronzes, varnishes, impregnations, laminations and gumming shall be provided only to the extent of the guarantee undertaken by our subcontractors.
  13. If the Customer requests a binding proof, such proof will be prepared for a fee and submitted to the Customer for authorization to print. The Customer acknowledges that the final product may contain color deviations caused by the different manufacturing processes. Such color deviations do not represent a defect in the product.
  14. Should it be necessary on technical grounds to make changes and/or modifications to the product that deviate from the sample or drawn up plans during the production process, and which do not result in a significant change to the visual appearance or function of the product, we reserve the right and without prejudice to deem the order proof to be binding.
  15. For the materials used, the same parameters as set out in the relevant delivery conditions of the suppliers or standards for this industry shall apply. If it is deter-mined that the parameters for the quality of material exceeds an acceptable range, we shall be liable only in the amount of a claim made against the respective sup-plier. We shall be wholly released from this liability in that any claim by the Customer shall be made against the supplier. At this point the Customer relinquishes all further claims. We shall accept no liability for those materials and parts obtained from the Customer or on the instructions of the customer from other subcontractors.
  16. If the Customer is in arrears with payment, we shall be released from any warranty obligation. Warranty claims do not entitle the Customer to withhold pre-agreed payments.
  17. If a third party makes a warranty claim or compensation claim against the Customer for a product produced by us in whole or in part, the Customer is legally obliged to inform us of the dispute immediately. In addition, the Customer must contact us prior to any settlement being made, and no settlement may be made without our express written consent. In the event of a breach of these obligations, the Customer shall lose his right of recourse against us, unless he can clearly and unequivocally prove that an intervention on our part would have had no effect on the amount of the claim. In the case of the sale of goods to developers or intermediaries, the Customer shall transfer this obligation in full. Failure to do so will result in the loss of any recourse against us.
  18. In the case of slight negligence, claims for damages shall be excluded in all cases and in their entirety, as long as they do not relate to personal injury or liability which are included in mandatory statutory provisions. We shall be liable to business owners only in cases of intent or gross negligence. The responsibility to prove the existence of, and the degree of, negligence, lies with the Customer
  19. Any liability for indirect damage and consequential damage (loss of profit, loss of production, interest losses, etc.) is excluded.
  20. Insofar as claims for damages according to the above provisions are not excluded based on the reason for the damage, our liability shall be limited to the actual order value. For a framework contract, this is the value of the specific individual purchase order.

XIII. WITHDRAWAL FROM THE CONTRACT

  1. If the Customer wishes to withdraw from the con-tract and we agree or declare our withdrawal be-cause the Customer does not fulfil his contractual obligations to us, the Customer shall pay 20% of the contract sum for breach of contract. We reserve the right to request a higher amount should actual costs exceed the 20% penalty amount.
  2. In the event of a delay in delivery, the Customer may demand fulfilment and compensation for damages caused by the delay only following a reasonable grace period. The Customer may declare his withdrawal from the contract only after an additional grace period has been set and concluded.

XIV. SUPPLIED MATERIALS, DOCUMENTS, DATA

  1. Materials provided by the Customer, such as originals, forms, films, data storage of all kinds, paper, etc. are to be delivered to our factory. Whilst we will confirm the receipt of these materials, there is no guarantee for the accuracy of the quantity shown in the delivery documents. We are only able to assume responsibility upon inspection of these materials during the production process and shall therefore be liable only for damage to these materials if caused by us during production. On our part there is no obligation to inspect or check materials delivered by, or transmitted by the Customer or by a third party engaged by the Customer, such as data (for example in the case of the internet), printing devices, as well as typeset, impressions and similar. In particular, we shall not be obliged to verify that stored data or transmitted data (text and images) is accurate.
  2. We shall accept no liability for errors in and with print-ing equipment provided either directly or indirectly by the Customer, nor for errors in the final product which  are due to poor data supplied by the Customer. If data in the form of electronic data carriers (CD-ROMs, USB sticks, etc.) are supplied, the Customer shall provide a computer printout which clearly depicts the product to be manufactured, otherwise liability for the conformity of the product with the transmitted data shall not be assumed. If the Customer requires that we conduct a review, this request must be submitted in writing and must include a reasonable deadline for the review to be completed. This review, as well as any corrections on our part, will be charged separately. Templates used by the Customer for the order (such as computer printouts, digital proofs) are not binding.
  3. If no binding proof or other proof is provided by the Customer or one of these is not ordered from us, we assume no liability whatsoever for the correctness of the exposure (CtP, CtS) or the print. This shall also apply if the technical information accompanying the order is incomplete or incorrect.
  4. The duty of data protection lies exclusively with the Customer. Notwithstanding, we are entitled to make a copy of the data.
  5. For the transfer of data being provided by the Customer, the following additional points shall apply: Together with the data, the Customer shall provide us with a digital proof (1: 1) as well as a list of all files (name, date, time) transmitted via data carriers or other forms of telecommunication, the fonts used (name of the font, manufacturer, version number) and the programs used (name, manufacturer, version number). If the Customer does not provide a digital proof and a list of files, these will be created by us and the Customer will be charged accordingly. In order to avoid errors on the digital proof, the Customer must clearly identify the following details: Text, layout and image changes requested by the client; “placeholders” for pictures and text; special effects for exemptions, distortions, spot colors (exact definition according to the HKS or Pantone scales) and gradients; Format (with and without cut); Screen ruling; Printing process. In order to avoid a reduction in quality, images supplied by the Customer must be delivered as CMYK files. The Customer guarantees that only licensed fonts (only Post-Script fonts) will be used to create the data. The Customer must provide us with the data necessary for the execution of the order in a clear and structured form. If unstructured or unnecessary data are submitted by the Customer, the storage space occupied therewith and the working time spent on the examination of the data shall be charged to the Customer at the appropriate market rate.
  6. We shall be entitled to charge the Customer all costs associated with the inspection and storage of the provided material separately.
  7. All packaging materials as well as the usual waste as a result of trimming, punching, printing equipment and printing shall be our property. If it is necessary to dis-pose of this waste in accordance with statutory provisions, we reserve the right to further charge relevant costs to the Customer.

XV. CONTRACT DOCUMENTS

  1. Manuscripts, drafts, proofs, printing forms, transparencies, films, data carriers and other documents as de-scribed in the above section shall be destroyed after the production of the order, unless the Customer in-structs us in writing to store materials at his cost or takes them back at his own expense.
  2. If the items described above are to be insured, the Customer shall arrange insurance at his own expense.

XVI. STORAGE OF PRODUCTS FOR THE CUSTOMER

  1. We shall not be obliged to store printed matter, stationary, printing cylinders, printing plates, mounts, data carriers, films and other printing equipment, papers, etc., following completion of the order, unless a special agreement has been made with the Customer. In all cases, the Customer shall bear the cost of storage and associated risk.
  2. If we expressly agree to provide storage temporarily, we shall be liable for damage incurred to the items stored only in cases of intent and gross negligence. We are under no obligation to take out insurance to cover risks associated with stored goods.
  3. Costs for storing finished or semi-finished products shall be charged to the Customer in accordance with the applicable freight tariffs for merchant goods. A temporary waiver of storage fees does not include a waiver of storage fee for products still stored by us. The calculation shall be carried out retrospectively every three months.
  4. Any agreement to store the set or other printing equipment shall automatically expire if the Customer does not settle the invoice within 30 days.

XVII. TERMINATION OF CONTRACT

  1. Framework agreements and other contracts for the execution of regularly recurring work / productions for which a deadline or notice period has not been agreed separately may only be terminated with three months’ written notice at the end of a calendar quarter.
  2. The Contracting Parties may terminate any contract early at any time with good cause. An important reason for the early termination shall in particular apply if:
    1. insolvency proceedings are opened against the assets of one of the contracting parties or an application to open such proceedings is dismissed for lack of assets covering costs;
    2. the Customer does not settle demand for payment despite at least two payment reminders;
    3. the Customer does not comply with his obligation to provide documents or to make statements necessary for the fulfillment of the contract despite repeated re-quests;
    4. in spite of the granting of a grace period – subject to the justification for a delay in delivery mentioned under point VIII. – the obligation to deliver the ordered goods cannot be met in two successive partial deliveries;
    5. one of the contracting parties receives information which is likely to give rise to doubts as to the other contractor’s solvency or its willingness to pay and the other contracting party, despite a written request, does not provide suitable security (eg bank guarantee);
    6. one of the contracting parties violates the terms of this contract by improper use of the samples, plans, data or finished or semi-finished products submitted – in particular by their unauthorized duplication.

XVIII. OWNERSHIP OF INTERMEDIATES

  1. The tools, work and intermediate products used by us for the production of the contractual products, in particular briefs, data carriers, printing plates, lithographs, films, molds, plates, mats, punches, stereos and electroforms and others necessary for the production pro-cess, auxiliaries or intermediate products of the production as well as the processed data remain our property and are not handed over, even if the Customer has paid reasonable compensation for this work or they are invoiced separately. In the context of the preparation and start-up of an order, intermediate products already submitted to the Customer for inspection and approval are to be returned to us immediately if the order is not executed, and at the latest within 14 days. Permission to use said items is also excluded. This also applies to equipment (fixtures, molds, etc.) and data produced by any of our suppliers or subcontractors.
  2. The safekeeping of the above-mentioned tools (de-vices and data) to be able to carry out a new order after completion of the initial order shall be assured only at the express written request of the Customer and against reimbursement of the costs for storage or payment of an appropriate warehouse fee.

XIX. COPYRIGHT OF THE CUSTOMER AND THIRD PARTIES

  1. The Customer irrevocably declares that if he provides us with fonts or application software to further process the data supplied by him, he is entitled to pass on the rights of use to use.
  2.  In general, we are not obliged to check whether the Customer has the right to reproduce the originals, of whatever nature, to process the order accordingly or to change or otherwise use it in the intended manner. Rather we shall assume that the Customer has all the rights for third party items that are necessary for the execution of the contract. The Customer expressly con-firms that he has these rights.
  3. We confirm to the Customer that we shall use all submitted proofs, fonts or application software only within the scope of the specific order and as agreed.
  4. Insofar as we hold the copyrights, intellectual and industrial property rights for the delivered products or parts thereof, the Customer acquires only with the acceptance of the delivery the non-exclusive right to use the delivered products. Apart from such rights to use, all copyrights, intellectual and industrial property rights, in particular the reproduction rights, remain in our hands.
  5. Without prejudice to the copyrights, intellectual and industrial property rights of the Customer or third par-ties, we are not obliged to hand over the tools for re-production (set, processed data, etc.) produced by us, not even for purposes of use. At the same time, how-ever, we undertake to respect the unrestricted copy-right and intellectual property rights of the customer and third parties and to refrain from any use contrary to these usage rights of the reproductive material remaining with us.
  6. The Customer shall indemnify and hold us harmless in respect of any claims made by third parties for infringements of copyrights, intellectual or industrial property rights or personal rights. We undertake to notify the Customer of such claims as soon as they are made against us and to bring the dispute to the attention of the Customer in case of a judicial claim. If the Customer does not join the proceedings as a party or if the Customer does not comply with his obligation to indemnify and hold us harmless, we shall be entitled to acknowledge the claim of the plaintiff and to seek re-course against the Customer for all claims.

XX. LIABILITY OF THE AGENT

  1. If an agent acts on behalf of a Customer, he shall be li-able for the collectability of our contractual claims as guarantor and payer (Bürge und Zahler) according to § 1357 Austrian Civil Code (ABGB), if the Customer has failed to pay despite reminders.
  2. The agent undertakes to transfer all rights and obligations under the contract concluded herewith, including the rights and obligations arising from these General Terms and Conditions, to its principal.
  3. Any commissions payable by us to an intermediary or an agency shall become due only after full payment of the invoice for services has been settled by the Customer.

XXI. RETENTION OF TITLE

  1. All delivered goods shall remain our property until full payment including interest and costs has been received.
  2. As long as the retention of title exists, the Customer is strictly prohibited from reselling, pledging, transferring by way of security, rental, connection, mixing or other type of disposal or handing over of our goods to third parties.
  3. The Customer agrees that in the case of default in payment after a single written reminder, we shall be entitled to repossess our goods without the Customer`s further cooperation or consent and at his expense.
  4. Should the goods that have been delivered under retention of title be seized, the Customer must immediately notify us of the name of the prosecuting party, the amount of the claim, the competent court, the reference number of the legal proceedings and, if applicable, the date of the action. Furthermore, the Customer must point out our retention of title to third parties in an appropriate manner. In addition, the Customer must notify us of any extraordinary decrease in the value of the goods delivered under retention of title.
  5. If foreign substantive law should be agreed with the Customer in explicit deviation from these General Terms and Conditions and the retention of title is not valid according to the referenced laws, the securities existing under the other laws shall be deemed to be agreed. If the cooperation of the Customer is necessary, the latter must take all measures necessary to establish and maintain such rights.
  6. All of the Customer`s claims arising from a resale of the goods shall be assigned to us by placing an order with us as a security for all of our claims arising during the business relationship. The Customer must make these assignments apparent in the accounting records. We are entitled at any time to require the Customer to notify the purchaser of the goods subject to retention of title and may at any time disclose the assignment to the purchaser.
  7. In case of intellectual or industrial property rights, the Customer must procure or transfer the rights of use to us (rights of exploitation) for the duration of a retention of title.

XXII. DATA PROTECTION

  1. Protection and security of Customer data, especially personal data, is very important to us. Such personal data are processed by us on a lawful basis in strict compliance with the General Data Protection Regulation and the Austrian Data Protection Act.
  2. The processing of personal data takes place, in particular, for the purpose of fulfilling the contract, specifically for providing offers, Customer communication and or-der processing.
  3. The Customer is obliged to take all necessary data protection measures, so that we may lawfully process the personal data disclosed by the Customer (eg name and contact details of the contact person) in the context of the business relationship and for the purposes shown above and in our Privacy Policy.
  4. Please read our Privacy Policy on www.arian.com .

XXIII. SALVATORY CLAUSE / SUBMISSION OF CLAIMS / IMPRINT OF NAME OR BRAND

  1. If individual provisions of these General Terms and Conditions are or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. The null and void provision shall be replaced by a valid provision according to the intended purpose of the clause.
  2. The Customer may assign his contractual rights to third parties only with our written consent.
  3. We are entitled to affix our company or brand name to the contractual products even without a special per-mission of the Customer.

XXIV. APPLICABLE LAW / PLACE OF JURISDICTION

  1. Austrian substantive law applies. The applicability of the UN Sales Convention and the rules on conflict of laws are excluded. The contractual language is German.
  2. The place of fulfilment for delivery/payment is the place of our production site (Gleisdorf, Austria).
  3. The exclusive place of jurisdiction for all disputes be-tween us and business owners is the court competent for the district of our registered office (Gleisdorf, Austria).


November 2015

General Conditions of Purchase

I. GENERAL/SCOPE OF APPLICATION

  1. Our orders (contracts) shall be subject exclusively to the following terms of purchase; in supplement, the law shall apply exclusively. Differing terms of sale and/or delivery of the contractor shall only apply if we have expressly recognised them in writing. By accepting and performing our orders, the contractor acknowledges our terms of purchase.
  2. The following Terms and Conditions of Purchase shall apply to all orders placed by Arian, including but not limited to material purchases, services, transport, and any kind of order.
  3. We shall be entitled to assume that any person who is in contact with us on the part of the contractor has the necessary power of representation to conclude such transactions or issue declarations. The contractor’s declarations shall be legally binding, irrespective of the person attributable to it, by whom they have been given.

II. OFFER

  1. The contractor’s offers shall be binding.
  2. The contractor shall adjust the quantities and quality exactly to our inquiry. The contractor shall offer or deliver exactly what we have ordered or inquired about. Departures or differences shall be stated expressly and prominently by the contractor. If the inquiry mentions approximate quantities (“approx.”), the contractor shall consent to our orders being above or below this quantity to an extent that is minor in proportion to the contract total.
  3. Offers, cost estimates, plans, proof of inspection for technical equipment, samples and the like shall always be provided free of charge for us, and their return cannot be demanded.

III. ORDER

  1. Our orders, offers or inquiries shall be subject to change and without obligation. Conclusions and any other agreements shall only become binding once they have been confirmed by us in writing.
  2. Irrespective of the offers submitted, contracts shall always be concluded with the content of our orders delivered in writing, by telefax or by e-mail and with the content of our terms of purchase. Orders placed orally or by telephone and additions, amendments or departures of whatever kind shall only be binding for us if we have confirmed them in writing, by telefax or by e-mail.
  3. The order date shall be the date on which our order is sent, or the date of the sending of our confirmation in the case of orders placed orally or by telephone.
  4. We shall not be bound by any master contracts, in particular such concerning a specific (minimum) purchase quantity. Such shall at best be regarded as declarations of intent. For this reason, we shall not be obliged to effect a (minimum) purchase.

IV. CONFIRMATION OF ORDER

  1. Our order shall be confirmed in writing without delay, otherwise our order shall be deemed to be withdrawn. Alongside confirmation in writing, orally, by telephone or other notification of confirmation to us, confirmation shall also be deemed to be the start of production, manufacturing etc. of the goods ordered or the start of the shipment of goods ordered and completed, provided that we are informed thereof within three days.
  2. Departures from our orders, in particular with respect to price or delivery time, shall be stated expressly and in addition shall only be valid if we explicitly acknowledge such in writing or by telefax; unconditional acceptance of the goods shall not be deemed to be such consent.
  3. If our order does not specify the prices and other conditions (e.g. delivery time), they shall be entered by the contractor in the confirmation of order. If the contractor fails to do so, no contract shall be concluded; if we do not agree with the prices and conditions laid down by the contractor, we shall be entitled to revoke our order.
  4. The provision of deliveries and/or services shall in any event be deemed to be the unconditional acknowledgement of our terms, even if no confirmation of order or a differing confirmation of order is sent.
  5. By concluding the contract, the contractor guarantees that our order shall be executed professionally.
  6. If we are sent print and/or execution specifications or other sample goods by the contractor, these shall become the basis for the contract in terms of execution and quality unless we notify the contractor of the contrary, in particular of our requests for change, within 14 days.
  7. If the contractor does not wish to accept an order, it shall be obliged to notify us thereof without delay, at the latest however three days after receipt of the order. This notification shall be deemed to have been made to us at the time we receive it. The contractor shall be liable for any infringement of this obligation.

V. PRICES

  1. The prices specified in the order shall be fixed prices.
  2. The fixed prices shall exclude additional claims on the basis of wage or materials price increases or the like, and shall be carriage paid destination, including packaging. If in exceptional cases we assume responsibility for the shipping and packaging costs on the basis of a separate agreement, the contractor shall ensure the cheapest transportation. This shall not affect the place of performance.
  3. Prices shall be in accordance with Section VIII, carriage paid place of use (“DDP” – INCOTERMS 2000).

VI. QUALITY

  1. The quality of the raw and auxiliary materials used by the contractor shall be deemed to be fault-free if they correspond with the terms of delivery of the industrial sector in question and the relevant Austrian ÖNORM standards, subsidiarily the DIN standards, and European standards.
  2. If within the course of the order, details are provided about the purpose of use or of the circumstances of the use of the products to be supplied or the services to be provided, these details shall become an integral part of the contract. The contractor shall assume liability for the goods delivered or the service provided by it being suitable and usable for the said purpose.
  3. Should any complaints arise because services/deliveries were not provided as contractually agreed, we shall charge Contractor a flat-rate processing fee of 150 euros. We expressly reserve the right to charge Contractor any further costs we may incur in connection with the above (like, for instance – but not limited to – handling costs).

VII. DELIVERY PERIODS/DELIVERY DATES

  1. All orders issued by us shall be deemed to be fixed transactions within the meaning of Section 919 of the Austrian General Civil Code (ABGB), the goods having to be received at the stated place of delivery on the delivery date. Deliveries will only be accepted by us during usual business hours.
  2. In general, a fixed delivery date shall be agreed. If, in contrast, a delivery or performance period is agreed, this shall commence on the date of the order. If no period is agreed, delivery or performance shall be without delay.
  3. If the agreed delivery date or delivery period cannot be complied with for whatever reasons, we shall be notified in writing without delay and in such good time that corresponding measures can be taken on our part.
  4. In the event of delivery delays, we shall be entitled to demand delivery after setting a grace period or to withdraw from the contract. In addition, without proof of the loss incurred, we shall apply 1% of the total price of the order as a contractual penalty for each day or part thereof of delayed delivery. The judicial right of moderation pursuant to Section 1336 (2) of the Austrian General Civil Code (ABGB) is excluded. We reserve the right to assert more extensive losses and the contractual penalty claim, even if a delayed part delivery has previously been accepted by us unconditionally.
  5. In the event of premature delivery, we reserve the right to refuse to take delivery at the contractor’s cost and risk, and to extend the payment of the invoice in accordance with the originally agreed delivery date. If part deliveries are expressly excluded, the payment period for all part deliveries shall only commence upon the complete delivery of the order. If delivery is taken over prematurely, we reserve the right to charge additional expenditure or to deduct such from the invoice.
  6. We shall also be entitled, by prior announcement, to inspect the contractor’s production facilities, to inform ourselves about the state of the works contracted and to accept the delivery in the contractor’s works.

VIII. DELIVERY/SHIPMENT/TAKING DELIVERY/INSURANCE

  1. The contractor shall not be entitled to make modifications independently (e.g. of quality, material, etc.) to what we have ordered without our express written consent. Even the single or multiple uncontested acceptance of goods modified independently shall not constitute consent for future orders. Accordingly, an implicit departure from this provision shall be excluded.
  2. Delivery (performance) and shipment shall always be free of all expenses, at the contractor’s cost and risk to the place of use specified by us (“DDP” – INCOTERMS 2000). We shall not accept COD deliveries. The consignment shall be accompanied by a delivery note with all order details – separately from the goods.
  3. Carrier agreements are ruled out for forwarding agencies and parcel services commissioned by us.
  4. The carrier’s right under Section 412 Austrian Business Corporations Code to carry out transactions in his own name is ruled out.
  5. The employer authorized by the carrier is obliged to examine the accepted shipment in accordance with the delivery note and to confirm it in writing. If the delivery note and the actual shipment do not match, the employer must state this at the place of acceptance, otherwise he shall be liable for the contractually agreed delivery in accordance with the delivery note.
  6. In addition, the employee authorized by the carrier is obliged to inform us immediately if the delivery cannot be carried out as contractually agreed. The carrier must observe the instructions issued by us thereafter. Any queries from us, including but not limited to those regarding the location of the shipment and the expected time of delivery, must be answered by the carrier immediately or within a maximum of 2 hours. The non-timely provision of information by the carrier shall be considered gross negligence.
  7. The goods delivered shall be delivered to our authorised employees at the delivery address. Delivery shall be taken of the goods both in quantitative and in qualitative terms only upon processing or use.
  8. The contractor shall duly insure the shipments against losses of all kind, including the unloading process, at its expense.
  9. We shall be sent a notification of dispatch of each consignment without delay.
  10. In the event of the delivery of technical systems and equipment, our operating personnel shall be trained free of charge. In the case of the delivery of systems and equipment for assembly by a third party or by us, the necessary assembly plans (including all connections, the design of any pedestals etc.) shall be attached to the confirmation of order. Each shipment shall be accompanied by all datasheets, assembly and processing instructions and indications about special features of the material (in particular in the case of plastic products) and of the product. Labels in German shall also be attached to shipments from abroad.
  11. Operating regulations and instructions, documentation, CE datasheets, declarations of conformity and the like shall be provided in duplicate in German and English.
  12. The consignment shall only be regarded as complete if we have received all the documentation necessary or requested (CE datasheets, declarations of conformity, documentation etc.). It is only then that the payment can become due.
  13. The shipment instructions issued by us shall be exactly complied with. Any losses or costs resulting from failure to comply with the shipment instructions or agreed terms of shipment (e.g. additional freight costs, vehicle standing time; customs) shall be borne exclusively by the contractor. If no shipment instructions or terms of shipment are provided, the transport and delivery methods that are most favourable for us shall be selected.
  14. In particular in the case of packaging on pallets, it is imperative that our packaging instructions are complied with. These can be seen at www.arian.com. If pallets other than those specified there are used, we shall be entitled to refuse acceptance at the contractor’s cost and risk.
  15. All consignments shall be accompanied by a delivery note containing the precise details of the contents. This shall be sent simultaneously with the goods but packed separately. Direct shipments to our customers shall be made with neutral packaging and neutral shipment papers in our name. We shall receive a copy of the consignment papers. If an ex-works or ex-warehouse price has been agreed, the consignments shall be transported at the lowest cost in each case, unless a specific means of transport has been expressly prescribed by us. Additional costs for accelerated transportation in the event of delayed delivery shall be borne by the contractor exclusively.
  16. The dispatch notice shall be sent to us in triplicate immediately upon departure of each individual consignment. The dispatch notice must state the following details under each package: our complete order number, the consecutive number of the package, the usual marking symbols, net and gross weight and the dimensions of the package.
  17. Where goods are shipped customs unpaid, the corresponding customs documents shall be attached.
  18. In the case of shipments from abroad, the invoices shall be sent to us in the prescribed quantity before the consignment is sent. In the case of shipment by post, the parcel registration card must be accompanied by a copy of the invoice.
  19. If the shipment papers are missing or incomplete, in particular if the order details to be notified are missing, we reserve the right to refuse to take delivery at the contractor’s cost and risk.
  20. All costs for the disposal of packaging materials supplied resulting from public law regulations shall be borne by the contractor. If these costs are settled by means of advance payment at the time of the purchase of the packaging material, the contractor shall provide evidence of this payment to us without demand, failing which we shall be entitled to impose these costs on it. In any event, and irrespective of the public law obligations concerning it directly, the contractor shall indemnify and hold us harmless with respect to the costs for the disposal of packaging material.

IX. DELAY, WITHDRAWAL AND CONTRACTUAL PENALTY

  1. In the event of a delay in the order confirmation or in the delivery (performance) or part delivery (part performance) or in the case of a delivery (performance) that is in breach of contract, we shall be entitled – notwithstanding any more extensive claims – to withdraw from the contract in whole or in part either immediately or after setting a reasonable grace period, or to demand the performance at a different date without the contractor incurring any claims as a result against us, or to insist on the performance of the contract.
  2. In the event of delay, we shall be entitled to demand, alongside the delayed performance, a contractual penalty of 10% of the total order value for each week or part thereof, in total up to a maximum amount of 50% of the total order value. In the event of a withdrawal on the grounds of a delay, we shall be entitled to demand a contractual penalty of 50% of the total order value. The sum of these contractual penalties is limited to 50% of the total order value. We shall always be entitled to demand such contractual penalties alongside any more extensive losses, irrespective of the amount of the order value, even if we accept the delayed delivery or performance. We shall also be entitled to the contractual penalties if the contractor is not guilty of any fault. However, if the delay is due to force majeure, the contractor shall be released from its obligation to pay the contractual penalty and damages for the duration of the effects thereof if it notifies us about these circumstances without delay. Force majeure shall not include strikes and the fact that materials, work pieces or finished goods have been produced as rejects.

X. PACKAGING/WASTE/HAZARDOUS WASTE

  1. The goods shall be packed professionally. In any event, the contractor shall bear the risk and costs of the packaging.
  2. In particular where the goods are packed on pallets, our packaging regulations shall be complied with without exception. These can be seen at www.arian.com. If pallets other than those specified there are used, we shall be entitled to refuse acceptance at the contractor’s cost and risk.
  3. The contractor shall accept the return of all items delivered, residues or residual substances of such items delivered that are to be classified as “waste” or “hazardous waste”, for disposal at its own risk and costs.
  4. The contractor shall indemnify and hold us harmless with respect to the costs of the disposal of the packaging material in any event, and irrespective of any public law obligations affecting it directly.

XI. TAKING DELIVERY/TRANSFER OF RISK

  1. The risk shall only transfer to us at the place of destination, even if carriage-paid shipment has not been agreed.
  2. Legally binding inspection of the delivery shall only be performed after an inspection of the entire shipment, even if we have already confirmed receipt thereof, release has been issued or the invoice paid. Accordingly, we reserve the right to challenge the goods subsequently. The obligation to raise objections pursuant to Section 377 of the Austrian Business Enterprise Code (UGB) is excluded.
  3. If the shipment does not correspond with the agreements of usual trade conditions, we shall be entitled to withdraw from the order immediately.
  4. The quantity ordered must be delivered. We shall not take delivery of excess shipments. The same shall apply to shortfall deliveries; however, we can take delivery of them as part delivery at our discretion. In such event, the contractor shall supply the missing quantity at its own risk and cost without delay.
  5. Acceptance of the goods by us shall not release the contractor from liability for incorrect execution of the goods or an execution not in accordance with drawings, or for concealed defects that only become apparent or arise subsequently.
  6. Any reservation of title contained in the contractor’s standard terms of business shall be invalid as against us. A provision to the contrary shall only be of binding effect for us if it has been acknowledged by us in writing.

XII. INVOICING

  1. Unless otherwise specified, all invoices shall be submitted in four copies (scannable). These shall state not only the order number but also all order details and the means of dispatch. Invoices for services shall in addition be evidenced accordingly. Furthermore, the invoices shall be structured in the same way as the orders. In the case of work provided and assembly, a statement of hours worked confirmed by us shall be attached.
  2. If the invoice is attached to the goods, it shall be sent packed separately.
  3. In cases in which there is a reverse charge situation pursuant to Section 19 (1) a of the Value Added Tax Act (UStG), invoices shall be sent without stating value added tax.
  4. The invoice shall be sent to us, stating all order details, immediately after the goods have been dispatched or the service provided in full. It shall state the country of origin, the declaration of goods number with date and the EUR number under which the goods in question were imported. We reserve the right not to deal with and to return invoices whose form does not correspond with our requirements, in particular with respect to the indication of the order, the evidence of origin and the value added tax regulations. In such cases, invoices shall be deemed not to have been submitted until received again, and the payment shall be deemed not to be due.

XIII. ASSUMPTION OF THE CONTRACT/ASSIGNMENT/OFFSET

  1. Without our written consent, the order shall not be assigned either in whole or in part to other enterprises for performance.
  2. The contractor shall only be entitled to assign its receivables against us following our written consent.
  3. We shall be entitled to offset the contractor’s receivables against current or future receivables to which we are entitled against the contractor.
  4. Notwithstanding any other provision to the contrary, we shall be entitled at any time, including but not limited to the time of termination of the business relationship, to demand any outstanding receivables (such as, but not limited to bonus receivables) from Contractor in cash.
  5. Contractor shall not be entitled to offset our claims against any counterclaims of any nature whatsoever.
  6. A right of offset to our disadvantage shall be excluded.

XIV. PAYMENT

  1. The period for the payment of the invoice shall commence on the day of the due receipt of the goods or provision of the service and receipt of invoice. Payments shall, unless otherwise agreed, be effected as a matter of principle less 3% discount within 30 days or net within 60 days after receipt of the delivery.
  2. The payment deadline shall be met if the transfer order or the acceptance of a bill or cheque is delivered to the bank or the post office within the deadline, or if the telebanking instruction is issued within the deadline.
  3. In the case of invoices not correctly completed or objections to the goods supplied, the payment periods shall commence once the defects have been remedied. Payments can be retained until objections based on defects have been dealt with.
  4. Payment shall constitute neither a recognition of the correctness of the delivery nor a waiver of rights to which we are entitled.
  5. For the duration of the warranty period, we shall be entitled to claim a liability deposit of up to 10% of the contract value, and deduct this from the payment.
  6. Partial payments – for whatever reason – shall be accepted by the contractor unless it submits a justified objection to such within four weeks after receipt of payment.

XV. WARRANTY/DAMAGES/PRODUCT LIABILITY

  1. The contractor shall guarantee that its goods are free of defects, in particular that the best appropriate materials have been used, that the execution has been professional and in accordance with the drawings, the design appropriate and the assembly free of fault. Deliveries and performances by the contractor shall in addition satisfy the statements and product information made and the general and special standards applicable in Austria, for instance for the protection of employees and for environmental protection, as well as recognized scientific and engineering practice.
  2. Unless expressly agreed otherwise, the warranty period shall be two years and shall start when delivery is taken of the goods, and from the time of discovery in the case of concealed defects. We shall be entitled to choose between a reduction of the price, remedy free of charge, replacement free of charge and, in the case of substantial irremediable defects, the withdrawal in whole or in part from the contract. In addition, we shall in any case be entitled to take substitute measures following prior written notification to the contractor and charge any costs incurred for such to the contractor.
  3. In urgent cases, we shall be entitled to procure the necessary replacement items or replacement deliveries of consumables at the supplier’s expense. Replacement parts shall be subject to the same warranty as the main delivery. We shall not be obliged to express a reservation of our warranty rights upon acceptance. The contractor shall waive the defence of a delayed objection based on defects. In the event of an objection based on defects, or in the event of a complaint, we shall have the right to retain the corresponding price in full.
  4. The a priori assumption rule of Section 924 of the Austrian General Civil Code (ABGB) with respect to defects at the time of delivery shall be extended to the entire warranty period.
  5. The contractor shall indemnify and hold us harmless in the event of patent, copyright and trademark disputes resulting from the consignment, and shall guarantee the unrestricted use of the goods supplied. By accepting the order, the contractor expressly confirms to us that the subject matter of delivery shall not be affected by any rights, in particular third party intellectual property rights. The contractor shall assume the obligation to indemnify and hold us harmless and to refund us in full for any losses incurred in such cases.
  6. Notwithstanding any other obligations, the contractor shall refund all losses incurred by us with respect to the products delivered by it in accordance with the Austrian Product Liability Act, and indemnify and hold us harmless with respect to all third-party product liability claims. In any event, the contractor shall be obliged to reimburse us for all costs that we incur for the defence of a claim or substitute performance. With respect to the products supplied by it, the contractor undertakes upon request to identify by name the manufacturer, importer or previous contractor, and to make available to us appropriate documents and evidence, such as in particular production documents and documents that disclose the production and delivery batches and/or production and delivery time as needed by us to defend product liability claims.
  7. Section 2 of the Austrian Product Liability Act (PHG) shall be excluded for products supplied to us by the contractor. This shall mean that we shall be reimbursed for any losses that are incurred as a result of a faulty product supplied by the contractor, including objects that are primarily used within our enterprise. Similarly, the regulation concerning deductibles shall be excluded between the contractors and ourselves. Contractor undertakes to adequately insure (business and product liability insurance) the above-described risk of claims and to furnish us with suitable evidence thereof upon request. The insurance must cover at least 1 million euros per claim and must in any case exceed the amount of the respective contract value by a factor of 10. Should Contractor fail to timely meet the request to furnish evidence of an adequate insurance within a granted grace period of 14 days, we shall be entitled to terminate the contract with immediate effect or to take up a corresponding insurance at the Contractor’s cost and expense.
  8. There shall be no restriction of our right of recourse pursuant to Section 903 b of the Austrian General Civil Code (ABGB). Accordingly, in any event we shall be entitled without restriction to claims for damages and recourse.

XVI. DRAWINGS/ORDER DOCUMENTS

  1. The drawings, drafts, aids and the like and tools, moulds and the like made available or attached by us, to the extent that they are made available for the contractor’s performance, shall remain our property, shall not be made accessible to third parties and shall not be used for advertising purposes.
  2. They shall be returned to us with the offers or following the execution of the order without separate demand. Accordingly, we shall also be entitled to mark our property in an appropriate manner.
  3. The orders and all details, documents etc. relating to such shall be treated confidential as our business secrets. No compensation shall be paid for the preparation of offers etc.
  4. Material provided shall remain our property, shall be labelled as such, and stored and administered separately. If its value is reduced or if it is lost, replacement shall be provided by the contractor. Material provided shall only be used for our orders. Where this material is worked or processed, we shall become the direct owner of the new or modified product. Statement of accounts concerning the materials provided shall be provided in the form notified by us.
  5. The parts sheets of a technical or commercial content that are attached to the materials provided shall form an integral part of the order.

XVII. REJECT GOODS

  1. In the case of reject goods, the return of which shall be at the contractor’s cost and risk, we reserve the right to waive or insist on substitute delivery. The substitute goods shall be transported at the contractor’s account and risk.
  2. If we should suffer a loss as a result, the contractor shall assume the corresponding costs.

XVIII. INTELLECTUAL PROPERTY RIGHTS

  1. The agreed price shall cover the acquisition of industrial property rights, in particular patents, to the extent that the acquisition is necessary for us for the free use and resale of the objects supplied. If licences are required, they shall be procured by the contractor.
  2. We shall be entitled to use free of charge the contractor’s inventions made during the execution of our order. The contractor shall indemnify and hold us harmless in the event of an infringement of third party rights in connection with the delivery or service.
  3. By accepting the order, the contractor expressly confirms to us that the subject matter of the delivery is not affected by any rights, in particular third party intellectual property rights (cf. Section XV 5).

XIX. APPLICABLE LAW/PLACE OF PERFORMANCE/LEGAL VENUE

  1. Substantive Austrian law shall apply. The application of the UN Law on Sales and all conflict-of-law rules is excluded. The contractual language is German.
  2. Unless otherwise specified, place of performance for delivery, performance and payment shall be the ARIAN Ges.m.b.H. works at Wünschendorf 160, 8200 Gleisdorf.
  3. The exclusive legal venue for all judicial disputes between the contracting parties shall be the court with material jurisdiction in Graz, and, for proceedings lodged by us, at our choice the court with material jurisdiction in Graz or the court with material and local jurisdiction for the contractor’s registered office.

XX. CIRCUMVENTION PROHIBITION/CONFIDENTIALITY/CONTRACTUAL PENALTY

  1. For the duration of this contract and for two years beyond the termination thereof – provided that such a competing activity was not pursued before conclusion of this contract – the contractor shall be prohibited from concluding transactions, in particular supply agreements, in our company’s field of business activity directly or indirectly with our company’s end customers with which the contractor comes into contact in connection with this business relationship (circumvention prohibition).
  2. In the event of an infringement of this circumvention prohibition, we shall be entitled, notwithstanding the assertion of further losses and a claim for an injunction, to demand a contractual penalty to the amount of the turnover effected over the last six months of the business relationship. The judicial right of moderation pursuant to Section 1336 (2) Austrian General Civil Code (ABGB) excluded.
  3. The contractor undertakes to maintain confidentiality of the data of which it acquires notice within the framework of the business relationship and of the results or part results developed by it. The contractor shall be obliged to protect this data against third-party access and to impose corresponding secrecy on its employees.
  4. Without the express consent of our company, the contractor shall be prohibited from using the products delivered to us or its status as our contractor for advertising purposes. This shall also apply without express identification for any recognisable kind of reference to our company and its intellectual property rights (names, trademarks etc.). In the event of an infringement we shall be entitled, notwithstanding the assertion of further damages and of a claim to an injunction, to demand a contractual penalty of 20% of the turnover of the last 12 months from the time from which the incident becomes known to Arian. The judicial right of moderation pursuant to Section 1336 (2) of the Austrian General Civil Code (ABGB) is excluded.

XXI. CONCLUDING PROVISIONS

  1. Our complete order numbers shall be affixed clearly visibly to the consignment note, consignment bills, the coupons of the accompanying addresses, the package adhesive labels, package lists, delivery and dispatch notes, invoices and credit notes. In correspondence, in addition to the order number the reference of the previous correspondence shall be repeated.
  2. In the case of deliveries from EU countries, the VAT Identification Number shall be stated. The contractor shall be liable in full to us for disadvantages resulting from the failure to comply with these obligations.
  3. Should individual provisions of these standard terms of delivery and payment be or become ineffective in whole or in part, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by what comes closest to the intended purpose.