General Terms and Conditions

Terms of Sale, Delivery and Payment

of ROWA-Moser Handels-GmbH
(hereinafter referred to as the Seller)

1. Scope of application

1.1 For all contracts concluded with ROWA-Moser Handels-GmbH, exclusively the following Terms of Sale, Delivery and Payment (“GTC”) apply. Our contractual partner agrees that, in the event that they use their own terms and conditions, in case of doubt our terms shall prevail, even if the contractual partner's terms remain unchallenged. At the latest upon acceptance of our goods, the present terms are deemed accepted. The following GTC also apply to further contract conclusions and contractual relationships, even if express reference is not made to these GTC again upon those conclusions. They remain valid until the validity of new GTC is agreed.
1.2 These general terms and conditions apply to the delivery of goods and, accordingly, also to the provision of services. For software, the software conditions of the Austrian electrical and electronics industry apply primarily; for installations, the installation conditions of the Austrian high-current and low-current industry, or the installation conditions of the Austrian electrical and electronics industry for electromedical technology.
1.3 Deviations from the conditions set out in points 1.1 and 1.2 are only effective upon written acknowledgement by the Seller.

2. Offer

2.1 Offers made by the Seller are subject to change without notice.
2.2 All offer and project documents may neither be reproduced nor made accessible to third parties without the Seller's consent. They may be reclaimed at any time and must be returned to the Seller without delay if the order is placed elsewhere.

3. Conclusion of contract

3.1 The contract is deemed concluded once the Seller, after receipt of the order, has sent a written order confirmation or a delivery.
3.2 No warranty claims can be derived and no liability established from statements in catalogues, brochures, promotional material and written or verbal declarations that have not been incorporated into the contract.
3.3 Subsequent amendments and additions to these terms require a written agreement to be valid.

4. Delivery

4.1 The delivery period begins on the latest of the following dates:
a) the date of the order confirmation;
b) the date on which all technical, commercial and other requirements incumbent on the Buyer have been fulfilled;
c) the date on which the Seller receives a down payment or security to be provided before delivery of the goods;
4.2 Official permits and any third-party approvals required for the execution of installations are to be obtained by the Buyer. This gives rise to no claims for compensation on the part of the Buyer. With regard to any third-party claims (including penalties), the Buyer shall indemnify and hold the Seller harmless. Should such approvals not be obtained in good time, the delivery period is extended accordingly.
4.3 The Seller is entitled to carry out and invoice partial or advance deliveries. If delivery on call is agreed, the goods are deemed called off no later than 1 year after the order.
4.4 If unforeseeable circumstances or circumstances beyond the will of the parties arise, such as all cases of force majeure, which hinder compliance with the agreed delivery period, the latter is in any case extended by the duration of these circumstances; these include in particular armed conflicts, official intervention and prohibitions, delays in transport and customs clearance, transport damage, shortages of energy and raw materials, labour disputes, and the failure of a significant, difficult-to-replace supplier. The aforementioned circumstances also justify an extension of the delivery period if they occur at suppliers. No claims for compensation can arise for the Buyer as a result. No consequences of default apply.
4.5 If a contractual penalty (liquidated damages) for late delivery was agreed between the contracting parties at the conclusion of the contract, this is provided in accordance with the following rule, whereby a deviation from it on individual points does not affect its application otherwise:
A delay in performance demonstrably caused solely by the fault of the Seller entitles the Buyer to claim, for each completed week of delay, a contractual penalty of at most ½ %, but in total a maximum of 5 %, of the
value of that part of the total delivery in question which
cannot be used as a result of the untimely delivery of an essential part,
provided that the Buyer has incurred a loss of this amount.
Further claims arising from default are excluded.
4.6 If acceptance was agreed, the goods are deemed fully accepted at the latest upon commencement of use within the scope of the Buyer's business operations.
4.7 The Seller has the right to employ subcontractors for all deliveries and service components.

5. Transfer of risk and place of performance

5.1 Use and risk pass to the Buyer upon dispatch of the delivery ex works or ex warehouse, irrespective of the pricing terms agreed for the delivery (such as e.g. franco, cif, etc.). This also applies if the delivery takes place as part of an installation or if the transport is carried out or organised and directed by the Seller.
5.2 In the case of services, the place of performance is where the service is provided. The risk for a service or an agreed partial service passes to the Buyer upon its provision.

6. Payment

6.1 Unless deviating payment terms have been agreed, 1/3 of the price is due upon receipt of the order confirmation, 1/3 at half the delivery time, and the remainder upon delivery. Irrespective of this, the value-added tax included in the invoice is in any case to be paid no later than 30 days after invoicing.
6.2 In the case of partial invoicing, the respective partial payments are due upon receipt of the relevant invoice. This also applies to invoiced amounts arising from subsequent deliveries or other agreements beyond the original contract sum, irrespective of the payment terms agreed for the main delivery.
6.3 Payments are to be made without any deduction, free to the Seller's paying office, in the agreed currency. Any acceptance of a cheque or bill of exchange is always made only on account of payment. All associated interest and expenses (such as e.g. collection and discount charges) are borne by the Buyer.
6.4 The Buyer is not entitled to withhold or offset payments on account of warranty claims or other counterclaims.
6.5 A payment is deemed made on the day on which the Seller can dispose of it.
6.6 If the Buyer is in default with an agreed payment or other performance arising from this or other legal transactions, the Seller may, without prejudice to its other rights,
a) defer the performance of its own obligations until this payment or other performance is effected and claim an appropriate extension of the delivery period,
b) declare all outstanding claims, including those from other transactions, due, and charge default interest on these amounts from the respective due date at a rate of 9.2 percentage points above the base interest rate. In this respect, the base interest rate applicable on the first calendar day of a half-year is decisive for the respective half-year. In any case, we are entitled to invoice pre-litigation costs, in particular reminder charges and legal fees.
c) in the case of qualified insolvency, that is, after payment default has occurred twice, fulfil other legal transactions only against advance payment.
In any case, the Seller is entitled to invoice pre-litigation costs, in particular reminder charges and legal fees, in accordance with the legally applicable provisions.
6.7 Granted discounts or bonuses are conditional upon the timely rendering of full payment.
6.8 The Seller retains title to all goods delivered by it until full payment of the invoice amounts plus interest and costs. The Buyer hereby assigns to the Seller, as security for the Seller's purchase price claim, its claim arising from any resale of goods subject to retention of title, even if these have been processed, transformed or mixed, and undertakes to make a corresponding note in its books or on its invoices. Upon request, the Buyer shall notify the Seller of the assigned claim together with the debtor thereof, provide all information and documents required for collecting the claim, and inform the third-party debtor of the assignment. In the event of seizure or other recourse, the Buyer is obliged to point out the Seller's right of ownership and to notify the Seller without delay (extended retention of title).
6.9 The Seller has the right to transmit the invoice by electronic means.

7. Warranty and liability for defects

7.1 Provided the agreed payment terms are complied with, the Seller is obliged, upon a legally effective notice of defect by the Buyer, to remedy a defect existing at the time of handover which is based on a fault in design, material or workmanship. No warranty claims can be derived from statements in catalogues, brochures, promotional material and written or verbal declarations that have not been incorporated into the contract.
7.2 The warranty obligation for all defects is 6 months, insofar as no special warranty periods have been agreed for individual delivery items. This also applies to delivery and service items firmly connected with the building or with land. The warranty period begins at the time of the transfer of risk pursuant to point 5.
7.3 If the delivery or service is delayed for reasons not within the Seller's sphere, the warranty period begins 2 weeks after the Seller's readiness to deliver or perform.
7.4 The warranty claim requires that the Buyer has notified the defects that have occurred in writing within an appropriate period and that the notification reaches the Seller. The Buyer must prove the existence of the defect within an appropriate period, in particular by making the documents or data available to it accessible to the Seller. In the event of a defect subject to warranty pursuant to point 7.1, the Seller, at its discretion, shall either rectify the defective goods or the defective part at the place of performance, have them sent to it for rectification, or make an appropriate reduction in price.
7.5 All costs arising in connection with the remedy of defects (such as e.g. for installation and removal, transport, disposal, travel and travel time) are borne by the Buyer. For warranty work at the Buyer's premises, the necessary auxiliary personnel, lifting equipment, scaffolding and small materials, etc., are to be provided free of charge. The defective parts become the property of the Seller.
7.6 If goods are manufactured by the Seller on the basis of design specifications, drawings, models or other specifications of the Buyer, the Seller's liability extends only to execution in accordance with the conditions and plans.
7.7 Excluded from the warranty are such defects arising from arrangement and installation not carried out by the Seller, inadequate setup, non-observance of installation requirements and conditions of use, overstraining of the parts beyond the performance specified by the Seller, negligent or improper handling, and the use of unsuitable operating materials; this likewise applies to defects attributable to material provided by the Buyer. The Seller is also not liable for damage attributable to the actions of third parties, to atmospheric discharges, overvoltages and chemical influences. The warranty does not extend to the replacement of parts subject to natural wear. In the case of the sale of used goods, the Seller provides no warranty.
7.8 The warranty lapses immediately if, without the Seller's written consent, the Buyer itself or a third party not expressly authorised by the Seller makes changes or repairs to the delivered items.
7.9 Provisions 7.1 to 7.8 also apply accordingly to any liability for defects on other legal grounds.
7.10 Claims under § 933a of the Austrian Civil Code (ABGB) become time-barred in any case upon expiry of the period stated in point 7.2

8. Withdrawal from the contract

8.1 The prerequisite for the Buyer's withdrawal from the contract is, unless a more specific rule has been agreed, a delay in delivery attributable to gross fault on the part of the Seller, as well as the unsuccessful expiry of a set, appropriate grace period. The withdrawal must be asserted by means of registered letter.
8.2 Irrespective of its other rights, the Seller is entitled to withdraw from the contract:
a) if the execution of the delivery or the commencement or continuation of the service becomes impossible for reasons for which the Buyer is responsible, or is further delayed despite the setting of an appropriate grace period,
b) if concerns have arisen regarding the Buyer's solvency and the Buyer, at the Seller's request, neither makes an advance payment nor provides suitable security before delivery,
c) if the extension of the delivery time due to the circumstances stated in point 4.4 amounts in total to more than half of the originally agreed delivery period, but at least 6 months, or
8.3 The withdrawal may also be declared with respect to a still outstanding part of the delivery or service for the above reasons.
8.4 If insolvency proceedings are opened over the Buyer's assets or an application to open insolvency proceedings is dismissed for lack of sufficient assets, the Seller is entitled to withdraw from the contract without setting a grace period. If this withdrawal is exercised, it takes effect immediately upon the decision that the business will not be continued.
8.5 Without prejudice to the Seller's claims for compensation, including pre-litigation costs, in the event of withdrawal, services or partial services already rendered are to be invoiced and paid for in accordance with the contract. This also applies insofar as the delivery or service has not yet been accepted by the Buyer, as well as for preparatory actions carried out by the Seller. Instead of this, the Seller is also entitled to demand the return of items already delivered.
8.6 The assertion of claims by the Buyer on the grounds of laesio enormis, error and lapse of the basis of the transaction is excluded.

9. Disposal of waste electrical and electronic equipment

The Buyer, whose registered office is in Austria, must ensure that all information is made available to the Seller so that the Seller can fulfil its obligations as manufacturer/importer in accordance with the legally applicable provisions. Statutory disposal contributions (e.g. ERA, ARA) are invoiced separately in accordance with the applicable tables.

10. Seller's liability

10.1 The Seller is liable for damages outside the scope of the Product Liability Act only if intent or gross negligence is proven against it, within the framework of the statutory provisions. The Seller's total liability in cases of gross negligence is limited to the net order value or to EUR 500,000.-, whichever is lower. Per damage event, the Seller's liability is limited to 25 % of the net order value or to EUR 125,000.-, whichever is lower.
10.2 Unless otherwise agreed, liability for slight negligence, with the exception of personal injury, as well as compensation for consequential damage, pure financial loss, indirect damage, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, loss of profit, savings not realised, loss of interest, and damage arising from third-party claims against the Buyer, is excluded.
10.3 Unless otherwise agreed, in the event of non-compliance with any conditions for installation, commissioning and use (such as e.g. those contained in operating instructions) or with official approval conditions, all compensation for damages is excluded.
10.4 If contractual penalties are agreed, any claims of the Buyer beyond these under the respective heading are excluded.
10.5 The statutory provisions of §377 of the Austrian Business Code (UGB) otherwise apply
10.6 The provisions of point 10 apply conclusively to all claims of the Buyer against the Seller, regardless of the legal ground and heading, and are also effective for all employees, subcontractors and sub-suppliers of the Seller.

11. Industrial property rights and copyright

11.1 If goods are manufactured by the Seller on the basis of design specifications, drawings, models or other specifications of the Buyer, the Buyer shall indemnify and hold the Seller harmless in the event of any infringement of property rights.
11.2 Execution documents such as e.g. plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and the like, always remain the intellectual property of the Seller and are subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. Point 2.2 also applies to execution documents.

12. Prices

12.1 The prices apply ex works or ex the Seller's warehouse, excluding packaging, loading and value-added tax. If fees, taxes or other charges are levied in connection with the delivery, these are borne by the Buyer. If delivery with dispatch is agreed, this, as well as any transport insurance requested by the Buyer, is invoiced separately, but does not include unloading and carrying in. Packaging is only taken back upon express agreement.
12.2 In the case of an order deviating from the overall offer, the Seller reserves the right to a corresponding price change.
12.3 The prices are based on the costs at the time of the initial price quotation. Should the costs increase up to the time of delivery, the Seller is entitled to adjust the prices accordingly.
12.4 In the case of repair orders, the services deemed appropriate by the Seller are rendered and invoiced on the basis of the effort incurred. This also applies to services and additional services whose expediency only becomes apparent during the execution of the order, whereby no special notification to the Buyer is required for this.
12.5 The effort involved in preparing repair quotations or in assessments is invoiced to the Buyer.

13. Assertion of claims

All claims of the Buyer must, on pain of forfeiture of the claim, be asserted in court within 3 years of the performance of the services, unless mandatory statutory provisions or provisions in these GTC provide for other periods.

14. Compliance with export regulations

14.1 When passing on the goods delivered by the Seller and the associated documentation, irrespective of the manner in which they are provided, or the services rendered by the Seller, including technical support of any kind, to third parties, the Buyer must comply with the respectively applicable provisions of national and international (re-)export regulations. In any case, when passing on the goods or services to third parties, the Buyer must observe the (re-)export regulations of the Seller's country of domicile, the European Union, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
14.2 Insofar as required for export control checks, the Buyer must, upon request, transmit to the Seller without delay all necessary information, including on the end recipient, final destination and intended use of the goods or services.

15. General provisions

15.1 Should individual provisions of the contract or of these terms be invalid, the validity of the remaining provisions is not affected. The invalid provision is to be replaced by a valid one that comes as close as possible to the intended objective.
15.2 The client agrees that the contractor may use and publish the business relationship with the client, as well as the services rendered for the client, as a reference for promotional purposes.

16. Place of jurisdiction and applicable law

The court with subject-matter jurisdiction at the Seller's main headquarters, in Innsbruck, has jurisdiction to decide all disputes arising from the contract – including those concerning its existence or non-existence. The contract is subject exclusively to Austrian law, excluding the UN Sales Convention and the conflict-of-law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL) is excluded.

17. Reservation clause

The Seller's performance of the contract is subject to the reservation that no obstacles under national or international (re-)export regulations, in particular no embargoes and/or other sanctions, stand in the way of performance.

18. Further terms of delivery and payment

We deliver in accordance with the above-mentioned “General Delivery Conditions of the Austrian Electrical and Electronics Industry issued by the Trade Association of the Austrian Electrical and Electronics Industry”, which are supplemented by the following conditions: The packaging units, dimensions and images given in our catalogue are not binding for deliveries. Changes reserved. Prices: Our prices are subject to change without notice and apply ex works. For orders under EUR 25.- net, we charge a handling flat fee of EUR 12.-. The lists contain pure goods prices, excluding value-added tax and packaging.
Packaging and delivery: Packaging is charged at cost price. For goods lengths up to and including 2 metres, we deliver free of charge within Austria from a goods value of EUR 75.-. For goods lengths of 2 metres and above, we deliver free of charge within Austria from a goods value of EUR 150.-. Up to a goods value of EUR 75.-, the freight costs incurred are passed on.
Returns: In principle, there is no right to the return of goods. However, if we have agreed to this in writing, goods will only be taken back in their original packaging or in as-new condition. Custom-made items, as well as damaged or soiled goods, will not be taken back. The collection of returned goods accepted by us must be agreed separately. Delivery must be made free of charge. The transfer of risk for returned goods is the moment at which the goods arrive at our warehouse. As processing costs for returns, a 15% restocking fee, but at least EUR 25.- per shipment, is taken into account in the case of a credit note. Price and technical changes reserved.
Price lists: Upon the appearance of new price lists, all previous ones lose their validity