SUBJECT MATTER OF THE CONTRACT The contract documents include: The order The order confirmation The general terms and conditions of sale and delivery The terms of payment The terms of assembly The technical specifications as a component of the delivery item Additional agreements GENERAL TERMS OF SALE AND SUPPLY 1 PREAMBLE 1.1 The general terms and conditions of delivery shall apply to the extent the parties to the contract have not otherwise expressly stipulated in writing. The parties to the contract are: The system manufacturer and/or the supplier, hereinafter referred to as the Seller. The customer of the Seller, hereinafter referred to as the Purchaser. Subsequent modifications of the subject matter of the contract potentially desired must be communicated to the Seller in a separate writing making reference to the modifications desired. Silence on the part of the Seller shall not be deemed to be consent. Only the written change request countersigned by the Seller shall be deemed to be consent. 1.2 The following provisions concerning the delivery of goods shall also apply correspondingly for services. The terms of assembly shall additionally apply for assembly work according to the Fachverband der Maschinen- und Stahlbauindustrie Österreichs (Association of Austrian Machinery and Steel Construction Industries). 1.3 The contractual relationship is exclusively subject to Austrian law. In addition to the subject matter of the contract, the HGB (Commercial Code), the ABGB (General Civil Code) and the Consumer Protection Act in the currently valid version shall apply for the application and interpretation of the contract provisions. The invalidity of individual contract provisions potentially arising thereby shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by those statutory provisions which most closely approximate the legal and economic meaning of the invalid provisions. 1.4 The application of the United Nations Convention on Contracts for the International Sale of Goods shall be amicably barred. 2 QUOTATIONS 2.1 All quotations are subject to change, cost estimates are non-binding. 2.2 Documents such as illustrations, sketches, drawings, statements of costs, etc. are only binding when this is expressly stated in writing. All specifications contained in catalogs and price lists, such colors and illustrations, are non-binding for the Purchaser. 2.3 The Purchaser is obligated to inspect the documents delivered to him by the principal for their correctness and completeness. 3 CONCLUSION OF THE CONTRACT 3.1 The contract shall be deemed to be concluded when the Seller has dispatched or delivered a written order confirmation after receipt of the order.
3.2 Changes and additions to this contract require the written confirmation of the Seller in order to be valid. The costs incurred through changes or revocations of the contract must be borne by the Purchaser. If an order is not executed for reasons that are the responsibility of the Purchaser, the Seller may demand a processing fee of 20% and invoice the parts already completed in their entirety. 3.3 If for technical or economic reasons, the order must be changed (augmented) during processing, the Seller is entitled to execute the order in that scope, which he can assume is in the interests of the Purchaser in his professional discretion. 3.4 The written consent of the Purchaser must be obtained for a scope of delivery in excess thereof. If the Purchaser does not consent to such a change in the scope of delivery, the Seller is entitled to invoice the work performed up to that point and to decline the continued execution of the order or the delivery. 4 DRAWINGS AND DOCUMENTS 4.1 Drawings, sketches, cost estimates and other technical documents, which may also be a part of the offer, shall likewise remain the intellectual property of the Seller, as well as samples, catalogs, prospectuses, illustrations and the like. Any utilization, duplication, reproduction, dissemination and delivery to third parties, publication and exhibition may only occur with the express consent of the owner or Seller. 5 SYSTEM SOFTWARE 5.1 Control and regulation programs that regulate the operation of the delivered system shall remain the property of the Seller. With the complete payment of the instrumentbased scope of delivery, the Seller shall receive a right of use unlimited in time for the control program related to his system. 6 DELIVERY 6.1 If delivery deadlines are agreed, they will be binding. If no other agreements are made, the following shall apply: 6.2 In the absence of any other agreement, the period of delivery shall begin at the latest of the following dates: a) Date of order placement; b) Date of the fulfillment of all technical, commercial and financial preconditions incumbent on the Purchaser under the agreement; c) Date on which Seller has received a payment on account that is due prior to the delivery of the goods, and/or a payment guarantee has been issued or otherwise provided. 6.3 Technical clarity concerning all structural dimensions influencing the scope of delivery must be present in accordance with the stipulated dates. If technical clarity does not exist through no fault of the Seller, the Seller is entitled to withhold the delivery and to invoice the Purchaser for all consequential costs incurred thereby. 6.4 The Seller is entitled to make partial or advance deliveries. 6.5 If a delivery is delayed on account of a circumstance on the Seller's part that constitutes a reason for relief under Article 7, a reasonable extension of the period of delivery shall be granted.
6.6 If the Seller has caused a delay in delivery, Purchaser may either demand the performance of the contract or withdraw from the contract, granting a reasonable extension of time. In the case of items made to order, the deadline extension must be calculated to take account of the fact that the Seller cannot use parts on which work has already been started for a different purpose. In no case will claims for damages accrue. 6.7 If the Purchaser does not accept the goods supplied under the contract in the contractually agreed place or at the contractually agreed time, then the goods shall be stored at the cost and risk of the Purchaser. The Seller is also entitled as a result of a delay to demand reimbursement for all the justified expenditures incurred in the implementation of the contract and not covered by the payments received, to the exclusion of all other claims against the Purchaser due to the delay. 6.8 Any claims of the Purchaser against the Seller owing to delay other than those listed in Article 6 are excluded. 6.9 To the extent the place of delivery is outside of the domestic market of the European Union, the Purchaser is obligated to secure all licenses necessary for importation, or possibly for assembly and startup and to inform the Seller of their existence, in order to avoid delays in the fulfillment of the order. The Purchaser shall be liable for the nonperformance of these duties and delays and damages arising therefrom; furthermore, such delays suspend all stipulated delivery periods. Import restrictions of the country in which we must render the services shall not affect the validity of the contract. If acceptance of the goods becomes impossible for the Purchaser due to statutory import restrictions, the Purchaser agrees to compensate the Seller for damages incurred thereby. 7 REASONS FOR RELIEF 7.1 The following circumstances shall be deemed to be reasons for relief, in the event they arise after conclusion of a contract and stand in the way of its fulfillment, they shall be deemed to be force majeure: Fire, mobilization, confiscation, embargo, prohibition of the transfer of foreign currency, riot, absence of means of transportation, general lack of supply goods, limitation on energy consumption, plane crash, volcanic eruption, earthquake, avalanches, mudslides, tornados, tidal waves and other impacts through force majeure. In the event that a case arises, in which the service becomes impossible for the stated reasons, the Seller may withdraw in whole or in part from the contract, without damages accruing to the Purchaser against the Seller. 7.2 Only events that are unforeseeable and inevitable for the parties and which come from outside the sphere of influence shall be deemed to be events of impacts through force majeure. 7.3 A Purchaser affected by an event may, however, only claim the existence of reason for relief if Purchaser informs Seller without delay, at the latest, though, within 5 calendar days, of the onset and anticipated end of an obstruction, by sending by registered mail a statement, confirmed by the respective government authority or chamber of commerce of the delivery country respectively, concerning the reason, the anticipated effects and the duration of the delay. An amicable solution will be negotiated in such a case. If a solution should appear unattainable in this process, the Seller may withdraw from the contract in whole or in part.
8 PACKAGING 8.1 Unless otherwise stipulated a) The listed prices are without packaging; b) Packaging and means of transportation will be used, which prove to be advantageous in the judgment of the Seller. 9 TERMS OF SHIPPING/TRANSPORT 9.1 If not otherwise agreed, the delivery of complete boiler systems shall be accomplished by the Seller. The costs of transportation will be priced separately and are calculated as a single delivery of the complete scope of supply. 9.2 If system parts are sent individually according to the later request of the Purchaser, the additional costs arising thereby will be invoiced separately. 10 TRANSFER OF THE RISK 10.1 Unless otherwise agreed, the goods shall be deemed to have been sold "ex works" (EXW). 10.2 Furthermore, the INCOTERMS shall apply in the version valid on the date the contract is signed. 11 ACCEPTANCE OF DELIVERY/TESTING 11.1 An acceptance record will be composed after delivery of the system and must be signed by the Purchaser. If the Purchaser or his authorized representative is not present during the acceptance test, in spite of having been informed thereof in due time by Seller, only Seller shall sign the acceptance record. In any event, Seller shall send Purchaser a copy of the acceptance record, the correctness of which Purchaser may not contest, not even in those cases where Purchaser or Purchaser's authorized representative was unable to sign it for lack of attending the test. 11.2 The Purchaser is obligated to immediately inspect the goods after their receipt. Goods that can be inspected according to their packing slip and which do not conform thereto or exhibit visible defects must be immediately asserted in writing by the Purchaser on the packing slip. If he neglects to do so, the delivery and service shall be deemed to have been approved. 12 PRICE 12.1 If not otherwise stipulated, prices shall apply ex works net (without VAT), exclusive of packaging and loading. 12.2 The prices listed in the general documents of the Seller can, as a matter of principle, be changed at any time without advanced notice. 12.3 The prices are based on the costs at the time of price quotation. If the costs should change before the time of delivery, these changes shall be borne by the Purchaser. 13 PAYMENT 13.1 Payment must be made in accordance with the stipulated terms and conditions of payment. To the extent no terms and conditions of payment were agreed to, one-third of the price is due upon receipt of the order confirmation, one-third at the half-way point of the delivery period, and the remainder upon completion of delivery. Irrespective thereof, the sales tax contained in the invoice must be paid in any event by no later than 30 days after billing. 13.2 The Purchaser is not entitled to withhold payments due to warranty claims or other counterclaims not recognized by the Seller.
13.3 If the Purchaser defaults on an agreed payment or other service, the Seller can either insist on performance and a) Suspend the fulfilment of his own obligations until the payment in arrears or other service is made, b) Claim an appropriate extension of the delivery deadline, c) Set a due date for the entire still outstanding purchase price, d) To the extent that no reason for relief exists within the context of Art. 7 on the part of the Seller, claim interest on arrears from the due date of 7.5% above the current bank rate of the European Central Bank or, after allowing an appropriate deadline extension, announce his withdrawal from the contract. 13.4 In any case, the Purchaser must reimburse the Seller for the dunning and enforcement costs incurred as additional default damages. 13.5 If the Purchaser fails to effect the owed payment or other service before the extended deadline pursuant to13.3, the Seller can withdraw from the contract with written notification. At the Seller's request, the Purchaser must return to the Seller goods already delivered and reimburse him for the incurred loss in value of the goods and any justified expenditure incurred by the Seller in performance. With regard to goods not yet delivered, the Seller is entitled to make the finished or partly finished parts available to the Purchaser and demand the corresponding portion of the purchase price for such. 14 RETENTION OF TITLE 14.1 The Seller reserves the ownership to the object of purchase up until complete fulfillment of all financial and other stipulated or other obligations arising from the general terms and conditions of sale and delivery of the Purchaser and is entitled to seize the delivered goods without prior legal action or availment of a court, if the delivery item has not been completely paid for. The Seller is entitled to make his ownership outwardly distinguishable on the delivery item. The Purchaser must comply with the necessary formal requirements for ensuring retention of title. In the event of attachment or any other claim, the Purchaser is required to assert the Seller s right of ownership and notify the Seller immediately. 14.2 The Purchaser is obligated to maintain all items in their proper condition and to insure them for the duration of the reservation of title against theft, fire, water, risk of explosion, mechanical breakdown and other damages. Claims against the insurance shall be deemed to have been assigned to the Seller as security. 14.3 Redemption of the object of purchase by the Seller does not constitute withdrawal from the contract, unless such was expressly declared in writing by the Seller. After redemption of the object of purchase, the Seller is authorized to dispose thereof; the proceeds of sale shall be deducted from the obligation of the Purchaser, minus reasonable disposal costs. 14.4 Devices, tools, models or other equipment which were fabricated according to the calculations and/or drawing of the Seller, shall remain the property of the Seller, to the extent not otherwise agreed.
15 WARRANTY 15.1 The warranty equals: a) Movable goods and/or parts - 2 years and b) For non-movable goods and/or parts - 3 years. c) No warranty will be granted for wearing parts, such as: gaskets, fire bricks, ignition fans, electrical relays, bearings, grate elements, transport and stoker augers, rubber parts, etc. d) Warranty can be claimed only if the annual service has been made by a Gilles engineer or an official authorised technician. 15.2 The warranty period commences with the date of delivery. The completed delivery and installation of the delivery item on site shall be deemed to be delivery for the purposes of warranty. 15.3 It is expressly noted that the operation of the delivery item during the warranty period and beyond is only possible if the technical specifications belonging to the delivery Item are strictly complied with and fulfilled. 15.4 The technical specifications is a part of the delivery item and indispensable for the proper operation of the delivered goods. The subject matter of the technical specifications includes: a) Assembly and operating instructions b) Maintenance and service plan 15.5 The Purchaser must report defects not detectable without further ado upon receipt of the delivery as soon as they are discovered, no later however, than before expiration of the warranty periods. 15.6 Subject to the provisions below, the Seller is obligated to remedy any defect affecting the fitness for use due to a deficiency in design, material or workmanship. 15.7 The Purchaser may invoke this article only if he immediately informs the Seller in writing of any defects that have appeared. Once Seller has been informed of defects In this manner, Seller shall - if the defects must be remedied in accordance with the provisions of this article - at Seller's option: a) Repair the defective goods on site; b) Cause the defective goods or defective parts to be returned for repair; c) Replace the defective goods or the defective parts. 15.8 If Seller arranges for the defective goods or parts to be returned to Seller for the purpose of repair or replacement, the Purchaser shall bear the costs and the risk of transport, unless otherwise agreed. The re-shipment of the repaired or replaced goods or parts to the Purchaser shall be at the expense and risk of the Seller, unless otherwise agreed. 15.9 The defective goods or parts, which are replaced in accordance with this article, shall be available to the Seller. 15.10 The Seller shall pay the costs for the remediation of a defect undertaken by Purchaser himself, only if the Seller has given his written consent thereto. 15.11 Seller shall be liable for those parts of the goods procured from subcontractors only within the framework of Seller's own warranty claims vis-à-vis the sub-contractors. 15.12 If the Seller produces items on the basis of Purchaser s design data, drawings or models, the Seller's liability shall not extend to the accuracy of the design, but rather to whether execution occured in accordance with the Purchaser s specifications. In such cases, the Purchaser shall indemnify and hold Seller harmless in respect to any court action, in the event of an infringement of proprietary rights. 15.13 The Seller's warranty obligation shall not apply if occurrences of force majeure or other force majeure in accordance with Art. 7 lead to damage, to the deficiency or the condemnation of the delivered goods or the delivered parts.
15.14 The Seller's warranty obligation shall only apply to defects that appear when complying with the technical specifications and thus with the anticipated operating conditions, as well as in the event of normal use. His obligation shall, in particular, not apply to defects that are due to: Inadequate installation on the part of Purchaser or Purchaser's representative, inadequate maintenance, inadequate repairs or modifications undertaken by persons other than the Seller or the Seller's representative without the written consent of the Seller, normal wear of parts that are subject to wear and tear and which lead to no disruption in operation. 15.15 In the event of the acceptance of repair orders or when reworking or modifying old goods or third-party goods, as well as when delivering used goods, the Seller shall not assume any warranty. 15.16 As of the commencement of the warranty period, the Seller shall not assume any liability that extends beyond the scope defined in this article. 16 LIABILITY 16.1 It is expressly agreed that Seller shall not be liable to Purchaser for damages in the event of personal injuries, or for damage to goods that are not the subject of the specific contract, as well as for other damage and loss of profit, unless the circumstances of a specific case reveal that Seller acted with gross negligence. 16.2 The purchased object provides only that level of safety that may be expected on the basis of the registration provisions, the operating instructions, the Seller s guidelines on the handling of the purchased object - especially with regard to any possible inspections - and other instructions given. 16.3 To the extent Article 16.1 applies, damages are limited to 5% of the order amount in the event of the Seller s minor negligence, but no more than EUR 100,000. 16.4 In the event that cause of damage for which the Seller is responsible is based on intentional act or gross negligence, the amount of coverage is limited to the product liability insurance. 16.5 All claims for damages due to defects in deliveries and/or performances must be filed in court within one year after the expiration of the contractually agreed warranty period if the Seller does not expressly accept the defect; otherwise the claims shall lapse. 17 CONSEQUENTIAL DAMAGES 17.1 Subject to any provisions of a different effect in the present terms and conditions, the Seller's liability vis-à-vis Purchaser shall be precluded for any standstill in production, loss of profit, loss of use, loss of contract or any other economic or indirect consequential damage. 18 RESALE 18.1 The resale of the purchase item delivered by the Seller in new condition by the Purchaser is only permitted if this was authorized by the Seller in written form with corresponding collateral terms. Other purchasers which sell without authorization by the Seller in this regard, must compensate the Seller with liquidated damages of 25% of the purchase price. 19 DATA PROTECTION 19.1 The Seller shall have the right to store, to communicate, to process and delete personal data of Purchaser within the framework of their business relations.
19.2 The parties agree to absolute non-disclosure vis-à-vis third parties of any knowledge obtained in the course of their business relationship. 20 VENUE; APPLICABLE LAW; PLACE OF PERFORMANCE 20.1 Venue for all disputes arising directly or indirectly from the contract shall be the Austrian court having local jurisdiction for the Seller's principal place of business. However, the Seller may also resort to the court with jurisdiction for Purchaser. 20.2 The parties may also stipulate to the jurisdiction of a board of arbitration. 20.3 The contract shall be subject to Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) 20.4 The Seller's principal place of business shall be the place of performance for deliveries and payments, regardless of the manner of payment whatsoever, also in the event that delivery occurs in a different place under the contract. 21 MISCELLANEOUS 21.1 The permit for the installation of the article of sale must be obtained by the building owner from the responsible public agency. 21.2 Components will only be taken back in flawless condition and only if they were not specially produced as special parts for the respective system. A processing fee of 15% will be charged for parts taken back. Parts may only be returned within 4 weeks after delivery.