General Terms and Conditions/

General Terms and Conditions of Business

(please find the english version below)

of Moldsonics GmbH (FN 559807x) Hafenstraße 47-51, 4020 Linz

Status: August 2021

1. general
1.1 These General Terms and Conditions shall apply to the legal and quasi legal relationship with you (hereinafter also referred to as "you" or "customer" or "contractual partner"), in particular to all - including future - contracts for deliveries and services to be provided by Moldsonics GmbH (hereinafter referred to as "we" or "contractor"). Deviating, conflicting or supplementary general terms and conditions of the contractual partner shall not be recognized, even if we do not expressly object to them again, unless we expressly agree to their validity in writing.

2. conclusion of contract

2.1 Unless expressly agreed otherwise in writing, declarations on our part shall only have legal effect if they have been expressly confirmed in writing by persons authorized to represent our company. Verbal subsidiary agreements are to be regarded as non-binding.

2.2 Our offers are always subject to change unless they are expressly designated as binding. The Customer's order shall constitute an offer to us to which the Customer shall be fully bound for a period of 4 weeks. A contract shall only come into existence with the written and express order confirmation ("declaration of acceptance") in accordance with clause 2.1. The declaration of acceptance can be made either in writing - by an order confirmation - or by delivery of the product or provision of the service to the client.

2.3 The content of the contract shall be the order of the Customer on which the order is based and which is accepted by a declaration of acceptance. Public statements, promotions or advertising by us or a third party shall not become part of the order and the contract.

3. prices and terms of payment

3.1 All prices are net prices in Euro excluding statutory VAT on an EXW (Ex Works) basis ex works (Incoterms 2020) plus, packaging, transport, storage and insurance, unless otherwise agreed in the specific case.

3.2 Prices for our application packages include sensors and associated electronic unit ("equipment" or "product"). Depending on the content of the order, the prices may also include associated software.
3.3 Unless otherwise agreed, services rendered by us shall be charged on the basis of our hourly rates according to the accepted order.
3.4 If the general conditions and factors influencing the pricing of our service (prices for purchased materials, wages, customs duties, etc.) change by more than 5% in comparison to the time of conclusion of the contract by the time of complete performance of the service for reasons for which we are not responsible and for which we are not responsible, we shall be entitled to withdraw from the agreed delivery time and from the agreed purchase price and to submit a new offer to the Customer. If this offer is not accepted by the customer, both parties have the right to withdraw from the contract. Services already rendered until the withdrawal shall be compensated or restituted.
3.5 Payments are due within 14 days after receipt of the invoice by the client. Any objections to an invoice must be raised within 30 days of the invoice date, otherwise the service provided shall be deemed to have been duly accepted. If objections are raised in due time, all undisputed amounts shall remain payable on the due date.
3.6 Payment shall be made in such a way that we can freely dispose of the amount on the due date. Any costs of payment transactions shall be borne by the customer.
3.7 In the event of default, we shall charge interest from the due date at a rate of 9.2% above the prime rate (§ 456 UGB). This shall not affect our right to claim any further damage we suffer as a result of the delay.
3.8 If the customer is in default of payment, we shall also be entitled to withdraw from the contract by granting a grace period of 8 working days and to claim damages - including loss of profit.
3.9 In the case of clause 3.8, we may demand advance payments for outstanding services in an amount to be determined at our discretion.
3.10. The Buyer may avert the legal consequences referred to in Clauses 3.8 to 3.10 by providing security in the amount of our endangered claim for payment.

4. deadlines and dates
4.1 We shall comply with delivery periods and dates as far as possible. Unless expressly agreed as binding, however, delivery periods and dates are non-binding and are always understood as the expected time of provision and handover to the customer. We shall be entitled to make partial deliveries and render partial services at any time.
4.2 Withdrawal from the contract by the customer due to delay in delivery shall only be possible if a reasonable - at least 4-week - period of grace is granted. The withdrawal must be asserted in writing by registered letter. The right of withdrawal shall only apply to the part of the delivery or service in respect of which there is a delay.
4.3 If, however, the customer is in default with the fulfillment of the cooperation obligations incumbent upon him according to clause 5 ("impediments"), a period agreed upon as binding according to clause 4.1 shall only begin to run after all impediments have ceased to exist.
4.4 If deliveries by our suppliers are not made correctly or in due time for reasons not attributable to us and for which we are not responsible, and if a reasonable covering purchase is not possible for us, our delivery period shall be extended accordingly.
4.5 In the event of a subsequent amendment to the order concerning the subject of performance, we shall be entitled to unilaterally extend the performance period by a reasonable period. If only parts of the order are subsequently changed, the right to extend the performance period shall, in case of doubt, extend to the entire order.
4.6 The performance period shall be deemed to have been complied with if the performance is handed over to the Customer no later than on the last day of the performance period or if the Customer is notified that the performance is ready for handover.
4.7 If non-compliance with the performance period is due to force majeure or other events beyond the Contractor's control ("Event"), the delivery period shall commence when the Event ceases to exist plus a reasonable start-up period. This shall also apply if such events occur during an existing delay. The following shall be deemed to be equivalent to the events covered by sentence 1: currency trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible (e.g. fire), epidemic/pandemic as well as all other circumstances which make our performance significantly more difficult or impossible through no fault of our own.
4.8 If, as a result of an event mentioned in clause 4.7, the execution of the contract becomes unreasonable for us, we may declare the cancellation of the contract.

5 Obligations of the Customer to Cooperate
5.1 Insofar as it is necessary for the performance of our services, the Customer shall grant us access to its premises at an agreed time.
5.2 The Customer shall be obligated to create all conditions necessary for the proper execution of the order at its own expense. This includes in particular the obligation to provide us with the technical information required for the performance of the service, such as dimensions, drawings and sketches, in good time upon request.
5.3 The Customer undertakes to only provide documents which it is entitled to pass on and which do not infringe the rights of third parties.
5.4 The Customer warrants to us that the information and/or documents made available or provided to us for the purpose of rendering performance are correct and complete.

6. performance of services, acceptance
6.1 The services owed shall be deemed to have been rendered upon handover to the Client. The handover shall take place in the form expressly agreed in writing. Unless otherwise agreed, our services owed shall be deemed to have been handed over at the earliest of the following times:

a. when the acceptance is confirmed in writing by the client
b. at the time when the system is put into operation at the customer's premises
c. at the latest 4 weeks after delivery or service or, if the product is assembled and installed by us, 4 weeks after assembly and installation has been completed

6.2 If the Customer does not accept the product provided as agreed at the contractually agreed place or at the agreed time, default of acceptance shall occur. In the event of default in acceptance by the Customer, the product not accepted shall be stored by us at the risk and expense of the Customer for a maximum period of 6 weeks from the date of provision. For the period of storage, the Customer shall pay net storage costs of 0.02% of the (partial) invoice amount attributable to the product provided per calendar day or part thereof.
(partial) invoice amount to us. Any additional costs incurred by us as a result of the delay in acceptance shall be paid by the Customer. At the same time, in the event of default of acceptance on the part of the Customer, we shall be entitled either to insist on performance of the contract or to withdraw from the contract after setting a reasonable period of grace and to dispose of the product elsewhere.
6.3 If our product is handed over to the customer by way of dispatch, the dispatch shall be ex works or ex warehouse at the cost, invoice and risk of the customer (including any customs duties). The mode and route of shipment shall be chosen by us, unless the Customer expressly requests a different mode or route of shipment in writing in advance. The customer approves any customary mode of shipment. In the case of handover by dispatch, the product shall be deemed to have been handed over to the Customer when it is handed over to the forwarding agent, the carrier or any other person designated to carry out the dispatch. From this point in time, the Customer shall bear the risk of accidental loss or accidental deterioration of the product.
6.4 The Principal shall take out appropriate insurance against this risk. Upon written request of the Principal, we shall take out a corresponding transport insurance at the expense of the Principal.
6.5 Services shall be deemed to have been handed over upon actual performance.
6.6 It is hereby stipulated that we may commission competent third parties to perform the service owed by us or parts thereof (subcontract).
6.7 If our performance is impossible due to non-delivery by our suppliers which is not attributable to us and for which we are not responsible, and if a covering purchase is not reasonable or possible for us, we shall be entitled to withdraw from the contract; in the event of such withdrawal, the customer shall be reimbursed for any payments already made. Any partial performance already rendered by us shall be returned or reimbursed.

7. warranty

7.1 The warranty period is 6 months from delivery.

7.2 No warranty shall apply in the event of errors, malfunctions or damage resulting from improper use or execution contrary to the intended purpose, defective maintenance or improper transport of the product or any software supplied with it, or in the event of defects resulting from the actions or components of third parties.
7.3 If the product is assembled and installed by the customer himself or by a third party, we shall not provide any warranty for defects, malfunctions or damage resulting from improper assembly and installation.
7.4 We shall only provide a warranty for the functionality of our product in accordance with the agreement. We do not provide any warranty for the function of the entire system or the entire machine.
7.5 After handover, the customer shall inspect the delivery without delay and give notice of any defects. The notice of defect must be received by us in writing without delay, but under no circumstances later than 8 working days after handover, in the event of any other loss of rights. Defects which cannot be discovered within this period even with the most careful inspection must also be notified to us in writing without delay, under no circumstances later than 8 working days after their discovery, with immediate cessation of any processing and/or treatment, with any other loss of rights.
7.6 The existence of defects shall be proven by the customer. The presumption according to § 924 ABGB is excluded.
7.7 In the event of a justified notice of defect in due time, we shall have the option to either make good the defective performance within a reasonable period of time - at least 14 days - or to repair the defective performance.
7.8 In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement pursuant to clause 7.7, the Customer shall be entitled to rescind the contract, i.e. to demand cancellation. If there is only a minor defect, the Customer shall only have the right to a price reduction; redhibitory action is expressly excluded.
7.9 In particular, rectifications of defects resulting from the Client's failure or non-fulfillment of obligations pursuant to clause 5 or which are beyond our control shall not constitute a case of warranty.
7.10. We shall only have to reimburse the costs of remedying defects by the Customer itself or by third parties if such remedying of defects and the associated costs have been approved by us in advance.
7.11. The warranty shall not apply if the Customer modifies the object of performance or has it modified by third parties without our consent and the rectification of defects becomes impossible or more difficult as a result. In any case, the client shall bear the resulting additional costs of remedying the defect.

8. retention of title, granting of use
8.1 Our products shall remain our property until payment has been made in full.
8.2 For any software supplied, the customer shall be granted the non-exclusive, non-transferable right of use for an unlimited period of time for the software version existing at the time of delivery upon payment in full. If the software is further developed or updated after delivery on the basis of chargeable updates, the right of use to the updated software version shall only be granted upon full payment of the update. The transfer and passing on of this right of use to third parties is not permitted for the client. This does not include companies affiliated with the Customer within the meaning of §§ 189a of the Austrian Commercial Code (UGB) and § 15 of the Austrian Stock Corporation Act (AktG). The processing and further development of the software shall not be permitted to the Customer and its affiliated companies.
8.3 With regard to any software supplied, we or any licensor shall remain the owner of all rights to the software. A source code is expressly not handed over.

9 Intellectual Property, Secrecy
9.1 All intellectual property rights, such as copyrights, trademark rights, design rights, patent rights, utility model rights and know-how, as well as in particular unprotected inventions, industrial experience, trade secrets, etc., irrespective of the point in time at which they are disclosed to the contractual partner, shall in any case remain with us or any licensor. Offer documents, illustrations, drawings, calculations and other documents shall remain our (intellectual) property. They may not be made accessible to third parties by the customer. This applies in particular to documents marked as "confidential". Any disclosure to third parties shall only be permissible with our express written consent.
9.2 The Customer shall be obliged to maintain secrecy vis-à-vis third parties with regard to the business relationship and all commercial and technical details which are not in the public domain, such as in particular, but not exclusively, execution documents, documentation, business and trade secrets, etc., which come to its knowledge directly or indirectly as a result of the business relationship ("confidential information"), and to use such information exclusively for the use and execution of the system supplied by us. The obligation to maintain secrecy shall remain in force even after termination of the contractual relationship. The customer may not publish the contents of the order, the business case and all information and documents received from us directly or indirectly and all information and documents based thereon received from the customer without our express and written consent, nor use them for advertising or other purposes. Employees and other persons who have to become aware of confidential information in the context of the order and use of the system shall be subject to a corresponding confidentiality obligation. In the event of a breach of the confidentiality obligation, the customer shall be obligated to indemnify and hold us harmless, also against claims of third parties.
9.3 The Customer hereby expressly and irrevocably declares for itself and bindingly for its respective legal successors as well as for its employees and their legal successors and for its subcontractors to waive in full and exclusively in favor of us all work results and creations, such as in particular all ideas, inventions and findings, directly or indirectly created or still to be created in the future by it or its employees or subcontractors in connection with the application and use of the system provided by us and to assign to us all rights thereto.

10. use of the products
10.1 Our products (sensors, electronic unit, possibly software) are to be used exclusively in injection mold making and extrusion.
10.2 The use of our products in any other field is expressly excluded.
10.3 We shall not assume any liability for claims of third parties arising from infringements of rights due to the use of our products in an area other than those mentioned in clause 10.1.

11. industrial property rights of third parties
11.1 For delivery items which we manufacture according to documents of the customer (design data, drawings, models or other specifications, etc.), the customer shall exclusively assume the warranty that the manufacture of these delivery items does not infringe the property rights of third parties.
11.2 If third party property rights are nevertheless asserted, we shall be entitled to cease production of the delivery items at the risk of the Customer until the third party rights have been clarified, unless the claims are manifestly unjustified.
11.3 The customer shall indemnify us and hold us harmless against all third party property rights which are infringed by the manufacture of the delivery items.
11.4 If claims are asserted against us by third parties due to the infringement of industrial property rights by the manufacture of delivery items within the meaning of clause 11.1, we shall be entitled, in addition to clause 11.3, to demand reasonable advance payments by the customer for any costs of legal proceedings.
11.5 We may also claim reimbursement from the customer for necessary and useful costs incurred by us.
11.6 We do not warrant that the results of our research and development activities do not affect the property rights of third parties. The customer shall be informed of any third-party industrial property rights known to us.
11.7 We shall not be liable for the infringement of third party property rights due to the use and application of our research and development results by the client.

12. liability
12.1 The Contractor shall not be liable for any damage caused to the Client except in cases of intent and gross negligence. Liability for damages due to slight negligence as well as for indirect damages, consequential damages, mere financial losses and loss of profit is expressly excluded. We do not assume any liability for damages resulting from the failure of our products to obtain measurement data. This limitation of liability does not apply to personal injury.
12.2 We shall not be liable for any fault on the part of our suppliers.
12.3 Claims for damages may only be asserted by the customer in court within six months of knowledge of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
12.4 The Contractor shall not be liable for the documents provided and/or transmitted by the Customer or their contents.
12.5 The loss of rights according to clause 7.5 shall extend to all claims and/or rights, irrespective of their legal nature, if and insofar as they are or could be connected with the defectiveness, including but not limited to the right to contest errors, laesio enormis, culpa in contrahendo as well as compensation for consequential damage caused by defects and/or defects.
12.6 We shall not be liable for errors in the use, execution and processing of the products delivered by us by the Customer or for errors in the assembly and installation of the delivered products carried out by third parties or the Customer and these shall be the sole responsibility of the Customer. Legal and official requirements shall be taken into account by the Customer in the use, execution and processing of the products supplied by us.
12.7 We shall not be liable for damage and defects to the product due to improper storage by the Customer.

13. error
13.1 The contestation of the contract concluded between us and the client due to error is excluded.

14. final provisions
14.1 The Customer agrees that the Contractor may use the company name and the company logo of the Customer as a reference customer in internal and/or external media (e.g. written documentation, websites, advertising materials, press releases and presentations) free of charge until revoked and may provide the service itself with a reference to the service provision by the Contractor (e.g. logo of the Contractor as watermark).
14.2 An assignment of claims arising from or in connection with this contract to third parties shall only be permissible with the prior express written consent of the Contractor.
14.3 Offsetting against claims of the Contractor shall only be permissible with counterclaims that have been legally established by a court or expressly recognized in writing.
14.4 The processing of personal data shall be subject to our data protection declaration, which is available at https://www.moldsonics.com/datenschutz-moldsonics/.
14.5 Deviating agreements, supplements, collateral agreements and assurances shall only be effective if they are made expressly and in writing. This shall also apply to any waiver of the written form requirement, whereby such waiver shall not be presumed.
14.6 Should a provision of this contract be or become invalid or unenforceable, or should a point requiring regulation have been inadvertently omitted from this contract, this shall not affect the validity of the remaining provisions. In such a case, it shall be deemed agreed what the contracting parties would have agreed in the knowledge of the invalid or unenforceable provision or to fill the gap to a legally permissible and effective extent and in the sense of this contract.
14.7 All legal relations between the Customer and the Contractor shall be governed exclusively by Austrian substantive law, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
14.8 All legal disputes arising from or in connection with the present contract shall be subject to the exclusive jurisdiction of the competent court at the Contractor's registered office.

 

 

 

General Terms and Conditions of Business

of Moldsonics GmbH (FN 559807x) Hafenstraße 47-51, 4020 Linz

Version: August 2021

  1. General

1.1 These General Terms and Conditions apply to the legal and quasi-legal relationship with you (hereinafter also referred to as "you" or "customer" or "contractual partner"), in particular to all - including future - contracts for deliveries and services to be provided by Moldsonics GmbH (hereinafter referred to as "we" or "contractor"). Deviating, conflicting or supplementary general terms and conditions of the contractual partner are not recognized, even if we do not expressly object to them again, unless we expressly agree to their validity in writing.

  1. Conclusion of the contract

2.1 Unless expressly agreed otherwise in writing, declarations on our part only have legal effect if they have been expressly confirmed in writing by persons authorized to represent our company. Verbal subsidiary agreements are to be regarded as non-binding.

2.2 Our offers are always subject to change unless they are expressly designated as binding. The customer order represents an offer to us, to which the customer is fully bound for a period of 4 weeks. A contract is only concluded with the written and express order confirmation ("declaration of acceptance") pursuant to Section 2.1. The declaration of acceptance is either to be made in writing - by an order confirmation - or by delivery of the product or provision of the service to the customer.

2.3 The subject matter of the contract is the order of the customer on which the order is based and which is accepted by a declaration of acceptance. Public statements, promotions or advertising by us or a third party are not part of the assignment and the contract.

  1. Prices and terms of payment

3.1 All prices are net prices in Euro excluding statutory VAT on an EXW (Ex Works) basis ex works (Incoterms 2020) plus, packaging, transport, storage and insurance, unless otherwise agreed in the specific case.

3.2 Prices for our application packages include sensors and associated electronic unit ("equipment" or "product"). Depending on the content of the order, the prices may also include the corresponding software.

3.3 Unless otherwise agreed, services rendered by us are charged on the basis of our hourly rates in accordance with the accepted order.

3.4 If the general conditions and factors influencing the pricing of our performance (prices for purchased materials, wages, customs duties, etc.) change by more than 5% compared to the time of conclusion of the contract until the complete performance of the service for reasons for which we are not responsible and for which we are not responsible, we are entitled to withdraw from the agreed delivery period and from the agreed purchase price and to submit a new offer to the customer. If this offer is not accepted by the customer, both parties are entitled to withdraw from the contract. Services already rendered up to the time of withdrawal are compensated or restituted.

3.5 Payments are due within 14 days after receipt of the invoice by the customer. Any objections to an invoice must be raised within 30 days of the invoice date, otherwise the service provided are deemed to have been duly accepted. If objections are raised in a timely manner, all undisputed amounts remain payable on the due date.

3.6 Payment must be made in such a way that we are able to freely dispose of the amount on the due date. Any costs of payment transactions are payable by the customer.

3.7 In the event of default, interest is charged from the due date at a rate of 9.2% above the prime rate (§ 456 UGB). This has no effect our right to claim any further damage we suffer as a result of the delay.

3.8 If the customer is in default of payment, we are also entitled to withdraw from the contract by granting a grace period of 8 working days and to claim damages - including loss of profit.

3.9 In the case of Section 3.7 we are entitled to demand advance payments for outstanding services in an amount to be determined at our discretion.

3.10. The buyer is entitled to avert the legal consequences mentioned in Sections 3.7 to 3.9 by providing security in the amount of our endangered payment claim.

  1. Deadlines and dates

4.1 We endeavour to adhere to delivery deadlines and dates wherever possible. Unless expressly agreed as binding, however, delivery periods and dates are non-binding and are always understood to be the anticipated time of provision and handover to the customer. We are entitled to make partial deliveries and render partial services at any time.

4.2 Withdrawal from the contract by the customer due to delay in delivery is only possible by setting a reasonable - at least a 4-week - grace period. The withdrawal must be made in writing by registered letter. The right of withdrawal only applies to the part of the delivery or service in respect of which there is a delay.

4.3 If, however, the client is in default with the fulfillment of the obligations to cooperate incumbent upon it pursuant to Section 5 ("impediments"), a time limit bindingly agreed pursuant to Section 4.1 only commences after all impediments have ceased to apply.

4.4 If deliveries are not made correctly or on time by our suppliers for reasons not attributable to us and for which we are not responsible and if a reasonable covering purchase is not possible for us, our delivery time is extended accordingly.

4.5 In the event of a subsequent amendment to the order concerning the subject of performance, we are entitled to unilaterally extend the performance period by a reasonable period. Insofar as only parts of the order are subsequently changed, the right to extend the performance period is, in case of doubt, extended to the entire order.

4.6 The performance deadline is deemed to have been met if the performance is handed over to the customer no later than on the last day of the performance deadline or if the customer is notified that the performance is ready for handover.

4.7 If the failure to meet the performance deadline is due to force majeure or other events beyond the contractor's control ("event"), the delivery period commences when the event ceases to exist plus a reasonable start-up period. This also applies if such events occur during an existing delay. The following is deemed equivalent to the cases covered by sentence 1: currency trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible (e.g. fire), epidemic/pandemic as well as all other circumstances which make our performance significantly more difficult or impossible through no fault of our own.

4.8 If, as a result of an event described in Section 4.7 the performance of the contract is unreasonable for us, we are entitled to declare the cancellation of the contract.

  1. Cooperation obligations of the customer

5.1 Insofar as it is necessary for us to provide our services, the customer is to grant us access to its premises at an agreed time.

5.2 The customer is obligated to provide all prerequisites necessary for the proper performance of the order at their own expense. This includes in particular the obligation to provide us with the technical information required for the performance of the service, such as dimensions, drawings and sketches, in good time upon request.

5.3 The customer undertakes to transmit only documents which it is entitled to pass on and which do not infringe the rights of third parties.

5.4 The customer warrants to us that the information and/or documents provided or issued to us for the purpose of providing the services are correct and complete.

  1. Contract performance, acceptance

6.1 The services owed are deemed to have been rendered upon handover to the customer. The transfer is to be in the form as expressly agreed in writing. Unless otherwise agreed, our services are deemed to have been handed over at the earliest of the following times:

  1. if the acceptance is confirmed in writing by the customer
  2. at the time when the plant is operationally commissioned at the customer's site
  3. at the latest 4 weeks after delivery or service or, if the product is assembled and installed by us, 4 weeks after assembly and installation has been completed

6.2 If the customer does not accept the product provided as agreed at the contractually agreed place or at the agreed time, default of acceptance occurs. In the event of default of acceptance by the customer, the product not accepted is stored by us for a maximum period of 6 weeks from the date of provision at the risk and expense of the customer. For the period of storage, the customer is to pay us net storage costs of 0.02% of the (partial) invoice amount attributable to the product provided per calendar day.

or any part of a day. Any additional costs incurred by us as a result of the delay in acceptance are payable by the customer. At the same time, in the event of default in acceptance on the part of the customer, we are entitled either to insist on performance of the contract or to withdraw from the contract after setting a reasonable period of grace and to dispose of the product elsewhere.

6.3 If our product is handed over to the customer by way of shipment, the shipment is ex works or ex warehouse at the cost, invoice and risk of the customer (including any customs duties). The mode and route of dispatch is chosen by us, unless the customer expressly requests a different mode or route of dispatch in advance and in writing. The customer approves every customary method of shipment. In the event of handover in transit, the product is deemed to be handed over to the customer upon handover to the forwarding agent, the carrier or any other person designated to carry out the shipment. From this point in time, the customer bears the risk of accidental loss or accidental deterioration of the product.

6.4 The customer is to arrange appropriate insurance against this risk. At the written request of the customer, we arrange the appropriate transport insurance at the customer's expense.

6.5 Services are deemed to have been handed over upon actual performance.

6.6 It is noted that we are entitled to commission competent third parties to perform the service owed by us or parts of the service (subcontract).

6.7 If our performance is impossible due to non-delivery by our suppliers which is not attributable to us and for which we are not responsible, and if a covering purchase is not reasonable or possible for us, we are entitled to withdraw from the contract; in the event of such withdrawal, the customer is reimbursed for any payments already made. Any partial services already rendered by us are returned or remunerated.

  1. Warranty

7.1 The warranty period is 6 months from the date of delivery.

7.2 No warranty applies in the event of errors, malfunctions or damage attributable to improper use or performance contrary to the intended purpose, defective maintenance or improper transport of the product or any software supplied with it, or in the event of defects attributable to actions or components of third parties.

7.3 If the product is assembled and installed by the customer himself or by a third party, no warranty for faults, malfunctions or damage resulting from improper assembly and installation is provided.

7.4 We only provide a warranty for the functionality of our product as agreed. We do not guarantee the function of the entire system or the entire machine.

7.5 After handover, the customer is to inspect the delivery without delay and give notice of any defects. The complaint must be received by us in writing without delay, however under no circumstances later than 8 working days from handover, in the event of any other loss of rights. Defects which are not detectable within this period even with the most careful inspection are also to be reported to us in writing immediately, under no circumstances later than 8 working days after their discovery, with immediate cessation of any processing and/or treatment - otherwise a loss of rights occurs.

7.6 The existence of defects are to be proven by the customer. The presumption pursuant to § 924 ABGB is excluded.

7.7 In the event of a justified, timely notice of defect, we have the option of either making good the defective performance within a reasonable period of time - at least 14 days - or rectifying the defect.

7.8 In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement pursuant to Section 7.7, the customer is entitled to cancel the contract, i.e. to demand rescission. If there is only a minor defect, the client is only entitled to a price reduction; redhibitory action is expressly excluded.

7.9 In particular, subsequent improvements that arise due to omissions or non-fulfilment of obligations on the part of the customer pursuant to Section 5 or which are beyond our control are not a case of warranty.

7.10. We are only obliged to reimburse the costs of rectification of defects carried out by the customer himself or by third parties if this rectification of defects and the associated costs have been approved by us in advance.

7.11. The warranty does not apply if the customer modifies the object of performance or has it modified by third parties without our consent and the elimination of the defect becomes impossible or more difficult as a result. In any case, the additional costs of remedying the defect incurred as a result are payable by the customer.

  1. Retention of title, granting of use

8.1 Our products remain our property until full payment.

8.2 For any software supplied, the customer is granted the non-exclusive, non-time-limited and non-transferable right of use to the software version existing at the time of handover upon payment in full. If the software is further developed or updated after delivery due to chargeable updates, the right to use the updated software version is only granted upon full payment of the update. The customer is not permitted to transfer or pass on this right of use to third parties. This does not include companies affiliated with the customer within the meaning of §§ 189a of the Austrian Commercial Code (UGB) and § 15 of the Austrian Stock Corporation Act (AktG). The customer and its affiliates are not permitted to edit or further develop the software.

8.3 With regard to any software supplied, we or any licensor remain the owner of all rights to the software. A source code is explicitly not handed over.

  1. Intellectual property, secrecy

9.1 All intellectual property rights, such as copyrights, trademark rights, design rights, patent rights, utility model rights and know-how, as well as in particular non-protected inventions, industrial experience, trade secrets, etc., irrespective of the point in time at which they are disclosed to the contractual partner, in any case remain with us or any licensor. Quotation documents, illustrations, drawings, calculations and other documents remain our (intellectual) property. The customer is not permitted to make these accessible to third parties. This applies in particular to documents marked as "confidential". Transfer to third parties is only permitted with our express written consent.

9.2 The customer is obliged to maintain secrecy vis-à-vis third parties with regard to the business relationship and all commercial and technical details which are not in the public domain, such as in particular, but not exclusively, provided performance documents, documentation, business and trade secrets, etc., which come to its knowledge directly or indirectly as a result of the business relationship ("confidential information"), and to use them exclusively for the use and performance of the facility supplied by us. The obligation to maintain secrecy remains in force even after termination of the contractual relationship. The customer is not permitted to publish the contents of the order, the business case and all information and documents received from us directly or indirectly and all information and documents received from the customer based thereon without our express and written consent, nor use them for advertising or other purposes. Employees and other persons who need to know confidential information in the course of ordering and using the equipment are to be subject to a corresponding confidentiality obligation. In the event of a breach of the confidentiality obligation, the client is obliged to indemnify and hold us without liability, also in respect of claims by third parties.

9.3 The customer hereby expressly and irrevocably declares for itself and bindingly for its respective legal successors as well as for its employees and their legal successors and for its subcontractors to waive in full and exclusively in favor of us all work results and creations, such as in particular all ideas, inventions and findings, directly or indirectly created or still to be created in the future by it or its employees or subcontractors in connection with the application and use of the equipment provided by us and to assign to us all rights thereto.

  1. Use of the products

10.1 Our products (sensors, electronic unit, possibly software) are to be used exclusively in injection-mould tool manufacture and for extrusion.

10.2 The use of our products in any other field is expressly excluded.

10.3 We accept no liability for claims by third parties arising from infringements of rights due to the use of our products in areas other than those specified in Section 10.1.

  1. Third party property rights

11.1 For delivery items which we manufacture in accordance with customer documents (design data, drawings, models or other specifications, etc.), the customer exclusively assumes the warranty that the manufacture of these delivery items does not infringe the property rights of third parties.

11.2 If property rights of third parties are nevertheless asserted, we are entitled to cease production of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the claims are manifestly unjustified.

11.3 The customer is to indemnify and hold us without liability from and against any and all third party property rights which are infringed by the manufacture of the delivery items.

11.4 If claims are asserted against us by third parties due to the infringement of property rights by the manufacture of delivery items within the meaning of Section 11.1, we are entitled, over and above Section 11.3, to demand reasonable advances on costs from the customer for any costs of legal proceedings.

11.5 Likewise, we are entitled to claim compensation from the customer for necessary and useful costs incurred by us.

11.6 We do not guarantee that the results of our research and development activities have no effect on the property rights of third parties. The customer is to be notified of any third-party property rights known to us.

11.7 We are not liable for the infringement of third party property rights due to the use and application of our research and development results by the customer.

  1. Liability

12.1 The contractor is not liable for any damage caused to the customer except in the case of intent and gross negligence. Liability for damages due to slight negligence as well as for indirect damages, consequential damages, mere financial losses and lost profits is expressly excluded. We do not accept any liability for damage resulting from the failure of our products to obtain measurement data. This limitation of liability does not apply to personal injury.

12.2 We accept no liability for any fault on the part of our suppliers.

12.3 The customer is only entitled to assert claims for damages in court within six months of becoming aware of the damage and the damaging party, at the latest, however, within three years of the event giving rise to the claim.

12.4 The contractor is not liable for the documents provided and/or transmitted by the customer or their contents.

12.5 The loss of rights pursuant to Section 7.5 extends to all claims and/or rights, irrespective of their legal nature, if and insofar as they are or could be related to the defectiveness, including but not limited to the right to contest errors, laesio enormis, culpa in contrahendo and compensation for damages caused by defects and/or consequential damages.

12.6 We are not liable for errors in the use, performance and processing of the products delivered by us by the customer or for errors in the assembly and installation of the delivered products carried out by third parties or the customer, and these are the sole responsibility of the customer. Legal and official requirements are to be taken into account by the customer in the use, performance and processing of the products supplied by us.

12.7 We are not liable for damage and defects to the product due to improper storage by the customer.

  1. Error

13.1 Contest of the contract concluded between us and the customer on the grounds of error is excluded.

  1. Final provisions

14.1 The customer agrees that the contractor may use the company name as well as the company logo of the customer as a reference in internal and/or external media (e.g. written documentation, websites, advertising materials, press releases and presentations) free of charge until revoked, as well as provide the service itself with a reference to the service provision by the contractor (e.g. logo of the contractor as watermark).

14.2 Any assignment of claims arising from or in connection with this contract to third parties are only permissible with the prior express written consent of the contractor.

14.3 Offsetting against claims of the contractor is only permissible with counterclaims that have been legally established by a court or expressly recognized in writing.

14.4 The processing of personal data is subject to our privacy policy, which is available at https://www.moldsonics.com/datenschutz-moldsonics/.

14.5 Deviating agreements, supplements, collateral agreements and assurances are only effective if they are made explicitly and in writing. This also applies to a waiver of the written form requirement, although such a waiver is not to be presumed.

14.6 Should any provision of this contract be or become invalid or unenforceable, or should a point requiring regulation have been inadvertently omitted from this contract, this has no effect on the validity of the remaining provisions. In such a case, it deemed agreed what the contracting parties would have agreed in the knowledge of the invalid or unenforceable provision or to fill the gap to a legally permissible and effective extent and in the sense of this contract.

14.7 All legal relations between the customer and the contractor are governed exclusively by Austrian substantive law to the exclusion of its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

14.8 For all legal disputes arising from or in connection with the present contract, the court with competent jurisdiction at the contractor's registered office have exclusive jurisdiction.

 

 

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