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General Terms and Conditions

Terms of Delivery HARDWARE
issued by the Austrian Electrical and Electronics Industry Association (FEEI)
1. Scope
1.1 These General Terms shall govern legal transactions between business enterprises, namely the delivery of commodities and, mutatis mutandis, the rendering of services. Software transactions are with precedence governed by the Software Conditions issued by the Austrian Electrical and Electron-ics Industry Association, assembly work by the Terms and Conditions for Assembly Work issued by the Austrian Power Current and Light Current Engineering Industry and/or (where applicable) the Terms and Conditions for the Assembly of Electrical Equipment used in Medicine issued by the Austrian Electrical and Electronics Industry (the current versions are avail- able at www.feei.at).
1.2 Any departure from the terms and conditions mentioned in 1.1 above shall be valid only if expressly accepted in writing by Seller.
2. Submission of offers
2.1 Seller’s offers shall be deemed offers without engagement.
2.2 Tender documents and project documentation must not be duplicated nor made available to third parties without the permission of Seller. They may be claimed back at any time and shall be returned to Seller immediately if the order is placed elsewhere.
3. Conclusion of contract
3.1 The contract shall be deemed concluded upon written confirmation by
Seller of an order received or upon dispatch of a delivery.
3.2 Particulars appearing in catalogues, folders etc. as well as any oral or
written statements shall only be binding if Seller makes express reference to them in the confirmation of the order.
3.3 Subsequent amendments of or additions to the contract shall be subject to written confirmation.
4. Prices
4.1 Prices shall be quoted ex works or ex Seller’s warehouse without VAT, packing and packaging, loading, disassembly, take-back and proper recycling and disposal of waste electrical and electronic equipment for com-mercial purposes as defined by the Ordinance Regulating the Handling of Waste Electrical Equipment. Buyer shall be liable for any and all charges, taxes or other duties levied in respect of delivery. If the terms of delivery include transport to a destination designated by Buyer, transport costs as well as the cost of any transport insurance desired by Buyer shall be borne by the latter. Delivery does not, however, include unloading and subsequent handling. Packaging materials will be taken back only by express agreement.
4.2 Seller reserves the right to modify prices if the order placed is not in
accordance with the offer submitted.
4.3 Prices are based on costs obtaining at the time of the first quotation. In the
event that the costs have increased by the time of delivery, Seller shall have the right to adjust prices accordingly.
4.4 In carrying out repair orders, Seller shall provide all services deemed expedient and shall charge Buyer for the same on the basis of the work input and/or expenditures required. The same holds for any services or additional services the expediency of which becomes apparent only as the repair order is executed. In such an event special notification of Buyer shall not be required.
4.5 Expenses for estimates of costs of repair and maintenance or for expert valuations shall be invoiced to Buyer.
5. Delivery
5.1 The period allowed for delivery shall commence at the latest of the following dates:
a) the date of order confirmation by Seller;
b) the date of fulfilment by Buyer of all the conditions, technical, commercial and other, for which he is responsible;
c) the date of receipt by Seller of a deposit or security due before deliv-ery of the goods in question.
5.2 Buyer shall obtain whatever licences or approvals may be required from authorities or third parties for the construction of plant and equipment. If the granting of such licences or approvals is delayed for any reason the delivery period shall be extended accordingly.
5.3 Seller may carry out, and charge Buyer for, partial or advance deliveries.
If delivery on call is agreed upon, the commodity shall be deemed called off at the latest one year after the order was placed.
5.4 In case of unforeseeable circumstances or circumstances beyond the parties control, such as all cases of force majeure, which impede compliance with the agreed period of delivery, the latter shall be extended in any case for the duration of such circumstances; these include in particular armed conflicts, official interventions and prohibitions, delays in transport or customs clearance, damages in transit, energy shortage and raw materials scarcity, labour disputes, and default on performance by a major com-ponent supplier who is difficult to replace. The aforesaid circumstances shall be deemed to prevail irrespective of whether they affect Seller or his subcontractor(s).
5.5 If a contractual penalty for default of delivery was agreed upon by contracting parties when the contract was concluded, it shall be executed as follows, and any deviations concerning individual items shall not affect the remaining provisions: Where delay in performance can be shown to have occurred solely through the fault of Seller, Buyer may claim for each completed week of delay an indemnity of at most one half of one per cent, a total of no more than 5 %, however, of the value of that part of the goods to be delivered which cannot be used on account of Seller’s failure to deliver an essential part thereof, provided the Buyer has suffered a damage to the aforesaid extent. Assertion of rights of damages exceeding this extent is precluded.
6. Passage of risk and place of performance
6.1 Unless otherwise agreed, the delivery of goods is considered sold EXW in
accordance with INCOTERMS® 2010.
6.2 For services, the place of performance shall be the place indicated in the written order confirmation, secondary to that at which the service is actually rendered by Seller. The risk in respect of such services or any part thereof shall pass to Buyer at the time the services have been rendered.
7. Payment
7.1 Unless otherwise agreed, one third of the purchase price shall fall due at the time of receipt by Buyer of the order confirmation of Seller, one third after half the delivery period has elapsed and the balance at the time of de-livery. Irrespective thereof the turnover tax comprised in the amount of the invoice shall be paid within 30 days of the invoice date. If bankruptcy pro-ceedings are instituted against the assets of Buyer or if an application for bankruptcy proceedings is not granted for insufficiency of assets, deliver-ies shall only be made against cash in advance.
7.2 In the case of part settlements the individual part payments shall fall due upon receipt of the respective invoices. The same shall apply to amounts invoiced for additional deliveries or resulting from additional agreements beyond the scope of the original contract, irrespective of the terms of payment agreed upon for the principal delivery.
7.3 Payment shall be made without any discount free Seller’s domicile in the agreed currency. Drafts and checks shall be accepted on account of payment only, with all interest, fees and charges in connection therewith (such as collection and discounting charges) to be borne by Buyer.
7.4 Buyer shall not be entitled to withhold or offset payment on the grounds of any warranty claims or other counterclaims.
7.5 Payment shall be deemed to have been effected on the date at which the amount in question is at Seller’s disposal.
7.6 If Buyer fails to meet the terms of payment or any other obligation arising from this or other legal transactions, Seller may without prejudice to his other rights
a) suspend performance of his own obligations until payments have been made or other obligations fulfilled, and exercise his right to extend the period of delivery to a reasonable extent,
b) call in debts arisen from this or any other legal transactions and charge default interest amounting to 1.25 % per month plus turnover tax for these amounts beginning with the due dates, unless Seller proves costs exceeding this.
c) only perform other legal transactions against cash in advance in the case of qualified insolvency, in other words, following two delays in payment.
In any case Seller has the right to invoice all expenses arising prior to a lawsuit, especially reminder charges and lawyer’s fees.
7.7 Discounts or bonuses are subject to complete payment in due time.
7.8 Seller retains title to all goods delivered by him until receipt of all amounts invoiced including interests and charges.
Buyer herewith assigns his claim out of a resale of conditional commodities, even if they are processed, transformed or combined with other com-modities, to Seller to secure the latter’s purchase money claim. In the case of resale granting respite Buyer shall have the power of disposal of the product under retention of ownership only with the proviso that upon reselling Buyer notifies the secondary buyer of the assignment for security or enters the assignment in his account books. Upon request Buyer has to notify the assigned claim and the debtor thereof to Seller, and to make all information and material required for his debt collection available and to notify the assignment to the third-party debtor. If the goods are attached or otherwise levied upon, Buyer shall draw attention to Sellers title and immediately inform Seller of the attachment or levy.
8. Warranty and acceptance of obligation to repair defects
8.1 Once the agreed terms of payment have been complied with, Seller shall, subject to the conditions hereunder, remedy any defect existing at the time of acceptance of the article in question whether due to faulty design, material or manufacture, that impairs the functioning of said article. From particulars appearing in catalogues, folders, promotional literature as well as written or oral statements which have not been included in the agreement no warranty obligations may be deduced.
8.2 Unless special warranty periods operate for individual items the warranty period shall be 12 months. These conditions shall also apply to any goods supplied, or services rendered in respect of goods supplied, that are firmly attached to buildings or the ground. The warranty period begins at the point of passage of risk acc. to paragraph 6.
8.3 For improved or exchanged parts, the warranty period shall start again, but
shall end in any case 6 months after the original warranty period has expired.
8.4 If delivery or the performance of services is delayed for reasons outside he control of Seller, the warranty period shall begin 2 weeks after Seller is ready to deliver or perform services.
8.5 The foregoing warranty obligations are conditional upon the Buyer giving within a reasonable period notice in writing of any defects that have occurred and such notice reaching the Seller. Buyer shall prove within a reasonable period the presence of a defect, in particular he shall make available within a reasonable period to Seller all material and data in his possession. Upon receipt of such notice Seller shall, in the case of a defect covered by the warranty under 8.1 above, have the option to replace the defective goods or defective parts thereof or else to repair them on Buyer’s premises or have them returned for repair, or to grant a fair and reasonable price reduction.
8.6 Any expenses incurred in connection with rectifying defects (e. g. expenses for assembly and disassembly, transport, waste disposal, travel and site-to-quarters time) shall be borne by Buyer. For warranty work on Buyer’s premises Buyer shall make available free of charge any assistance, hoisting gear, scaffolding and sundry supplies and incidentals that may he required. Replaced parts shall become the property of Seller.
8.7 If an article is manufactured by Seller on the basis of design data, design drawings, models or other specifications supplied by Buyer, Seller’s warranty shall be restricted to non-compliance with Buyers specifications.
8.8 Seller’s warranty obligation shall not extend to any defects due to assembly and installation work not undertaken by Seller, inadequate equipment, or due to non-compliance with installation requirements and operating conditions, overloading of parts in excess of the design values stipulated by Seller, negligent or faulty handling or the use of inappropriate materials, nor for defects attributable to material supplied by Buyer. Nor shall Seller be liable for damage due to acts of third parties, atmospheric discharges. Excess voltage and chemical influences. The warranty does not cover the replacement of parts subject to natural wear and tear. Seller accepts no warranty for the sale of used goods.
8.9 The warranty shall lapse immediately if, without written consent of Seller, Buyer himself or a third party not expressly authorised undertakes modifications or repairs on any items delivered.
8.10 Claims acc. to § 933b ABGB are struck by the statute of limitation with lapse of the period mentioned under point 8.2.
8.11 The provisions of sub-paragraphs 8.1 to 8.10 shall apply, mutatis mutandis, to all cases where the obligation to repair defects has to be accepted for other reasons laid down by law.
9. Withdrawal from contract
9.1 Buyer may withdraw from the contract only in the event of delays caused by gross negligence on the part of Seller and only after a reasonable period of grace has elapsed. Withdrawal from contract shall be notified in writing by registered mail.
9.2 Irrespective of his other rights Seller shall be entitled to withdraw from the contract
a) if the execution of delivery or the inception or continuation of services to be rendered under the contract is made impossible for reasons within the responsibility of Buyer and if the delay is extended beyond a reasonable period of grace allowed;
b) if doubts have arisen as to Buyer’s creditworthiness and if same fails, on Seller’s request, to make an advance payment or to provide adequate security prior to delivery, or
c) if, for reasons mentioned in 5.4, the period allowed for delivery is extended by more than half of the period originally agreed or by at least 6 months, or
d) if Buyer does not or does not properly meet the obligations imposed as per paragraph 13.
9.3 For the reasons given above withdrawal from the contract shall also be
possible in respect of any outstanding part of the delivery or service contracted for.
9.4 If bankruptcy proceedings are instituted against Buyer or an application for bankruptcy proceedings is not granted for insufficiency of assets, Sell-er may withdraw from the contract without allowing a period of grace. If this withdrawal is taken, it shall take effect immediately upon the decision that the business will not be continued. If the business will be continued, a withdrawal shall not take effect until 6 months after the institution of bankruptcy proceedings or after an application for bankruptcy proceedings has not been granted for insufficiency of assets. In any case, the contract shall be terminated immediately unless the bankruptcy law to which Buyer is subject conflicts with this or if termination of the contract is necessary to prevent significant damages to Seller.
9.5 Without prejudice to Seller’s claim for damages including expenses arising prior to a lawsuit, upon withdrawal from contract any open accounts in respect of deliveries made or services rendered in whole or in part shall be settled according to contract This provision also covers deliveries or services not yet accepted by Buyer as well as any preparatory acts performed by Seller. Seller shall, however, have the option alternatively to require the restitution of articles already delivered.
9.6 Withdrawal from contract shall have no consequences other than those stipulated above.
9.7 The assertion of claims on the ground of laesio enormis, error, or lapse of purpose by the Buyer is excluded.
10. Disposal of waste electrical and electronic equipment
10.1 The Buyer of electrical/electronic equipment for commercial purposes incorporated in Austria, is responsible for the financing of the collection and treatment of waste electrical and electronic equipment as defined by the Ordinance Regulating the Handling of Waste Electrical Equipment, if he is himself the user of the electrical/electronic equipment. If the Buyer is not the end user, he shall transfer the full financial commitment to his cus-tomer by agreement and furnish proof thereof to the Seller.
10.2 The Buyer incorporated in Austria shall ensure that the Seller is provided with all information necessary to meet the Seller’s obligations as manufacturer/importer, particularly according to §§ 11 and 24 of the Ordinance Regulating the Handling of Waste Electrical Equipment and the Waste Management Act.
10.3 The Buyer incorporated in Austria is liable vis-à-vis the Seller for any damage and other financial disadvantages incurred by Seller due to Buyer’s failure to meet or fully meet his financing commitment or any other obligations according to Article 10. The Buyer shall bear the burden of proof of performance of this obligation.
11. Seller’s liability
11.1 Outside the scope of the Product Liability Act, Seller shall be liable only if the damage in question is proved to be due to intentional acts or acts of gross negligence, within the limits of statutory provisions. Seller’s total liability in cases of gross negligence is limited to the net value of the order or EUR 500,000, depending on which amount is lower.
11.2 For each incident of damage, Seller shall be liable for 25% of the net value
of the order or EUR 125,000, depending on which amount is lower.
11.3 Seller shall not be liable for damage due to acts of ordinary negligence nor for consequential damages or damages for pure economic loss, indirect damages, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, loss of profits, loss of savings or interest, or damage resulting from third-party claims against buyer.
11.4 Seller shall not be liable for damages in case of non-compliance with instructions for assembly, commissioning and operation (such as are contained in instructions for use) or non-compliance with licensing requirements.
11.5 Claims that exceed the contractual penalties that were agreed on are excluded from the respective title. The provisions of paragraph 11 apply exclusively for all claims by Buyer against Seller, regardless of the legal basis or entitlement, and also apply to all employees, subcontractors and subsuppliers of Seller.
12. Industrial property rights and copyrights
12.1 Buyer shall indemnify Seller and hold him harmless against any claims for any infringement of industrial property rights raised against him if Seller manufactures an article pursuant to any design data, design drawings, models or other specifications made available to him by Buyer.
12.2 Design documents such as plans and drawings and other technical specifications as well as samples, catalogues, prospectuses, pictures and the like shall remain the intellectual property of Seller and are subject to the relevant statutory provisions governing reproduction, imitation, competition etc. The provisions of 2.2 above shall also cover design documents.
13. Compliance with export provisions
13.1 When passing on goods delivered by Seller to third parties (as well as any related documentation, regardless of the method of provision or the ser-vices performed by Seller [including technical support of any kind]), Buyer must comply with the applicable regulations of national and international (re-)export provisions. In any case, Buyer must observe the (re-)export provisions of Seller’s country of residence, the European Union and the United States of America.
13.2 If necessary for export controls, Buyer must provide Seller with all necessary information immediately after being requested to do so, for example, information about the final recipient, final destination and purpose of the goods or services
14. General
Should individual provisions of the contract or of these provisions be invalid the validity of the other provisions shall not be affected. The invalid provision shall be replaced by a valid one, which comes as close to the target goal as possible.
15. Jurisdiction and applicable law
Any litigations arising under the contract including litigations over the existence or non-existence thereof shall fall within the exclusive jurisdiction of the competent court at Sellers domicile; the competent court of the Be-zirksgericht Innere Stadt, Vienna, shall have exclusive jurisdiction if Seller is domiciled in Vienna. The contract is subject to Austrian law excluding the referral rules. Application of the UN Convention on Contracts for the International Sale of Goods is renounced.
16. Proviso
The execution of the contract by Seller is subject to the condition that there are no obstacles standing in the way of execution due to national or international (re-)export provisions, and especially no embargos and/or other sanc-tions.
Last revised in September 2011
Terms of Delivery SOFTWARE
issued by the Austrian Electrical and Electronics Industry Association (FEEI)
1. Subject
1.1 Software
These Terms and Conditions for Software Transactions shall govern legal transactions between business enterprises, namely the delivery of software and, mutatis mutandis, the rendering of software services. For the purposes of these terms and conditions, software shall mean standard programs or pro-grams which are specifically developed or adapted for the needs of a Licensee according to Section 40a of the Copyright Act and for the operation or control of electrical and/or electronic equipment or systems, including all re-levant documentation furnished for this software (see section 3 below).
1.2 The Licensee shall have the non-transferrable and non-exclusive right to use the software at the agreed location in compliance with the contracted specifications. If the software is delivered together with hardware, the right of use is restricted to the delivered hardware. If the software is delivered without hardware, the right of use is restricted to the contracted type, quantity and location of the hardware. Use on hardware other than that specified in the contract or at multiple workstations is only permitted under separate written agreement and shall require the payment additional royalties.
1.3 All other rights in respect of the software shall be reserved to the Licensor. Notwithstanding the provisions of Section 40d of the Copyright Act, the Licensee shall in particular not be entitled to copy or modify the software or make it available to third parties or to use it on hardware other than the hardware contractually specified.
1.4 Additional supplies and services included but not limited to the services listed below shall be covered by separate agreement and invoiced at the Licensor’s prevailing prices:
– duplication, translation or generation of the software as well as services under 4.4. below;
– data media provided by the Licensor to the extent they are not part of the hardware supplied by it;
– diagnosis and elimination of faults due to incorrect use, operation or handling of the software or any other circumstances not within the liability of the Licensor;
– support in introducing and/or implementing the software and the training of users, unless covered by the contract;
– software updates.
2. Obligations of the licensee
The Licensee shall be responsible for:
2.1 selecting the software from the Licensor’s offer;
2.2 provision of all information required for the creation of specifications for the
development of the software prior to the conclusion of the contract;
2.3 using the software and the results obtained from its use;
2.4 safeguarding all rights reserved to the Licensor (such as industrial property rights and copyrights including the right to copyright notice) in respect of the software and safeguarding the confidentiality in respect of the Licensor’s industrial and business secrets also on the part of the Licensee’s employees or persons employed by it to perform any contractual obligation incumbent upon it, and/or on the part of third parties; this obligation shall also apply in cases where the software has been modified or combined with other pro-grams. This obligation shall survive the termination or expiry of the contract.
3. Software specifications
3.1 The Licensor shall provide the specifications for standard software in writing.
It shall have the right to modify the software specifications for new versions.
3.2 The specifications for software ordered by the Licensor shall be agreed upon in writing between the Licensor and the Licensee. Software specifications can include, for example, performance characteristics, documents about special functions, hardware and software requirements, installation requirements, operating conditions and operating instructions (user’s manual).
4. Delivery, risk and acceptance
4.1 The Licensor shall provide the Licensee with machine-readable software. It is entitled to supply the software version that is valid at the time of delivery.
4.2 Unless a delivery date has been agreed upon, the Licensor shall schedule delivery in accordance with the prevailing delivery times and notify the Licensee of the delivery date.
4.3 The Licensee shall bear the cost and risk of shipment of software and data media.
4.4 If software in the possession of the Licensee is damaged or inadvertently erased in whole or in part, the Licensor shall replace it to the extent said software is available and the Licensor can be reasonably expected to do so, and shall charge the Licensee reasonable prices for production and handling as well as shipment and for the data media supplied.
4.5 If formal acceptance by the Licensee has been agreed, the software shall be made available to the Licensee free of charge for use during a test period. Unless otherwise agreed, the test period shall commence at the time the software is announced to be functional and shall last for one week.
4.6 The software shall be deemed accepted after the end of the test period when:
4.6.1 the Licensee acknowledges conformity with the contractual specifications, or
4.6.2 the Licensee fails to give notice of major defects within the test period, or
4.6.3 the Licensee uses the software after the test period.
4.7 Concerning the legal consequences in sections 5.1 and 8, the time of delivery replaces the time of acceptance if no provisions for formal acceptance have been made.
5. Warranty, maintenance and modifications
5.1 For software, the Licensor warrants conformity with the specifications valid at the time of the conclusion of the contract, provided that the software is used in accordance with the installation requirements and applicable operating conditions.
The warranty shall comprise
– fault diagnosis and
– the correction of faults and malfunctions during the warranty period. Unless otherwise agreed, the warranty period shall be six months from the acceptance in accordance with 4.6 or delivery in accordance with 4.7 above.
Fault diagnosis shall be completed upon notification by the Licensee or on the basis of findings by the Licensor. The Licensee shall inform the Licensor of any faults immediately and in detail.
5.2 The Licensee shall bear the burden of proving that the fault existed at the time that the software was handed over.
5.3 In any case, warranty claims shall only be recognised when immediate notice is provided of any faults, and when the software is examined or tested immediately upon receipt.
5.4 The correction of faults, i.e. departures from the valid specifications resulting in malfunctions, shall as a rule be eliminated either by supplying new software or by appropriately adapting the program at the discretion of the Licensor.
5.5 The correction of faults shall be conditional upon the fault being a fault that results in malfunctions, upon the error being reproducible, upon any new versions offered to the Licensee free of charge within the warranty period having been installed, upon the Licensor receiving from the Licensee all documentation and information necessary for eliminating the fault, and upon the Licensor being given access to the hardware and software during its normal work-ing hours.
5.6 The warranty shall not be valid for software modified by the Licensee or third parties without the Licensor’s prior written consent, even if the error occurs in a part of the software that was not modified. If it is found during fault diagnosis that the case in question is not covered by the warranty or that the error is not the result of the supplied software, the Licensee shall bear all costs that have been incurred.
5.7 The Licensor does not guarantee that the software functions will meet the Licensee’s requirements, that the programs selected by the Licensee will work together or that they will work continuously and without errors, or that all software faults can be corrected.
5.8 If during the warranty period the software fails to conform with the specifications in a way giving rise to malfunctions and if the Licensor is unable to achieve conformity with the specifications within a reasonable time despite sustained efforts so that the Licensee cannot use the software, either party may withdraw from the contract immediately against return of all goods and consideration.
5.9 Defects in individual programs shall not entitle the Licensee to withdraw from the contract in respect of the other programs.
5.10 Except for claims under 6 below, any other warranty claims shall be precluded.
5.11 If the Licensee does not conclude a software maintenance contract with the Licensor, the Licensor shall bill all maintenance work (e.g. fault diagnosis and correction, updates, etc.) that is not completed in respect of fault correc-tion according to its valid list prices.
6. Industrial property rights and copyright
The Licensor shall support the Licensee in defending itself against any claims based on the contention that the software used under the contract infringes an industrial property right or copyright under Austrian law. In the event that such claims are asserted against it, the Licensee shall without delay notify the Licensor and, in the event that legal proceedings are initiated, give it notice of litigation (Streitverkündigung) under Section 21 ZPO (Code of Civil Pro-cedure).
In the event that infringement claims are asserted against the Licensor for which the Licensor may be held liable, it may at its own expense modify or replace the software or obtain the right to use it. If this cannot be done at reasonable cost, the Licensee shall immediately return the originals and all copies of the software in question that was provided to it, including any documentation, upon the Licensor’s request. This shall fully and definitively settle all claims on the part of the Licensee with regard to the infringement of industrial property rights or copyrights, and the Licensor shall have no further obligation to it.
7. Liability
7.1 The Licensor shall within the limits of the statutory provisions only be liable for damages proved to be due to intentional acts of gross negligence. The Licensor’s joint liability in cases of gross negligence is limited to the net order amount or to EUR 500,000, depending on which amount is the lesser. For every damaging event, the Seller’s liability is limited to 25% of the net order value or to EUR 125,000, depending on which amount is the lesser.
7.2 Liability for slight negligence and the compensation of consequential damage, purely financial losses, indirect damage, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, lost profit, lost savings, loss of interest and damage arising from third-party claims against the Licensee shall be excluded.
7.3 In the event of non-compliance with any conditions for installation, implementation and use (such as included in operating instructions) or official approval requirements, any compensation for damages shall be excluded.
7.4 If contractual penalties have been agreed on, claims in addition to these from the respective title shall be excluded.
7.5 The provisions of Section 7 shall apply conclusively to any and all claims of the Licensee against the Licensor, irrespective of the legal reason and the legal title, and shall also apply to all employees, subcontractors and subsuppliers of the Licensor.
8. Settlement and conditions of payment
8.1 In the event that a one-time royalty is agreed in lieu of or in addition to recurring royalties, this shall be payable as follows unless agreed otherwise: 30% of the total at the time of the conclusion of the contract, and 70% of the price of each software item separately listed in the offer after acceptance of said item under item 4 above has been effected.
8.2 In the event that recurring royalties are agreed, they shall be invoiced and paid once per year in advance unless agreed otherwise. Unless agreed otherwise, the royalties shall be subject to price adjustments to the extent of the percentage minimum salary increase of a worker of activity class ST2 in the collective agreement on account of collective wage adaptation in the automated data processing and information technology services industry. The key date for such price adjustments shall be the day of the first quotation made by the Licensor. Royalties shall be payable from the day of first acceptance under 4 above.
8.3 In the event that insolvency proceedings are initiated against the Licensee’s assets, or in the event that an application for the initiation of insolvency proceedings is rejected for lack of assets, goods and services shall only be pro-vided against advance payment.
9. Taxes and fees
All prices and royalties agreed upon shall be exclusive of value added tax, which shall be charged separately. The Licensee shall pay all fees, taxes or other imposts levied in connection with the transfer of the subject of the contract.
10. Return and destruction of the software
Upon expiry of the right of use, the Licensee shall at the Licensor’s option either return to the Licensor the entire software including any documentation made available with it, or destroy it and furnish definite proof of its destruction.
This shall also apply to software that has been modified or combined with other programs.
11. DURATION AND TERMINATION OF THE CONTRACT
The period for which the right of use is granted shall depend on the contract. Any agreement to the contrary notwithstanding, the right of use shall terminate
– upon expiry of the agreed period of use;
– at the time the software in question ceases to be used on the hardware in respect of which the contract has been concluded, it being understood that such termination of the right to use the software in question shall not affect the royalty payable for it;
– by notice of termination after expiry of any minimum period of use that may have been agreed upon and – unless otherwise agreed – subject to three months notice as of the end of the applicable invoicing period;
– by premature dissolution of the contract for gross breach of contract unless the conditions on which the contract is based are restored within a reasonable period of time stipulated in writing;
– by premature dissolution of the contract on account of insolvency proceedings being initiated against the Licensee or if an application for insolvency proceedings is not granted for insufficiency of assets. This dissolution shall take effect immediately upon notice that the business will not be continued. In the event that the business is continued, the dissolution shall take effect 6 months after the initiation of insolvency proceedings. If the dissolution is necessary to prevent significant damages to the Licensor, it shall take effect immediately.
12. Other provisions
12.1 If the Licensee transgresses its contractual rights or infringes its obligations under 2.4 and 10 above, the Licensor shall be entitled to impose a contract penalty which, depending on whether recurring royalties or a one-time royalty have been agreed upon, shall amount to up to ten times the annual recurring royalty or five times the one-time royalty. This shall have no effect on additional claims for damages.
12.2 The Licensor shall not be held liable in respect of any services that it is unable to render due to circumstances for which it is not responsible. Should said circumstances result in unreasonable hardship for the Licensor, the Licensor may claim compensation from the Licensee.
12.3 If any provisions of these Conditions are or become invalid, such invalidity shall not impair the validity of the remaining provisions. In this event, any invalid provision shall be replaced with a valid provision reflecting the spirit and serving the economic purposes of these Conditions.
12.4 Any ancillary agreements or modifications of these Conditions shall be made in writing.
13. Jurisdiction
Any disputes arising from this contract, including disputes about its existence or non-existence, shall fall under the exclusive jurisdiction of the court at the Licensor’s domicile; in Vienna, this shall be the court having jurisdiction over the area designated as Innere Stadt. This contract is subject to Austrian law, under express preclusion of the United Nations Convention on Contracts for the International Sale of Goods.
14. General terms of delivery
Unless agreed otherwise above, the contractual relationship shall be governed by the current version of the General Terms of Delivery issued by the Association of the Austrian Electrical and Electronics Industry.
Valid from October 2012