Standard Terms and
Conditions of Sale

2.1 Formation. All orders must be in writing and are accepted subject to these Standard Terms and Conditions of Sale. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms and conditions of sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order. No terms or conditions put forward by Buyer and no-representations, warranties, guarantees or other statements not contained in Seller’s quotation or Acknowledgement of Order Form nor otherwise expressly agreed in writing by Seller will be binding on Seller.

2.2 Effective Date. The Contract will become effective only upon the date of acceptance of Buyer’s order on Seller’s Acknowledgement of Order Form or upon the date of fulfillment of all conditions precedent stipulated in the Contract, whichever is the later (the “Effective Date”). If the details of the Goods or Services described in Seller’s quotation differ from those set out in the Acknowledgement of Order Form the latter shall apply.

2.3 Business Customers. Seller concludes Contracts exclusively with business customers (B2B). The Buyer represents and warrants that it is acting in the course of its trade, business or profession. Consumer protection laws, in particular those applicable to contracts with consumers, shall not apply. If, contrary to this representation, Buyer is deemed a consumer under applicable law, these Terms shall apply only to the extent permitted by such law.

3.1 Validity. Unless previously withdrawn, Seller’s quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty (30) days after its date.

3.2 Exclusions. Prices are firm for delivery within the period stated in Seller’s quotation and are exclusive of:
(a) Value Added Tax (VAT) or import sales tax, as applicable, and
(b) any other taxes, duties, levies or charges arising outside Austria in connection with the performance of the contract.

3.3 Taxes. All prices are quoted as net prices. Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, delivery, shipment, storage, processing, use or consumption of Goods shall be for Buyer’s account and shall be added to the price or billed separately, at Seller’s election.

3.4 Incoterms. Prices are quoted EXW Braunau am Inn, Austria, Incoterms® 2020, exclusive of freight, insurance and handling. Unless otherwise stated in Seller’s quotation, prices are also exclusive of packing; if the Goods are packed, packing materials are non-returnable.

4.1 General. Unless otherwise specified in writing by Seller, payment shall be made:
(a) in full, without set-off, counterclaim or withholding of any kind (except where this cannot by law be excluded); and
(b) in Euro (€ / EUR),
(c) within thirty (30) days from the date of invoice.

4.2 Invoicing. Goods may be invoiced as soon as they are ready for delivery if shipment is delayed at Buyer’s request. Services shall be invoiced monthly in arrears or, if earlier, upon completion.

4.3 Wire Transfers. All bank fees, commission fees and other charges related to wire transfers shall be borne entirely by Buyer.

4.4 Credit Card Payments. Where payment is made by credit card, payment must be effected prior to shipment. Where permitted by applicable law, a surcharge of 2% (EU customers) and 3% (non-EU customers) applies.

4.5 Late Payments. Without prejudice to Seller’s other rights, Seller may:
(i) charge interest on any overdue sums at a rate determined by Seller, not exceeding the maximum rate permitted by law, calculated on an annual basis and compounded monthly;
(ii) charge an administrative fee for the first payment reminder;
(iii) charge interest and collection costs on subsequent reminders; and
(iv) initiate legal proceedings without further notice after continued non-payment.

4.6 Remedies. Seller may also
(i) suspend performance of the Contract (including withholding shipment),
(ii) require reasonable security for payment at any time, or
(iii) terminate the Contract if Buyer fails, or in Seller’s reasonable opinion appears likely to fail, to make timely payment under this or any other contract.

5.1 Estimates. Unless otherwise stated in Seller’s quotation, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only not involving any contractual obligations. Exceeding delivery time will not entitle Buyer to damages and/or penalties.

5.2 Delay. If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price will both be adjusted accordingly.

6.1 Suspension. The Contract (other than Buyer’s obligation to pay all sums due to Seller in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, pandemic, sabotage; governmental decisions or actions (including but not limited to prohibition of exports or re-exports or the failure to grant or the revocation of applicable export licenses or other circumstances set out in §14), or labor trouble, strike, lockout or injunction. Seller will be relieved without liability of all obligations under the Contract unless and until the previously mentioned circumstances no longer prevent and/or delay Seller’s ability to perform its Contract.

6.2 Termination. If either party is delayed or prevented from performance of its obligations by reason of this Clause for more than one hundred and eighty (180) consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Buyer will be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered and Services performed as at the date of termination.

7.1 Seller’s Tests. The Goods will be inspected by Seller or the manufacturer (“Manufacturer”) and, where practicable, submitted to Seller’s or Manufacturer’s standard tests before delivery. Any additional tests, inspections or certificates requested by Buyer must be specified in the order; Seller may charge Buyer for these. If Buyer or its representative fails to attend such agreed tests after seven (7) days’ written notice, the tests shall proceed in their absence and Seller’s or Manufacturer’s statement that the Goods passed shall be conclusive.

7.2 Buyer’s Inspection. Buyer shall inspect the Goods without undue delay after delivery and notify Seller in writing of any non-conformity within ten (10) Business Days of delivery; hidden defects must be notified without undue delay and in any event within ten (10) Business Days after discovery. If Buyer fails to notify in time, the Goods shall be deemed accepted. Returns require Seller’s prior written authorization (RMA) and compliance with Seller’s instructions.

7.3 Software Acceptance. Software shall be deemed accepted upon Buyer’s written confirmation of functionality or, at the latest, fourteen (14) days after provision, unless Buyer has notified Seller in writing of material defects within such period.

8.1 Terms. Unless otherwise expressly stated in the Contract, the Goods shall be delivered EXW (Ex Works) Braunau am Inn, Austria, Incoterms® 2020. At Seller’s option and if expressly agreed, delivery may also be made FCA Braunau am Inn, Austria, Incoterms® 2020 or CPT Incoterms® 2020 to the named place of destination stated in Seller’s quotation or Acknowledgement of Order Form. The applicable delivery term shall be specified in Seller’s quotation or Acknowledgement of Order Form.

8.2 Risk. Risk of loss of or damage to the Goods shall pass to Buyer in accordance with the agreed Incoterm. Unless otherwise agreed, Buyer shall be responsible for insuring the Goods after the risk has passed.

8.3 Shipping. In the absence of specific shipping instructions in the Purchase Order, Seller may arrange shipment at Buyer’s expense, typically via DHL Express or via other reputable international carriers. Unless otherwise specified, Seller may also insure the Goods at their declared value, with such insurance costs invoiced to Buyer.

8.4 Installments. Seller may deliver in partial shipments. Each shipment shall constitute a separate contract, and failure by Seller to deliver one or more installments in accordance with the Contract shall not entitle Buyer to terminate the Contract as a whole.

8.5 Claims. Claims for short delivery, excess delivery, or incorrect delivery must be made in writing within fourteen (14) days after delivery; otherwise such claims are deemed waived.

8.6 Title. Subject to §18 (Retention of Title), title to the Goods shall pass to Buyer only as set out in §18.

9.1 Ownership. Title to and ownership of the copyrights in software and/or firmware incorporated into or provided for use with the Goods (“Software”) and documentation prepared by Seller, Manufacturer and/or Seller Affiliate or supplied with the Goods (“Documentation”) will remain with Seller, manufacturer and/or relevant Seller Affiliate (or such other party as may have supplied the Software and/or Documentation to Seller) and is not transferred to Buyer with delivery of the Goods.

9.2 License. Except as otherwise provided herein, Buyer is hereby granted a non-exclusive, royalty-free license to use the Software and Documentation in conjunction with the Goods. Other than Seller’s standard operating and maintenance manuals (and except and to the extent that any law prevents Seller restraining Buyer from doing so), Buyer must not copy the Software and/or Documentation (unless expressly authorized by applicable law or Seller) and must hold the Software and/or Documentation in strict confidence and not disclose them to others, or permit others to have access to themBuyer may not reverse engineer, decompile, modify, sublicense, or otherwise make the Software available to third parties, except as permitted by mandatory law. Transfer of the license requires Seller’s prior written consent.

9.3 Inventions. Seller, manufacturer and/or Seller Affiliates will retain ownership of all inventions, designs and processes made or evolved by them and save as set out in this §9 no Intellectual Property Rights are hereby granted.

9.4 Updates. Seller shall not be obliged to provide updates, upgrades, new versions or patches of the Software, unless expressly agreed in writing.

10.1 Warranty. Seller warrants
(i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods;
(ii) that Goods manufactured by Seller and/or a Seller Affiliate will conform with Seller’s written specifications at the time of shipment and be free of defects in materials and workmanship; and
(iii) that Services provided by Seller or a Seller Affiliate will be performed with reasonable skill, care and diligence and in accordance with good engineering practice.
Seller will make good, by repair or at Seller’s option by the supply of a replacement part or parts, or refund of the purchase price for that portion of the Goods, any defects which, under proper use, care and maintenance, appear in Goods of Seller’s or a Seller Affiliate’s manufacture and which are reported to Seller within the Warranty Period and which arise solely from faulty materials or workmanship. Within the Warranty Period, Buyer must request and Seller must approve and authorize in advance any return of defective items, which shall be sent at Buyer’s cost including the cost of insurance to any address provided by Seller. Where, in Seller’s reasonable determination, defects in returned Goods are not found to arise solely from faulty materials or workmanship, or where the defects are found to arise from improper use, care or maintenance, Seller will return the Goods at the cost of Buyer. Replaced items shall become the property of Seller. Repaired or replacement items will be delivered by Seller at Buyer’s cost to Buyer’s designated site. Seller will correct defects in Services provided by Seller or a Seller Affiliate and reported to Seller within ninety (90) days after completion of such Services.
Software Warranty. Seller does not warrant that the Software will be error-free or operate without interruption. Minor deviations not substantially impairing use shall not constitute a defect.

10.2 Period. The Warranty Period means twelve (12) months from the date of shipment from Seller, unless otherwise specified in writing by Seller. Goods or Services repaired, replaced or corrected in accordance with §10.1 will be subject to the foregoing warranty for the unexpired portion of the Warranty Period.

10.3 Third-Party Goods. Goods or Services sourced by Seller from a third party (not being a Seller Affiliate) for resale to Buyer shall carry only the warranty extended by the original manufacturer.

10.4 Exclusions. The Seller shall not be liable for defects resulting from:
(i) improper or unsuitable use, storage, installation, operation or maintenance by the Buyer or third parties;
(ii) normal wear and tear;
(iii) use of unsuitable operating materials or substitute parts;
(iv) modifications or repairs carried out by the Buyer or third parties without Seller’s prior written consent;
(v) failure to follow Seller’s instructions, manuals, or recommendations;
(vi) any other circumstances beyond the Seller’s reasonable control.

10.5 Scope. This warranty applies only to the Goods themselves and does not cover the costs of disassembly or reassembly of Goods in or from equipment into which they are installed.

10.6 Exclusive Warranties. To the fullest extent permitted by law, and subject to §12, the warranties set forth in this §10 are the sole and exclusive warranties given by Seller with respect to the Goods and Services and are in lieu of and exclude all other warranties, express or implied, arising by operation of law or otherwise, including without limitation merchantability and fitness for a particular purpose, whether or not such purpose has been disclosed to Seller.

11.1 Notice. This indemnity is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement.

11.2 Indemnity. Subject to the limitations in §12, Seller will indemnify Buyer in the event of any claim for infringement of a valid Patent, Letter Patent, Registered Design, Design Right, Trademark or Copyright (“Intellectual Property Rights”) existing at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for whiwarch Buyer may become liable in any such action, provided always that Seller will not be liable to so indemnify Buyer in the event that:
(i) such infringement arises as a result of Seller and/or Manufacturer having followed a design or instruction furnished or given by Buyer, or the Goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software, or
(ii) Seller and/or Manufacturer has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe, or
(iii) Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller and/or Manufacturer, at Seller’s expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or
(iv) Buyer has made without Seller’s prior written consent any admission which is or may be prejudicial to Seller and/or Manufacturer in respect of any such claim or action, or
(v) the Goods have been modified without Seller’s prior written authorization.
(vi) If such Goods are held to infringe and their use is enjoined, or in case of a compromise or settlement by Seller, Seller may, at its option and expense: (A) procure for Buyer the right to continue using the Goods; (B) replace them with non-infringing Goods; (C) modify them to become non-infringing; or (D) grant Buyer a credit for the depreciated value against return of the Goods. In any such event, Seller may also cancel future deliveries of such Goods without liability.

11.3 Buyer warranty. Buyer warrants that any design or instructions furnished or given by it will not cause Seller and/or Manufacturer to infringe any Intellectual Property Rights in the performance of Seller’s obligations under the Contract and will indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.

The sole and exclusive remedy for breach of any warranty hereunder shall be limited to repair, correction or replacement, or refund of the purchase price under §10. Seller and Seller’s Affiliates shall not be liable for damages caused by delay in performance. The remedies of Buyer set forth in this Agreement are exclusive.

In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability,other tort or otherwise), shall Seller’s and Seller’s Affiliates’ aggregate liability under the Contract exceed the total Contract Price paid under the Contract.

Buyer agrees that in no event shall Seller’s and Seller’s Affiliates’ liability to Buyer and/or its customers extend to include incidental, consequential, indirect or punitive damages. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment. Seller shall not be liable for the costs of data reconstruction or recovery, except where caused by Seller’s intent or gross negligence. It is expressly understood that any technical advice furnished by Seller with respect to the use of Goods is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.

Nothing in this §12 shall limit or exclude liability where such limitation or exclusion is not permitted by mandatory law, including but not limited to liability for death or personal injury caused by negligence, liability for intent or gross negligence, and liability under applicable product liability statutes.

Notwithstanding the foregoing, Seller’s aggregate liability for (i) breaches of confidentiality obligations (§16), (ii) breaches of data security or data protection obligations (§17 and §20.2, including GDPR), and (iii) Seller’s indemnification obligations for infringement of third-party intellectual property rights (§11), shall not exceed two (2) times the total Contract Price of the Goods or Services giving rise to the claim.

13.1 Grounds. Either party may terminate the Contract with immediate effect by written notice if the other party:
a) commits a material breach of the Contract and fails to remedy such breach within 30 days after receipt of written notice;
b) becomes insolvent, enters into liquidation (other than for the purpose of a bona fide amalgamation or reconstruction), or has a receiver or administrator appointed over its assets; or
c) is prevented from performing its obligations due to a Force Majeure event under §6 for a period exceeding six (6) months.
d) fails to make reasonable and demonstrable progress against the agreed milestone plan or delivery schedule, and does not remedy such failure within thirty (30) days after written notice from the other party.

13.2 Effect. Termination shall not affect any rights or remedies accrued prior to termination, including the right to claim damages for breach.

15.1 Trade Controls. Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Seller and Buyer are established or from which Goods and/or other items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of Goods, hardware, software, services and technology. If Seller or Seller Affiliate should fail to receive any necessary or advisable licenses, authorizations or approvals, even arising from inaction by any relevant government authority, or if any such licenses, authorizations or approvals are denied or revoked, or if there is a change in any applicable laws, regulations, orders or requirements that would prohibit Seller or Seller Affiliate from fulfilling the Contract, or would in the reasonable judgment of Seller otherwise expose Seller or Seller Affiliate to a risk of liability under such laws, regulations, orders or requirements if it fulfilled the Contract, Seller and Seller Affiliate will be relieved without penalty of all obligations under the Contract. In no event may Buyer use, transfer, release, export or re-export any such Goods, hardware, software or technology in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto.

15.2 Anti-Bribery. Buyer agrees furthermore that it will not engage in any activity that would expose Seller or any Seller Affiliate to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements.

Each of the parties undertakes to maintain the confidentiality of all technical, trade, financial or other information received from the other or from Manufacturer or a Seller Affiliate, whether orally, in writing or by any other means of communication when any order is negotiated and/or fulfilled (“Confidential Information”). The terms of and obligations imposed by this §16 will survive the completion of the Contract but will not apply to any Confidential Information which either party can demonstrate:
(i) is or becomes public other than as a result of a breach of any obligations of confidence;
(ii) was lawfully obtained from a third party not under any obligations of confidence;
(iii) was already known to a party before its disclosure under the Contract other than as a result of a breach of any obligations of confidence. A party may disclose Confidential Information to the extent required by law, regulation or order of a competent authority provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

17.1 Measures. Each party shall implement appropriate technical and organizational measures to protect electronic data exchanged under the Contract against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.

17.2 Breach Notice. In the event of a personal data breach or other significant security incident affecting such data, the affected party shall notify the other party without undue delay and no later than 72 hours where personal data is affected, providing information reasonably required to assess the impact and comply with applicable data protection laws.

17.3 Statutory Duties. Nothing in this clause shall relieve either party of its statutory obligations under applicable data protection legislation, including the GDPR.

18.1 Title. Title to the Goods shall not pass to Buyer until FLUX has received full payment of all amounts due under the Contract.

18.2 Obligations. Until such payment is received, Buyer shall:
(i) store the Goods separately, clearly identifiable as property of FLUX, and insure them adequately at its own cost;
(ii) not pledge, assign, or otherwise encumber the Goods; and
(iii) assign to FLUX, by way of security, any claims arising from resale or processing of the Goods.

18.3 No return. No return in lieu of payment. Retention of title does not entitle Buyer to return Goods instead of making payment.

18.4 Diminished Value. Compensation for diminished value. If Goods are returned in a used, damaged, or diminished condition, Buyer shall compensate FLUX for the loss of value, without prejudice to FLUX’s right to demand full payment of the Contract Price.

18.5 Combination. If Buyer incorporates the Goods into other products, FLUX shall acquire co-ownership of the new products proportionate to the invoice value of the Goods supplied by FLUX.

20.2 Data Protection. Each party shall comply with applicable data protection laws, including the GDPR. Where the Buyer processes personal data on behalf of FLUX, The parties shall conclude a data processing agreement pursuant to Art. 28 GDPR where Buyer acts as processor. Security measures and breach notification are addressed in §17. Buyer shall implement appropriate technical and organizational measures, and notify FLUX without undue delay of any personal data breach.

20.3 Waiver. No waiver by either party with respect to any breach, default, right, or remedy shall be deemed a continuing waiver of any other breach or right, unless expressly made in writing and signed by the waiving party.

20.4 Severability. If any provision of the Contract, including but not limited to §18 (Retention of Title), is held invalid or unenforceable, the remaining provisions shall remain in full force. The parties shall replace the invalid provision with a valid one that comes closest to the economic intent.

20.5 Notices. All notices and declarations in connection with the Contract must be in writing and delivered to the contact details designated by the parties. Notices may be sent by courier, registered mail, or email.
Notices sent by courier or registered mail are deemed received three (3) Business Days after dispatch, based on proof of dispatch.
Notices sent by email are deemed received on the next Business Day at the recipient’s location following transmission to the designated email address, provided no automatic failure or bounce-back message is received. Either party may update its contact details for notices by giving written notice to the other party in accordance with this §20.5

20.6 Delivery Terms. Delivery terms are interpreted exclusively in accordance with Incoterms® 2020 as published by the ICC.

20.7 Variations. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms shall be binding unless made in writing and signed by the party to be bound. No modification or additional terms shall be applicable to this Contract by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.

20.8 Headings. The headings to the clauses and paragraphs of the Contract are for guidance only and shall not affect interpretation.