Hans Steininger Gasse 16
5280 Braunau am Inn, Austria
Hans Steininger Gasse 16
5280 Braunau am Inn, Austria
As of January 2020
In these Terms and Conditions of Sale, “Seller” means FLUX GmbH – Austria. “Buyer” means the person, firm, company or corporation by whom the order is given; “Goods” means the goods, products or components (including any Software and Documentation, as defined in Clause 9) described in Seller’s Acknowledgement of Order Form; “Services” means the services described in Seller’s Acknowledgement of Order Form; “Contract” means the written agreement (which incorporates these Standard Terms and Conditions of Sale) made between Buyer and Seller for the supply of the Goods and/or provision of Services; “Contract Price” means the price payable to Seller by Buyer for the Goods and/or Services supplied under each individual order; “Seller Affiliate” means any company which is for the time being directly or indirectly controlled by the ultimate parent company of Seller. For the purposes of this definition, a company is directly controlled by or is a subsidiary of another company or companies which holds 50% or more of the shares carrying the right to vote at a general meeting of the first mentioned company and a particular company is indirectly controlled by another company or companies if a series of companies can be specified, beginning with that company or those companies and ending with the particular company, so related that each company in the series is directly controlled by one or more of the companies earlier in the series; and “System” means the combination of Equipment, Software and Configuration, as detailed in a specification.
2. THE CONTRACT
2.1 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 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 No alteration or variation to the Contract will apply unless agreed in writing by both parties. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
3. VALIDITY OF QUOTATION AND PRICES
3.1 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 Prices are firm for delivery within the period stated in Seller’s quotation and are exclusive of (a) Value Added Tax and (b) any similar and other taxes, duties, levies or other like charges arising outside Austria in connection with the performance of the Contract. Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at Seller’s election.
3.3 Prices (a) are for Goods delivered EXW (Ex works) Seller’s shipping point, exclusive of freight, insurance and handling and (b) unless otherwise stated in Seller’s quotation, are exclusive of packing. If the Goods are to be packed, packing materials are non-returnable.
Payment must be made: (a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and (b) in Euro (€ / EUR) within thirty (30) days of date of invoice unless otherwise specified by Seller. Goods will be invoiced at any time after their readiness for delivery has been notified to Buyer where the Buyer has requested a delay in shipment. Services will be invoiced monthly in arrears or, if earlier, upon completion. Without prejudice to Seller’s other rights, Seller reserves the right to: (i) charge interest on any overdue sums at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid and such interest will be calculated on an annual, compounded monthly basis and/or; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract and/or (iii) at any time require such reasonable security for payment as Seller may deem reasonable and/or (iv) terminate the Contract.
5. DELIVERY PERIOD
5.1 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 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. FORCE MAJEURE
6.1 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 Clause 14), or labor trouble, strike, lockout or injunction. Seller will be relieved without liability of all obligations under the Contract unless and until the aforesaid circumstances no longer prevent and/or delay Seller’s ability to perform its Contract.
6.2 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. INSPECTION, TESTING, CALIBRATION AND QUALIFICATION
Goods will be inspected by Seller or the manufacturer of the Goods (“Manufacturer”) and, where practicable, be submitted to Seller’s or Manufacturer’s standard tests before delivery. Any additional tests or inspection (including inspection by Buyer or its representative, or tests in the presence of Buyer or its representative and/or calibration) or the supply of test certificates and/or detailed test results must be specifically requested by Buyer in writing in the order and Seller reserves the right to charge Buyer for such tests, inspections or related documents; if Buyer or its representative fails to attend such tests, inspection and/or calibration after seven (7) days’ written notice that the Goods are ready therefor, the tests, inspection and/or calibration will proceed and will be deemed to have been made in the presence of Buyer or its representative and Seller’s or Manufacturer’s statement that the Goods have passed such testing and/or inspection and/or have been calibrated will be conclusive.
8. DELIVERY, RISK & TITLE
8.1 Unless otherwise expressly stated in the Contract, the Goods will be delivered EXW (Ex Works) Seller’s shipping point. Risk of loss of or damage to the Goods will pass to Buyer upon delivery to the carrier and Buyer will be responsible for insurance of the Goods after risk has so passed. Alternatively, if it is expressly stated in the Contract that Seller is responsible for the insurance of the Goods after their delivery to the carrier; such insurance will be charged at Seller’s standard rates. “Ex-works” and any other delivery terms used in the Contract will be defined in accordance with the latest version of ICC In co-terms.
8.2 Seller may deliver by installments and if so each delivery will constitute a separate contract and failure by Seller to deliver any one or more of the installments in accordance with their terms will not entitle Buyer to terminate the whole Contract or treat it as repudiated.
8.3 Claims for shortfalls in quantity or for incorrect delivery will be void if made more than fourteen (14) days after delivery.
8.4 Subject to Clause 9, title to the Goods will pass to Buyer upon delivery in accordance with Sub-clause 8.1.
9. DOCUMENTATION AND SOFTWARE
9.1 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 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 them. Buyer may transfer the foregoing license to another party which purchases, rents or leases the Goods, provided the other party accepts and agrees in writing to be bound by the conditions of this Clause 9.
9.3 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 Clause 9 no Intellectual Property Rights are hereby granted.
10. DEFECTS AFTER DELIVERY
10.1 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 Seller Affiliate will conform with Seller’s written specifications therefore at time of shipment and be free of defects in materials and workmanship and (iii) that Services provided by Seller or Seller Affiliates will be performed with reasonable skill, care and due 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 the purchase price for that portion of the Goods with, any defects which, under proper use, care and maintenance, appear in Goods of Seller or Seller’s Affiliates’ manufacture and which are reported to Seller within the Warranty Period for such Goods and which arise solely from faulty materials or workmanship. Within the Warranty Period, Buyer will request and Seller will approve and authorize in advance any return of defective items, which will 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 and maintenance, Seller will return the Goods at the cost of Buyer or the end user. Replaced items will become the property of Seller. Repaired or replacement items will be delivered by Seller at Buyer’s cost to Buyer’s site in the Austria. Seller will correct defects in Services provided by Seller or Seller Affiliate and reported to Seller within ninety (90) days after completion of such Services. Goods or Services repaired, replaced or corrected in accordance with this Sub-clause 10.1 will be subject to the foregoing warranty for the unexpired portion of the Warranty Period. As used herein, “Warranty Period” shall mean the time period Seller warrants the Goods, as set forth above, with such period of time varying depending on the type of Goods sold, as specified in Seller Form 101, available to Buyer upon request. All Warranty Periods begin from the date of shipment from Seller, unless otherwise specified in writing by Seller.
10.2 Goods or Services sourced by Seller from a third party (not being a Seller Affiliate) for resale to Buyer will carry only the warranty extended by the original Manufacturer.
10.3 Notwithstanding Clauses 10.1 and 10.2, neither Seller nor Seller Affiliate will be liable for any defects caused by: willful damage, negligence, abnormal use of the Goods or use of the Goods for a purpose other than that intended by the manufacturer, or failure by Buyer to disclose the purpose or conditions of use of the Goods; fair wear and tear; materials or workmanship made, furnished or specified by Buyer, non-compliance with Seller’s or Manufacturer’s storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by Seller in writing; the use of non-authorized software or spare or replacement parts. Seller’s costs incurred in investigating and rectifying such defects will be paid by Buyer upon demand. Buyer will at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
10.4 This warranty will apply to Goods that are made readily available and therefore does not cover the costs of disassembly and reassembly of said Goods in the equipment into which they are mounted.
10.5 TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING CLAUSE 10.3 AND SUBJECT TO CLAUSE 12, THE WARRANTIES SET FORTH IN THIS SECTION 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 THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
11. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
11.1 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 Subject to the limitations in Clause 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 which 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) such Goods are held to infringe such patent or copyright in such suit, and the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods, or replace them with non-infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods, without liability.
11.3 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.
12. LIMITATION OF LIABILITY
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 SECTION 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 LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. 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. It is expressly understood that any technical advice furnished by Seller with respect to the use of the 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.
13. CHANGE OF LAWS
If Seller’s obligations under the Contract will be increased or reduced by reason of the making or amendment after the date of Seller’s quotation of any law or any order, regulation or by-law having the force of law that will affect the performance of Seller’s obligations under the Contract, the Contract Price and delivery period will be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
14. COMPLIANCE WITH LAWS
14.1 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.
14.2 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 Clause 15 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.
16.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing or performance, will be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
16.2 If any clause, sub-clause or other provision of the Contract is rendered invalid or unenforceable under any statute or rule of law, such provision, to that extent only, will be deemed to be omitted without affecting the validity of the remainder of the Contract.
16.3 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
16.4 All notices and claims in connection with the Contract must be in writing.
16.5 No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and 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 shall be 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.