General Terms of Delivery and Payment (valid from 1st March 2011)
1.1 All deliveries and other services effected by ourselves, and all payments made to us, shall be exclusively governed by these Terms of Delivery and Payment. Insofar as applicable provisions may be found to be missing therefrom, the General Terms of Delivery of the Austrian Electrical and Electronic Industries shall apply in a subsidiary manner; in all other regards, Austrian laws and regulations shall apply. If any business terms of the Ordering Party’s are at variance with these General Terms of Delivery and Payment, we shall only be bound by such divergent terms if we have expressly recognised the same by letter or by telefax.
1.2 In taking delivery of the goods and/or service, the Ordering Party acknowledges the exclusive applicability of our Terms of Delivery and Payment.
2.1 Our offers are without engagement and subject to alteration, unless the offer makes express mention of a period of engagement. Documents pertaining to our offers – such as drawings, illustrations, samples and patterns, and dimensional, weight, performance and consumption data – contain or themselves constitute only approximate data and are not deemed to be specially agreed characteristics unless otherwise provided. We retain the right to effect modifications for engineering reasons.
2.2 We reserve the proprietary rights and copyright to all cost estimates, drawings and other documents; these may neither be disclosed to any third party nor used for the purposes of any third party.
3. Acceptance of the order; supplementary agreements
Acceptance of an order, and any undertakings or supplementary agreements made by our employees, as well as amendments and alterations of any kind, shall not be binding upon us until we have issued written confirmation by letter, telefax or e-mail.
4. Price and payment conditions; offsetting
4.1 Prices are always the list prices valid on the date of delivery. They are ex-works prices (EXW [Incoterms 2010]), exclusive of packaging, insurance, loading at the factory and value-added tax; the packaging will not be taken back.
4.2 Payments are to be made net cash, without any deduction and free of charges, within 30 days of the invoice date. It shall be for us to decide which claims or partial claims of the Ordering Party’s may be offset against such payments.
4.3 If any changes in order execution are necessitated by circumstances where risk is borne by the Ordering Party, then this latter shall bear all additional costs thereby incurred.
4.4 If the payment period is exceeded, we shall be entitled to charge default interest at a rate of ten percentage points above the applicable base rate announced by the Austrian National Bank, plus the collection costs, such amounts to total at least 12% p.a. of the overall claim. This is without prejudice to any further consequences of default in payment.
4.5 It is inadmissible for the Ordering Party to withhold payments or to offset these against counter-claims which are contested by ourselves.
4.6 Where the Ordering Party holds claims against ourselves, we are entitled to offset these against our own claims against the Ordering Party, at any time.
4.7 For services performed under contracts for work and materials (installation, repairs, maintenance and other such work), we shall charge the hourly rates and materials-prices applicable at the time of completion, plus our applicable surcharges for any overtime, night-time, Sunday and public-holiday working; travel and waiting times are counted as working hours. Travel expenses and daily and overnight allowances will be invoiced separately.
5. Performance, shipping and default
5.1 The delivery period commences with the mailing of the order confirmation note, while the performance period for installation, maintenance or repair work commences when the equipment is handed over. On no account, however, shall the delivery or performance period start to elapse sooner than 14 days after the time when the Ordering Party has furnished us with the documents (e.g. engineering drawings, plans etc), permits or approvals which it is responsible for procuring, or when it has made the agreed pre-payment. The delivery or performance deadline is deemed to have been met if we have notified the Ordering Party prior to such deadline of our readiness to deliver or perform; in cases where a special agreement obliges us to dispatch or deliver, the delivery or performance deadline shall be deemed to have been met if the object of delivery or performance has left our factory prior to such deadline.
5.2 Delivery or performance periods are extended for the duration of any unforeseen impediments lying outside our sphere of influence, such as stoppages, major personnel outages, unlawful strikes, delays in supplies of essential raw materials or components or the like, as well as by circumstances where risk is borne by the Ordering Party, to the extent that these impediments and/or circumstances are of material relevance to the failure to meet the deadline. Impediments and/or circumstances of this nature also annul the consequences of a default for which we would otherwise be liable, for the duration of such impediments; any contractual penalty obligations which may have been agreed for specific instances shall entirely cease to apply. Immediate notification is to be given of the beginning and end of such impediments. We are entitled to terminate the contract, in whole or in part, if such impediments should occur. In this case, unless the Ordering Party proves gross negligence on our part, damages claims from the Ordering Party shall be inadmissible.
5.3 If agreed delivery or performance deadlines, or deadlines that have been extended in accordance with 5.2 above, are exceeded by more than four weeks, the Ordering Party shall be entitled to terminate the contract, having granted us at least 14 days’ extra time by notice given to us in a registered letter. Unless the Ordering Party proves gross negligence on our part, damages claims from the Ordering Party shall be inadmissible in this case.
5.4 If the Ordering Party incurs a loss from a delay for which we are liable, then it shall be entitled to compensation amounting to 0.5% per whole week - up to a maximum of 5% - of the value of that part of the delivery which cannot be used in time or for its intended purpose as a result of the delay. For other services, the compensation shall be 5% of the remuneration. Any damages claims going beyond the above shall be inadmissible, as shall claims for damages in consequence of delays on the part of our suppliers, unless gross negligence is proven on our part.
5.5 In cases where we have undertaken to effect shipping, the mode and route of shipping shall be for us to decide. Goods are always shipped at the Ordering Party’s risk and expense. We shall only be liable for damage if gross negligence is proven on our part. We shall only take out transport / breakage insurance by order and for the account of the Ordering Party.
5.6 We are entitled to effect part-deliveries.
5.7 Our compliance with the delivery period shall be contingent upon the Ordering Party having fulfilled its contractual obligations in all pending, still-to-be-completed business transactions.
5.8 If shipping is delayed due to circumstances where risk is borne by the Ordering Party, then this latter shall bear all resulting additional costs, such as those for storage at our factory, but with a minimum monthly charge of 0.5% of the invoice amount. In such a case we shall also be entitled to grant the Ordering Party a grace period of at most 14 days, and if this period should expire to no avail, we shall then be entitled, at our own discretion, either to make alternative arrangements regarding the article(s) to be delivered and to effect delivery to the Ordering Party within a suitably extended period of time, or to terminate the contract and claim damages for breach of contract. In this latter case, we are entitled, without having to furnish any particular proof, to require 10% of the remuneration for the intended delivery as indemnification. Where appropriately substantiated, we can also claim compensation for any damage over and above this amount.
5.9 In the case of goods ordered on call, or ordered for production with no shipping instructions, delivery must be taken within three months. If this time limit elapses unused, then 5.8 shall apply analogously.
5.10 For services performed under contracts for work and materials (4.7), the Ordering Party is to provide us with the necessary equipment and auxiliary materials (e.g. winches, rails, electricity etc.) in good time and at no charge, even if installation is included in the price (4.1) or if a flat-rate price has been agreed for this. Any works needing to be carried out by the Ordering Party preparatory to installation, e.g. building work, must be completed prior to the arrival of our installation technicians. Furthermore, the Ordering Party must take all safety precautions needed for the protection of persons and property. We shall not accept liability for the ancillary personnel, equipment and auxiliary materials which may be placed at our disposal unless gross negligence is proven on our part.
6. Passage of risk
6.1 Risk shall pass to the Ordering Party as soon as the articles to be delivered, or the articles on which we have performed maintenance, repair or other work, have left our factory. The same shall also apply to part-deliveries or in cases where we have undertaken to bear the shipping charges or to perform delivery, setting-up, assembly, installation or other similar services. If the maintenance, repair or other work is carried out in the domain of the Ordering Party, then risk shall pass to this latter as soon as it has received notification that the work in question has been completed.
6.2 If there is any delay in dispatching or delivering the shipment for reasons for which we are not liable, the risk shall pass to the Ordering Party as soon as it has been notified that the consignment is ready for delivery.
7. Retention of title; rescission
7.1 We shall retain title to the article(s) delivered until our purchase-price claims, and all other claims that we have – on whatever legal grounds – against the Ordering Party, have been settled in full.
7.2 The Ordering Party is only permitted to re-sell the article delivered – even if this has been joined to other items or subjected to processing – in the course of its company’s regular business operations. However, this permission is precluded if the resulting claims are assigned to third parties or are the subject of an assignment prohibition, or if the Ordering Party is insolvent or in default with the performance of its contractual obligations. No other manner of disposition whatever is permitted to the Ordering Party. In the event of distrainment, confiscation or other disposition by third parties, the Ordering Party is to notify us hereof immediately. Our legal expenses incurred in connection with the enforcement of our title are to be borne by the Ordering Party.
7.3 The Ordering Party assigns to us even now its claims and other rights from the re-sale, rental or leasing of the article delivered, even if this latter has been joined together with other items or subjected to processing; the Ordering Party shall make an entry to this effect in its books. If the article delivered is sold or placed into the hands of a third party for such party’s use together with other items (regardless of whether or not it has been joined to any such items or subjected to processing), then the receivables claim shall only be assigned up to the amount of the purchase price owed to ourselves. This is without prejudice to any further damages claims.
7.4 The Ordering Party is only entitled to collect the claims and to assert the other rights to the extent that it has met its payment obligations towards us and is not insolvent.
7.5 If the Ordering Party should act contrary to the terms of the contract – in particular by being in arrears with payment or with any other contractual obligation, and/or by being insolvent – we shall be entitled, at our own discretion, either to terminate the contract without granting any grace period or, while leaving the contract in force, to take back the article delivered or to forbid it to be used. We shall also be entitled to sell the taken-back article in the open market; after deduction of a handling fee of 10% of the proceeds thus realised, the remainder will be debited from the total of our outstanding claims against the Ordering Party. Pending return of the article in the event of our terminating the contract, we shall charge the Ordering Party a usage fee of 5% of the original value of the article, unless the actual diminution in its value is even greater.
8.1 We give no warranty for ordinary deviations in size, weight or quality (or as tolerated by ÖNORM, EN or DIN standards), and also no warranty for information given regarding the suitability of the article(s) to be delivered for the purpose contemplated by the Ordering Party, or for any other particular purpose.
8.2 Although we warrant the correctness of our processing instructions, user/operating manuals and customer advisory service, compliance with statutory or other regulations when using the articles delivered, and the testing of these articles for the purpose envisaged, shall remain the sole responsibility of the Ordering Party. We shall only be answerable for any instructions differing from our written processing instructions and user/operating manuals if we previously confirmed these deviations in writing, either by letter, telefax or e-mail.
8.3 Articles or services supplied must be inspected by the Ordering Party immediately after delivery has been taken of them. Any defects must be reported to us immediately upon being discovered, in a written notice sent by letter, telefax or e-mail quoting the number and date of the order confirmation note, of the delivery note or of the invoice, and the serial and commission numbers. If the Ordering Party omits to make this immediate notification, it may no longer assert any warranty claims or claims for compensatory damages on account either of the defect itself or of any misapprehension as to whether the delivery or service was free of defects. The notice must set out which delivered items or supplied services are affected by the defects, what the defects consist of in detail, and under what concomitant circumstances these defects occurred. Every single defect must be exactly described. Any costs which we incur as a result of unjustified notices or notices that are otherwise at variance with the conditions of use are to be refunded to us by the Ordering Party.
8.4 In the case of corrective and preventive maintenance work, our warranty shall be limited to the services actually rendered. We shall only warrant correct functioning of an installation, machine or the like whose components were not all supplied by ourselves if we have undertaken – despite the provision of certain components by the Ordering Party or by third parties – to manufacture the installation (or machine etc.) as a whole, and if the faulty functioning in question is not attributable to incorrect or incomplete information from the Ordering Party.
8.5 Unless otherwise agreed, the warranty period shall be 24 months. From the beginning of the 13th month of this period, however, our warranty shall be limited to making available, free of charge, the items needed for remedying the defects; from this time onwards, any warranty claims going beyond the above shall be inadmissible. This period limitation also applies to the supply of items deemed to be immovable and to work on items which are, or are deemed to be, immovable. The warranty period shall start to elapse upon the passage of risk (6.). The Ordering Party must always prove that defects coming to light during the warranty period were already present at the time of the passage of risk.
8.6 In cases where we do give warranty, we shall – at our own discretion and within a reasonable period of at least 4 weeks’ duration – either exchange the defective article itself, or its defective components, for a defect-free article or defect-free components, or remedy the defect(s), or grant the Ordering Party a reasonable reduction in price, or (unless the defect in question is a minor one) cancel the contract. The warranty period is not prolonged by the exchange of the item or of parts or components belonging to the item. If, however, the remainder of the warranty period – including that part of the period during which our warranty is limited to free provision of the requisite materials (8.5) – lasts for less than twelve months, then the warranty period for the exchanged items, parts or components shall be extended to twelve months. The items, parts or components thus exchanged shall become our property. We shall not refund the costs for any actual or attempted remedying of a defect by the Ordering Party or by any third party.
8.7 To the extent that is necessary and may reasonably be expected of the Ordering Party, the object of delivery or performance, or the defective part(s) thereof, are to be dispatched or shipped to us immediately at our request, at the Ordering Party’s risk and expense, failing which any and all warranty obligation on our part shall become void.
8.8 The Ordering Party is not entitled to withhold payments on account of warranty claims or other counter-claims not recognised by ourselves.
8.9 Warranty claims from the Ordering Party are excluded in cases where the installation, user and operating manuals provided by ourselves, or to be requested from us by the Ordering Party, have not been observed, or where the user has not been (fully) obligated to observe such instructions; if the installation work has not been performed properly and in accordance with the relevant Standards, and in particular if was not carried out by licensed contractors; if any corrective maintenance or other work has been performed on the object of delivery or performance without our consent; if it has been improperly operated or used, or operated despite its protective features being faulty, or taken out of the contract territory without our consent, or used contrary to our instructions or for purposes for which it is not intended; and, moreover, where defects are attributable to foreign object damage, chemical influences, overvoltage, the conduct of third parties or to force majeure; the same applies in respect of natural wear-and-tear.
8.10 Our warranty is also excluded in cases where we have been contracted to carry out repair-orders, to alter or modify used items, or to supply such items.
8.11 In addition to the Ordering Party’s rights – as stated in 8.6 – on account of defects, we warrant that deliveries of inverters for PV installations, and any options (system add-ons) included in the scope of supply, will be free of defects for 60 months following completion of the installation. Moreover, this warranty period may be extended by the Ordering Party upon request, against payment, in accordance with the FRONIUS Warranty Terms, which can be downloaded from http://www.fronius.com/solarelectronics.
9. Damages and product liability
9.1 We shall only accept unlimited liability for damage, of whatever kind, to the extent that the Ordering Party proves that we ourselves brought about this damage either knowingly and wilfully or grossly negligently. If the Ordering Party proves that we have caused damage in an ordinarily negligent manner, our obligation to indemnify shall be limited to the damage actually incurred, and, moreover, to a maximum overall amount not exceeding the total order value. Furthermore, claims of this type may only be enforced at law if asserted within six months of the damage in question becoming known.
9.2 In the event that we are taken to law by a third party where we have produced and delivered in accordance with the drawings, designs, models or other documents provided by the Ordering Party, the Ordering Party shall indemnify and save us harmless.
9.3 When using the installations, machines and other articles delivered by ourselves, the Ordering Party is obliged to painstakingly observe all safety regulations, technical rules, installation regulations, operating instructions and user manuals, and in particular all regulations applying to the electrical engineering field, and to allow only authorised skilled personnel to operate the equipment.
10. Final provisions
10.1 The place of performance for deliveries, other services and payments, and the sole place of jurisdiction, shall be Wels, Austria. However, we shall also be entitled to go to law against the Ordering Party at the court which has “in-rem” and territorial jurisdiction under the relevant regulations for the Ordering Party’s commercial domicile or place of residence.
10.2 The Ordering Party is aware that in international commerce, it is common practice that an agreement regarding the place of jurisdiction can also be entered into, in a formally effective manner, as a result of tacit acquiescence or non-reaction to a confirmatory business letter such as an order confirmation note containing a pre-printed reference to the place of jurisdiction. The Ordering Party is familiar with this commercial usage, especially in the field of business of Fronius International GmbH, and heeds it regularly.
10.3 Legal disputes arising out of the contract are to be governed by Austrian law and by the commercial practice prevailing at the place of performance. The UN Convention on Contracts for the International Sale of Goods, on the other hand, shall not be applicable (Austrian Federal Gazette 1988/96).
10.4 The Ordering Party hereby authorises us to carry out name checks in the land register(s) in the contract territory, and shall provide us upon our demand with a written authority to request copies and notices from the register of persons in the land register, pursuant to § 5 Section 4 first sentence of the Austrian “Grundbuchs¬umstellungsgesetz” (Land Register Computerisation Act, abbreviated “GUG”).
11. Special provisions for software supplied with products or separately
In the case of software, whether supplied jointly with other deliveries or separately, these Terms of Delivery and Payment shall only apply to the extent that the following provisions do not deviate therefrom.
11.1 Scope of utilisation
11.1.1 The Ordering Party may only utilise the software on one machine at a time; it is up to the Ordering Party to decide which machine the program will be utilised on. “Utilisation of the software” is understood as any long-term or even merely temporary duplication (copying) of the software, whether in whole or only in part, by means of its being saved, loaded, executed or displayed by the hardware for the purposes of running the software and processing the data contained therein. The Ordering Party is also entitled to take such measures for the purpose of observing, investigating and testing the software. The Ordering Party is not entitled to duplicate the user manual.
11.1.2 The Ordering Party may only modify or edit the software to the extent necessary for utilisation according to the agreed terms, for interfacing the software with other software and/or for error correction. Trade names, trademarks, copyright notices and other notices regarding the reservation of rights which are contained within the software may not be altered and must be carried over in any modified or edited versions of the software. Any decompilation of the program code going beyond the statutory provisions is prohibited.
11.1.3 The Ordering Party may make a back-up copy of the software, insofar as this is necessary for ensuring future availability for use. If the software has a technical copy protection feature, then in the event of damage to the original the Ordering Party will be provided with a replacement copy in exchange for the original data medium.
11.2 Transferring the software package to a third party
11.2.1 The Purchaser may transfer the software package, in its original condition and in its entirety, to a third party, but must then contractually bind this third party to observe all obligations towards ourselves arising from the transfer of the software package. This right does not include the right to transfer copies and part-copies of the software package, or modified or edited versions or copies and part-copies of such versions.
11.2.2 When the software package is transferred to a third party, the right to utilise it also passes to this third party, who thus enters into the contract in substitution for the Ordering Party, whereupon the utilisation rights hitherto held by the Ordering Party shall terminate.
11.2.3 Upon transferring the software to a third party in this way, the Ordering Party shall immediately and completely destroy all copies, part-copies and back-up copies, as well as any modified or edited versions of the software and any copies, part-copies and back-up copies made thereof.
11.2.4 These provisions (11.2.1 to 11.2.3) shall also apply in cases where the software is transferred on a merely temporary, short-term basis. Rental of the software package, or of parts thereof, is not permitted.
11.3 Further rights
11.3.1 All further rights pertaining to the software supplied are reserved for ourselves. This does not affect the Ordering Party’s exploitation rights either to its own software that it has developed or runs in the context of compliant utilisation of the software supplied by ourselves, or to any other results which the Ordering Party achieves through its use of the software supplied.
11.3.2 When a new software version becomes available, the Ordering Party is entitled to exchange the originally supplied software package for a new version of the software package at our listed update price; the exchange applies to the software package in its entirety, as originally acquired by the Ordering Party. Upon exchanging the old version for the new, the Ordering Party loses its entitlement to utilise the old (i.e. exchanged) software package. The obligation to destroy, as per Point 11.2.3 above, shall apply analogously in this case.
11.4.1 The Ordering Party acknowledges that it is not possible to develop software programs in such a way that these will be fault-free under any and all conditions of use.
11.4.2 We warrant that the software supplied will fulfil the agreed functions and possesses the expressly warranted characteristics. Any and all warranty shall be contingent upon utilisation in accordance with the contract.
11.4.3 We also warrant that the original software has been properly recorded on a tested data medium. Pre-installed software is excepted from this provision.
11.4.4 Any defects in the software must be notified to us immediately; in all other regards, 8.3 shall be applicable.
11.4.5 The warranty period shall always be for 12 months. This period shall commence upon the delivery of the software package.
11.4.6 If the software package supplied is unusable (11.4.2) or defective (11.4.3), we shall exchange it for a new one with the same title. If this, too, should prove to be unusable or deficient and are we unable to restore it to serviceability at reasonable expense and within a reasonable (at least 4-week long) period, then the Ordering Party can either demand a price reduction or withdraw from the contract. In the event of termination, 11.2.3 shall apply analogously. We shall not refund costs for any actual or attempted remedying of a defect by the Ordering Party or by any third party.
11.4.7 We give no warranty going beyond the foregoing (11.4.6), and in particular warrant neither that the software supplied will meet the special requirements of the Ordering Party or user, nor for modified or edited versions of the software (Point 11.1.2), unless the Ordering Party can prove that there is no connection whatever between the defects and the modifications or edits. The Ordering Party shall bear the sole responsibility for the selection, installation and utilisation of the software and for the results intended to be achieved therewith.
11.5 Liability for damages
11.5.1 Any and all further claims of the Ordering Party or third parties - especially claims for any type of damages - are excluded, unless the aggrieved party can prove that the damage was brought about by ourselves either knowingly and wilfully or grossly negligently.
11.5.2 In all other respects, 9. shall apply analogously.
Terms and conditions of use
Protection of data privacy
For Fronius International GmbH and its subsidiaries, protection of your personal data is an overriding priority. For this reason, we only store and process your data for advertising purposes within our company or our subsidiaries if you have given us your express consent to do so. You can submit your statement of consent on any of the pages in our Internet website where person-related data can be entered. You may of course withdraw your consent at any time thereafter, by e-mail or letter.
The person-related data which you provide to us will always be stored, processed and used in compliance with the Austrian data privacy regulations currently in force. Fronius International GmbH will uphold the confidentiality of your data and will not sell them, rent them, or otherwise divulge them to any third party.
The Internet pages of Fronius International GmbH or its subsidiaries may contain links to other suppliers’ webpages. Fronius International GmbH and its subsidiaries are not responsible for third-party content which may be accessed via such links. The third-party offerings in question were checked for unlawful content when the links were first defined. A link will only be removed – where technically possible and feasible – when we realise or have our attention drawn to the fact that a particular offering includes unlawful content. ‘Cookies’ are small text files that facilitate the use of our online offerings. Our cookies contain no person-specific information, so your privacy remains protected.
Using our Internet pages – copyrights
All information on the Internet pages of Fronius International GmbH and its subsidiaries, including trademarks, logos and identification marks, text, drawings, photos, data, etc., is copyrighted. It is forbidden to use, duplicate, present, disseminate or otherwise utilise these contents for private, public or commercial purposes. Furthermore, the contents may not be altered, and may also not be used on other Internet pages or networked computers without the written consent of Fronius International GmbH. Any person or party infringing these terms will be obliged to immediately destroy all printed-out or downloaded content. Fronius International GmbH shall also reserve the right to assert further damages claims.
The information on our Internet pages has been prepared with the very greatest care. However, Fronius International GmbH and its subsidiaries cannot provide any guarantee as to the completeness or suitability of this information for any particular application, and shall thus not be liable, either directly or indirectly, for any damage or inconvenience resulting from the use or misuse of the information.