General webshop terms and conditions for consumers purchasing at a distance (Webshop Terms and Conditions)

Valid dating from 1st July 2017

1    Scope of the terms and conditions; information required to be disclosed (pursuant to Section 5 of the Austrian E-Commerce Act and Section 25 of the Austrian Media Act)

1.1   These Webshop Terms and Conditions are exclusively applicable to goods and services of Fronius International GmbH that are ordered by customers at a distance and to payments to us. Insofar as applicable provisions are not contained herein, the General Terms and Conditions of Supply issued by the Austrian Electrical and Electronics Industry Association will apply. Any deviating terms and conditions or similar of the customer will only be binding upon us if we have expressly agreed in writing to be bound by them.

1.2   When placing an order, the customer shall acknowledge the exclusive applicability of the Webshop Terms and Conditions set out herein by clicking on the relevant check box. The version of the Webshop Terms and Conditions that is in effect at the time of use, registration or ordering by the customer is applicable (see paragraph 4). We offer our goods and services to both consumers and companies by distance selling. These Webshop Terms and Conditions apply solely to consumers; under these Webshop Terms and Conditions, a “consumer” is thereforeevery person for whom the legal transaction that is or will be concluded does not come under the business activities of their company. “Company” is understood as defined in the Austrian Consumer Protection Act. Our General Delivery and Payment Conditions are applicable to customers that are companies; these Webshop Terms and Conditions will only serve to fill any gaps in the General Delivery and Payment Conditions.

1.3   The Webshop Terms and Conditions and the online registration process, order process and conclusion of distance contracts are offered in German, English, French, Italian and Spanish. Customers may conclude contracts with us via the http://shop.fronius.com online platform.

1.4   The Terms of Use and Webshop Terms and Conditions may be viewed at any time at http://shop.fronius.com and may be downloaded in PDF format. A clear link is available on the website of our online platform to these Terms of Use and Webshop Terms and Conditions.

1.5   We are Fronius International GmbH, Froniusstraße 1, 4643 Pettenbach, Austria, registered in the Styria commercial register under no. FN 149888z, telephone: +43 7242 241-0, fax +437242 241-3940, e-mail: contact@fronius.com, website: www.fronius.com; registered office: Pettenbach; VAT identification number: ATU52614407; chamber membership: Upper Austria Economic Chamber; line of business: production and sale of goods by the Perfect Welding, Solar Energy and Perfect Charging Business Units. Regulations applicable to us include, in particular, the Austrian Trade Act of 1994, which may be accessed at www.ris.bka.gv.at. Our supervisoryauthority pursuant to the Austrian E-Commerce Act is the Kirchdorf an der Krems administrative authority.

 

2    Goods and services offered by Fronius by distance selling

2.1   The main characteristics of the goods/services offered by us in the FRONIUS webshop are described clearly and understandably, including the relevant warranty terms and conditions, and the total monthly costs, duration and termination options in the case of subscriptions (see Section 4.2).

2.2   In the case of downloadable digital content, especially software and softwareupdates, the (further) conditions of use and the functionality of digitalcontent, including applicable technical protection measures for such content are described in detail on our online platform. Where applicable, that includes – if significant – the interoperability of digital content with hardware and software, insofar as we are aware of or can reasonably be expected to have been aware of such interoperability. The digital content is provided by us for downloading and use either for a one-time fee or as a subscription (i.e. for agiven duration with an ongoing payment obligation).

2.3   In the case of warranty extensions, the service of the warranty extension for the offered/ordered period is deemed to have been fully performed by us once the warranty originally provided by us expires and the warranty extension therefore begins; in the case of doubt, the date indicated on or in connection with the goods, e.g. as indicated by the software, will apply.

2.4   Our documents, such as drawings, diagrams, test specimens and samples, and details of dimensions, weight, performance and consumption, are only approximate and do not therefore constitute specifically agreed properties. We reserve the right to make design-related modifications.

2.5   We retain ownership of and copyright to our cost estimates, drawings and any other documents or tools; they are not permitted to be made accessible to third parties or used for the purposes of third parties.

 

3    Conclusion of distance contracts

3.1.   A distance contract is concluded between the customer and Fronius International GmbH for the offered goods/services through acceptance of an offer made by the customer. On our online platform, the customer may place orders (= make an offer) for offered goods/services via a webshop. 

3.2   On each page of our webshop, the customer is informed about the available payment methods. The following technical steps result in a binding order requiring payment for the goods and services offered at a distance.

3.2.1    The customer shall select the goods/service that he/she wishes to order by clicking on the select button. The customer then has the option of either ordering further goods/services by clicking on the relevant select button or continuing the order process with the selected goods/services by clicking on “Order selection” or “Order free of charge”.

3.2.2    In the next step of the order process, the customer is required to enter his/her data (“registration”); if the customer is already registered, he/she is required to log in using his/her user name and password; the customer also has the option of registering for our newsletter at this point.

3.2.3    By clicking on “my basket”, the customer may view a list of all goods/services that he/she wishes to order, including the order details. The customer has the possibility to correct any incorrect entries. The contract partner, i.e. Fronius International GmbH, and the total price, including all taxes and levies, are indicated, as are the total monthly costs, duration and termination options in the case of subscriptions (see Section 2.2).

3.2.4    If applicable, the customer shall instruct us to begin the service (warranty extension) or the supply of downloadable digital content immediately or within the withdrawal period; as a result the customer will have no right of withdrawal if performance has begun within the withdrawal period and is fully performed (see also Section 2.3).

3.2.5    The binding order requiring payment is placed once the customer accepts the Webshop Terms and Conditions by clicking on the relevant check box and clicks on the“proceed to pay” button.

3.2.6    The customer will then be redirected (a) to the relevant payment site if the customer has selected payment by credit card or PayPal; we do not assume any liability for the content of such external sites, or (b) to a page for entry of the required account details if the customer has selected payment by immediate transfer; we do not assume any liability in this case either.

3.2.7    Once the order has been received by our server, the customer will receive an automated technical confirmation of the order receipt by e-mail, which also includes the text of the order, the applicable Delivery and Payment Conditions and, where applicable, a statement pursuant to Section 3.2.4.

3.2.8    We either expressly accept the order/offer of the customer by separate e-mail(“order confirmation”) or – especially in the case of downloadable digital content – by supplying the relevant downloadable digital content.

3.3   We are entitled to decline acceptance of the customer’s offer, without giving any reason, especially if the information on our online platform was incorrect or we cannot fulfil the order, irrespective of the reason. In such event, any payments will be reimbursed to the customer, without deduction of any fees. The customer may not make any further claims for compensation.

3.4   The customer shall ensure that the e-mail address provided by him/her is correct, so that emails sent by us to that address – especially download links for digital content – can be received at all times. In particular, the customer, if he/she uses spam filters, shall ensure that all e-mails sent by us can be delivered. The customer agrees to notify us immediately in writing of any changes to his/her delivery address, including his/her e-mail address. Statements of legal relevance will be sent to the customer’s last known (e-mail)address. The delivery is deemed to have been successful even if the customer has changed his/her e-mail address, if the customer has not notified us of the change.

3.5   The text of the order is stored by us. However, we do not offer an “order portal” with access to orders placed by the customer.

  

4    Price and payment conditions, retention of title; offsetting

4.1   The prices of our goods/services are clearly designated on our online platform for consumers (including taxes and levies).

4.2   As a rule, all payments of the customer are due immediately, without any reductions. We retain ownership (“retention of title”) until full payment. If the customer intentionally or negligently defaults on payment, we are entitled to charge default interest of ten percentage points above the applicable base interest rate of the National Bank of Austria (Oesterreichische Nationalbank),or at least 12% per annum. We may also claim compensation for other losses that we have incurred due to the consumer intentionally or negligently defaulting on payment, in particular the necessary costs of relevant extra-judicial debt collection measures, providing such costs are not disproportionate to the collected debt.

4.3   The customer’s right to withhold payments is limited to his/her statutory right.The customer solely has the right to deduct its claims against us from its payment liabilities in the event of our insolvency or if the counter-claim of the customer has been established by court ruling or acknowledged by us.

4.4   We solely provide invoices for goods/services in the form of onlinedownloads; the customer expressly consents to receive invoices in such a form.The customer may view the invoices in his/her user account under “my orders”, download the invoices and/or print them out.

 

5    Right of withdrawal/right of termination

5.1   Instructions on withdrawal: the consumer has the right to withdraw from this contract within 14 days dating from conclusion of the contract without giving any reason. To exercise the right of withdrawal, the consumer must inform us of his/her decision to withdraw from this contract by an unequivocal statement (e.g. aletter sent by post, fax or e-mail). The consumer may use the attached model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for the consumer to send his/her communication concerning exercise of the right of withdrawal before the withdrawal period has expired. 

5.2   Bylaw the consumer has no right to withdraw from contracts for our services if –based on the order/offer of the consumer and the consumer’s acknowledgementthat he/she will lose the right of withdrawal once the contract has been fully performed – we have begun the service before expiry of the withdrawal period and have fully performed the service (see extended guarantees in Section 2.3).

Furthermore, the consumer has no right to withdraw from contracts for the supply of digital content (i.e. digital downloads) that is not supplied on a tangible medium if –based on the order/offer of the consumer and the consumer’s acknowledgement that he/she will lose the right of withdrawal in the case of early performance of the contract – we have begun supply of the download before expiry of thewithdrawal period.

5.3     Effects of withdrawal: if the consumer withdraws from this contract, we shall reimburse to him/her all payments received from him/her, including the costs of delivery(with the exception of the supplementary costs resulting from the consumer’s choiceof a type of delivery other than the least expensive type of standard deliveryoffered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about the consumer’s decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise; in any event, the consumer will not incur any fees as a result of such reimbursement. Where a consumer instructs us to begin the services within the withdrawal period, the consumer shall pay us an amount which is in proportion to what has been provided until the time the consumer has informed us of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. 

 

6    Complaints; dispute resolution; guarantees; warranties; liability

6.1   Complaints concerning our goods/services may be made by using the contact details specified in Section 1

6.2   For the EU online dispute resolution platform for online contracts of sale and services, please see http://ec.europa.eu/consumers/odr. For the Austrian conciliation board for consumer transactions, please see http://www.verbraucherschlichtung.or.at. We are not, however, obliged to participate in such alternative dispute resolution proceedings.

6.3   The warranty terms and conditions that are indicated for our respective goods and services apply.

6.4   In addition, we provide consumers with a warranty pursuant to the statutory warranty provisions for the statutory period (24 months) in the case of goods that are provided against payment. It is noted, that the statutory warranty is not applicable to services.

6.5   We do not provide any warranty and are not liable for errors beyond our sphere of influence, including, but not limited, to, data transmission errors.

6.6   If we fail to rectify defects within a reasonable grace period in the case of goods or services that are provided against payment, the consumer is entitled to demand the rescission of the contract or a suitable reduction in the purchase price. Costs incurred due to unfounded notices of defects are payableby the consumer.

6.7   With the exception of personal injuries, we are only liable for damage caused by wilful misconduct or gross negligence.

 

7    Dataprivacy

7.1   Our data privacy policy may be viewed at any time at http://www.fronius.com and maybe downloaded in PDF format. The data privacy policy forms an integral part of these Webshop Terms and Conditions.

 

8    Websitedisclaimer; notice of intellectual property; user-generated content

8.1   The information provided on our online platform has been carefully checked and is regularly updated. However, we cannot assume any warranty or liability for all information being complete and correct at all times.

8.2   We do not assume any liability for links to other websites that are linked to directly or indirectly. All such information may be modified, supplemented or removed without prior notice.

8.3   The websites that have been provided for use and the content and services provided via the websites have been developed by Fronius or on behalf of Fronius and Fronius holds all rights there to. Content made available via the website(especially texts and images, etc.), including parts there of or a revised form of such content, is not permitted to be copied, distributed, linked to or otherwise made publicly accessible without our consent.

8.4   If the customer has the option to upload his/her own content to our platforms(user-generated content), the following rules apply: we reserve the non-exclusive and irrevocable right to use the user-generated content free of charge; the right is unrestricted with respect to content, place and time. The right of use includes all current and future acts of exploitation, including the right to process the content using all possible techniques, including techniques that may become possible in the future and by possible means of exploitation. The right of use also includes use for the purpose of advertising our company and our goods/services. Insofar as we are granted rights to thecontent, we are entitled to use, but not obliged to exercise such rights. Wemay transfer all rights granted to us hereby fully or partially to thirdparties against payment or free of charge. If the customer is not itself the holder of the rights, he/she warrants that the holder of the rights has declared that it consents to the assignment of rights pursuant to the aforementioned provisions and shall hold us harmless and indemnify us, regardless of fault. The same applies to any unlawful user-generated content.

 

9    Applicable law; dispute resolution; jurisdiction

9.1   All legal relations between us and the customer as consumer are governed by Austrian law, excluding conflict-of-law provisions and the UN Convention on Contracts for the International Sale of Goods. Mandatory consumer provisions of the country of domicile of the consumer that may result in more favourable provisions are unaffected.

9.2   With respect to possible disputeresolution, please see Section 6.2.

9.3   In the case of transactions with customers that are consumers, the courts at the domicile, habitual residence or place of employment of the consumer have jurisdiction if a law suit is brought against the consumer; the courts at the registered office of Fronius will have jurisdiction if a law suit is brought against Fronius.

 

10    Severability clause

10.1   If any provisions of this contract are in effective or unenforceable or become ineffective or unenforceable following conclusion of the contract, the effectiveness of the other provisions will be unaffected.

10.2   The ineffective provision shall be replaced by a provision that corresponds to the commercial intent of the contract.

General terms and conditions

1. Applicability

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. Offers

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 in the latest version]), 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.

5.3 If agreed delivery or performance deadlines, or deadlines that have been extended in accordance with 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. Warranty

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 expressively previously confirmed these deviations to the Ordering Party 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, Software or the like whose components were not all supplied by ourselves if we provable 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 in accordance with Point 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 in accordance with Point 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. Finally all warranty claims shall be excluded if the Ordering Party installs third-party components or replacement parts in our delivery items or services provided by us which have not been expressly recommended by us prior thereto.

8.12. In addition to the rights of the Ordering Party in accordance with Point 8.6. regarding the delivery of inverters for photovoltaic systems the guarantee in accordance with the guarantee conditions of Fronius shall apply, available at https://www.fronius.com/en/photovoltaics/products/all-products/solutions/fronius-service-solutions/fronius-warranties/fronius-warranties.

  

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.

9.4. Any liability for damage caused by the installation or use of third-party components or replacement parts with our delivery items, which have not been verifiably and expressly recommended by us, shall be excluded.

 

10. Consent to data protection

Client shall agree that Fronius International GmbH and its subsidiaries may collect, process and use personel data (such as name, address, email address), if applicable also by commissioning a service provider, for the purpose of sending information regarding products and services of any kind (e.g. by post, email, newsletter and more). A dissemination to externals in excess thereof shall not occur (excluded are legal or judicial obligations to provide information). The consent may be objected at any time in writing, in the newsletter there is also a link to unsubscribe.

 

11. Final provisions

11.1 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.

11.2 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.

11.3 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).

 

12. Special provisions for software supplied together with ordered items or software supplied separately

For software delivered together with other items or for software delivered separately (hereafter “software”) these Terms and Conditions of Delivery and Payment only apply insofar as these do not deviate from the following conditions or from conditions agreed upon separately with the Ordering Party.

 

12.1 Scope of use

12.1.1 All rights of intellectual property, such as copyright, trademark rights, design rights, patent rights, utility model rights and know-how, as well as in particular unprotected inventions, commercial experience, trade secrets and such like, independent from the time these were disclosed to the Ordering Party, shall be reserved at any time by us or our licensors. The Ordering Party shall have the right to use the software after payment of the agreed sum exclusively for his own purposes in accordance with the acquired number of licences. With the present contract only the authorization to use the software is acquired. Dissemination by the Ordering Party shall be excluded in accordance with the copyright law. With a possible participation of the Ordering Party in producing the software no rights other than the specified usage laid out in Section 12 are acquired. The Ordering Party may only use the software simultaneously on one device, which one is his decision. Usage of the software shall constitute any long-term or even any temporary duplication (copying) of the software, whether in whole or also only in part, by saving, loading, running or displaying for the purpose of execution of the software and processing of the data contained therein by the hardware. He shall not be authorized to copy the user manual.

12.1.2 The Ordering Party shall be permitted to make copies of the software for archival and data protection purposes on condition that there is no explicit prohibition in the software or any accompanying material (instruction manual, packaging, etc.) and that all copyright and proprietary notices are transferred unchanged in these copies. Retranslations of the programme code (decompilation) exceeding the legal provisions shall not be permitted.

12.1.3. If the software is equipped with technical copy protection, the Ordering Party shall in the case of damage be supplied with a replacement copy after restitution of the data carrier.

 

12.2 Further rights.In the event of availability of a new software version the Ordering Party shall be entitled to exchange the supplied software package for a similar software package of the new version at our listed update price; the exchange implies the software package as a whole, as it was acquired by the Ordering Party. With the exchange Ordering Party´s permission to use the exchanged software package shall expire. In such an event the Ordering Party shall immediately and completely destroy all copies, partial copies and backup copies as well as altered or revised versions of the software and the copies, partial copies and backup copies made thereof.

 

12.3 Warranty

12.3.1 The Ordering Party shall note that it is not possible to develop software programmes in such a manner that these are free from defects for every application condition.

12.3.2 We shall warrant that the supplied software fulfils the agreed functions and has the expressly guaranteed properties. Requirement for any warranty is usage according to contract. A defect for which we are responsible shall only be deemed to exist if the software does not function according to the most recent version of the corresponding performance description/documentation and if this is reproducible by the Ordering Party. In order to carefully examine possible occurring defects the Ordering Party shall be obliged to support us in the rectification of any defects.

12.3.3 We further shall warrant that the original software is duly recorded onto a tested data carrier. Excepted here from are previously installed software and third-party software products.

12.3.4 Software defects shall be documented by the user and we shall be notified in writing with immediate effect; otherwise 8.3 shall apply.

12.3.5 The warranty period shall always be twelve months; the period commences with the dispatch of the software package.

12.3.6 If the software package is not usable or defect (12.3.2), we shall exchange it primarily for a new one of the same title or for an adequate alternative solution. If this also proves to be unusable or defect and if we are not in a position to make it usable with adequate effort within an adequate time, but at least within a period of four weeks, the Ordering Party may demand a price reduction or a change. Costs of defect rectification by the Ordering Party or a third person shall not be compensated by us.

12.3.7 In excess of this (12.3.6) we shall not provide warranty, in particular not in the case of the supplied software not meeting the special requirements of the Ordering Party or user, and also not for altered or revised versions of the software (point 12.1.2), unless the Ordering Party can prove that the defects are not connected to the alterations or revisions. The Ordering Party itself is solely responsible for the selection, installation and usage of the software as well as for the results intended therewith.

12.3.8 In the event of unjustified assertion of defects in the software we shall be entitled to charge the Ordering Party with any incurred costs according to valid cost rates.

12.3.9 A change of the end-user shall exclude any warranty claims

 

12.4 Compensation

12.4.1 All further claims of the Ordering Party or third persons, in particular claims for compensation for damages of any kind, shall be excluded, unless the injured party can prove that the damage was caused by us either intentionally or due to gross negligence.

12.4.2 Otherwise Point 9 shall apply accordingly.