1. Applicability
1.1 All deliveries and other services effected by ourselves, and allpayments made to us, shall be exclusively governed by these Terms ofDelivery and Payment. Insofar as applicable provisions may be found tobe missing therefrom, the General Terms of Delivery of the AustrianElectrical and Electronic Industries shall apply in a subsidiary manner;in all other regards, Austrian laws and regulations shall apply. If anybusiness terms of the Ordering Party’s are at variance with theseGeneral Terms of Delivery and Payment, we shall only be bound by suchdivergent terms if we have expressly recognised the same by letter or bytelefax.
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 andconsumption data – contain or themselves constitute only approximatedata and are not deemed to be specially agreed characteristics unlessotherwise provided. We retain the right to effect modifications forengineering reasons.
2.2 We reserve the proprietary rights and copyright to all costestimates, drawings and other documents; these may neither be disclosedto 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 supplementaryagreements made by our employees, as well as amendments and alterationsof any kind, shall not be binding upon us until we have issued writtenconfirmation 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 andvalue-added tax; the packaging will not be taken back.
4.2 Payments are to be made net cash, without any deduction and freeof charges, within 30 days of the invoice date. It shall be for us todecide which claims or partial claims of the Ordering Party’s may beoffset against such payments.
4.3 If any changes in order execution are necessitated bycircumstances where risk is borne by the Ordering Party, then thislatter shall bear all additional costs thereby incurred.
4.4 If the payment period is exceeded, we shall be entitled to chargedefault interest at a rate of ten percentage points above theapplicable base rate announced by the Austrian National Bank, plus thecollection costs, such amounts to total at least 12% p.a. of the overallclaim. This is without prejudice to any further consequences of defaultin payment.
4.5 It is inadmissible for the Ordering Party to withhold payments orto offset these against counter-claims which are contested byourselves.
4.6 Where the Ordering Party holds claims against ourselves, we areentitled to offset these against our own claims against the OrderingParty, at any time.
4.7 For services performed under contracts for work and materials(installation, repairs, maintenance and other such work), we shallcharge the hourly rates and materials-prices applicable at the time ofcompletion, plus our applicable surcharges for any overtime, night-time,Sunday and public-holiday working; travel and waiting times are countedas working hours. Travel expenses and daily and overnight allowanceswill be invoiced separately.
5. Performance, shipping and default
5.1 The delivery period commences with the mailing of the orderconfirmation 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 startto elapse sooner than 14 days after the time when the Ordering Party hasfurnished us with the documents (e.g. engineering drawings, plans etc),permits or approvals which it is responsible for procuring, or when ithas made the agreed pre-payment. The delivery or performance deadline isdeemed to have been met if we have notified the Ordering Party prior tosuch deadline of our readiness to deliver or perform; in cases where aspecial agreement obliges us to dispatch or deliver, the delivery orperformance deadline shall be deemed to have been met if the object ofdelivery or performance has left our factory prior to such deadline.
5.2 Delivery or performance periods are extended for the duration ofany unforeseen impediments lying outside our sphere of influence, suchas stoppages, major personnel outages, unlawful strikes, delays insupplies of essential raw materials or components or the like, as wellas by circumstances where risk is borne by the Ordering Party, to theextent that these impediments and/or circumstances are of materialrelevance to the failure to meet the deadline. Impediments and/orcircumstances of this nature also annul the consequences of a defaultfor which we would otherwise be liable, for the duration of suchimpediments; any contractual penalty obligations which may have beenagreed for specific instances shall entirely cease to apply. Immediatenotification is to be given of the beginning and end of suchimpediments. We are entitled to terminate the contract, in whole or inpart, if such impediments should occur. In this case, unless theOrdering Party proves gross negligence on our part, damages claims fromthe 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 Partyshall be entitled to terminate the contract, having granted us at least14 days’ extra time by notice given to us in a registered letter. Unlessthe Ordering Party proves gross negligence on our part, damages claimsfrom the Ordering Party shall be inadmissible in this case.
5.4 If the Ordering Party incurs a loss from a delay for which we areliable, then it shall be entitled to compensation amounting to 0.5% perwhole week - up to a maximum of 5% - of the value of that part of thedelivery which cannot be used in time or for its intended purpose as aresult of the delay. For other services, the compensation shall be 5% ofthe remuneration. Any damages claims going beyond the above shall beinadmissible, as shall claims for damages in consequence of delays onthe part of our suppliers, unless gross negligence is proven on ourpart.
5.5 In cases where we have undertaken to effect shipping, the modeand route of shipping shall be for us to decide. Goods are alwaysshipped at the Ordering Party’s risk and expense. We shall only beliable for damage if gross negligence is proven on our part. We shallonly 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 uponthe Ordering Party having fulfilled its contractual obligations in allpending, still-to-be-completed business transactions.
5.8 If shipping is delayed due to circumstances where risk is borneby the Ordering Party, then this latter shall bear all resultingadditional costs, such as those for storage at our factory, but with aminimum monthly charge of 0.5% of the invoice amount. In such a case weshall also be entitled to grant the Ordering Party a grace period of atmost 14 days, and if this period should expire to no avail, we shallthen be entitled, at our own discretion, either to make alternativearrangements regarding the article(s) to be delivered and to effectdelivery to the Ordering Party within a suitably extended period oftime, or to terminate the contract and claim damages for breach ofcontract. In this latter case, we are entitled, without having tofurnish any particular proof, to require 10% of the remuneration for theintended delivery as indemnification. Where appropriatelysubstantiated, we can also claim compensation for any damage over andabove this amount.
5.9 In the case of goods ordered on call, or ordered for productionwith no shipping instructions, delivery must be taken within threemonths. If this time limit elapses unused, then 5.8 shall applyanalogously.
5.10 For services performed under contracts for work and materials(4.7), the Ordering Party is to provide us with the necessary equipmentand auxiliary materials (e.g. winches, rails, electricity etc.) in goodtime 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 worksneeding to be carried out by the Ordering Party preparatory toinstallation, e.g. building work, must be completed prior to the arrivalof our installation technicians. Furthermore, the Ordering Party musttake all safety precautions needed for the protection of persons andproperty. We shall not accept liability for the ancillary personnel,equipment and auxiliary materials which may be placed at our disposalunless 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 tobe delivered, or the articles on which we have performed maintenance,repair or other work, have left our factory. The same shall also applyto part-deliveries or in cases where we have undertaken to bear theshipping charges or to perform delivery, setting-up, assembly,installation or other similar services. If the maintenance, repair orother work is carried out in the domain of the Ordering Party, then riskshall pass to this latter as soon as it has received notification thatthe work in question has been completed.
6.2 If there is any delay in dispatching or delivering the shipmentfor reasons for which we are not liable, the risk shall pass to theOrdering Party as soon as it has been notified that the consignment isready for delivery.
7. Retention of title; rescission
7.1 We shall retain title to the article(s) delivered until ourpurchase-price claims, and all other claims that we have – on whateverlegal grounds – against the Ordering Party, have been settled in full.
7.2 The Ordering Party is only permitted to re-sell the articledelivered – even if this has been joined to other items or subjected toprocessing – in the course of its company’s regular business operations.However, this permission is precluded if the resulting claims areassigned to third parties or are the subject of an assignmentprohibition, or if the Ordering Party is insolvent or in default withthe performance of its contractual obligations. No other manner ofdisposition whatever is permitted to the Ordering Party. In the event ofdistrainment, confiscation or other disposition by third parties, theOrdering Party is to notify us hereof immediately. Our legal expensesincurred in connection with the enforcement of our title are to be borneby the Ordering Party.
7.3 The Ordering Party assigns to us even now its claims and otherrights from the re-sale, rental or leasing of the article delivered,even if this latter has been joined together with other items orsubjected to processing; the Ordering Party shall make an entry to thiseffect in its books. If the article delivered is sold or placed into thehands 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 orsubjected to processing), then the receivables claim shall only beassigned up to the amount of the purchase price owed to ourselves. Thisis without prejudice to any further damages claims.
7.4 The Ordering Party is only entitled to collect the claims and toassert the other rights to the extent that it has met its paymentobligations towards us and is not insolvent.7.5 If the Ordering Partyshould act contrary to the terms of the contract – in particular bybeing 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 deliveredor to forbid it to be used. We shall also be entitled to sell thetaken-back article in the open market; after deduction of a handling feeof 10% of the proceeds thus realised, the remainder will be debitedfrom the total of our outstanding claims against the Ordering Party.Pending return of the article in the event of our terminating thecontract, we shall charge the Ordering Party a usage fee of 5% of theoriginal value of the article, unless the actual diminution in its valueis even greater.
8. Warranty
8.1 We give no warranty for ordinary deviations in size, weight orquality (or as tolerated by ÖNORM, EN or DIN standards), and also nowarranty for information given regarding the suitability of thearticle(s) to be delivered for the purpose contemplated by the OrderingParty, or for any other particular purpose.
8.2 Although we warrant the correctness of our processinginstructions, user/operating manuals and customer advisory service,compliance with statutory or other regulations when using the articlesdelivered, and the testing of these articles for the purpose envisaged,shall remain the sole responsibility of the Ordering Party. We shallonly be answerable for any instructions differing from our writtenprocessing instructions and user/operating manuals if we expressivelypreviously 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 OrderingParty immediately after delivery has been taken of them. Any defectsmust be reported to us immediately upon being discovered, in a writtennotice sent by letter, telefax or e-mail quoting the number and date ofthe order confirmation note, of the delivery note or of the invoice, andthe serial and commission numbers. If the Ordering Party omits to makethis immediate notification, it may no longer assert any warranty claimsor claims for compensatory damages on account either of the defectitself or of any misapprehension as to whether the delivery or servicewas free of defects. The notice must set out which delivered items orsupplied services are affected by the defects, what the defects consistof in detail, and under what concomitant circumstances these defectsoccurred. Every single defect must be exactly described. Any costs whichwe incur as a result of unjustified notices or notices that are otherwise at variance with the conditions of use are to be refunded tous by the Ordering Party.
8.4 In the case of corrective and preventive maintenance work, ourwarranty shall be limited to the services actually rendered. We shallonly warrant correct functioning of an installation, machine, Softwareor the like whose components were not all supplied by ourselves if weprovable have undertaken – despite the provision of certain componentsby the Ordering Party or by third parties – to manufacture theinstallation (or machine etc.) as a whole, and if the faulty functioningin question is not attributable to incorrect or incomplete informationfrom 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, ourwarranty shall be limited to making available, free of charge, the itemsneeded for remedying the defects; from this time onwards, any warrantyclaims going beyond the above shall be inadmissible. This periodlimitation also applies to the supply of items deemed to be immovableand to work on items which are, or are deemed to be, immovable. Thewarranty period shall start to elapse upon the passage of risk inaccordance with Point 6. The Ordering Party must always prove thatdefects coming to light during the warranty period were already presentat the time of the passage of risk.
8.6 In cases where we do give warranty, we shall – at our owndiscretion and within a reasonable period of at least 4 weeks’ duration –either exchange the defective article itself, or its defectivecomponents, for a defect-free article or defect-free components, orremedy the defect(s), or grant the Ordering Party a reasonable reductionin price, or (unless the defect in question is a minor one) cancel thecontract. The warranty period is not prolonged by the exchange of theitem or of parts or components belonging to the item. If, however, theremainder of the warranty period – including that part of the periodduring which our warranty is limited to free provision of the requisitematerials in accordance with Point 8.5 – lasts for less than twelvemonths, then the warranty period for the exchanged items, parts orcomponents shall be extended to twelve months. The items, parts orcomponents thus exchanged shall become our property. We shall not refundthe costs for any actual or attempted remedying of a defect by theOrdering Party or by any third party.
8.7 To the extent that is necessary and may reasonably be expected ofthe Ordering Party, the object of delivery or performance, or thedefective part(s) thereof, are to be dispatched or shipped to usimmediately 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 onaccount of warranty claims or other counter-claims not recognised byourselves.
8.9 Warranty claims from the Ordering Party are excluded in caseswhere the installation, user and operating manuals provided byourselves, or to be requested from us by the Ordering Party, have notbeen observed, or where the user has not been (fully) obligated toobserve such instructions; if the installation work has not beenperformed properly and in accordance with the relevant Standards, and inparticular if was not carried out by licensed contractors; if anycorrective maintenance or other work has been performed on the object ofdelivery or performance without our consent; if it has been improperlyoperated or used, or operated despite its protective features beingfaulty, or taken out of the contract territory without our consent, orused contrary to our instructions or for purposes for which it is notintended; and, moreover, where defects are attributable to foreignobject damage, chemical influences, overvoltage, the conduct of thirdparties or to force majeure; the same applies in respect of naturalwear-and-tear.
8.10 Our warranty is also excluded in cases where we have beencontracted to carry out repair-orders, to alter or modify used items, orto supply such items.
8.11. Finally all warranty claims shall be excluded if the OrderingParty installs third-party components or replacement parts in ourdelivery items or services provided by us which have not been expresslyrecommended by us prior thereto.
8.12. In addition to the rights of the Ordering Party in accordancewith Point 8.6. regarding the delivery of inverters for photovoltaicsystems the guarantee in accordance with the guarantee conditions ofFronius 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 whateverkind, to the extent that the Ordering Party proves that we ourselvesbrought about this damage either knowingly and wilfully or grosslynegligently. If the Ordering Party proves that we have caused damage inan ordinarily negligent manner, our obligation to indemnify shall belimited to the damage actually incurred, and, moreover, to a maximumoverall amount not exceeding the total order value. Furthermore, claimsof this type may only be enforced at law if asserted within six monthsof the damage in question becoming known.
9.2 In the event that we are taken to law by a third party where wehave produced and delivered in accordance with the drawings, designs,models or other documents provided by the Ordering Party, the OrderingParty shall indemnify and save us harmless.
9.3 When using the installations, machines and other articlesdelivered by ourselves, the Ordering Party is obliged to painstakinglyobserve all safety regulations, technical rules, installationregulations, operating instructions and user manuals, and in particularall regulations applying to the electrical engineering field, and toallow only authorised skilled personnel to operate the equipment.
9.4. Any liability for damage caused by the installation or use ofthird-party components or replacement parts with our delivery items,which have not been verifiably and expressly recommended by us, shall beexcluded.
10. Consent to data protection
Client shall agree that Fronius International GmbH and itssubsidiaries may collect, process and use personel data (such as name,address, email address), if applicable also by commissioning a serviceprovider, for the purpose of sending information regarding products andservices of any kind (e.g. by post, email, newsletter and more). Adissemination to externals in excess thereof shall not occur (excludedare legal or judicial obligations to provide information). The consentmay be objected at any time in writing, in the newsletter there is also alink to unsubscribe.
11. Final provisions
11.1 The place of performance for deliveries, other services andpayments, and the sole place of jurisdiction, shall be Wels, Austria.However, we shall also be entitled to go to law against the OrderingParty at the court which has “in-rem” and territorial jurisdiction underthe relevant regulations for the Ordering Party’s commercial domicileor place of residence.
11.2 The Ordering Party is aware that in international commerce, itis common practice that an agreement regarding the place of jurisdictioncan also be entered into, in a formally effective manner, as a resultof tacit acquiescence or non-reaction to a confirmatory business lettersuch as an order confirmation note containing a pre-printed reference tothe place of jurisdiction. The Ordering Party is familiar with thiscommercial usage, especially in the field of business of FroniusInternational GmbH, and heeds it regularly.
11.3 Legal disputes arising out of the contract are to be governed byAustrian law and by the commercial practice prevailing at the place ofperformance. The UN Convention on Contracts for the International Saleof Goods, on the other hand, shall not be applicable (Austrian FederalGazette 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 softwaredelivered separately (hereafter “software”) these Terms and Conditionsof Delivery and Payment only apply insofar as these do not deviate fromthe following conditions or from conditions agreed upon separately withthe 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 andknow-how, as well as in particular unprotected inventions, commercialexperience, trade secrets and such like, independent from the time thesewere disclosed to the Ordering Party, shall be reserved at any time byus or our licensors. The Ordering Party shall have the right to use thesoftware after payment of the agreed sum exclusively for his ownpurposes in accordance with the acquired number of licences. With thepresent contract only the authorization to use the software is acquired.Dissemination by the Ordering Party shall be excluded in accordancewith the copyright law. With a possible participation of the OrderingParty in producing the software no rights other than the specified usagelaid out in Section 12 are acquired. The Ordering Party may only usethe software simultaneously on one device, which one is his decision.Usage of the software shall constitute any long-term or even anytemporary duplication (copying) of the software, whether in whole oralso only in part, by saving, loading, running or displaying for thepurpose of execution of the software and processing of the datacontained therein by the hardware. He shall not be authorized to copythe user manual.
12.1.2 The Ordering Party shall be permitted to make copies of thesoftware for archival and data protection purposes on condition thatthere is no explicit prohibition in the software or any accompanyingmaterial (instruction manual, packaging, etc.) and that all copyrightand proprietary notices are transferred unchanged in these copies.Retranslations of the programme code (decompilation) exceeding the legalprovisions 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 areplacement copy after restitution of the data carrier.
12.2 Further rights
In the event of availability of a new software version the OrderingParty shall be entitled to exchange the supplied software package for asimilar software package of the new version at our listed update price;the exchange implies the software package as a whole, as it was acquiredby the Ordering Party. With the exchange Ordering Party´s permission touse the exchanged software package shall expire. In such an event theOrdering Party shall immediately and completely destroy all copies,partial copies and backup copies as well as altered or revised versionsof the software and the copies, partial copies and backup copies madethereof.
12.3 Warranty
12.3.1 The Ordering Party shall note that it is not possible todevelop software programmes in such a manner that these are free fromdefects for every application condition.
12.3.2 We shall warrant that the supplied software fulfils the agreedfunctions and has the expressly guaranteed properties. Requirement forany warranty is usage according to contract. A defect for which we areresponsible shall only be deemed to exist if the software does notfunction according to the most recent version of the correspondingperformance description/documentation and if this is reproducible by theOrdering Party. In order to carefully examine possible occurringdefects the Ordering Party shall be obliged to support us in therectification of any defects.
12.3.3 We further shall warrant that the original software is dulyrecorded onto a tested data carrier. Excepted here from are previouslyinstalled software and third-party software products.
12.3.4 Software defects shall be documented by the user and we shallbe 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), weshall exchange it primarily for a new one of the same title or for anadequate alternative solution. If this also proves to be unusable ordefect and if we are not in a position to make it usable with adequateeffort within an adequate time, but at least within a period of fourweeks, the Ordering Party may demand a price reduction or a change.Costs of defect rectification by the Ordering Party or a third personshall not be compensated by us.
12.3.7 In excess of this (12.3.6) we shall not provide warranty, inparticular not in the case of the supplied software not meeting thespecial requirements of the Ordering Party or user, and also not foraltered or revised versions of the software (point 12.1.2), unless theOrdering Party can prove that the defects are not connected to thealterations or revisions. The Ordering Party itself is solelyresponsible for the selection, installation and usage of the software aswell as for the results intended therewith.
12.3.8 In the event of unjustified assertion of defects in thesoftware we shall be entitled to charge the Ordering Party with anyincurred 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, inparticular claims for compensation for damages of any kind, shall beexcluded, unless the injured party can prove that the damage was causedby us either intentionally or due to gross negligence.
12.4.2 Otherwise Point 9 shall apply accordingly.
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Fronius International - English
