1.1 All deliveries/ sales of goods and software and all services effected or provided by us, and all payments made to us, shall be exclusively governed by these Terms of Delivery and Payment. Austrian laws and regulations shall apply. These Terms of Delivery and Payment shall apply in their respective version as a framework agreement for all current and future contracts related to the sale and/or the delivery of movables items with the same Ordering Party, without Fronius being required to make reference to them in each individual case; upon request, Fronius will furnish the Ordering Party with the Terms of Delivery and Payment anytime. Any and all General Terms and Conditions of the Ordering Party which are not expressly confirmed by Fronius in writing before signing the purchase contract or the purchase order shall not be binding on Fronius in any way, even if we do not expressly object to them. 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 in writing 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 not binding and subject to alteration, unless the offer expressly mentions that the offer is binding. Documents pertaining to our offers – such as drawings, illustrations, samples and patterns, and dimensional, weight, performance and consumption data – contain and constitute only approximate data and are not deemed to be specifically agreed characteristics unless otherwise provided in writing. We retain the right to effect modifications for engineering reasons at any time.
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 net list prices valid on the date of delivery. Prices are ex-works prices (EXW Incoterms 2010]), exclusive of packaging, insurance, costs for loading and unloading at the factory, taxes such as VAT, etc.), any import or export duties or any other fees; the packaging material 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 to our designated bank account at the risk and expense of the Ordering Party. We shall have the sole right to decide if and which claims or partial claims of the Ordering Party’s may be offset against such payments.
4.3 If any changes for the order execution are necessary or required then the Ordering Party bears the risk of accidental damage or loss of the goods, then the Ordering Party shall bear all additional costs related to the change.
4.4 In case of late payment, we shall be entitled to charge default interest at a rate of eight (8) percentage points above the applicable HIBOR rate, plus any additional costs.. This is without prejudice to any further rights or consequences due to late payment..
4.5 It is inadmissible for the Ordering Party to withhold any payments to us and/or to offset any claims..
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 our usual hourly rates and materials-prices applicable at the time of completion, plus any of our applicable surcharges for any overtime, night-time, Sunday and public-holiday working; travel and waiting times are fully 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 earliest with the mailing of the order confirmation note or at any other date agreed between the parties, while the performance period for installation, maintenance or repair work commences when the equipment is handed over to the Ordering Party. In no case, shall the delivery or performance period elapse sooner than 14 days after the time when the Ordering Party has furnished us with all required documents (e.g. engineering drawings, plans etc.), permits and/or approvals, which the Ordering Party is required to obtain,, or when the Ordering Party has made the agreed pre-payment and the money was received in our account. 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 we are required to dispatch or deliver the goods, the delivery or performance deadline shall be deemed to have been met if the goods have left our factory prior to such deadline.
5.2 Delivery or performance periods are extended for the duration of any unforeseen impediments which are beyond our control or influence (“Force Majeure”), such as but not limited to stoppages, major personnel outages, unlawful strikes, delays in the supply chain of essential raw materials or components or the like, as well as for circumstances where the risk is borne by the Ordering Party, to the extent that the Force Majeure is of material relevance to the failure to meet the deadline. We are also not liable for any other claims or damages that are caused by Force Majeure; anyContractual penalty shall entirely cease to apply. Each party has to immediate inform the other party about an event and the end of Force Majeure. We are entitled to terminate the contract, in whole or in part, if Force Majeure occurs for at least three consecutive months. In this case, unless the Ordering Party proves gross negligence on our part, claims for damages from the Ordering Party shall be inadmissible.
5.3 If any deadlines 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, after having granted us at least 14 days’ extra time by written notice. Unless the Ordering Party proves gross negligence on our part, damages claims from the Ordering Party shall be inadmissible.
5.4 If the Ordering Party incurs a substantial loss from a delay for which we are liable, then it shall be entitled to a compensation amounting to 0.5% per whole week - up to a maximum of 5% - of the net value of that part of the delivery which cannot be delivered in time as a result of the delay. For other services, the compensation shall be 5% of the net remuneration. To the fullest extent permitted by law, any other claims for damages beyond the above shall be inadmissible, , as shall claims for damages which are due to delays from our suppliers, unless gross negligence is proven on our part. The Ordering Party shall not be entitled to any indirect damages, including but not limited to loss of profit. Etc.
5.5 In cases where we are responsible for shipping, the mode and route of shipping lies in our discretion. Goods are always shipped at the Ordering Party’s sole risk and expense. We shall only be liable for any damages if gross negligence is proven on our part. If we insure the shipped goods, the Ordering Party shall bear our transport / breakage insurance costs.
5.6 We are entitled to part-deliveries.
5.7 We shall only be responsible for obeying the delivery period if and as long as the Ordering Party did fully fulfill its contractual obligations.5.8 If shipping is delayed due to circumstances where the risk is borne by the Ordering Party, then the Ordering Party shall bear all resulting additional costs, such as storage costs at our factory with a minimum monthly handling charge of 0.5% of the invoice amount. In such case we shall also be entitled to grant the Ordering Party a grace period of not more than 14 days. After this grace period we shall be entitled, at our own discretion, either to make alternative arrangements, or terminate the contract and claim damages for breach of contract. In the latter case, we are entitled, without having to furnish any particular proof, to 10% of the net contract value as indemnification. We shall furthermore be entitled for any additional damages (including but not limited to indirect damages, such as loss of profit, etc.) Over this amount if evidence can be provided.5.9 In the case of goods ordered on call, or ordered for production with no shipping instructions, delivery shall take place within three months after we received the written order confirmation. After this,
5.8 shall apply accordingly.
5.10 For services performed under contracts for work and materials (4.7), the Ordering Party shall 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 required to be carried out by the Ordering Party prior 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 (including insurance) 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.
5.11 The Ordering Party acknowledges that in case the goods or any part of the goods need to be exchanged due to whatsoever reason, the Ordering Party will not be eligible to any VAT refund or VAT offset or any duty refund in whole or part. Fronius Hong Kong Limited shall not be obliged to pay or credit to the Ordering Party any VAT or any duty that is payable by the Ordering Party.
5.12 Any and all after sales services, including but not limited to the exchange or repair of the goods or parts of the goods are performed by Fronius China only. As far as permitted by law, the Ordering Party unconditionally and irrevocably releases Fronius Hong Kong Ltd. from all obligations in relation to after sales services or any other services arising out of or in connection with any guarantee or warranty given by Fronius Hong Kong Ltd.
6. PASSAGE OF RISK
6.1 All risk shall pass to the Ordering Party as soon as the delivery of the goods starts from our factory, or goods for which we performed maintenance, repair or other work, have left our factory. The same shall also apply to part-deliveries or in even in case that we bear the shipping charges or are required to perform the delivery, setting-up, assembly, installation or other similar services. If any maintenance, repair or other work is carried out at the place of the Ordering Party, then the risk shall pass to the Ordering Party as soon as the actual work has started.
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 all our claims due to 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/ goods – even if this has been remodeled into another good or product item or has been processed – in the course of its company’s regular business. However, the Ordering Party is not allowed to re-sell the goods if if the Ordering Party is insolvent or in default with its contractual obligations. No other manner of disposition is permitted to the Ordering Party. In the event of distrainment, confiscation or other disposition by third parties, the Ordering Party shall notify us without undue delay. Our legal expenses incurred in connection with the enforcement of our title shall be borne by the Ordering Party.
7.3 The Ordering Party assigns to us all its claims and other rights from the re-sale, rental or leasing of the article delivered, even if the goods have been remodeled or has been processed and shall book this accordingly
7.5 If the Ordering Party acts contrary to the terms of the contract – in particular by being in arrears with payment or with any other contractual obligation, – we shall be entitled, at our own discretion, either to terminate the contract for good cause without granting any grace period or take back the delivered goods.
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 any 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 We warrant the correctness of our processing instructions, user/operating manuals and customer advisory service. However, all compliance with statutory or other regulations when using the goods delivered, and the testing of these goods for the intended purpose, shall remain the sole responsibility of the Ordering Party. We shall only be responsible for any instructions differing from our written processing instructions and user/operating manuals if we expressively confirmed these deviations to the Ordering Party in writing, either by letter, telefax or e-mail.
8.3 Goods or services supplied must be inspected by the Ordering Party immediately after being received by the Ordering Party. Any defects must be reported to us immediately after being discovered, via written notice sent by letter, telefax or e-mail quoting the number and date of the order confirmation note, the date and number of the delivery note or of the invoice, and the serial and commission numbers of the goods. If the Ordering Party fails to report immediately, it irrevocably waives all and any warranty claims and/or claims for damages. The notice must set out which delivered items or supplied services are affected by the defects, the details of the defect, and under which 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 case of corrective and/or preventive maintenance work, our warranty shall be limited to the services actually rendered. We shall only warrant correct functioning of an installation, machine, Software, which were not all fully supplied by ourselves if we promised in writing – 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 respective mistake 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 by the Ordering Party; from this time onwards, any further warranty claims shall be inadmissible. This 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 upon the passing of risk in accordance with Point 6. The Ordering Party must always prove that the defects were already present at the time of the passing of risk.
8.6 In cases where we do provide warranty, we shall – at our own discretion and within a reasonable period of at least 4 weeks’ duration – either replace the defective article, or its defective 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 shall not be extended by the exchange of the item or any parts thereof . The exchanged items, parts or components 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 We may request to ship the defective part(s) to us immediately, 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 our installation, user and operating manuals , have not been observed properly and in cases where 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; warranty claims are also excluded if any corrective maintenance or other work has been performed on the object of delivery or performance without our consent, and; if it has been improperly operated or used, or operated despite its protective features being faulty, or taken out of the contractual territory without our consent, or used contrary to our instructions or for purposes for which it is not intended; warranty claims are also excluded, 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 re- pair-orders, to alter or modify used items, or to supply such items.
8.11. All warranty claims shall be excluded if the Ordering Party installs third-party components or replacement parts 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., for inverters for photovoltaic systems the guarantee in accordance with the guarantee conditions of Fronius shall apply, available at www.fronius.com/solar/garantie.
9. DAMAGES AND PRODUCT LIABILITY
9.1 In cases where required by law, we shall only accept liability for damages to the extent that the Ordering Party proves that we acted willfully or grossly negligently. In all other cases our liability shall be limited to the damage actually incurred, and, to a maximum overall amount not exceeding the net total order value. We shall not be liable for any indirect and consequential damages. Furthermore, all claims must be asserted within six months after the damages becoming known.
9.2 In the event that we are liable towards a third party and where we have produced and/or delivered in accordance with the drawings, designs, models or other documents provided by the Ordering Party, the Ordering Party shall fully indemnify us and hold us harmless towards the third party, including all and any legal costs.
9.3 When using our installations, machines and other goods, the Ordering Party is obliged to fully 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 personnel data (such as name, address, email address), 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). No such information will be forwarded to external third parties. The consent may be objected at any time in writing.
11. FINAL PROVISIONS
11.1 The place of performance for deliveries, other services and payments shall be Shanghai.
11.2 Legal disputes arising out of the contract are to be governed by Austrian law. The UN Convention on Contracts for the International Sale of Goods, and the IPRG (law on international private law] and its conflict of laws rules on the other hand, shall not be applicable (Austrian Federal Gazette 1988/96). The Place of jurisdiction is Vienna.
11.3 The ordinary courts of Vienna, Austria shall have exclusive jurisdiction over any dispute arising out of or in connection with these General Terms of Delivery and Payment and any other contractual relations between us and the Ordering Party.
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 (hereaf ter “software”) these Terms and Conditions of Delivery and Payment shall apply additionally to the General Terms and Conditions of Delivery and Payment..
12.1 SCOPE OF USE12.1.1 All rights of intellectual property, such as copyrights, trademark rights, design rights, patent rights, utility model rights and know-how, as well as in particular unprotected inventions, commercial experience, trade secrets, etc., shall rest with us or our licensors. The Ordering Party shall have the right to use the software after payment of the agreed sum exclusively for its own purposes in accordance with the acquired number of licences. With concluding a general contract with us only the right to use the software is acquired. Dissemination by the Ordering Party shall be excluded in accordance with the respective copyright laws. Even if the Ordering Party participates partly 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. 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 the software and processing of the data contained therein by the hardware. The Ordering Party 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 data protection purposes as long as 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 into these copies. Retranslations of the source 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 RIGHTSIn 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 ac- quired by the Ordering Party. After the exchange, the Ordering Party´s permission to use the old software package shall expire. The Ordering Party shall immediately and completely destroy all copies, partial copies and backup copies as well as altered or revised versions of the old software.
12.3.1 The Ordering Party shall note that it is not possible to develop software programs in such a manner that they are free from defects for every application.
12.3.2 We warrant that the supplied software fulfils the agreed functions and has the expressly guaranteed properties, as long as the software is used according to the contract.. A defect for which we are responsible shall only exist if the software does not function according to the most recent version of the corresponding performance description/ documentation.. In order to carefully examine possible defects, the Ordering Party shall be obliged to support us in the rectification of any alleged defects.
12.3.3 We warrant that the original software is duly recorded onto a tested data carrier. Previously installed software and third-party software products are accepted.
12.3.4 Software defects shall be documented by the Ordering Party and the Ordering Party shall inform us about any alleged defect without undue delay,; otherwise 8.3 shall apply.
12.3.5 The warranty period shall 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 for a new one of the same title or provide an adequate alternative solution. If this is not possible within an adequate time, but at least within a period of four weeks, the Ordering Party may demand a price reduction.. Costs of defect rectification by the Ordering Party or a third person shall not be compensated by us. No other warranty shall be provided.
12.3.7 No warranty shall exist for altered or revised versions of the software (point 12.1.2).. The Ordering Party is solely responsible for the selection, installation and usage of the software as well as for the results intended.
12.3.8 In the event of unjustified assertion of defects 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 claim.
12.4 COMPENSATION12.4.1 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.