1. Scope of Validity
(1) These Terms and Conditions of Business apply to all contracts for the delivery of goods and provision of services by IN-VISION Digital Imaging Optics GmbH (hereinafter: IN-VISION) to their customers.
(2) Deviations from these Terms and Conditions of Business shall only be effective if confirmed in writing by IN-VISION. Any conflicting general terms and conditions of business of customers shall be ruled out, unless explicitly accepted by IN-VISION in written form.
2 Conclusion of Contract
(1) The contract shall be deemed concluded if IN-VISION has sent a written order confirmation or a delivery to the customer following receipt of the customer’s order. A contract shall not be deemed concluded in the case of a mere confirmation of receipt of an order by IN-VISION, however. Offers by IN-VISION are without obligation and non-binding. In particular, sale of the offered merchandise in the meantime is reserved.
(2) Special instructions by the customer, such as delivery requests, dates, rebates and the like, shall only be an integral part of the contract if explicitly acknowledged as binding by IN- VISION within the scope of the order confirmation. Amendments to the order by the customer after conclusion of the contract shall only be possible with the vendor’s explicit consent and subject to indemnity.
3. Drawings and Documents
(1) The information about dimensions, price, performance, etc. contained in catalogues, brochures, newsletters, ads, pictures and price lists, etc. shall only be binding if explicit reference is made to the same in the offer and/or in the order confirmation.
(2) Drawings, sketches and other technical documents, which may also be part of the offer, as well as samples, catalogues, brochures, pictures and the like shall remain the intellectual property of IN-VISION. All offer and project documents including the pertinent attachments and specimens, dimensional drawings and descriptions are explicitly subject to the industrial property rights and copyrights set out in paragraph 10. Any exploitation, reproduction, dissemination and disclosure to third parties, publication and presentation shall be permitted only with the explicit consent of IN-VISION.
(1) Unless agreed otherwise, the quoted prices shall be exclusive of packaging. If the merchandise is shipped at the customer’s request, it shall be packaged in accordance with commercial practice. The customer shall bear the costs of packaging.
(2) Unless agreed otherwise, a specified delivery term shall merely serve as a guideline for the customer and shall not be binding. Official permits or any other necessary third-party permission must be obtained by the customer. If such permits are not obtained on time, the delivery term shall be extended accordingly.
(3) IN-VISION shall be entitled to make and invoice partial or advance deliveries. If delivery on call is agreed, the merchandise shall be deemed to have been called not later than 6 months after placement of the order.
(4) In the event of circumstances that are unforeseeable or beyond the sphere of control of IN-VISION, such as force majeure, for instance, which prevent or delay fulfilment of the agreed delivery term, the delivery term shall be extended by the duration of existence of the above circumstances. This shall also apply in the event of default by a major and hardly replaceable supplier of IN-VISION.
5. Transfer of Risk and Place of Fulfilment
(1) The place of fulfilment for the delivery of merchandise shall be the seat of IN-VISION in 2353 Guntramsdorf. Use and risk shall transfer to the customer at the time of selection of the contractual object from the IN-VISION works. If the contractual object is shipped to the customer by agreement, risk shall transfer to the customer at the time of departure of the contractual object from the IN-VISION works.
(2) In the event of losses and damage during transportation, the customer shall be responsible for making the relevant complaint to the freight forwarder.
(3) If the customer does not accept the contractually prepared merchandise at the contractually agreed location or at the contractually agreed time and such delay is not caused by an act or omission on the part of IN-VISION, IN-VISION can either demand satisfaction or rescind the contract after setting a period of grace. If the merchandise was selected, IN-VISION may arrange for storage of the merchandise at the customer’s costs and risk. If the merchandise is not accepted within a deadline of 4 weeks, IN-VISION shall have the right to make other use of the merchandise without breach of contract. Any revenue thus achieved shall be deducted from the purchase price owed by the customer after deduction of the costs. IN-VISION shall further be entitled to reimbursement of all expenses incurred in the course of fulfilment of the contract and which are not included in the payments received.
6. Prices and Payment
(1) Unless agreed otherwise, prices are quoted ex works IN-VISION exclusive of shipping costs or packaging costs.
(2) Payments must be made without deductions in the agreed currency to the IN-VISION cashier’s office within 14 days of the invoice date. Any differing terms of payment shall be subject to the explicit consent of IN-VISION. A payment shall be deemed as having been made on the day on which IN-VISION can dispose of the paid amount.
(3) The customer shall not be entitled to retain or offset payments for warranty claims or other counterclaims.
(4) In the event of default of payment, default interest at a rate of 10% shall be agreed. In the event of more than 90 days default of payment or in the event of initiation of an insolvency proceeding, all and any rebates and bonuses granted shall be forfeit and the gross invoice amounts shall be payable. In this case the default interest shall be calculated for the gross amounts as of the due date of each invoice.
(5) If the customer is in default of an agreed payment or other obligation under this or other contracts, IN-VISION may, notwithstanding their other rights, delay the fulfilment of their own obligations until such payment or other performance is made, apply a reasonable extension of the delivery term, and accelerate all outstanding receivables under this or other contracts. In any case IN-VISION shall be entitled to invoice costs prior to litigation, dunning expenses, collection costs and legal fees. IN-VISION may, at their option, rescind the contract after granting a reasonable period of grace.
(6) If IN-VISION rescinds the contract, the customer must return merchandise that has already been delivered on demand and indemnify IN-VISION for any loss of value of the merchandise and reimburse all justified expenses incurred in connection with performance of the contract. With regards to merchandise not delivered yet, IN-VISION shall be entitled to make the finished or partly processed parts available to the buyer and to demand the respective portion of the purchase price for the same. Further claims for damages shall remain unprejudiced thereby.
(7) All and any merchandise delivered by IN-VISION shall remain their property until full payment of the invoiced amounts plus any interest and costs, and IN-VISION shall be entitled to make this reservation of proprietary rights known until receipt of full payment. To secure the purchase price receivable, the customer herewith cedes his receivable from resale of the merchandise with reservation of proprietary rights – even if the merchandise has been processed, reworked or combined – and undertakes to make an according note in his books or on his invoices.
The customer must notify IN-VISION on demand of the ceded receivable and its debtor, provide all the information and documents necessary for collection of the receivable, and to notify the third-party debtor of the cession. In the case of seizure or other attachment of the merchandise subject to reserved proprietary rights, the customer shall be obliged to point out the proprietary rights of IN-VISION and to notify IN-VISION forthwith.
7. Complaints and Warranty
(1) Any complaints regarding defects must be made in writing within 14 days of delivery of the merchandise. The warranty period for IN-VISION products is generally 12 months, whereby this period shall commence on transfer of use and risk.
(2) The warranty merely covers manufacturing and material defects in the delivered products. Lamps and electronic wearing parts as well as used merchandise are excluded from all warranties. Guaranteed features shall only be those features that are explicitly designated as such in the product information.
(3) If an IN-VISION product is manufactured on the basis of the customer’s design information, drawings, models or other specifications, the warranty shall be limited to good workmanship.
(4) In the case of a proven manufacturing or material defect claimed by the customer, IN- VISION may at their option provide a replacement free of charge or remedy the defect. Ancillary costs incurred in association with the remediation of defects shall be charged to the customer.
(5) If works to remedy defects are carried out with IN-VISION products by the customer himself or by third parties, the costs of such works shall only be reimbursed if these costs were notified by the customer in writing in advance and acceptance of the costs was confirmed by IN-VISION in writing. Otherwise the warranty shall lapse if the customer or a third party makes and modifications or carries out other works on the product without the written consent of IN-VISION.
8. Rescission from the Contract
(1) Rescission from the contract by the customer shall only be possible in the event of delayed delivery due to gross negligence on the part of IN-VISION and which has not been remedied even after the expiry of a reasonable period of grace of at least 4 weeks to be set by the customer in writing.
(2) IN-VISION shall be entitled to rescind the contract if a) fulfilment is impossible or delayed despite the setting of a reasonable period of grace for reasons for which the customer is responsible, or b) an agreed advance payment is not made despite the setting of a reasonable period of grace, or c) an insolvency proceeding is initiated against the customer’s assets or a petition for insolvency is dismissed on cause that the assets would be exhausted by the cost.
(3) Notwithstanding any further claims for damages by IN-VISION, all deliverables or partial deliverables already completed at the time of rescission shall be settled and must be paid as contractually agreed. This shall also apply if a delivery or deliverable has not been accepted by the customer yet, and also to any preparatory works performed by IN-VISION. IN-VISION may at their option also demand the return of products already delivered, whereby this shall be credited to their claim for damages.
(1) IN-VISION shall only be liable to the customer for damages under the contractual relationship in the event of willful intent or gross negligence. Liability for minor negligence is explicitly ruled out. Reversal of the burden of proof as set out in 1298 ABGB [Austrian Civil Code] is explicitly excluded.
(2) Any claims for damages by the customer shall in any case be ruled out, if the customer fails to comply with the conditions of assembly, commissioning or use, as well as in the case of failure by the customer to comply with statutory or regulatory authorization conditions.
10. Commercial Property Rights and Copyrights
(1) If an IN-VISION product is manufactured on the basis of design information, drawings, models or other specifications provided by the customer, the customer must hold harmless and indemnify IN-VISION in the event of any infringement of property rights, and must enjoin any legal proceedings as a party or co-intervenor at the demand of IN-VISION.
(2) Offer and project documents as well as design documents, such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, pictures and the like shall always remain the intellectual property of IN-VISION.
11. Venue, Governing Law
(1) The venue for any disputes arising from or in connection with this contract shall be the court of jurisdiction in rem for 2353 Guntramsdorf under Austrian procedural law.
(2) All contracts shall be governed by Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN-CISG).
(3) The applicability of 934 ABGB (laesio enormis) is explicitly excluded. Thus contestation of the contract on the basis of 934 ABGB is excluded.