(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
(2) 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 § 10. Any exploitation, reproduction, dissemination and
disclosure to third parties, publication and presentation shall be
permitted only with the explicit consent of IN-VISION.
§ 4. Delivery
(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
(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
(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 regard 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 24 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
(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
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.
§ 9. Liability
(1) IN-VISION shall only be liable to the customer for damages under
the contractual relationship in the event of wilful 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 authorisation 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