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1. Scope of application
1.1. All deliveries of products and performance of services made by mechatronic systemtechnik gmbh on the basis of orders shall be governed by this general terms and conditions (hereinafter referred to as "GTC") in the version which is valid at the time of the respective order. The Customer accepts this general terms and conditions with the placement of the order.
1.2. Amendment or additional agreements to these GTC shall not be valid unless confirmed in writing.
1.3. The final contract governs the order confirmation and/or a separate agency contract with the relevant specifications. Contractual terms and/or general terms and conditions of the customer shall not apply and shall not amend these GTC.
1.4. If individual provisions of these general terms and conditions are invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The Parties shall agree to replace the invalid provision with a valid provision that comes close to fulfilling the sense of the purpose originally intended. Additional or contracting terms and conditions on the part of our contracting Parties shall apply only if mechatronic expressly acknowledged them in writing
2. Offers
2.1. mechatronic systemtechnik gmbh´s offers are not binding.
2.2. Illustrations, statements, descriptions and specifications in technical documentations, advertising material and other representations are not binding; overall dimensions are approximate values. A commitment of special characteristics is not given. Special characteristics require mechatronic's express written explanation.
2.3. mechatronic systemtechnik gmbh reserves all rights for images, drawings, calculations and other databases or documents. Any disclosure to third Parties shall require mechatronics’ express written consent.
3. Conclusion of contract
3.1.mechatronic systemtechnik gmbh offers in their entirety are subject to change without notice and are not binding. Each order requires an order confirmation. The sending or handing over of the ordered products to the Customer is regarded as the conclusion of a contract.
3.2. The Customer is aware that the internet does not represent a secure medium of communication and that data transferred via the internet may either become publicly known or subject be changed by third Parties. Customer bears the risk that data sent by him are not received in the same form and or with the same content at mechatronic systemtechnik gmbh. mechatronic systemtechnik gmbh shall rely on that all data received have been sent in that form and with that content by the Customer.
4. Prices
4.1. If not agreed mutually otherwise the prices in the offer are ex works including loading, no delivery costs no other delivery services are included.
4.2. For supplies outside of Austria mechatronic systemtechnik gmbh charges the applicable export and import fees. Packing, carriage charges, insurance, tariffs and other costs of additional services will be charged additionally.
4.3. The EURO is agreed as applicable currency.
5. Terms of payment
5.1. Unless otherwise agreed, the products or services to be supplied have to be paid without deduction to mechatronic systemtechnik gmbh's bank account as follows:
a) 40% prepayment within 14 days of the arrival of our order confirmation or delivery contract so called "Liefervertrag";
b) 60% within 14 days from the date of notification of readiness for dispatch, anyway before loading the products. Bills of exchange or checks are accepted but only as security until full payment.
5.2. Discount is granted only if it is explicitly shown in the invoice.
5.3. If the Customer is in default with at least to instalments in the case of part payments mechatronic systemtechnik gmbh shall be entitled to demand the entire claim, including amounts from other invoices, and statutory default interests.
5.4. If the financial condition of the Customer changes significantly, for example due to enforcement measures by third Parties, protests of a bill or a check protest, insolvency application mechatronic systemtechnik gmbh can stop the service to work with immediate effect to obtain the claim. This is also legitimate, if this situation exists already in contradicting and mechatronic systemtechnik gmbh had no knowledge about it. If the payment pending is not completed within the described period, mechatronic systemtechnik gmbh has the right of withdrawal from the contract. The right to ask for damages remains upright.
5.5. In case of default of payment or other services on the part of the Customer, mechatronic systemtechnik gmbh is entitled – irrespective of other rights – to withhold all delivers pending under the current delivery order until the agreed payment is done or to withdraw from the contract after expiry of a reasonably period of days and/or to demand compensation for non – fulfilment. In this case the Customer is obliged to immediately return the supplied products to mechatronic systemtechnik gmbh at his costs. mechatronic systemtechnik gmbh reserves the right to asset compensation claims for deposition, wear and tear reimbursement of its own transport costs and other costs.
5.6. In the event of delayed payment mechatronic systemtechnik gmbh will charge default interest at the statutory level in equivalence with § 456 UGB. Collection fees and default interest at the statutory level will be charged starting with the first reminder. Should a second reminder become necessary, all future deliveries will be carried out only against advanced payment or cash on delivery. After an unsuccessful second reminder, mechatronic systemtechnik gmbh is entitled to assign the claim to a debt collection agency or a lawyer. In case of breach of these contractual obligations the Customer undertakes to reimburse
mechatronic for the necessary costs for the appropriate pursuance of the claims. The Customer has to reimburse € 5,00 for each reminder and a further € 25,00 for maintaining evidence of the contractual obligations in the debt collection process. In addition, the costs of the debt collection agency are to be borne up to maximum collection fee as specified in the restrictive ordinance and the cost of lawyers in accordance with the lawyer’s fees act.
5.7. The rule of prohibition of setoff applies. The Customer shall only be entitled to set off his debt against the event of mechatronic systemtechnik gmbh’ s insolvency or against counterclaims, which are legally connected with its obligation, which were established by court or have been acknowledged by us.
5.8. If the customer does not comply with his payment obligations, we reserve the right not to extend the limited Software License, until full payment by the customer.
6. Delivery date, delate delivery, default in acceptance
6.1. The delivery period begins with the date of the deposit to our bank account. (5.1 a) partly deliveries are permitted in so far as reasonable.
6.2. The delivery period is extended for the duration of hindrances that occur due to circumstances without the intention of the parties, such as force majeure, unforeseeable operational breakdowns, official interventions, transport and customs clearing delays, transport damages, breakdown of important production components in working conflicts, natural disasters, war and similar.
6.3. In the event of delay of mechatronic systemtechnik gmbh the following shall apply:
a) The default compensation shall not exceed 5% of the contract value.
b) In the case of grossly negligent or intended breach of contract for which mechatronic is responsible, the liability for damage, cost by default shall be limited to the foreseeable typical damage that occurs.
6.4. If acceptance by the Customer is delayed, mechatronic systemtechnik gmbh is entitled to store the products at Customers´ expense and risk. The same does apply, if the Customer subsequently requires that the products be supplied and consigned at a date later than agreed. All this does not have any influence on the payment obligations of the customer.
7. Transfer of risk
Acceptance, transfer of risk and performances unless expressly otherwise agreed, shall happen "ex works". In cases according to 6.4 the risk shall pass at the time of readiness for shipping.
8. Assembling, start-up operations, acceptance
8.1. Assembling or start of operation of products supplied by mechatronic takes place only if agreed upon in writing. Scope, location and time of these needs to be agreed in writing ahead. The Customer has to pay for sent staff, hours of work, food, accommodation and traffic costs according to tariffs of mechatronic systemtechnik gmbh. Travel time is regarded as working time.
8.2. Products to be assembled or to be taken into operation must be provided at the installation facilities in due time by the Customer. The installation facility must be always available for mechatronic staff. The installation facility must correspond to the respective installation work and equipment requirements. The Customer shall provide the necessary tools (except for mechatronic special tools) and jigs, measuring instruments, electricity, materials and working funds in sufficient quantity and quality at his own expense.
8.3. If acceptance is agreed, it shall be done in the presence of representatives of both parties with agreed terms in advance. If no conditions are fixed mechatronic systemtechnik gmbh shall define it according to industry standards. Start, duration and result of the site acceptance test shall be protocolled. The protocol must be signed by representatives of both parties. In case of different opinions, both should be recorded. If the Customer takes the products into operation on his own, acceptance is given. This is also the case, if the acceptance is not done within 6 weeks for reasons mechatronic systemtechnik gmbh is not responsible.
8.4. The usage of the sold/licensed software is initially limited. The software shall be available for an unlimited period, if the customer has fulfilled his payment obligations complete and on time.
9. Material defects and defects of title
9.1. Material defects:
9.1.1. In the event of any defects due to reasons that existed already before transfer of risk, mechatronic systemtechnik gmbh shall provide warranty at its choice, by repairing the defects, granting price reduction or supplying defect free replacement. The Customer must inform mechatronic in writing without delay after becoming aware of any defects and their effects. Replaced parts shall belong to mechatronic systemtechnik gmbh. Customers shall give mechatronic reasonable time and opportunity and appropriate access to the facility. Only in urgent cases endangering operational safety or in order to prevent unreasonably high damages, Customer shall have the right to remedy said defect in consultation with mechatronic systemtechnik gmbh by himself or to have it remedied by third parties and to demand restitution from mechatronic systemtechnik gmbh for the necessary expenses occurred in connection therewith. In any other case of intervention into or at the product by the Customer or third parties any warranty obligation of mechatronic expires. Costs which are incurred as a result of the subsequent performance of mechatronic shall – provided that the complaint proves these to be justified – be borne by mechatronic systemtechnik gmbh e.g. the costs of the replaced product, including the costs of shipment to the Customer and the appropriate installation and removal costs. In order to remedy any defects, the Customer must provide mechatronic systemtechnik gmbh with appropriate tools and hoists, fitters and staff assistance, in reasonable quantities and free of charge. mechatronic systemtechnik gmbh grants for supplementary performance the same warranty as such for the delivered product but limited to 6 months after the expiration of the original warranty period.
9.1.2. The Customer shall inspect incoming products immediately. Obvious defects at examining the products shall be notified to mechatronic systemtechnik gmbh in writing immediately, otherwise the products are considered to be accepted.
9.1.3. In the event of warranty performance on account of defect, mechatronic systemtechnik gmbh does not pay the necessary related costs, in particular transport costs, traveling expenses, labours costs and material costs, based on the fact that the product has been moved to a different location than delivery was made.
9.1.4. Any warranty and or damage claims expire one year after the shipment to the Customer.
9.2. Defects of title
9.2.1. Should the use of the delivered product led to an infringement of third-party property rights or copy-rights than – save for the provisions of article nine – at mechatronic systemtechnik gmbh´s expense, mechatronic systemtechnik gmbh shall procure for the Customer the right to continue to use the products or shall modify the products in a manner acceptable to the Customer so that there is no longer any infringement of the third-party property right. If mechatronic systemtechnik gmbh is not able to achieve this on reasonable financial terms or within a reasonable period of time, the Customer is entitled to withdraw from the contract. Under the conditions set forth above mechatronic systemtechnik gmbh also has the right to withdraw from the contract. mechatronic systemtechnik gmbh shall then keep the Customer harmless from any claims by a third party due to infringement of third-party rights, if they are uncontested or have been determined by final court judgement.
9.2.2. The above mentioned commitments in article
9.2.1 are final, but will only be effective if the infringement is not due to the fact that Customer modified the delivered products by himself without mechatronic systemtechnik gmbh´s authorisation, or has used it in a manner which breaches the contract, the defect of title is not due to an instruction issued by the Customer and the Customer has informed mechatronic systemtechnik gmbh immediately of defects in title. The before mentioned obligations shall only apply as far as the Customer immediately contacts mechatronic systemtechnik gmbh about such claims by third parties and supports mechatronic and reserves mechatronic systemtechnik gmbh the right to litigate legal disputes in these matters.
9.2.3. Any other claims due to material defects or defects in title shall be excluded.
10. Compensation for damages
10.1. mechatronic systemtechnik gmbh shall not be liable for damages including financial damages whatsoever, due to minor negligence. The Customer has the obligation to prove gross negligence or full intent.
10.2. If mechatronic systemtechnik gmbh shall be committed to pay damages, the amount of damages shall be limited to 30% of the contract value.
10.3. Customer damages claims expire one year after acceptance of the products. 11. Cancellation of a contract 11.1. Apart of the general regulations of law mechatronic systemtechnik gmbh is entitled to withdraw from a contract in case of delayed acceptance of offer (chapter 6) or other important reasons as for example initiation of bankruptcy proceedings of a contract party or dismissal of a bankruptcy petition for lack of cost or covering assets. In the event of withdrawal of a contract due to fault of the Customer, mechatronic systemtechnik gmbh has the option of asking for damages of 30 % of the contract value or the full compensation of suffered damages.
11. Cancellation of a contract
11.1. Apart of the general regulations of law mechatronic systemtechnik gmbh is entitled to withdraw from a contract in case of delayed acceptance of offer (chapter 6) or other important reasons as for example initiation of bankruptcy proceedings of a contract party or dismissal of a bankruptcy petition for lack of cost or covering assets. In the event of withdrawal of a contract due to fault of the Customer, mechatronic systemtechnik gmbh has the option of asking for damages of 30 % of the contract value or the full compensation of suffered damages.
11.2. If the Customer is in default of payment, mechatronic is released from any other performance, duties and delivery obligations and entitled to withhold any outstanding deliveries or services as well as to demand payments in advance and/or deposits or to withdraw from the contract after setting a reasonable extended time limit.
11.3. The precondition for the Customer to withdraw from the agreement is a delay in supply caused by gross negligence on the part of mechatronic systemtechnik gmbh and only after a reasonable time period has been granted. Any such notice has to be in writing.
11.4. If the Customer withdraws from the contract without just cause, or demands its cancellation, mechatronic systemtechnik gmbh shall has the right to choose between insisting on performance of the contract and cancellation of the contract; in the latter case the Customer shall be obligated at mechatronic systemtechnik gmbh’s discretion to either pay a fixed rate of damages of 30 % of the gross invoice amount or compensation for the loss actually occurred.
12. Reservation of title, release of securities
12.1. Upon full payment of the purchase price all delivered products remain the sole and unrestricted property of mechatronic systemtechnik gmbh. The Customer is informed and agrees to the reservation of title by signing the contract. In the event of delayed payment mechatronic is also entitled to collect the delivered products without the consent of the Customer.
12.2. The Customer shall treat the product subject to reservation of title with utmost care during the period of the reservation of title, shall mark these products as the property of mechatronic systemtechnik gmbh, in particular, he is obliged to insure it at its own expense against fire, water and theft, at replacement value.
12.3. All products delivered by mechatronic systemtechnik gmbh remain its property – also if the reserved products get mixed or combined with other products in an inseparable way – until the Customer has made all payments relating to the contract. mechatronic systemtechnik gmbh becomes co-owner of the newly created product in relation of the value of the products delivered and processed at the time of the combination.
12.4. The Customer may neither pledge products that are subject to proprietary rights nor offer them as security. At any pledge or other demands by third parties, the Customer is obliged to claim mechatronic systemtechnik gmbh´s reservations of title and has to notify mechatronic systemtechnik gmbh immediately.
12.5. Without written consent, Customer is not entitled to sell the reserved products. The Customer assigns to mechatronic systemtechnik gmbh here and now, however, all claims which will exist for the Customer due to resale to its Customers or to third parties at the amount of the value of the reserved products. The agreed value of the reserved products is the final invoice amount including value added tax.
12.6. If the Customer is in default on payment, the reservation of title also includes the right to inspect or to collect the reserved products at any time after appropriate pre-notice. If the Customer changes the location of the reserved products, he is obliged to inform mechatronic immediately in writing about it.
12. Reservation of title, release of securities
12.1. Upon full payment of the purchase price all delivered products remain the sole and unrestricted property of mechatronic systemtechnik gmbh. The Customer is informed and agrees to the reservation of title by signing the contract. In the event of delayed payment mechatronic is also entitled to collect the delivered products without the consent of the Customer.
12.2. The Customer shall treat the product subject to reservation of title with utmost care during the period of the reservation of title, shall mark these products as the property of mechatronic systemtechnik gmbh, in particular, he is obliged to insure it at its own expense against fire, water and theft, at replacement value.
12.3. All products delivered by mechatronic systemtechnik gmbh remain its property – also if the reserved products get mixed or combined with other products in an inseparable way – until the Customer has made all payments relating to the contract. mechatronic systemtechnik gmbh becomes co-owner of the newly created product in relation of the value of the products delivered and processed at the time of the combination.
12.4. The Customer may neither pledge products that are subject to proprietary rights nor offer them as security. At any pledge or other demands by third parties, the Customer is obliged to claim mechatronic systemtechnik gmbh´s reservations of title and has to notify mechatronic systemtechnik gmbh immediately.
12.5. Without written consent, Customer is not entitled to sell the reserved products. The Customer assigns to mechatronic systemtechnik gmbh here and now, however, all claims which will exist for the Customer due to resale to its Customers or to third parties at the amount of the value of the reserved products. The agreed value of the reserved products is the final invoice amount including value added tax.
12.6. If the Customer is in default on payment, the reservation of title also includes the right to inspect or to collect the reserved products at any time after appropriate pre-notice. If the Customer changes the location of the reserved products, he is obliged to inform mechatronic immediately in writing about it.
13. Intellectual property
All intellectual property rights related in connection with the products, development, documentation, etc., such as inventions, know-how, etc. remain the exclusive property of mechatronic systemtechnik gmbh.
14. Secrecy
The Customer shall undertake to keep absolutely confidential with third parties regarding any knowledge obtained in the course of the business relationship with mechatronic.
15. Data protection
15.1. Personal data of Customers are only processed within the context of the legal provisions concerning data protection. The Customer agrees that the data which are disclosed in connection with the order and the processing of the order will be collected, processed, stored and used for accounting purposes of mechatronic systemtechnik gmbh as well as used for our internal market research and marketing purposes. The data will be used by mechatronic systemtechnik gmbh for the fulfilment of statutory requirements, for the processing of payment transactions and for advertising purposes, but not based on the third parties. 15.2. mechatronic systemtechnik gmbh is authorized to use the company logos of its customers in presentations with Customers, investors, etc.
16. Applicable law, place of performance, jurisdiction 1
16.1. Austrian law shall exclusively be applicable excluding the regulations of the Austrian Private International Law and the Convention on Sales of International Products (UNCISG). INCOTERMS as valid on conclusion of the contract shall apply in the interpretation of trade terms used in the contract.
16.2. The place of payment and performance for all obligations arising out of contracts with the Customer shall be Villach / Austria.
16.3. The competent court in Villach is considered to be agreed as the exclusive place for jurisdiction for all disputes arising indirectly or directly from any relationship between Customer and mechatronic. The German Version of the AGB’s shall take precedence over the English Version of the AGB’s.
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