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HCD Hiller: General Terms and Conditions

General Terms and Conditions

1. Scope of Application

These General Terms and Conditions of Sale and Delivery are applicable to all our deliveries of goods and, mutatis mutandis, to the provision of services by us, even if such deliveries and/or services are performed without using or expressly referring to these General Terms and Conditions of Sale and Delivery. Upon placing an order, or, at the latest, upon receipt of the article and/or service, the Buyer acknowledges these General Terms and Conditions of Sale and Delivery. Modifications or side agreements shall not be valid unless confirmed in writing by us and shall only apply to the respective individual transaction. Deviating terms of contract of the Buyer are expressly contradicted. The sending of a confirmation of order by us will also not be deemed an acknowledgement of the terms of contract of the Buyer.

Our offers are made entirely without engagement. This also applies to illustrations, drawings and indications of weight and dimensions. Orders placed by the Buyer will not be deemed accepted unless and until they have been confirmed in writing by us or the delivery and/or service has been performed by us. We have the right to accept orders only in part or reject orders without stating any reasons therefor.

2. Prices

Our prices are quoted including (Austrian)VAT and forwarding cost.

The prices set forth in our price lists are subject to change without notice. The price according to the price list applicable on the day of placing the order will be charged, regardless of possible different prices as of the day of placing the order.

3. Delivery, Delivery Period

Delivery dates are stated without engagement. Failure to comply with delivery dates shall in any event only give rise to a right of the Buyer to assert the rights due to the Buyer by law if we fail to perform the delivery and/or service in spite of having been granted a grace period of at least four weeks in writing.

The period for delivery shall be prolonged by all circumstances which are beyond the control of the parties, such as, e.g., failure of upstream suppliers to make delivery within due time, the situation concerning raw materials, cases of force majeure, unforeseeable interruption of operations, interference by the authorities, delay in transport and clearance through customs, damage to or loss of goods in transit, shortage of energy, raw materials and other materials, substandard quality of important production parts and labor disputes, in each case by the duration of the impediment.

The Buyer is obligated to promptly take delivery of the article and/or service upon being informed that it has been made available. In the event of a default of the Buyer in taking delivery, the Buyer will be liable to pay storage charges, without prejudice to any other rights which may be due to us. To the extent that partial deliveries are possible, they are also legally permissible. Each partial delivery will be deemed a separate transaction and can be invoiced separately by us.

4. Performance and Passing of the Risk

The risk shall pass to the Buyer upon delivery of the article to the forwarding agent or carrier, but not later than upon leaving the factory or the warehouse. This shall also apply in the event that delivery is made by us free place of destination using our own vehicle or a third-party vehicle. Deliveries on call will be deemed to have been called one year after the placing of the order at the latest. In the absence of special instructions of the Buyer, delivery will be made by exercising our best judgment and without any warranty for selecting the quickest and cheapest mode of dispatch. Packaging material will be charged at cost and will not be taken back.

5. Notification of Defects and Warranty

Promptly upon receipt thereof, the Buyer shall examine the article supplied and/or the service performed for completeness, correctness and freedom from any other type of defect and shall notify possible defects in writing without delay but not later than five working days after receipt of the article and/or service. If goods are dispatched directly to third parties, the periods for examining the article and complying with the obligation to notify defects shall commence upon receipt of the article by the third party.

The warranty period for any type of delivery and/or service shall be six months as from the passing of the risk.

Fitness for a particular use is only warranted by us if we expressly undertake such warranty. At our choice, our warranty is limited to the delivery of a substitute article of the same type and quantity or to remedying the defect. In case of goods and/or services provided on the basis of specifications and instructions of the Buyer, we only warrant that performance has been made in accordance with the agreed terms. The warranty period shall not commence anew on account of the delivery of substitute goods and/or the remedying of defects.

6. Damages

Damage claims of the Buyer, based on whatever legal ground, in particular damage claims on account of delay or default, impossibility of performance, positive breach of contract (positive Forderungsverletzung), culpa in contrahendo, consequential damage, defects and damage claims in tort, are excluded to the extent that they are not caused by intent or blatant gross negligence on our part.

The instructions for assembly, commissioning and use (operating instructions) issued by us for the goods delivered and/or services performed must be mandatorily complied with. The non-respect of such instructions or the non-compliance with licensing conditions imposed by the authorities relieves us of any liability.

The Buyer takes note of the fact that non-obvious structural weaknesses cannot be excluded. The Buyer therefore undertakes to subject these products to inspection prior to use. To the extent that the products are installed or otherwise connected with others, they shall in any event also be checked by the Buyer by sufficient trials prior to use. The Buyer will be liable to us for any and all disadvantages which may arise for us from a non-performance of such obligations.

7. Conditions of Payment

If payment is not made within due time (in advance), we shall charge default interest in the amount of the default interest rate charged by the banks from time to time, but at least 12% p.a., as from the 15th day after the date of the invoice, unless higher costs are incurred by us. The costs of reminders, inquiries and other costs connected with collecting such debts shall be borne by the Buyer.

Bills of exchange and checks will be accepted by us, but credit to the Buyer's debt will be made only after actual receipt of the funds.

The Buyer is not entitled to set-off or to assert a retention right.

If the Buyer is in default with payment or any other performance to be made by Buyer, we are entitled, without prejudice to any other rights we may have, to withhold our deliveries and/or services (while preserving the period still allowed for delivery) until the agreed counter-performance has been made, or to cancel the contract after a reasonable grace period has elapsed and demand damages for non-performance. In the latter case we are entitled to demand and/or retain the agreed down-payment, but not less than 15% of the price, as a minimum penalty.

8. Retention of Title

a) Any and all goods delivered shall remain our property until our claims, including our future claims, have been paid, in case of current accounts until any balance in our favor resulting from any delivery whatsoever has been paid, even if specific claims have been designated when making a payment.

b) The Buyer is entitled to re-sell to third parties in the proper course of business the article delivered by us. Already upon entering into the contract, the Buyer assigns to us all claims including all ancillary rights which the Buyer may have against its customers but shall remain entitled to collect such claims as long as the Buyer is not in default vis-à-vis us. We are entitled to inform the customers of the Buyer of the assignment and/or demand of the Buyer that the assignment be entered in the Buyer's books. The Buyer shall also provide us with all documents and information necessary to enforce our rights. If any such invoiced amount which has been assigned is received by third parties, the Buyer is obligated to claim back such amount from the third party and deliver such amount to us.

c) The Buyer warrants that we shall at any time have access to the premises of the Buyer for the purpose of inspecting the goods which are subject to retention of title. If the Buyer is in default with the payment obligations incumbent on the Buyer, if insolvency proceedings against the Buyer are applied for or instituted, or if the Buyer violates any other duties arising under the contract, we shall have the right to demand surrender of the goods which are subject to retention of title, collect such goods and/or collect claims which have been assigned as security; in such case, the contract may be maintained in force, if we so choose.

9. Applicable Law, Place of Performance, Jurisdiction

The legal relations with the Buyer shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods. The place of performance for all obligations arising under this contract shall be Neusiedl am See, Austria.

a) It is agreed that the place of jurisdiction for all disputes which arise directly or indirectly under the contract with any counterparty having its corporate seat in a member state of the European Internal Market and/or having its corporate seat in a state which has ratified the so-called Lugano or Brussels Convention on the basis of the Official Journal L 319, 25/11/1988, or the Official Journal L 299, 31/12/1972, (together with the consolidated versions), respectively, shall be the competent court in Vienna, first district, having subject-matter jurisdiction. However, we are also entitled to sue in a different court having jurisdiction over the Buyer and the subject matter.

b) It is agreed that all disputes which arise directly or indirectly under the contract with any counterparty having its corporate seat outside a member state of the European Internal Market or having its corporate seat in a state which has not ratified the so-called Lugano or Brussels Convention shall be exclusively settled by the Court of Arbitration of ICC Austria under the rules governing its proceedings. The arbitration proceedings shall be held in Vienna, Austria.

10. Other Provisions

A transfer to third parties of the rights arising under the contract entered into with us is not permitted unless with our written consent. If individual clauses of the General Terms and Conditions of Sale and Delivery are invalid in law, the remaining provisions and the contracts entered into on the basis thereof shall remain in force. The invalid provision shall be replaced by a valid provision which comes closest to its intent and purpose.