General Law

GENERAL SALES AND DELIVERY CONDITIONS

BM-BATTERY MACHINES GMBH

8273 EBERSDORF 226, AUSTRIA

1       Preambel

1.1    

These general sales and delivery conditions are valid as long as nothing contrary is agreed in written between the contractual parties.

1.2    

The following Conditions for the sale of goods and commodities are also valid mutatis mutandis for services and training services.

2       Contract of agreement

2.1    

These general sales and delivery conditions automatically come into force ten days after receiving the order and after sending the written confirmation of the order, if the buyer does not contradict these conditions in written within ten days of receiving the confirmation of the order.

2.2    

Changes, notes and/or additions on the part of the buyer are valid only when they are confirmed by the seller in written form. The purchase conditions of the buyer come into force only when they were accepted extra and demonstrably by the seller.

2.3    

It is valid as agreed that, when import and/or export licenses or approvals for the transfer of financial means or similar approvals are necessary, then the responsible party undertakes all efforts to get the necessary approvals or licenses.

3       Illustrations and Documents

3.1    

Illustrations, plans, drawings, calculations and/or other technical and commercial documents, which can also be a part of an offer, always remain the seller’s property. The same is valid for models, catalogs, brochures, and descriptions and similar. Every use of these documents as well as every kind of duplication, publication, forwarding and/or presentation to or against a third party may be done only with expressive, written consent of the seller or the owner.

4       Transport risk

4.1    

 If not agreed otherwise, The Incoterm EXW (Ex Works) is basically valid as agreed.

4.2    

The version of the Incoterm, valid for the contract of agreement at that time, is applied.

5       Delivery date

5.1    

If not agreed otherwise, the later date of the following two should be considered:

5.1.1  

The agreed date under consideration of all technical, commercial and financial conditions, as agreed between the buyer and seller or5.1.2   the time of delivery, which is agreed after receiving the payment or receiving the letter of credit or other payment securities.

5.2    

If the time of delivery is delayed due to any circumstance, which falls under the article 14 of this agreement, then the seller has a right to delay the delivery to any period, as long as the circumstance exists.

5.3    

If there is a delay in delivery from the seller’s side, for which he is responsible, the buyer has a right to demand timely delivery or – after fixing a suitable time extension – to resign from the contract.

5.4    

If the buyer is not in a position to accept the contractual delivered goods at the agreed location or at the agreed time, and if the seller has no fault in these circumstances, then the seller has a right even to claim the agreed payment.

5.5    

The seller is authorized to make partial deliveries.

5.6    

All other claims of the buyer against the seller, as on the basis of the reasons given in article five, are excluded.

6       Product-tests or preliminary inspection

6.1    

 If the buyer wishes a product-test or preliminary inspection of the ordered machine(s) and/or unit(s), then this must be agreed expressively in the purchase contract or in the order. If not agreed otherwise, such a pre-inspection or product test is done during normal working time of the seller at the production location or at the location given by the seller. The seller informs the buyer timely about the planned date for the test, so that the buyer or his representative is in a position to take part in the product test or preliminary inspection. In case during the product test or preliminary inspection it is noticed that the machines and units do not correspond to the agreed contract conditions, then the seller is obligated to restore the goods immediately providing a condition according to the contract. The buyer has a right to repeat the product test or preliminary inspection only then, when the complaint comprises substantial errors. After the product test or preliminary inspection a protocol is made about the test. If the product test or preliminary inspection confirms the contractually agreed performance and functioning of the machine or unit, then it should be confirmed in all cases with a protocol. If the buyer or a person authorized by him or her is not present during the product test or preliminary inspection, the protocol is signed only by the seller and a copy of the same is sent to the buyer.

6.2    

If nothing contrary was agreed, the seller bears all the costs occurring in the factory for the product test or preliminary inspection. The buyer bears all costs, which occur for the buyer or his representative in relation with the product test or preliminary inspection, like for example, travel costs or hotel expenses.

6.3    

The buyer bears the costs for the preparation of the test material in sufficient extent at the place of production of the machine.

7       Assembly

7.1    

On the basis of a special written agreement, the seller does the assembly jobs for the buyer according to our conditions for assembly valid at that time. The seller is also authorized to employ sub-contractors.

7.2    

The installation invoices are immediately due for payment without any deduction after receiving the net amount.

8       Price

8.1    

If not agreed otherwise, the submitted prices are always understood as ex-works prices, without packing and without loading.

9       Payment

9.1    

The payment is done, normally, according to the agreed conditions. If no particular payment conditions are agreed, then following is valid: 30% advance payment with the order and against contract confirmation and/or advance payment invoice, 20% after the release of layout and/or illustration, 40% after the product test or preliminary inspection and 10% after the starting of the machine but not later than 4 weeks after the delivery of the machine or the unit.

9.2    

The buyer does not have the right to retain the payments on the basis of guarantee claims or other claims or to set off claims with other claims, without that this was agreed expressively with the seller.

9.3    

If the buyer has arrears with the agreed payments or other services, then the seller has the right to demand the contractual payments and

9.3.1  

to delay the actual services until the payment delay, till the agreed payments are made or the agreed services are rendered,

9.3.2  

to request for an agreeable extension of the time of delivery

9.3.3  

and to account interests for delay of the amount of 5% above the current Euribor rate, may it be then that article fourteen comes to fruition.

9.4    

All given prices are understood as EURO prices, if no other currency was explicitly agreed.

9.5    

The buyer bears all the expenses for transfers, which incur in the country of the buyer, or for the mode of transfer and the seller bears all the expenses, which incur in Austria. The seller has the right to claim all expenses from the buyer for money transactions, which have incurred outside Austria and were accounted to him.

10      Ownership reservation

10.1   

Till complete fulfillment of all financial liabilities of the buyer, the seller reserves the ownership right of the purchase object. The seller is authorized to mark his ownership openly on the delivery object. The buyer has to follow the required formalities for maintenance of the ownership reservation. During execution or any such use, the buyer is bound to validate the ownership right of the seller and to inform him immediately.

11      Warranty

11.1   

The warranty is basically according to §11 of the “General Delivery conditions“ of the industrial union of the machine and steel industry of Austria in the last valid version.

11.2   

If nothing contrary was agreed, the warranty time of the seller, in one-level operation, is twelve months after starting, but latest fourteen months from the delivery of the machine.

12      Consequential damages

12.1   

Subject to differing provisions in these provisions, the liability of the seller against the buyer for production standstill, eluded profit, usage failure, forfeiting of contract or every other economical or indirect consequential damages is excluded.

13      Reasons for remuneration

13.1   

The parties are totally or partially free from fulfilling the contract according to the date, if they are stopped from it due to incidences of force majeure. Exclusively those incidences are valid as incidences of force majeure, which are unpredictable and unavoidable for the parties and which do not come from their sphere. Strike and work disputes should be, however, considered as incidences of force majeure. The buyer handicapped by an incidence of force majeure can, however, claim of the existence of force majeure only then, when he immediately sends a written comment about the cause for the expected delay and period of the delay, attested by the that time government body or chamber of commerce of the country of delivery, to the seller, however latest within 5 calendar days after beginning and conceivable end of the handicap. During force majeure, the parties have to make all efforts for removing or decreasing the difficulties and conceivable damages and to inform the opposite party about this immediately. Otherwise, they are liable to damage compensation against the opposite party. Deadlines or moratorium, which cannot be kept due to the effects of force majeure, are extended to a maximum period of the effects of the force majeure, or if need be, to a period, to be determined in the agreement from both sides. If an incident of force majeure lasts for more than four weeks, the buyer and seller will search for a regulation of the continuous technical effects through negotiations. If here no agreeable solution can be met, the seller can retreat from the contract completely or partially.

14      Data protection

14.1   

The seller is authorized to store, to transfer, to process and to delete person-related data of the buyer in context with the business transaction.

14.2   

The parties are obligated for absolute secrecy of the knowledge, which they have acquired from the business relations, from a third party.

15      Patent rights and copyright

15.1   

We reserve the copyright for all illustrations, designs, schematic diagrams, programs, descriptions and similar documents. These products are not allowed to be copied or made accessible to a third party in any other form without an expressively written consent of the sellers. The seller cannot be made responsible for patent damages or the damage to copyright done by the third party.

16      Jurisdiction, applicable law, location of action

16.1   

Jurisdiction for all disputes, resulting directly or indirectly from the contract, is the Austrian Court locally authorized for the location of the seller.
The seller, however, can also approach the court authorized for the buyer.

16.2   

The parties can also agree to the authority of a court of arbitration.

16.3   

The contract underlies Austrian law under exclusion of the agreement of the United Nations about contracts about the international goods purchase of 11.4.1980, BGBl. 1988/96.

16.4   

For delivery and payment, the location of the seller is valid as the place of execution, even when there is a transfer to another location according to the agreement.

17      Miscellaneous

17.1   

If individual conditions of these general sales and delivery conditions are not legally effective partly or totally, the legal validity of the remaining conditions of the respective legal business shall not be affected.

17.2   

If versions of these general sales and delivery conditions in foreign languages lead to difference in understanding or different interpretations, the German version is always valid as legally binding in case of doubt.