1. Offer acceptance and contract conclusion: An offer from Nio Mechatronik GmbH (hereinafter also “Supplier”) is initially non-binding. An order that is placed with Nio Mechatronik GmbH shall only be deemed to be accepted if it is not rejected by Nio Mechatronik GmbH in writing within 14 days of receipt of the order. However, Client is legally bound upon signing the order. Services which are not expressly included in the contract or in the pertinent offers will be charged separately – e.g. customs and stamp duties, contract tax, fees for import, export and transit permits, consular fees, transfer costs (currency permits, compensation premiums), VAT or any other additional work. The following General Terms and Conditions form an integral part of order contracts and shall apply to all deliveries and work provided by Nio Mechatronik GmbH. Agreements of any kind, also by telephone or telegram, are only deemed to be accepted by Nio Mechatronik GmbH if they are confirmed by Nio Mechatronik GmbH in writing. The Terms and Conditions of the contracting party shall be ineffective.
2. Prices: Unless expressly agreed to the contrary, all prices are net ex-works in EUR (€). Packaging will not be taken back. All expenses in connection with the delivery shall always be borne by Client. All judicial and extrajudicial costs and fees arising from the recovery of our receivables shall be borne by the purchaser; in particular court fees, lawyer’s fees etc. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organisational consulting, programming, training, migration support, telephone consulting, etc.), working hours will be charged at the rates valid on the day that the service was provided. Deviations from the time expenditure on which the contract price is based that are not the responsibility of the contractor will be charged according to the actual additional working hours that occur. Costs for travel, daily allowances and overnight stay allowances shall be invoiced separately to Client in accordance with the applicable rates. Travel time shall be regarded as working time.
3. Terms of payment: The buyer shall not be entitled to withhold payments on the basis of warranty claims or other claims that are not recognised by the seller. In the event of the destruction, loss or damage of the goods travelling at the risk of Client and in the event of delays in completion, delivery, assembly or commissioning resulting from a fault on the part of Client, or due to accident or force majeure, payments shall nevertheless be made on the dates specified in the order. The retention of payments on the basis of counter-claims of any kind shall also be excluded. Offsetting against counter-claims shall also be excluded. If the fulfilment of the agreed payment is called into question by force majeure, or if, after the formation of the contractual relationship, any economic factors (e.g. foreign exchange rate, transfer options etc.) arise that affect the relationships between Austria and the country of destination or the country of Client, Nio Mechatronik GmbH reserves the right to suspend the manufacture of the machines or to retain goods ready for dispatch, and to redefine special terms of delivery, in particular with regard to the terms of payment, in such a way that Nio Mechatronik GmbH is granted at least the same security as Nio Mechatronik GmbH was granted upon the conclusion of the contract with regard to providing the agreed services and with regard to receipt of payment. Should Client be in arrears with a payment or with the transfer of agreed bills of exchange, bank guarantees or other securities for a period of more than two weeks, the entire remaining amount shall become due immediately. All interest on arrears, stamp duties and collection charges associated with withdrawal from bills of exchange shall be borne by Client in all cases. If the full amount is not paid when the goods are handed over, Nio Mechatronik GmbH shall in all cases be entitled to a security in the form of a bill of exchange, bank guarantee, etc. Bills of exchange shall only be accepted as payment if they are demonstrably discountable. Furthermore, Client shall bear the discounting fees for bills of exchange, regardless of whether the bills of exchange are to be issued or not. In the event of default on payment, Client shall be charged 8% interest p.a. In the event of non-compliance with an instalment agreement (also in the event of a bill of exchange obligation), the entire outstanding amount shall become due for payment. The invoices submitted by the contractor including VAT shall be payable no later than 14 days after receipt of the invoice, without any deduction and free of charges. In the case of partial invoices, the terms of payment defined for the total invoice shall apply analogously. In the case of orders which are comprised of several items (e.g. programs and/or training courses, realisation in partial steps), the contractor shall be entitled to issue an invoice after delivery of each individual item or service.
4. Retention of title: Nio Mechatronik GmbH remains the owner of the entire delivery (machines, spare parts and ancillary parts) until full payment has been received for the full purchase price and for any expenses and interest on arrears. Should the retention of title cease to exist due to resale to a third party or through installation in buildings, Client shall assign all receivables from the third party that result from this resale or installation to Nio Mechatronik GmbH when placing the order. In such a case, Client shall inform Nio Mechatronik GmbH to whom the items that are subject to retention of title are to be resold and/or at which company they will be installed. The right of Nio Mechatronik GmbH to make use of its retention of title and to retrieve the delivered goods, in whole or in part, shall exist regardless of whether a withdrawal from the contract has already been clarified by Nio Mechatronik GmbH or not. In the event of default on payment, or if insolvency proceedings are instituted against Client’s assets, Supplier reserves the right to retrieve the delivered goods at any time at the expense of Client, even if the goods are in use. In the event that a levy of execution or execution-type description applies to the ordered item, the purchaser shall immediately inform Nio Mechatronik GmbH of the name and full address of the plaintiff or claimant or of their legal representative, the court file number, the amount of the claim initiated by the plaintiff and the auction date. A judicial levy of execution on behalf of Supplier shall not nullify the retention of title. Individual organisational concepts and programs shall be developed in accordance with the type and scope of the binding information, documents and aids provided in full by Client. These also include practice-oriented test data and the provision of adequate testing facilities, which Client shall make available in a timely manner, during normal working hours and at Client’s own expense. Should Client already be operating the system provided for testing as a live production system, the responsibility for securing the real data lies with Client. Individual programs shall be created on the basis of the written service description that the contractor prepares on the basis of the documents and information made available by Client in return for a fee, or that Client provides independently. The service description is to be checked by Client for correctness and completeness and is to be provided with Client’s express approval. Amendment requests that are submitted at a later date may result in separate deadline and price agreements. Individually created software and program modifications shall be checked by Client and the respective program package approved by Client at the latest four weeks after delivery. This will be confirmed by Client in a protocol. (Checking for correctness and completeness by means of the service description accepted by the contractor on the basis of the test data provided in accordance with section 2.2). Should Client allow the period of four weeks to elapse without approving the program, the delivered software shall be deemed to have been accepted on the closing date of the aforementioned period. If the software is used on a live production system by Client, the software shall in any case be deemed to have been accepted. Should any shortcomings occur, i.e. deviations from the written and agreed service description, these must be reported by Client to the contractor, who shall endeavour to remedy these shortcomings as quickly as possible. Should significant shortcomings have been reported in writing, i.e. if productive operation cannot be started or continued, a new statement of acceptance is required from Client after the shortcoming has been rectified. In the case of orders for library (standard) programs, the ordering party shall confirm knowledge of the scope of services provided by these programs by completing the order.
5. Delivery time: The stated delivery time shall apply to delivery ex-works and shall be calculated from the date of receipt of the required technical data, plans, drawings etc., as well as the contractual down payment, any import licence that may be required and, if agreed, the letter of credit or other securities. The delivery dates shall be determined in such a way that – subject to unforeseen hindrances – they can in all probability be met. The delivery periods shall also be extended appropriately if any authorisations from public authorities are delayed, if Client amends the order, if Client has not yet completed the agreed tasks, or if the premises designated to receive the goods are not in the agreed condition in time for delivery. In the case of orders comprised of several items or programs, the contractor shall be entitled to make partial deliveries and/or to submit partial invoices.
6. Installation: Installation costs, commissioning and the cost of test runs shall be borne by Client. The cost of all construction work, such as excavation work, masonry work, carpentry, joinery, glazing, painting and plumbing shall be borne by Client, as shall the costs of creating or closing openings in walls, floors, walls, etc., cleaning work, provision of the necessary equipment and cleaning material, as well as the provision of water, heating and lighting and a lockable room for the tools of the fitters. During the installation period, an assistant shall be provided free of charge by Client to Supplier on an occasional basis at the request of the works fitter. Furthermore, Client shall bear the costs of materials and operating power for testing and commissioning of the building as well as costs for statics or the reinforcement of statics in existing areas. The installation site must be made available before the start of installation so that the installation work can proceed unhindered. The locations for the planned installation must be provided with interior plastering, windows, doors, ceilings and stairs before the start of the installation work, and, whenever possible, also have openings that are sufficiently large to permit the machines to be delivered to the site without being dismantled. Should masonry work be necessary, Client agrees that this may be carried out at Client’s expense. In the interest of a smooth installation, Nio Mechatronik GmbH provides a more generous amount of the required materials than is necessary according to plan. For this reason, materials that were not required remain the property of Nio Mechatronik GmbH and shall be returned after commissioning of the system. Client shall bear the full responsibility for third-party liability and accidents caused by Client’s personnel or auxiliary personnel provided by Client, and for injuries sustained by such personnel in connection with the installation itself. Client shall also bear full responsibility for the consequences of accidents, personal injury and damage to property caused by the poor quality of scaffolding and hoisting equipment or other equipment and auxiliary materials provided by Client, even if these were used by Nio Mechatronik GmbH personnel with no objections. Furthermore, Client assumes full responsibility for any damages caused by Client’s personnel or by unskilled workers and third parties provided by Client, and for damages sustained by such persons in connection with the installation itself, even if the installation is under the supervision of Nio Mechatronik GmbH personnel. Should it be necessary to take any operational factors into account, Client shall expressly draw Nio Mechatronik GmbH’s attention to the same in writing. The liability of Nio Mechatronik GmbH shall be limited in amount and effectiveness by the third-party liability sum and cover provided by its operational liability insurance, whereby details of this insurance will be provided following a written request from Client. Compensation shall be paid up to a maximum of the insured sum. The assertion of claims exceeding this amount shall be excluded. The cost of obtaining the statutory operating licence as well as any associated work, costs or consequential costs shall be borne in full by Client.
7. Risk assumption and insurance: Client shall bear the full risk for damage, destruction, theft, etc. of the delivered goods from the shipping facility or during the vehicle transport from the factory, even if Nio Mechatronik GmbH delivers the goods carriage-paid to their destination. From the moment that the goods are delivered until the last payments due to Nio Mechatronik GmbH have been made by Client, Client is obliged to ensure that the goods are appropriately insured at Client’s expense, and to disclose the names of the insurance companies to Nio Mechatronik GmbH upon request. This also applies to the transport insurance, unless the same is included in the price. Should it become impossible to transport the ready-to-ship goods at the scheduled time due to the fault of Client, the transport company or force majeure, the storage of the goods at Nio Mechatronik GmbH or with third parties shall be at the risk of Client. Client shall reimburse Nio Mechatronik GmbH for costs arising from storage and for any insurance; Nio Mechatronik GmbH shall in particular be entitled to collect storage fees from Client. The unloading of the delivered goods shall be carried out by Client. This also applies if the system has been agreed to be “installed free domicile”. Client shall be responsible for damages to the goods during unloading and for proper interim storage until the goods are installed. Should it become apparent in the course of the work that the execution of the order in accordance with the description of services is actually or legally impossible, and should the ordering party not change the description of services to this effect or create conditions that make execution possible, the contractor may refuse to execute the order. Should the impossibility of execution result from a failure on the part of the ordering party or a subsequent change to the description of services by the ordering party, the contractor shall be entitled to withdraw from the
contract. Any costs and expenses incurred by the contractor up to that point in time as well as any dismantling costs shall be reimbursed by the ordering party.
8. Place of execution and jurisdiction: Vöcklabruck shall be the place of execution and jurisdiction. Austrian law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
9. Acceptance: After the goods have been made ready, Client is obliged to accept them. In the event of non-acceptance on the agreed dates or if the deadline is exceeded, risk and contingencies shall pass to Client, and Nio Mechatronik GmbH shall furthermore be entitled to claim for any damages resulting from non-acceptance or delayed acceptance and to charge storage fees. The ordering party shall not be entitled to refuse acceptance of software due to insignificant shortcomings.
10. Warranty and compensation: Nio Mechatronik GmbH shall provide a warranty for its delivered goods for a period of 12 months from the date of delivery. Ex-works transport costs, customs duties, installation costs, etc. shall be borne by Client or the ordering party. The buyer is obliged to check each delivery carefully and completely, immediately upon receipt. Recognisable defects must be reported in writing within 3 days of receipt. Should this not be the case, the entire delivery shall be deemed to have been approved. The presumption of defectiveness in accordance with Section 924 of the ABGB (Austrian civil code) shall be excluded. Should prescribed maintenance work not be conducted in a proper manner, the entitlement to warranty shall expire. Expendable parts and filters shall under no circumstances be subject to warranty and must always be replaced at Client’s expense. In cases of minor negligence, Nio Mechatronik GmbH’s liability shall be excluded for the consequences of faulty or disrupted operation including the loss of raw materials, for the consequences of installation or commissioning delays, and for operational disruptions or stoppages caused by replacement deliveries at Supplier’s expense, by the exchange or return of deliveries, or by repairs and modifications, as shall any other form of liability not expressly assumed. The obligation to pay compensation for damages resulting from the Product Liability Act and for product liability claims which may be derived from other provisions is excluded. Replaced parts shall become the property of Nio Mechatronik GmbH. The right of revocation or price reduction is excluded. The buyer can only invoke a warranty claim if the seller is informed immediately in writing by the buyer of any defects that have occurred. The elimination of defects shall not result in an extension of the warranty period. Nio Mechatronik GmbH shall only be liable for the costs of the seller eliminating defects if Nio Mechatronik GmbH has given its written consent. Nio Mechatronik GmbH is not obliged to remedy defects as long as the ordering party has not fulfilled its payment obligations.
11. Plans, data protection and confidentiality: All plans supplied by Nio Mechatronik GmbH remain the property thereof and may not be made accessible to third parties, in particular competitors. If no order is placed, all plans must be returned to Nio Mechatronik GmbH as follows: immediately, if the order is placed with a third party, and otherwise no later than six months after submission. Should Nio Mechatronik GmbH provide Client free technical assistance of any kind relating to the production of system components manufactured by Client or on Client’s behalf by a third party, the advice shall be provided without assumption of liability. All copyrights for the agreed services (programs, documentation, etc.) are the property of the contractor or the contractor’s licensors. The ordering party shall acquire the right to use the software exclusively for the ordering party’s own purposes only after payment of the agreed remuneration, only for the hardware specified in the contract, and only to the extent of the number of licences acquired for simultaneous use at several workstations. The delivery of software shall only result in the conferral of a site usage permit. Distribution by the ordering party is excluded in accordance with copyright law. The ordering party’s participation in the production of the software shall not result in the acquisition of any rights other than the usage rights specified in the pertinent contract. Any infringement of the contractor’s copyrights shall result in claims for damages, in which case full compensation shall be provided. The ordering party is permitted to make copies for archiving and data protection purposes on the condition that the software does not contain any express prohibition of the same by the licensor or third parties, and that all copyright and ownership notices are transferred unchanged to these copies. Should the disclosure of interface information be necessary in order to ensure interoperability with the software in question, this shall be commissioned by the ordering party from the contractor against reimbursement of costs. If the contractor does not comply with this request and a decompilation is carried out in accordance with copyright law, the results shall be used exclusively to achieve interoperability. Misuse will result in claims for damages. The contractor’s employees are obliged to comply with the provisions of the Data Protection Act.
12. Withdrawal from the contract: If, after the conclusion of the purchase contract, Nio Mechatronik GmbH should become aware that the ordering party is inan unfavourable financial situation, Nio Mechatronik GmbH may demand security for its services, or withdraw from the contract while charging for services already provided, irrespective of whether the ordering party’s unfavourable financial situation existed at the time when the contract was concluded or occurred at a later date. The ordering party shall require the express written consent of Nio Mechatronik GmbH to cancel an order. Such consent may be granted only in exceptional circumstances. In the event of an order cancellation that has been approved by Nio Mechatronik GmbH, the buyer shall pay a cancellation fee of 50% of the purchase price and shall reimburse Nio Mechatronik GmbH for any additional expenses and damages.
13. Binding nature of the contract: Should individual points become ineffective, all other provisions remain binding. The ineffective provision shall be replaced by a provision that is as similar as possible in meaning but is effective.