These Terms and Conditions have been translated into English for your convenience. ubitronix explicitly states that in the event of any disputes arising from these Terms and Conditions only the German original version is valid.
1.1. These Terms and Conditions have been set up for legal transactions between companies. In the exceptional case that these Terms and Conditions should be also the basis for legal transactions involving consumers according to the Austrian Act on Consumer Protection, these Terms and Conditions are valid only insofar as they do not contradict to mandatory provisions included therein.
1.2. These Terms and Conditions apply to any legal transactions and legal relationships between the customer and ubitronix, not only for the first legal transaction, but for all additional, consequential, and any other legal transactions.
1.3. Terms and conditions of purchase and other terms and conditions concerning legal transactions issued by the customer are not valid and are hereby renounced explicitly. ubitronix explicitly declares that it will enter into contract only on the basis of ubitronix’ Terms and Conditions. If an exceptional application of the customer’s Terms and Conditions is agreed to in writing, the provisions contained therein are only valid as long as they do not conflict with these Terms and Conditions. Non-conflicting provisions of the two Terms and Conditions are equally valid.
1.4. The customer declares that he has had the opportunity to read through these Terms and Conditions before signing the contract and that he fully agrees to their content.
1.5. Modifications and additions to these Terms and Conditions shall be put down in writing to become legally effective. This provision can only be declared void in writing. It is hereby explicitly stated that supplementary agreements are invalid.
2.1. Quotations made by ubitronix are subject to change without notice and are not binding.
2.2. ubitronix accepts orders from the customer via written confirmation of the quotation, or through delivery of the object of purchase or performance of a service.
2.3. Information given in catalogs, price lists, brochures, company information material, leaflets, trade fair information, circulars or information published in any other type of media about ubitronix’ services and products are non-binding, as long as they have not been explicitly declared in writing to be subject matter of the contract.
2.4. Quotations issued by ubitronix are generally provided without engagement concerning completeness and correctness.
3.1. Deadlines for delivery and services are non-binding unless they have been agreed to explicitly in writing in the order confirmation or in the respective contract.
3.2. If there are modifications of, or supplements to the order for any reasons whatsoever after the placing of the order, the delivery or service deadline is extended by an appropriate period of time.
3.3. Unless diverging agreements have been made, the delivery time starts at the earliest at the latest of the following dates:
a) date of order confirmation
b) date of completion of all technical, commercial, and other requirements which have to be fulfilled by the customer
c) date of receipt by ubitronix of an agreed advance payment or deposit
3.4. In the event that ubitronix is prevented from fulfilling its obligations due to unpredictable circumstances or circumstances beyond ubitronix’ influence, such as system malfunction, governmental acts and interventions, energy supply shortages, loss of a subcontractor who is difficult to replace, strike, traffic impediments, delays due to custom duties, or force majeure, the delivery or service deadline is extended by an appropriate period of time. In any of these events it is irrelevant whether these circumstances happen to ubitronix itself, or to one of its suppliers or subcontractors.
3.5. In the event that the performance of the contract becomes impossible due to reasons beyond ubitronix’ influence, ubitronix is free from its contractual obligations.
3.6. ubitronix is entitled to perform and charge partial deliveries or deliveries in advance. If delivery on call order has been agreed upon, the object of purchase is considered to be called at the latest six months after the order has been effected.
4.1. If an order has been placed without prior quotation, or if services are carried out which were not explicitly listed in the order, then ubitronix is entitled to charge the fee/price which corresponds to ubitronix’ price list, or its usual fees.
4.2. ubitronix is entitled to charge a fee or purchase price higher than that agreed upon if the calculation bases established at the date of the order placement concerning e.g. fuel prices, exchange rates, or labor costs, have changed after the signing of the contract.
4.3. Prices and fees do not include VAT and are ex stock. Packing, transport, loading and shipping costs, custom duties, and insurance are paid by the customer. Packing material can only be returned to ubitronix if this has been explicitly agreed to before.
4.4. Unless other agreements have been made, half of the fee/price is to be paid upon receipt of the order confirmation, and the rest at delivery, or at keeping the object ready for pickup, and after invoice receipt, free of charges and other deductions.
4.5. Payment is considered to be effected in due time when ubitronix has received it. Allocation of payment by the customer, e.g. on transfer slips, is non-binding.
4.6. In case of late payment, an interest rate of 5 % p.a. is to be paid. If ubitronix charges interest rates beyond that percentage, it is entitled to do so. Appropriate and necessary costs due to late payment, such as expenditures for reminders, collection attempts, storage costs, possible judicial and extrajudicial lawyer costs, are to be compensated for by the customer.
4.7. Discounts agreed to at the conclusion of a contract are granted under the condition that payment is effected completely and in due time. In case of a delay in payment of only a single partial performance, ubitronix is entitled to charge the full price, voiding any granted discount.
4.8. The assertion of a right of retention and objection of the unfulfilled contract by the customer in the event of alleged defects is excluded. The offset by the customer through counterclaims or alleged discount claims is only admissible if this claim has been legally confirmed, or is not contested by ubitronix.
4.9. If the customer defaults on his financial obligations derived from the contract, or any other agreement, ubitronix is entitled to stop its performance - without affecting other rights - until the payment by the customer will have been effected, and/or to adequately extend the delivery time; to make due any open claims from this or other legal transactions, and to regain already delivered items, without exempting the customer from his obligations. The cancellation of the contract by ubitronix through these actions is only given if this has been explicitly declared beforehand.
4.10. In the event that the financial situation of the customer deteriorates, ubitronix is entitled to make the agreed price immediately due, and to perform the order only against cash before delivery.
4.11. In case a periodically due fee, e.g. for services or maintenance, has been agreed to, this fee is due at the beginning of the calendar year of each year. If the contract starts or ends during a year, the respective fee is to be paid on a pro rata temporis basis. This fee is adjusted in accordance with the Customer Price Index 1996. The month during which the service or maintenance contract is signed serves as the starting point for calculation. If the Customer Price Index ceases to be published, it is replaced by its successor or the one that most corresponds to it. Moreover, ubitronix is entitled to adapt a periodically due fee due to the reasons stated in point 4.2.
4.12. Costs for mileage allowance, daily allowance and hotel expenses are separately invoiced in case of periodically due fees. Traveling time is considered to be working time.
5.1. The risk is transferred to the customer as soon as ubitronix holds the purchase object available for pickup at its facilities or stock, irrespective of whether the object is handed over to a carrier by ubitronix. The customer always bears the risk of shipping, loading, unloading, and transportation.
5.2. The customer approves any type of shipping which is appropriate. A transport insurance is only provided if the customer has given a written order to this effect.
5.3. ubitronix is entitled to collect the packing and shipping costs, and the fee or purchase price via cash on delivery if the financial situation of the customer has deteriorated or if a credit limit agreed upon with ubitronix has been exceeded.
5.4. Place of performance is the facility of ubitronix.
6.1. All goods and products remain in ubitronix’ possession until payment has been fully effected by the customer, also in case the objects to be supplied or to be produced are resold, modified, elaborated or combined with others.
6.2. Until full satisfaction of ubitronix’ financial claims the purchase object shall neither be given in mortgage, as assignment of security, or otherwise mortgaged with rights of third parties. In case of garnishment or other claims, the customer is obliged to indicate ubitronix’ property right and to notify ubitronix immediately.
6.3. The customer transfers all rights and claims from resale, elaboration, combination with other products, or other exploitation of the goods and products, to ubitronix to satisfy his debts. Until the complete settlement of the fee or the purchase price, the customer is obliged to put down this transfer in his books and on his invoices, and to inform his debtors accordingly. On demand he is required to provide ubitronix with all documentation and information which is necessary to enforce the execution of the transferred claims.
6.4. In order to safeguard its claims and to safeguard its claims from other legal transactions, ubitronix is entitled to retain products and goods until the complete payment of all open claims from this contract has been effected.
7.1. In case of installation works carried out by ubitronix, the customer is obliged to make sure that ubitronix can take up work immediately after arrival at the customer’s facilities.
7.2. The customer shall make sure that the required technical preconditions for the work to be performed or the purchase object are given, and that technical installations such as supply lines, wiring, networks etc. are functioning, ready for operation, and compatible with the works to be performed or the purchase objects. ubitronix is entitled, but not obliged, to inspect and check these installations, and charge a separate fee.
7.3.
An obligation for inspection, warning or duty of disclosure concerning any documentation, transferred data or instructions provided by the customer is not given. ubitronix’ liability in this respect is excluded.
7.4. The order is placed independent of any required authorization and permission by the competent authorities, which the customer must obtain.
7.5. The customer is not entitled to transfer claims and rights which derive from the contract to anybody without ubitronix’ written consent.
8.1. The warranty period is limited to six months, and starts at the transfer of risks as stated in these Terms and Conditions. It is also valid for objects to be delivered which are firmly attached to a building, or property.
8.2. A warranty is excluded if the technical installations, such as supply lines, wiring, networks, or like, are not in perfect technical condition and ready for operation, or are incompatible with the products or goods to be produced by ubitronix.
8.3. No warranty is granted in case of defects resulting from inappropriate handling or overstraining, if legal provisions, or operation or installation instructions issued by ubitronix have not been followed, if the delivered object has been produced according to specifications issued by the customer and the defect is related to these specifications or drafts; in case of incorrect installation or commissioning by the customer or by third parties, in case of natural wear and tear, in case of transport damages, improper storage, in case of interfering operation conditions (e.g. insufficient power supply), chemical, electrochemical or electrical influences, non-performance of necessary services or insufficient maintenance.
8.4. Notice of defects and claims of any kind shall be made immediately in writing, stating possible reasons. Otherwise the right to warranty is forfeit. Oral notice of defects, or by telephone, or not immediately carried out notices of defects, remain unconsidered. After ubitronix has carried out a technical approval, the notice of defects which have been discovered during this approval are excluded.
8.5. Notices of defects and claims shall be made at ubitronix’ headquarters, providing as many details of the defect as possible. The customer shall hand over the affected goods or products if this is possible.
8.6. ubitronix is entitled to carry out any investigation it deems necessary, or to have any investigation it deems necessary carried out, even if the investigation renders the products in question unusable. In the event that such an investigation proves that ubitronix has not committed any errors, the customer shall pay for the costs of the investigations.
8.7. If objects are produced on the basis of data, drafts, blueprints, models or other specifications issued by the customer, ubitronix only gives a warranty for the performance according to these data.
8.8. If the customer modifies the delivered product without having obtained ubitronix’ written consent before, then ubitronix’ warranty obligation becomes void.
8.9. When the customer presents secondary warranty claims, ubitronix is entitled to avert a cancellation of the contract through a price reduction, as long as the defect is not substantial and irreparable.
8.10. In addition, the customer shall also prove the existence of any defect that exists at the time of delivery within the first six months after delivery.
8.11. Any costs which arise from the reparation of defects, such as transport or shipping, shall be paid by the customer. Upon ubitronix’ request, the customer shall provide the required staff free of charge.
9.1. ubitronix is only liable for damages due to intent or gross negligence. Liability for slight negligence is excluded. Faults by ubitronix must be proved by the customer.
9.2. Liability for collateral damages, consequential damages, lost profits, property loss, damages due to business interruption, data loss, interest loss and damages through claims of third parties against the customer, is excluded in any case.
9.3. ubitronix’ liability (if any) is in any case limited to a certain amount up to the agreed fee or the purchase price for the respective order. ubitronix only accepts contracts under this liability limitation. Liability of ubitronix beyond this limit is explicitly excluded. If the total damage surpasses the maximum limit, the claims for indemnification of the claimants are reduced to a certain extent not to surpass the total limit.
9.4. The customer shall inform ubitronix of any detected flaws of the goods or products. Otherwise, any claims become void. Claims for damages shall be filed within six months before a court, otherwise they will be void.
9.5. At first, the customer can only claim improvement or replacement of the good/product. Only if both options are impossible, or if the efforts to be taken by ubitronix are unreasonable, can the customer demand immediate financial compensation.
9.6. In the event that the customer fails to comply with the requirements for installation, commissioning, and usage, or with provisions for usage issued by the respective authorities, ubitronix accepts no liability. The customer is obliged to take care that the instruction manuals of the delivered goods or products are followed by all users. In particular, the customer shall provide appropriate training of his staff or any other person dealing with the good or product.
9.7. The obligation to indemnify damage to property according to the product liability law, and claims to product liability which arise from other regulations, are excluded, as far as this is in accordance with the law. The orderer is obliged to transfer the disclaimer for product liability claims to his possible contract partners. A claim to damages of the customer against ubitronix on the basis of the product liability law is excluded. The customer shall provide adequate insurance for product liability claims, and indemnify and hold ubitronix harmless with respect to legal proceedings and claims
10.1. If deliveries/services are not possible due to reasons for which the customer is responsible, or if the customer does not fulfill a legal or contractual obligation against ubitronix, ubitronix is entitled to cancel the contract. In this event, the customer shall compensate all disadvantages and the lost profits of ubitronix.
10.2. The customer shall abstain from appealing or adapting this contract in the event of mistake.
11.1. The customer is responsible for ensuring that any production data, drafts, models or other specifications which are given to ubitronix do not violate any property rights of third parties. The customer indemnifies and holds ubitronix harmless in case of any violation of property rights.
11.2. Software, documentation necessary for production, such as drafts, sketches, and other technical documents, models, catalogues, brochures, figures, and the like remain intellectual property of ubitronix, and are subject to copyright protection. Any reproduction, dissemination, imitation, modification, or other exploitation which has not been explicitly allowed, is illegal.
12.1. If software modules or computer programs form part of the service or the product, ubitronix grants the customer a non-transferable and non-exclusive right of use at the agreed place of usage, given that all contractual conditions and documentation specifications (such as stated in the user manual) are fulfilled.
12.2. Without previous consent of ubitronix in writing, the customer is not entitled to copy the software, modify it, forward it to third parties, or use it for other purposes than agreed upon. Otherwise any claims will be void. This clause is especially valid for the source code.
12.3. Warranty for the software only covers the condition that the software complies with the specifications agreed upon in the contract, as long as the software has been installed according to the installation requirements and the valid conditions of usage. ubitronix does not guarantee that the software is flawless and will work uninterruptedly or faultlessly. The occurrence of errors cannot be excluded.
12.4. The selection and specification of the software offered by ubitronix is made by the customer, who shall take care that the software is compatible with the technical requirements of his place of usage. The customer is responsible for the usage of the software, and the results obtained with it.
12.5. For individually produced software, the performance features, special functions, hardware and software requirements, installation requirements, usage conditions, and operation, are exclusively drawn from the requirements specification which is to be agreed upon by the parties in writing. Information necessary for the production of individual software shall be provided by the customer before the contract is concluded.
13.1. Buyers of electrical and electronic equipment for commercial purposes domiciled in Austria assume the obligation to pay for the collection and treatment of waste electrical and electronic equipment laid down in the Regulation on Waste Electrical and Electronic Equipment in the case that the buyer is user of this equipment himself. If the buyer is not the end user, he shall fully transfer this obligation to his customer via agreement and document this for the vendor.
13.2. Buyers who are domiciled in Austria shall make sure that the vendor receives all information to comply with the obligations of the vendor as manufacturer/importer especially according to §§ 11 and 24 of the Regulation on Waste Electrical and Electronic Equipment and the Act on Waste Management.
13.3. Buyers who are domiciled in Austria are liable against the vendor for all damages and other financial disadvantages which the vendor suffers through the buyer’s insufficient compliance or non-compliance with the obligation to pay for the disposal, or other obligations as stated in point 13. The burden of proof for the compliance with this obligation rests with the buyer.
14.1. If individual terms of these Terms and Conditions are, or become, ineffective, this fact shall have no effect on the validity of the remainder of ubitronix’ Terms and Conditions. Ineffective terms shall be replaced by the contracting parties with terms which approximate the ineffective term, and which are customary in this branch.
14.2. Legal venue for all disputes arising out of this contract or future contracts between ubitronix and the customer is the court competent for ubitronix’ domicile. ubitronix is also entitled to sue the customer at the general legal venue of the customer.
14.3. The contracting parties agree on the application of Austrian Law. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
14.4. The customer shall notify ubitronix immediately in writing of changes concerning his name, company, address, legal form, or any other relevant information.
Date: October 1, 2004
