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Terms and conditions

As at March 2020

Part A — General

1. Scope of these terms and conditions

1.1 These general terms and condi­tions (herein­after “GTC”) apply to all contracts between

Zero.Point.Systems GmbH
(FN 243699 g, LG Feldkirch)
Kommin­ger­straße 48, A‑6840 Götzis
(refferred to as „ZPS“)

and their contrac­tual partners.

1.2 If the contrac­tual partner’s general terms and condi­tions deviate from these general terms and condi­tions, the contrac­tual partner’s terms and condi­tions shall only apply if they are expressly confirmed in writing by ZPS. Counter-confir­ma­tions by the contrac­tual partner with reference to its terms and condi­tions are hereby expressly rejected.

1.3 These terms and condi­tions also apply exclu­si­vely and without restric­tion if ZPS carries out the order without reser­va­tion in the knowledge of conflic­ting or devia­ting condi­tions of the contrac­tual partner.

1.4 The provi­sions of this Part A apply, provided that no devia­ting provi­sions are made in Parts B — C.

2. Offer and order acceptance

2.1 ZPS offers are non-binding.

2.2 The contract, inclu­ding other agree­ments and side agree­ments, in parti­cular if they deviate from these terms and condi­tions, only comes into effect with the written confir­ma­tion of ZPS.

2.3 The content of the contract, in parti­cular with regard to the scope of delivery, is based on the written confir­ma­tion from ZPS, unless an oral or implied agree­ment that deviates from these terms and condi­tions was made after the contract was concluded. Changes to indivi­dual agree­ments can only be made in writing, even after the contract has been concluded.

3. Payment terms

3.1 ZPS invoices are payable immedia­tely, net from the invoice date. A discount is only granted by indivi­dual agree­ment. The receipt of the credit on the account speci­fied in the invoice for the payment is decisive for the timeli­ness of the payment by the contrac­tual partner.

3.2 In the absence of an express provi­sion by the contrac­tual partner, ZPS is entitled to initi­ally offset payments made by the contrac­tual partner against its older debt. In addition, the statu­tory regula­tion applies.

3.3 If the payment deadline is exceeded, ZPS can, subject to other rights, charge default interest of at least 9% points above the base rate.

3.4 The statu­tory regula­tions also apply to the conse­quences of default in payment.

3.5 The contrac­tual partner is only entitled to set-off rights if his counter­c­laims have been legally estab­lished, are undis­puted or recognized, or are based on the same legal relationship.

3.6 The contrac­tual partner is only autho­rized to exercise a right of reten­tion if his counter­c­laim is based on the same legal relationship.

3.7 ZPS is entitled to assign its claims against the contrac­tual partner.

4. Scope of liabi­lity of ZPS

4.1 ZPS has unlimited liabi­lity for damage to life, limb or health that is based on a negli­gent breach of duty by ZPS or on an inten­tional or negli­gent breach of duty by its legal repre­sen­ta­tive or vicarious agent, and in the case of legally prescribed strict liability.

4.2 ZPS is liable for other damages that are based on an inten­tional or grossly negli­gent breach of duty by ZPS or on an inten­tional or grossly negli­gent breach of duty by its legal repre­sen­ta­tive or vicarious agent. In this case, liabi­lity is limited to the foresee­able, typically occur­ring damage at the time the contract was concluded.

4.3 In the event of inten­tional or negli­gent breach of an essen­tial contrac­tual obliga­tion, ZPS is only liable for the typically occur­ring damage that was foresee­able at the time the contract was concluded. An essen­tial contrac­tual obliga­tion is an obliga­tion that enables the proper fulfill­ment of the contract concluded with the contrac­tual partner and on which the contrac­tual partner has relied and was allowed to trust and whose culpable non-fulfill­ment endan­gers the achie­ve­ment of the contrac­tual purpose.

4.4 In all other cases the liabi­lity of ZPS is excluded.

4.5 As far as the liabi­lity of ZPS is excluded or limited, this also applies to the employees, repre­sen­ta­tives and vicarious agents of ZPS.

5. Statute of Limitations

5.1 The mutual claims of the contrac­ting parties expire in accordance with the statu­tory provisions.

6. Asset deterioration

6.1 If the contrac­tual partner’s finan­cial situa­tion deterio­rates after the conclu­sion of the contract, ZPS is entitled to carry out outstan­ding delive­ries and services only in return for security. If the contrac­tual partner is unable to provide the required security within a reason­able period, ZPS is entitled to withdraw from the contract.

6.2 The same applies if ZPS becomes aware of facts after the conclu­sion of the contract that give rise to justi­fied doubts about the solvency or credit­wort­hi­ness of the contrac­tual partner, in parti­cular if ZPS’s credit insurance company refuses to cover all or part of the outstan­ding claims against the contrac­tual partner; this does not apply if the contrac­tual partner can prove that ZPS was already aware of these facts when the contract was concluded or should have been known if the necessary care had been exercised.

6.3 In the above cases, ZPS is also entitled to prohibit the resale and proces­sing of the delivered goods on the basis of an agreed reten­tion of title and to revoke the autho­riz­a­tion to collect.

7. Reser­va­tion of title by ZPS

7.1 Generally “simple reten­tion of title”: ZPS retains title to the goods sold until the purchase price has been paid to ZPS in full.

7.2 Additio­nally agreed “extended reten­tion of title” if items sold by ZPS are located in Germany or are being trans­ported there:
Until all current and future claims from ZPS from the purchase contract and an ongoing business relati­onship (secured claims) have been paid in full, ZPS reserves ownership of all goods sold. If a current account agree­ment has been agreed with the contrac­tual partner, the reten­tion of title exists until the recognized current account balance has been paid in full.

7.3 By proces­sing the goods delivered by ZPS, the contrac­tual partner does not acquire ownership of the wholly or parti­ally manufac­tured items; proces­sing is carried out free of charge exclu­si­vely for ZPS. Should the reten­tion of title nevertheless expire due to any circum­s­tances, ZPS and the contrac­tual partner agree that ownership of the items shall pass to ZPS upon proces­sing. ZPS accepts the transfer. The contrac­tual partner remains the free custo­dian of these processed goods.

7.4 When proces­sing or mixing with goods in third-party ownership, ZPS acquires joint ownership of the new items. The extent of this co-ownership results from the ratio of the invoice value of the goods delivered by ZPS to the invoice value of the other goods.

7.5 The contrac­tual partner hereby assigns the claim from a resale of the reserved goods to ZPS, also to the extent that the goods have been processed or mixed. If the processed product of the reserved goods only contains items that either belonged to ZPS or were only delivered under the so-called simple reten­tion of title, the contrac­tual partner shall assign the entire purchase price claim to ZPS. In the other case, i. H. If the advance assign­ments to several suppliers come together, ZPS is entitled to a fraction of the claim, corre­spon­ding to the ratio of the invoice value of the reserved goods to the invoice value of the other processed items.

Part B — Purcha­sing Products and Services through ZPS

1. Scope of these terms and conditions

1.1 The contract partner’s offer is binding.

2. Delivery time and delay in delivery

2.1 The delivery period agreed with ZPS is binding. The contrac­tual partner is obliged to inform ZPS immedia­tely in writing if he is unlikely to be able to meet the agreed delivery times — for whatever reasons.

2.2 If the contrac­tual partner does not provide his service or does not provide his service within the agreed delivery time or if he is in default, the rights of ZPS — in parti­cular to withdrawal and compen­sa­tion — are deter­mined by the statu­tory provi­sions. The regula­tions in no. 2.3 remain unaffected.

2.3 If the contrac­tual partner is in default, ZPS can — in addition to further legal claims — demand lump-sum compen­sa­tion for damage caused by default in the amount of 1% of the net price per complete calendar week, but not more than 5% of the net price of the delayed goods. ZPS reserves the right to prove that ZPS incurred greater damage. The contract partner reserves the right to prove that ZPS did not suffer any damage or that it suffered signi­fi­cantly less damage.

3. Transfer of risk, default of acceptance

3.1 Delivery is free domicile to the respec­tive ZPS location, unless other­wise agreed in indivi­dual cases. The desti­na­tion is also the place of perfor­mance (obliga­tion to deliver).

3.2 The delivery must be accom­pa­nied by a delivery note stating the date (issue and dispatch), content of the delivery (item number and quantity), ZPS order identi­fier (date and number) and the corre­spon­ding test reports for the products. If the delivery note or the test proto­cols are missing or if these are incom­plete, ZPS is not respon­sible for any resul­ting delays in proces­sing and payment.

3.3 The risk of accidental loss and accidental deterio­ra­tion of the item is trans­ferred to ZPS upon delivery at the place of performance.

3.4 The statu­tory provi­sions apply to the occur­rence of default in accep­t­ance. If ZPS is in default of accep­t­ance, the contrac­tual partner can demand reimbur­se­ment of its additional expenses in accordance with the statu­tory provisions.

4. Prices and terms of payment

4.1 Unless other­wise agreed in indivi­dual cases, the price includes all additional costs (e.g. proper packa­ging, trans­port costs inclu­ding any trans­port and liabi­lity insurance). The contrac­tual partner must take back packa­ging material at the request of ZPS.

4.2 The agreed price is due for payment within 30 calendar days of complete delivery and service (inclu­ding any agreed accep­t­ance) and receipt of a proper invoice.

4.3 ZPS does not owe any maturity interest. The default interest is 1 percen­tage point above the base rate. The statu­tory provi­sions apply to the occur­rence of default, although a written reminder from the contrac­tual partner may be required in any case.

4.4 ZPS is entitled to set-off rights and rights of reten­tion as well as the objec­tion of a non-fulfilled contract to the extent permitted by law. In parti­cular, ZPS is entitled to withhold payments due as long as it is still entitled to claims against the contrac­tual partner from incom­plete or defec­tive services.

4.5 The contrac­tual partner has a right of set-off or reten­tion only due to legally estab­lished or undis­puted counter­c­laims as well as claims based on the same legal relationship.

5. Reten­tion of title

5.1 If the contrac­tual partner only delivers the goods subject to reten­tion of title, the contrac­tual partner’s reten­tion of title expires at the latest with the payment of the purchase price for the delivered goods.

5.2 ZPS remains autho­rized to resell the goods in the ordinary course of business, even before payment of the purchase price, with advance assign­ment of the resul­ting claim (alter­na­tively, appli­ca­tion of the simple reten­tion of title extended to the resale).

5.3 In any case, all other forms of reten­tion of title are excluded, in parti­cular the extended, forwarded and extended reten­tion of title to further processing.

6. Defec­tive delivery

6.1 The statu­tory provi­sions apply to the rights of ZPS in the event of material and legal defects in the goods and in the event of other breaches of duty by the contrac­tual partner, unless other­wise speci­fied below.

6.2 According to the statu­tory provi­sions, the contrac­tual partner is parti­cu­larly liable for ensuring that the goods have the agreed quality upon transfer of risk. In any case, those descrip­tions which are the subject of the respec­tive contract or which have been included in the contract in the same way as these GTC apply as an agree­ment on the quality. It makes no diffe­rence whether the descrip­tion comes from ZPS or from the contrac­tual partner.

6.3 Obliga­tions to inspect and give notice of defects (Section 377 of the Austrian Commer­cial Code or compa­rable standards) do not apply to ZPS and are mutually excluded.

6.4 If the contrac­tual partner does not meet its obliga­tion to supple­men­tary perfor­mance — at the option of ZPS by elimi­na­ting the defect (repair) or by delivering a defect-free item (repla­ce­ment delivery) — within a reason­able period set by ZPS, ZPS can elimi­nate the defect itself and demand reimbur­se­ment of the necessary expenses or a corre­spon­ding advance payment from the contrac­tual partner. If the subse­quent perfor­mance by the contrac­tual partner has failed or is unrea­son­able for ZPS (e.g. due to parti­cular urgency, threat to opera­tional safety or the impen­ding occur­rence of dispro­por­tio­nate damage), no deadline is required; ZPS will inform the contrac­tual partner immedia­tely, if possible in advance, of such circumstances.

6.5 In addition, in the event of a material or legal defect, ZPS is entitled to reduce the purchase price or withdraw from the contract in accordance with the statu­tory provi­sions. In addition, according to the statu­tory provi­sions, ZPS is entitled to compen­sa­tion for damages and expenses.

Part C — Selling Products and Services by ZPS

1. Prices

1.1 Unless other­wise agreed, the prices are based on the offer from ZPS.

2. Delivery, delivery deadlines, unavai­la­bi­lity of the service and delay

2.1 Unless other­wise agreed, delivery and transfer of risk shall apply ex works Götzis (EXW Incoterms 2010).

2.2 An agreed delivery period begins on the day the order confir­ma­tion is sent by ZPS, but at the earliest at the time when all details of the execu­tion of the order to be clari­fied with the contrac­tual partner have been clari­fied and all other requi­re­ments to be fulfilled by the contrac­tual partner have been met.

2.3 An agreed delivery date is postponed accord­ingly if the contrac­tual partner does not meet the requi­re­ments at the agreed time. The rights of ZPS due to default by the contrac­tual partner remain unaffected.

2.4 The delivery deadline is met if ZPS has made the goods avail­able before it expires and this has been commu­ni­cated to the contrac­tual partner or the goods have left the factory.

2.5 If ZPS cannot meet binding delivery deadlines for reasons for which ZPS is not respon­sible (unavai­la­bi­lity of the service), ZPS will inform the contrac­tual partner immedia­tely and at the same time notify the expected new delivery deadline. If the service is not avail­able within the new delivery period either, ZPS is entitled to withdraw from the contract in whole or in part; ZPS will immedia­tely reimburse any consi­de­ra­tion already provided by the contrac­tual partner. In the case of the unavai­la­bi­lity of the service in this sense, in parti­cular the late delivery by the ZPS supplier or if neither ZPS nor the supplier is at fault.

2.6 If the contrac­tual partner does not call up the goods in time for delivery contracts on demand or does not schedule the delivery in time, ZPS is entitled, after a reason­able grace period set by ZPS has expired, to classify and deliver the goods itself or to withdraw from the part of the delivery contract that is still open.

2.7 In addition, the statu­tory rights of the contrac­tual partner and of ZPS, in parti­cular in the event of an exclu­sion of the obliga­tion to perform (e.g. due to impos­si­bi­lity or unrea­son­ab­leness of the service and / or subse­quent perfor­mance), remain unaffected.

3. Packa­ging

3.1 As far as necessary, ZPS packs the goods in the custo­mary manner.

4. Partial delive­ries, partial default and partial impossibility

4.1 Partial delive­ries are permitted and can be billed independently, provided this is reason­able for the contrac­tual partner and he has an objec­tive interest in the partial delivery.

4.2 In the event of partial default or partial impos­si­bi­lity, the contrac­tual partner can only withdraw from the entire contract or only demand compen­sa­tion for non-fulfill­ment of the entire obliga­tion if he is not interested in partial fulfill­ment of the contract.

4.3 For the rest, the provi­sions of the prece­ding no. 2 accordingly.

5. Obliga­tion to examine and notify

5.1 After the goods arrive at their desti­na­tion, the contrac­tual partner must inspect them immedia­tely. The contrac­tual partner’s duty to examine extends to the entire delivery.

5.2 Recogniz­able defects must be reported in writing immedia­tely, at the latest after the expiry of 7 working days (Saturday is not a working day), speci­fying the indivi­dual defects claimed; other­wise the goods are consi­dered approved.

5.3 Hidden defects must be reported in writing immedia­tely after they are disco­vered, at the latest after the expiry of 7 working days (Saturday does not count as a working day); other­wise the goods are also consi­dered approved with regard to these hidden defects.

6. Liabi­lity for material defects

6.1 ZPS is to be given the oppor­tu­nity to examine the goods complained of.

6.2 If a defect reported on time is proven, ZPS will, at its option, provide supple­men­tary perfor­mance in the form of a repla­ce­ment delivery of defect-free goods step by step against return of the goods complained about. In the case of a repla­ce­ment delivery, ZPS is only obliged to bear all expenses necessary for the purpose of supple­men­tary perfor­mance (in parti­cular trans­port, travel, labor and material costs) insofar as ZPS is respon­sible for the defect and insofar as these expenses are not incre­ased by the fact that the goods was moved to a location other than the place of performance.

7. Reser­va­tion of title by ZPS

7.1 Generally “simple reten­tion of title”: ZPS retains title to the goods sold until the purchase price has been paid to ZPS in full.

7.2 Additio­nally agreed “extended reten­tion of title” if items sold by ZPS are in Germany or are being trans­ported there:

Until all current and future claims from ZPS from the purchase contract and an ongoing business relati­onship (secured claims) have been paid in full, ZPS reserves ownership of all goods sold. If a current account agree­ment has been agreed with the contrac­tual partner, the reten­tion of title exists until the recognized current account balance has been paid in full.

7.3 By proces­sing the goods delivered by ZPS, the contrac­tual partner does not acquire ownership of the items manufac­tured in whole or in part; proces­sing is carried out free of charge exclu­si­vely for ZPS. Should the reten­tion of title nevertheless expire due to any circum­s­tances, ZPS and the contrac­tual partner agree that ownership of the items shall pass to ZPS upon proces­sing. ZPS accepts the transfer. The contrac­tual partner remains the free custo­dian of these processed goods.

7.4 When proces­sing or mixing with goods in third-party ownership, ZPS acquires co-ownership of the new items. The extent of this co-ownership results from the ratio of the invoice value of the goods delivered by ZPS to the invoice value of the remai­ning goods.

7.5 The contrac­tual partner hereby assigns the claim from a resale of the reserved goods to ZPS, also to the extent that the goods have been processed or mixed. If the processed product of the reserved goods only contains items that either belonged to ZPS or were only delivered under the so-called simple reten­tion of title, the contrac­tual partner shall assign the entire purchase price claim to ZPS. In the other case, i. H. If the advance assign­ments to several suppliers come together, ZPS is entitled to a fraction of the claim, corre­spon­ding to the ratio of the invoice value of the reserved goods to the invoice value of the other processed items.

7.6 ZPS under­takes, at the request of the contrac­tual partner, to release the securi­ties to which it is entitled under the above condi­tions of its choice, provided that the realiz­able value of the securi­ties exceeds its claims to be secured by more than 10%.

7.7 The contrac­tual partner can, as long as he meets his payment obliga­tions towards ZPS within the respec­tive payment period, collect the outstan­ding debts for himself until further notice.

7.8 With a suspen­sion of payments by the contrac­tual partner, an appli­ca­tion to open insol­vency procee­dings against the contrac­tual partner’s assets or a seizure of the goods subject to reten­tion of title, the right to resell or process the goods and to collect the outstan­ding debts expires. Assigned outstan­ding debts received after­wards are to be accumu­lated immedia­tely in a special account.

7.9 In the event of seizure, confis­ca­tion, damage and / or loss of the delivered goods, the contrac­tual partner must inform ZPS immedia­tely; a breach of this obliga­tion as well as any other behavior in breach of contract by the contrac­tual partner, in parti­cular non-payment of the purchase price due, gives ZPS the right to withdraw from the contract. The contrac­ting party bears all costs that had to be expended, in parti­cular in the context of a third party objec­tion suit (excita­tion suit), for the successful lifting of a seizure and, if necessary, for the successful repla­ce­ment of the delivered items, insofar as they cannot be confis­cated by third parties.

7.10 If ZPS has effec­tively withdrawn from the contract, ZPS is entitled to take back the reserved goods if the withdrawal was threa­tened with a reason­able period of time. The contrac­tual partner bears the costs arising from exercising the right of withdrawal, in parti­cular for trans­port. ZPS is entitled to utilize the retained goods that have been taken back and to satisfy themselves with the proceeds, provided that the utiliz­a­tion was previously threa­tened with a reason­able period of time. If the proceeds exceed the outstan­ding claims from the contrac­tual relati­onship, this excess will be returned to the contrac­tual partner.