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GTC

General Terms and Conditions of Sales and Delivery of Meusburger Georg GmbH & Co KG (‘Meusburger’)

I. PREAMBLE

1. The following terms and conditions apply to all deliveries and services (hereinafter called delivery) carried out by Meusburger. These terms and conditions also apply to future transactions. The valid version of the General Terms and Conditions of Sales and Delivery at the time of the completion of the contract is always applicable.

2. Conflicting terms and conditions, in particular the customer's terms and conditions of purchase and delivery, shall not apply and the customer waives their right to invoke such terms and conditions of purchase and delivery. An objection from Meusburger is not required.

3. Changes to these terms and conditions must be made in written form. The placing of an order for delivery is considered as acceptance of these terms and conditions.

II. CONTRACT

1. Offers from Meusburger are subject to change. This applies in particular to verbal or telephone orders and agreements. Meusburger accepts orders through a written order confirmation. If the order confirmation from Meusburger deviates from the terms and conditions of the order, the legal transaction is concluded according to the Meusburger terms and conditions unless the customer submits a written objection immediately upon receiving the order confirmation.

2. The data in brochures, catalogues and the like as well as other written and verbal statements by Meusburger are only authoritative if explicit reference is made to them in the order confirmation. Information and technical consultation supplied by Meusburger are given to the best of our knowledge and belief and on the basis of experience. They are non-binding and – where legally permissible – to the exclusion of all liability, unless otherwise agreed in writing. This shall also apply to contract negotiations in the pre-contractual stage.

3. Meusburger reserves the right to make changes to the design or form at any time, in particular insofar as such changes are necessary due to changes in the legal situation; however, Meusburger is not obliged to make such changes to products that have already been delivered.

4. By placing an order, the customer makes a binding declaration that they intend to purchase the delivery ordered. When goods are ordered electronically, Meusburger will promptly confirm the receipt of the order. Meusburger is entitled (but not obliged) to accept the contract offer submitted by the customer within 2 weeks of receipt.

III. PLACE OF FULFILMENT, DELIVERIES

1. Unless otherwise agreed, the place of fulfilment is Wolfurt (Austria), Kesselstr. 42. Unless otherwise agreed, delivery occurs EXW place of fulfilment based on the Incoterms (2010) valid at the time of completion of the contract. Shipment and transport are therefore carried out on the account and risk of the customer. As soon as the delivery is offered to the customer at the place of fulfilment, all risk is transferred to the customer, even if partial deliveries are made or Meusburger has taken on other services, e.g. the shipping costs or delivery and installation and/or commissioning. If the customer does not accept the delivery, they are in default of acceptance. Furthermore, in such case Meusburger's delivery is deemed to have been made and Meusburger is entitled to store the delivery at the customer's expense. The storage costs resulting from this are to be immediately refunded to Meusburger by the customer. In case of a default of acceptance, Meusburger is only liable for gross negligence or deterioration of the contractual goods.

2. Meusburger reserves the right to make partial deliveries at its own discretion. These terms and conditions are also applicable in whole to partial deliveries. The customer is obliged to accept such partial deliveries.

3. Complaints due to transport damages can only be investigated and – if justified - accepted by Meusburger if they are recorded immediately by the customer on the delivery receipt of the freight carrier responsible when receiving the delivery, and are reported by the customer immediately, or at the latest within 14 days, in writing to Meusburger together with the submission of appropriate proof.

4. The delivery dates stated are only guidelines.

5. If Meusburger is unable to deliver by the date agreed upon due to unforeseen circumstances which are out of their control (e.g. production interruptions, government regulations, force majeure, delays of subcontractors, etc.), Meusburger has the right to complete the delivery on the next possible date, as long as the acceptance of the delivery by the customer is still reasonable at that time. Otherwise, Meusburger is entitled to withdraw from the contract. For delays in delivery due to other reasons, the liability of Meusburger is limited to intention and gross negligence.

6. Compliance with delivery dates requires the fulfilment of all contractual obligations by the customer, especially the obligation to pay an agreed down payment as well as settle due accounts.

7. If the customer fails to obtain an import licence, this does not free them of their obligations.

8. Meusburger charges a reasonable handling fee as well as transportation costs to handle the return of goods due to order errors by the customer or other circumstances attributable to the sphere of the customer, which Meusburger accepts as a gesture of goodwill and not out of obligation.

9. Further information on the returns process can be found in the Returns Policy.

10. Meusburger charges an additional administration cost of 10 euros for deliveries with a net value of less than 100 euros.

IV. PRICES, TERMS OF PAYMENT

1. Unless otherwise agreed, all prices are net prices (in euros) ex works, and the prices valid on the day of delivery apply. The return of the packaging is excluded.

2. Software prices exclude installation, instruction and possible adjustment to hardware and/or other software. These and similar services are to be ordered separately by the customer unless expressly agreed otherwise and are to be remunerated in accordance with Meusburger's price list current at the time of conclusion of the contract and, if no such price list exists, at appropriate prices.

3. If the costs on which the agreed prices were based change, Meusburger has the right to change the price to correspond with the change in costs.

4. If the delivery is changed to a later date due to customer circumstances, Meusburger has the right to balance out any resulting increase in costs through higher prices. This does not affect the right of Meusburger to compensation for any other resulting damages.

5. All taxes, customs duties and other charges to be paid by the customer at the time of accepting the delivery are to be borne by the customer, unless Meusburger has explicitly agreed in writing to assume them.

6. The customer agrees to the electronic delivery of invoices.

7. Place of fulfilment for payments is the Meusburger headquarters. Payments are due 30 days after submission of the invoice, without any deductions and free of charges for payment, in the currency stated in the invoice. A payment will only then be deemed as having occurred when Meusburger has the sum at their disposal.

8. In the absence of special agreements, invoices for services are due for payment immediately upon receipt of the invoice. The receipt of payment by Meusburger is decisive for the timeliness of the payment.

9. For orders that include multiple units, Meusburger is permitted to issue an individual invoice after each partial delivery.

10. If the payment is not made by the due date, Meusburger is entitled to:
- defer the fulfilment of their obligations until the outstanding payment has been made,
- request a reasonable extension to the delivery period,
- demand immediate payment of the amount still due,
- invoice the customer for all dunning and collection costs as well as the statutory default interest, at least 9 percentage points over the basic interest rate
and/or
- rescind the contract in the event of non-compliance with a reasonable grace period, in which case Meusburger is also entitled to declare rescission of the entire contract in the event of partial delivery. In the case of withdrawal by Meusburger, the customer must pay a cancellation fee due immediately of 20% of the gross price, and compensate for any additional damages including loss of profit.

11. If foreclosure or seizure of the customer's assets is carried out or if Meusburger has doubts about their ability to pay, Meusburger is entitled to:
- demand immediate payment of all outstanding invoices, regardless of their due date,
- withhold all deliveries of orders that have not yet been fulfilled, and only complete them upon payment in advance. If the customer refuses to pay in advance, Meusburger can withdraw from the contract and also claim damages for lost profit.

12. If the customer is in default of acceptance, the fee for payment is due immediately.

13. Meusburger is entitled to credit payments against the oldest debt and the resulting interest and costs, even if they are otherwise earmarked.

14. Cheques and bills of exchange are only accepted on account of payment and with written agreement. The customer will bear the costs and expenses connected with cheques or bills of exchange.

V. WARRANTY, LIABILITY, AND LIMITATION OF LIABILITY

1. Upon acceptance, the customer shall immediately thoroughly inspect and examine the delivery. Any defects are to be notified in writing within a period of 14 days from receipt of the delivery, accompanied by relevant evidence (such as samples or photos). Otherwise any claims, including those arising from consequential damages, shall be excluded. Hidden defects must be reported to Meusburger within a period of 14 days after date of discovery in writing, together with the submission of relevant evidence (such as samples or photos). Otherwise any claims, including those from consequential damages, are excluded. Upon request by Meusburger, the customer shall facilitate, tolerate and support the inspection of the delivery by Meusburger and / or an assessor designated by Meusburger or a third party (e.g. Meusburger's insurer).

2. If a defect is reported within the designated time period and the problem is – when requested by Meusburger – inspected by an assessor and confirmed as a defect, Meusburger shall correct the situation as they see fit, either through correction or exchange of the item, return of the defect item against a credit note to the amount of the purchase price or a discount on the original price. The customer is not entitled to any other claims.

3. Defects to part of a delivery cannot give cause for complaints about the whole delivery.

4. Meusburger makes no guarantee that the delivery is suitable for the intended use.

5. The warranty period is 12 months and begins as soon as the delivery is offered to the customer at the place of fulfilment.

6. The customer is not entitled to withhold payment due to warranty or other claims of any kind.

7. Recourse claims in the sense of § 12 Product Liability Act are excluded unless the recourse claimant proves that the error has been caused in the sphere of Meusburger and is due to gross negligence.

8. The return of rejected deliveries is subject to the express prior consent of Meusburger and is at the expense and risk of the customer. The customer must also bear any other costs resulting from the return (e.g. storage). Should the return take place without prior consent, Meusburger is entitled to refuse acceptance of the returned delivery and to return them to the customer at the customer's expense.

9. For defects caused by incorrect storage, keeping, use or transport, Meusburger offers no guarantee. If such defects are claimed, the customer must prove the correct storage, keeping, use and transport.

10. Meusburger makes no guarantee for the information about products and product features in catalogues, promotional letters, brochures, advertisements, price lists, etc. Product features are only warranted if they are expressly designated as such in the contract. Verbal information as well as information in the Meusburger documents do not contain any assurances, in particular samples, dimensions, provisions contained in applicable standards, performance descriptions and other information about the quality of the delivery item, but serve the purpose of specification and are not warranted properties. Insofar as the materials to be used by Meusburger are specified in the contract, this only guarantees compliance with the specification and not the suitability of the materials for the contractual purpose. Meusburger is only obliged to issue notices if they are obviously unsuitable. The previous provisions shall not apply in the case of warranted characteristics or culpable breach of material contractual obligations. Such claims of the buyer as well as claims due to damage that did not occur to the delivery item itself are excluded in accordance with the provisions of this section to the extent permitted by law. If repairs or subsequent delivery are carried out within the scope of the warranty, this shall not trigger a new start of the warranty period.

11. In the case of delivery of software or of goods with digital elements or the provision of digital services, the following shall apply in addition:
- Meusburger shall guarantee that the software delivered complies with the specifications listed by Meusburger in the software documentation and has been created with due care and expertise when the contract was concluded. the delivery of third-party products such as hardware, operating system components, OPC servers, machine interfaces, etc. is subject to the licence, warranty and liability provisions on the part of the respective manufacturer.
- Meusburger recommends the customer provide a test environment adjusted to the relevance and size of the system. Prior to any installation or update, the software release must be tested by the customer on this test environment and approved for installation on the live system.
- Meusburger accepts no liability for any defects that can be traced back to overuse or non-observance of the installation requirements and/or conditions of use. Should such defects be reported, the customer must provide evidence of proper use and observance of the installation requirements and/or conditions of use. The warranty does not cover faults, malfunctions and the like that can be traced back to improper operation, modified operating systems and components, interfaces (in particular machine host computer and ERP interfaces), parameters and variations in installation requirements.
- The legal obligation to update goods with digital elements or digital services in the sense of § 7 Consumer Guarantee Act (VGG) only applies to Meusburger if this has been expressly agreed and also in this case only to the expressly agreed extent.
- Meusburger constantly strives for technical and organisational data security. Nevertheless, should data be lost or fall into the hands of unauthorised third parties, Meusburger shall assume no liability except in the event of wilful intent and gross negligence.

12. Minimal variations in quality, colour, width, weight, equipment and designs are unavoidable for technical reasons and do not represent a defect. This also applies for customary variations, unless the customer has requested and agreed with Meusburger when concluding the contract upon a delivery according to a sample.

13. Except for liabilities which fall within the scope of the Product Liability Act (PHG), the liability of Meusburger is limited to intention and gross negligence. Liability for minor negligence, compensation for consequential damage and monetary loss, lost savings, interest losses and third party claims against the customer due to damages are excluded.

14. Furthermore, Meusburger's liability is limited to the amount of double the delivery value of the goods for which a complaint has been justifiably made.

15. Meusburger guarantees that it is permitted to distribute deliveries within the European Union. The customer must clarify themselves whether goods may be sold outside of the EU.

16. The above liabilities do not apply to physical and health injuries to the customer which can be attributed to Meusburger.

VI. RIGHTS, OBLIGATION TO CO-OPERATE

1. Any and all copyrights including all ensuing and derivable further rights, specifically all rights of use, as well as any and all other industrial property rights to delivery items such as in particular software, drawings, drafts, descriptions, documentations, plans, concepts and similar documents remain the sole property of Meusburger. These may not be disclosed to third parties, reproduced (except for point 3), distributed, edited and the like by the customer without Meusburger's prior written consent.

2. In the case of the purchase of a licence, upon payment of the agreed fee the customer shall receive the non-transferable and non-exclusive right, without time limit, to use the software covered by the contract and, if available, the documentation material exclusively for its own internal company purposes for the intended purpose. Any transfer or disclosure to third parties is subject to Meusburger's prior written consent.

3. For online use, the customer may use the software online upon ongoing payment of the usage fee. Furthermore, the customer shall not acquire any rights to the software; specifically, the customer shall not be entitled to download or acquire a copy of the software stored on a data carrier.

4. In general, the customer shall collaborate in the performance of the order to the required extent. Insofar as Meusburger operates or must operate at the customer's premises, the customer must provide Meusburger's employees with free access to all premises, installations (hardware, software, networks, etc.) and any other work equipment required for the proper provision of services by Meusburger during normal operating hours.

5. The customer may copy the software insofar as such copying is necessary to use the software. Essential copies shall include the installation of the software from the original data carrier to the hardware's mass storage device and uploading the software to the main memory. The customer may also make a copy for backup purposes. Nevertheless, they are only entitled to make and keep a single backup copy. This backup copy of the software provided shall be marked as such.

6. The customer shall be obliged to make suitable arrangements to prevent third-party access to the software and the documentation. The original data carriers provided and the backup copy shall be kept in a place which is secured against unauthorised access by third parties. The customer's employees are to be expressly instructed to comply with these contractual terms and conditions and with copyright law. Should third parties gain access, Meusburger is to be informed immediately.

7. Should the regular backup of the entire data pool, including the computer programs used, be essential for reasons of data security or to ensure rapid reactivation of the computer system after a total failure, the customer may make the required number of backup copies as absolutely necessary. Meusburger is to be informed of this immediately. The relevant data carriers are then to be indicated accordingly. The backup copies are to be used strictly for archival purposes only.

8. Further copies, including sending the program code to a printer, may not be made by the user.

9. The conversion of any program code into another form of code (decompilation) and any other form of reverse engineering, including the modification of the software, are not permitted.

10. Under no circumstances may copyright notices, serial numbers or other identifying features of the software be removed or altered.

11. Meusburger is not obliged to provide the source code.

VII. RESERVATION OF PROPRIETARY RIGHTS

1. Until the fulfilment of all customer obligations, particularly until the complete payment of the purchase price, Meusburger maintains ownership of the contractual goods delivered (conditional goods). The customer must ensure the proper upkeep in accordance with the regulations (maintenance and repairs) as well as insurance of the conditional goods at their own expense during this time.

2. The customer must report immediately to Meusburger in writing about all actions by third parties affecting the goods, in particular about enforcement measures, possible damage or destruction of the conditional goods. The customer must immediately report to Meusburger any change of ownership of the conditional goods as well as their own change of address. The customer must compensate Meusburger for all damages, costs and disadvantages which arise from a violation of these obligations and from necessary intervening measures against access by third parties to the conditional goods.

3. The customer is entitled to resell the conditional goods under retention of title. This entitlement dissolves if the customer defaults on payment or has reason to think that they will not be able to make the full payment to Meusburger by the due date.

4. If conditional goods are resold by the customer, they hereby transfer all claims they are entitled to from the resale or other utilisation up to the purchase price claim of the customer to Meusburger. The customer is obliged to note this transferral in their accounts. Unless withdrawn, the customer is authorised to receive these transferred claims to be paid to Meusburger in their own name. The customer is obliged to reserve their ownership of the conditional goods if they are sold on credit.

5. The customer transfers their insurance or compensation claims for destruction of or damage to the conditional goods to Meusburger.

6. The conditional goods may not be pledged or used as collateral.

7. Adapting and processing of the goods by the customer occurs in the name of Meusburger. If the conditional goods are processed, Meusburger acquires a share in the new asset in proportion to the value of the goods supplied by Meusburger. This also applies when conditional goods are processed or mixed with other goods which have not been supplied by Meusburger.

VIII. TRANSFER OF RISK

1. The risk of accidental loss and accidental deterioration of the merchandise shall pass to the customer at the time of handover at the agreed place of fulfilment or, in the case of sale to destination, upon handover of the merchandise to the forwarding agent, the carrier or any other person or company appointed to handle the dispatch.

2. If the customer defaults in acceptance of the goods, the transfer is still deemed to have taken place.

IX. PLACE OF JURISDICTION, ARBITRATION CLAUSE, APPLICABLE LAW

1. If the customer is located in the EU or in an EFTA state, the exclusive place of jurisdiction for all disputes arising out of or in connection with this contractual agreement between Meusburger and the customer, especially for disputes in relation to these General Terms and Conditions of Sales and Delivery, is 6800 Feldkirch, Austria.

2. If the customer is located outside of the EU and outside the EFTA, all disputes arising out of or in connection with this contractual agreement between Meusburger and the customer, especially disputes in relation to these General Terms and Conditions of Sales and Delivery, shall be subject to the international arbitration court of the Austrian Chamber of Commerce in Vienna (Vienna Rules). The language used in the arbitration proceedings is German. The place of arbitration is Vienna. A party may, however, without prejudice to the jurisdiction of the arbitration court, apply to a national court to request preliminary or precautionary measures and a court may order such measures before or during the arbitration proceedings.

3. Meusburger is however entitled to take the customer before any other court responsible for the customer.

4. For all legal relations between the customer and Meusburger, including these Terms and Conditions of Sales and Delivery, Austrian substantive law applies. UN commercial law is not applicable.

X. DATA PROTECTION

With our data protection information at https://www.meusburger.com/EN/GB/current/data-protection-cookies we inform you in accordance with our information obligations under Articles 13 and 14 of the General Data Protection Regulation (DSGVO) why we collect data, in what form we process it and about the use of cookies.

XI. FINAL PROVISION

1. The customer is not entitled to offset any claims against Meusburger with claims for payment against themselves from Meusburger. The customer is not entitled to any rights to retention.

2. Meusburger is entitled to offset its own claims, even those not yet due, against those of the customer.

3. The customer is not entitled to transfer their claim to delivery of the goods to another.

4. The rescission of a contract due to error of the customer is excluded.

5. Legally relevant declarations of intent such as notices of termination, declarations of withdrawal, demands for a reduction in the purchase price or compensation for damages are only effective if they are made in writing (in text form).

6. Should any provisions of these General Terms and Conditions of Sales and Delivery be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. These invalid or unenforceable provisions shall be replaced by valid and enforceable provisions which are most likely to reach the intended economic purpose (severability clause).

7. If a contract is completed in German and in another language, the German text is decisive in the interpretation of the contract and of these terms and conditions.

Wolfurt, April 2023