terms and conditions

GENERAL TERMS AND CONDITIONS

of the company AEROPE GmbH, registration no. 575814 k

(published at www.aerope.at, www.aerope.de) (LAST UPDATE 11/24)

I. General information

1. The company AEROPE GmbH (hereinafter “AEROPE”) executes orders and deliveries for contractual partners (hereinafter “Buyer”) only in accordance with these General Terms and Conditions of Sale and Delivery, even if these were not specifically mentioned in (remote) verbal negotiations.
2. Any general terms and conditions of the Buyer to the contrary are hereby expressly rejected. Such terms and conditions of the Buyer shall in any case be legally invalid, irrespective of the time of their receipt by AEROPE, even if they remain uncontradicted. AEROPE’s fulfilment of the contract shall not be deemed to constitute consent to the Buyer’s terms and conditions. Deviations from these Terms and Conditions of Sale and Delivery of AEROPE require the express written confirmation of AEROPE in order to be valid. „Written” shall always be understood to mean: by means of a document signed by both parties or by letter, fax or e-mail.
3. By entering into or continuing the business relationship with AEROPE, the Buyer ackowledges these General Terms and Conditions of Sale and Delivery, which apply not only to a specific transaction, but also to subsequent transactions, unless expressly stated otherwise by AEROPE.

II. Conclusion of the contract

1. AEROPE’s offers are subject to change and non-binding.
2. By placing an order, the buyer makes a binding contractual offer. The contract shall only be deemed concluded upon receipt of a written order confirmation from us to the buyer. By concluding the contract, the buyer accepts these General Terms and Conditions. If our order confirmation deviates from the written or verbal, telephone or electronic order, this deviation shall also be deemed to have been approved by the Buyer if we do not receive a written response from the Buyer to the contrary within 7 days of sending the order confirmation. Objectively justified and reasonable changes to our performance and delivery obligations shall be deemed to have been approved by the Buyer in advance.
3. Cost estimates, drawings and other documents shall remain our property and shall remain our copyright, design or other intellectual property rights; they may neither be reproduced nor made accessible to third parties.
4. No guarantee is given for cost estimates. If cost estimates or quotations are submitted with fixed prices, these shall in any case be subject to the proviso that subsequent increases in list prices (material prices etc.) which cannot be influenced by us shall in any case unilaterally authorise AEROPE to make an adjustment. We shall also be entitled to increased remuneration if we are not responsible for the additional expenditure due to gross negligence or wilful intent and if the additional expenditure was caused by the Buyer’s change requests. If costs are incurred for the reimbursement of a cost estimate, these will be charged to the buyer.
5. Illustrations, drawings, dimensions, weights and technical data in catalogues and printed matter are non-binding, serve only to describe the delivery item and in particular do not constitute a guarantee of specific properties. Only those properties of the delivery item that are expressly designated as warranted properties in the order confirmation shall be deemed to be contractually warranted. We reserve the right to make technical and design changes even after conclusion of the contract without being obliged to incorporate such changes into products that were completed before the change. The advice provided by AEROPE to the best of its knowledge is non-binding and does not release the purchaser from the obligation to check the suitability of each individual delivery before processing.

III. Prices, terms of payment

1. All prices are in EURO and are – unless expressly agreed otherwise – exclusive of VAT and subject to change “ex works loaded”. If no specific price has been agreed, the prices valid on the day of delivery shall apply. Any currency risk shall be borne by the buyer.
2. Unless the terms of payment are already agreed upon conclusion of the contract, the terms of payment and payment dates stated in our invoices shall be binding.
3. The obligation to pay arises irrespective of receipt of the goods and without prejudice to the right to give notice of defects. The buyer must issue the transfer order in good time so that the amount owed is credited to the account specified by us by the due date. Unless otherwise agreed in the order confirmation, the invoice amounts are due net within 14 days. The invoice date shall be deemed the reference date for calculating the payment term. Payment of the purchase price shall be deemed to have been made on time if the amount has been credited to the specified account and is available. AEROPE shall not be obliged to accept other means of payment – in particular bills of exchange or cheques; in exceptional cases, express acceptance shall only be on account of payment, whereby discount and collection charges shall be borne by the buyer. Dedications of payment by the party making the payment are ineffective and not binding for us. If no agreement is reached on a different dedication, any amounts received shall first be credited against the court costs and any costs incurred for an appropriately necessary out-of-court collection, then against interest and finally against the capital. Any credit notes for bills of exchange and cheques expressly accepted by us shall be made subject to receipt with the value date of the day on which we can dispose of the equivalent value.
4. Offsetting against claims of the purchaser and the exercise of rights to refuse performance and repayment is excluded unless the claim has been recognised by us in writing or has been legally established.
5. If the fulfilment of our payment claim is jeopardised due to a deterioration in the financial circumstances of the buyer that has occurred or become known after the conclusion of the contract, we shall be entitled, irrespective of the term of any bills of exchange accepted and credited, to demand advance payment and immediate payment of all outstanding invoices, including those not yet due, to withhold goods not yet delivered and to cease further work on orders still in progress. We shall also be entitled to these rights if the buyer fails to make payment despite a reminder. If insolvency proceedings are opened against the assets of our contractual partner, we shall be entitled to withdraw from the contract without setting a grace period. We may also prohibit the resale of goods delivered by us and demand their return or the transfer of indirect ownership of the delivered goods at the buyer’s expense. In the aforementioned cases, the buyer hereby agrees to our taking back the delivered goods. Any further claims for damages against the buyer remain unaffected.
6. In the event of non-payment by the due date, the buyer shall be in default of payment even without a reminder. From the due date, the buyer shall be charged interest at a rate of 9.2% percentage points above the base interest rate.
7. It is agreed that the buyer shall reimburse all collection costs necessary for appropriate legal action, in particular reminder and collection charges.

IV. Retention of title

1. The delivered goods shall remain the property of AEROPE until full payment of all liabilities arising from the business relationship (including interest, costs and claims for damages), including those arising in the future. The Buyer shall be obliged to treat the goods with care and due diligence for the duration of the retention of title.
2. The buyer must inform us immediately of any seizure or other impairment by third parties.

V. Delivery

1. All goods are sold “ex works”, without loading and without packaging, unless otherwise agreed in writing in individual cases. Delivery shall be deemed to have been fulfilled by us when the delivery item has been handed over to the carrier or forwarding agent. All deliveries are made at the buyer’s risk of use and price, even in the case of carriage paid delivery. All risks, in particular the risk of accidental loss, are transferred to the buyer upon conclusion of the purchase. Partial deliveries are permitted.
2. AEROPE reserves the right to determine the mode of despatch and the carrier if delivery “free domicile” is agreed. The purchaser shall bear the costs of any other mode of transport requested by him. Prices quoted carriage paid shall apply on condition that the transport route to be freely chosen by us is actually available to us unhindered during the entire transport and that our goods are unloaded by the Buyer without delay; any additional costs incurred if these conditions are not met shall also be borne by the Buyer, as shall incorrect freight charges.
3. The buyer shall be liable, regardless of fault, for the safe condition of the delivery and removal route to the unloading point and shall indemnify and hold AEROPE harmless in this respect.
4. AEROPE is not obliged to take back any packaging. The buyer shall be responsible for the proper disposal of any packaging material used by us free of charge.
5. All ancillary fees, public charges, freight charges and other costs which directly or indirectly increase the price of our goods or a delivery contractually accepted by us shall be borne by the Buyer and the Buyer shall indemnify and hold us harmless in this respect.
6. Specified delivery periods are generally subject to change. If, in deviation from this, a fixed delivery period is expressly agreed, the purchaser shall only be entitled to withdraw from the contract after setting a reasonable grace period of at least six weeks if we are responsible for the delay. The cancellation must be made in writing. In this case, the buyer is entitled to repayment of his down payment without interest. In any case, however, claims for damages shall only be due if wilful intent or gross negligence on our part can be proven. Insofar as deliveries are to be made on the basis of the purchaser’s plans, fixed delivery dates presuppose that all plans have been received by us in good time, in full and with the correct content. In the case of production based on data provided by the buyer or a subcontractor commissioned by the buyer, we do not assume any functional guarantee for the system or any system parts. We are also not obliged to check the data provided to us for production.

VI. Force Majeure

1. Unforeseen obstacles that are beyond our control, e.g. operational disruptions, delays in the delivery of essential raw and auxiliary materials, failure of an essential upstream supplier that is difficult to replace, late or incomplete delivery by our contractual partners, energy shortages, fire, forces of nature such as earthquakes, lightning, frost, storms, floods or similar disasters, pandemics, epidemics or similar events, force majeure, which shall also include work stoppages or lockouts, in particular labour disputes or strikes, as well as other reasons beyond our control, shall entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period or, if the contract has not yet been fulfilled, to withdraw from the contract in whole or in part, without the Buyer being entitled to any claims for compensation based on non-compliance with delivery deadlines of any kind whatsoever.
2. In the event of delivery failures and delays due to supply chain problems and in the event of partial or complete loss of our sources of supply as a result of one or more of the events listed in this clause, we shall not be obliged to obtain supplies from other suppliers or to guarantee subsequent delivery. In this case, we are also entitled to distribute reduced quantities to the buyer or to provide partial services.
3. If we refrain from cancelling the contract, in addition to extending the performance period in accordance with ÖNORM B2110 in the event of damage to or destruction of materials or components due to an unavoidable event, we shall be entitled to the agreed remuneration for the services rendered to date and to remuneration for the services required for any restoration if we have taken all necessary and reasonable measures to avert the consequences of such events.

VII. Dispatch and transfer of risk

1. Shipping is at the expense and risk of the buyer. The buyer’s conditions regarding the mode and route of despatch are not binding for us.
2. The risk of use and price, including the risk of confiscation, shall pass to the buyer when the goods are handed over to the forwarding agent or carrier, but at the latest when they leave our works. We are entitled, but not obliged, to insure all goods against transport damage at the expense of the recipient. Transport damage claims must be settled by the buyer.
3. The buyer determines the type of packaging. If no information is available at the time of despatch, we will deliver unpacked.
4. If the ordered goods are not accepted after notification of readiness for dispatch, the delivery shall be deemed to have been made and we shall be entitled to demand payment. If acceptance is delayed by more than 30 days, we shall be entitled to store the goods at our discretion at the buyer’s expense and risk. The risk of use and price shall pass to the buyer on the day of notification of readiness for dispatch.
5. AEROPE is authorised to make partial deliveries. Each partial delivery shall be deemed an independent transaction.
6. The unloading of the goods is the responsibility of the buyer and is at his expense.

VIII. Assembly

1. Assembly at the place of use of the goods supplied by us shall only take place if this has been agreed in writing. The prices stated in the order confirmation, including any wage and price increases, shall apply. If the assembly time is delayed due to circumstances for which we are not at least grossly negligent, we shall be entitled to charge the buyer for all costs incurred by us as a result (including downtime). The time contractually available to us for assembly or delivery shall be extended by the duration of the delay plus a reasonable start-up time, without the Buyer being entitled to any claims for compensation of any kind whatsoever.
2. AEROPE does not assume any functional guarantee for the system or any system parts in the case of assembly of finished products that have been manufactured by us on the basis of data provided by the buyer or a subcontractor commissioned by the buyer. AEROPE shall not be obliged to test the function unless this has been expressly agreed.
3. In the event of any assembly work abroad, the Buyer shall be obliged to obtain all necessary public-law authorisations, in particular work permits, at its own expense and to ensure that all other requirements for proper assembly are met.
4. In the case of assembly of items or equipment not manufactured by us, no claims or rights shall exist against us for defects in these items or damage caused by these items. We shall only be liable for improper assembly if gross negligence or intent on the part of the buyer is proven. The Buyer shall, at its own expense and risk, make all preparations and take all measures necessary for the proper start of the assembly work, its trouble-free execution and proper completion, both in good time before the agreed start of the assembly work and during its execution with regard to personnel and materials. In particular, the Buyer guarantees that all information relevant to the installation (e.g. local conditions, connection options, material properties, etc.) will be made available to us in good time prior to the installation. We are not obliged to obtain information about the local conditions, connection options, material properties or other circumstances relevant to the installation prior to installation. If we are required to provide materials for the installation, these will be invoiced separately.
5. If the work is ready for acceptance, we shall inform the buyer of a date for the acceptance test. We may be represented at this inspection. All costs incurred during the acceptance test or commissioning (personnel costs, equipment, material costs, aids) shall be borne by the buyer. If the buyer fails to meet this deadline, the inspection and thus acceptance shall be deemed to have been successfully completed on this date.

IX. Warranty and compensation

1. The delivered goods must be carefully inspected immediately upon handover and any detectable defects must be noted in detail on the delivery note or consignment note to the exclusion of any other claims. If an immediate inspection is not possible upon acceptance, this circumstance must be noted on the delivery note or consignment note, otherwise all claims are excluded, and a detailed written complaint must be made about any defect that can be detected during subsequent inspection within a period of three days from handover that is recognised as reasonable by the buyer. In order to preserve the customer’s rights, a notice of defects to be noted on the delivery note or consignment note must be sent to us within 8 days of receipt of the goods. A period of 6 months from the transfer of risk shall be available for the judicial assertion of claims by the purchaser; in the event of default, all such claims shall be excluded. If a warranty case arises in the relationship between the buyer and its customers, recourse against us is excluded in accordance with § 933b ABGB.
2. If the delivered goods are defective or if defects become apparent within the warranty period of 6 months, the buyer shall only be entitled to free repair or replacement within a reasonable period of time. Whether the defect is remedied by improvement or replacement is at our discretion. There shall be no other or further claim, in particular to a reduction in payment, on whatever legal basis, unless this has been agreed separately with us in writing.
3. Unauthorised improvements or improper handling of the goods by the buyer shall result in the loss of all warranty claims.
4. Contrary to § 924 ABGB, the buyer bears the full burden of proof for all factual and legal prerequisites of a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
5. As long as the buyer has not fulfilled his contractual payment obligation, we are entitled to refuse to fulfil a warranty obligation. Our warranty obligation shall lapse if the buyer carries out modifications or repairs to the goods without our consent.
6. The buyer is obliged to observe the applicable product information and assembly instructions as well as all application instructions provided to him and to obtain our opinion in case of doubt. Under no circumstances shall we be liable for defects or damage resulting from non-compliance with these instructions or failure to obtain our opinion.
7. The Buyer shall not be entitled to withhold payments on the basis of alleged claims under warranty, damages, product liability or other legal grounds. The due date of the invoiced claims shall not be affected by the assertion of such rights.
8. With the exception of personal injury, we shall only be obliged to pay compensation in all relevant cases if we, our representatives or vicarious agents are proven to have acted with intent or gross negligence. Claims for damages are limited to 5% of the respective order amount. Claims for compensation shall in any case lapse 12 months after the delivery or service has been provided. Compensation for consequential damage or financial loss, loss of interest and damage arising from third-party claims is excluded in all cases, insofar as this is legally permissible.

X. Product liability, contract in favour of third parties

1. Any recourse claims against us under the title of product liability are excluded. The buyer shall indemnify and hold us harmless against all resulting disadvantages. Protective effects from this contract in favour of third parties are excluded. If a claim is made against a foreign customer as an importer as a result of the defectiveness of a product supplied by us, Austrian domestic law shall also apply to any recourse claim. If, in such a case, the extent of our liability under the foreign legal system in question is less than under the provisions of Austrian domestic law, the amount of the recourse claim shall be assessed in accordance with the legal system that is more favourable to us from this point of view. The buyer undertakes not to sell, transfer or otherwise pass on goods which have been manufactured exclusively for business use to consumers or persons who are not entrepreneurs, for whatever legal reason, and undertakes to agree the same conditions and disclaimers with any further transferee of the goods and in particular to hand over all operating instructions and instructions for use to the latter.

XI. Secrecy

1. All information disclosed by us and/or our agents shall be deemed confidential unless it is labelled as non-confidential at the time of disclosure or is obviously non-confidential in nature. All rights to the confidential information shall remain our property.
2. Confidential information which is made available to the Buyer or of which the Buyer becomes aware otherwise may not be passed on to third parties and may only be used for the agreed purpose. This applies in particular to drawings, samples, models, technical, organisational, production-related or commercial information (e.g. cost estimates), and in particular with regard to our competitors.
3. Nothing in these Conditions of Sale or in any contract entered into with the Buyer shall be construed as conferring or transferring to the Buyer any rights to confidential information and intellectual property of ours by virtue of the transfer of title to the Goods. Upon termination of the business relationship, the Buyer is obliged to return any confidential information received immediately. As long as confidential information is held by the Buyer, the duty of confidentiality shall remain binding on the Buyer.

XII. Data protection and compliance

1. AEROPE processes personal data in accordance with the statutory provisions. Further information on the processing of personal data and our data protection declaration can be found on our homepage (www.aerope.at) under “Data protection”. The buyer acknowledges and accepts this privacy policy in its current version.
2. The Buyer undertakes to comply at all times during our contractual relationship with all applicable laws and regulations, including applicable antitrust, competition and anti-corruption laws. Neither the Buyer nor any persons acting on its behalf, in particular officers, employees or agents, shall make or offer any unauthorised payments or gifts in direct or indirect form to any third party, including its employees, officers or officials, representatives of any governmental body or authority or any political party or its candidates. In the event of non-compliance, we reserve the right to terminate contracts subject to these GTC at any time and with immediate effect by written notice to the Buyer and the Buyer shall not be entitled to assert any statutory and/or contractual claims, such as claims for damages and/or compensation.

XIII. Place of jurisdiction, applicable law, place of fulfilment

1. The place of fulfilment for the delivery of the goods and for the payment of the purchase price is the registered office of AEROPE, i.e. 2000 Stockerau, Austria.
2. Unless AEROPE and the Buyer have validly agreed on the exclusive jurisdiction of an arbitral tribunal, disputes shall be settled exclusively by the court having subject-matter and local jurisdiction for AEROPE Austria. However, AEROPE shall also be entitled to assert its claims at its discretion before the court having subject-matter and local jurisdiction for the Buyer or wherever the Buyer has a place of business or assets.
3. The legal relationship between AEROPE and the Buyer shall be governed by substantive Austrian law, but excluding the UN Convention on Contracts for the International Sale of Goods and excluding national and international conflict of laws rules.

XIV. Miscellaneous, severability clause

1. Amendments and supplements to the purchase contract, these General Terms and Conditions of Sale and Delivery and this written form clause can only become effective with the express agreement of AEROPE and must be made in writing to be effective.
2. Should individual provisions of these General Terms and Conditions of Sale and Delivery be or become invalid or unlawful, this shall not affect the validity of the remaining provisions. Invalid or illegal provisions shall be replaced in individual cases by provisions that come closest to the invalid provision in economic terms and are valid.