GENERAL TERMS AND CONDITIONS OF ROSENSTEINER GMBH

(Dated 10.2021)

Scope:

These General Terms and Conditions apply between Rosensteiner GmbH (referred to as “Rosensteiner” in the following) and natural and legal persons (referred to as the “Customer” in the following) for the transaction at hand and for all future transactions, also individually, and especially future supplementary and subsequent orders which are not explicitly referred to.

If not otherwise explicitly agreed to the contrary, the current version of our GT&Cs shall apply, which may be viewed on our homepage at (www.rosensteiner.at).

We explicitly refuse in accordance with our GT&Cs.

The Customer’s terms shall also not be recognised, even if we do not explicitly refuse them upon receipt.

Contract completion negotiations on our behalf shall therefore not qualify as approval of any contractual conditions deviating from our own. If items remain unclear when interpreting the contract, then these shall be clarified in a manner such that the contents qualify as accepted as they would normally be agreed to in a comparable form.

Offers, contract completion:

Our offers are valid for maximum 30 days.

Information about prices, services, products, and delivery times that are listed in catalogues, price sheets, price lists, brochures, company information material, flyers, prospects, displays in media, at fairs, websites, and other media are non-binding. Errors reserved.

Cost recommendations are non-binding and not guaranteed to be complete or correct.

Confirmations, assurances, and guarantees on our behalf or agreements that deviate from our GT&Cs in connection with contract completion shall only become binding for commercial customers following our written confirmation.

Upon sending written order confirmation, the contract shall become binding without reservation. In case of order cancellation by the customer, Rosensteiner shall be entitled to offset a 25% cancellation fee from the purchase price. Damage claims that go beyond this remain reserved.

Prices, payments:

Price information cannot be assumed to be flat-rate prices.

In case of services ordered by customers that are not covered in the original offer, appropriate remuneration may be claimed.

All of the prices indicated by us, provided not otherwise explicitly specified, do not include sales tax and are ex warehouse (EXW). Packaging, transport, loading, and shipping costs, as well as customs and insurance shall be borne by the customer. In case of offsetting, the legal sales tax will be added to these prices.

The payment conditions are essentially 8 days net from invoice receipt, unless something different has been agreed to exclusively in writing with the customer. A discount deduction shall only be recognised within the scope and on the basis of a corresponding agreement.

We shall be exclusively entitled to submit partial invoices, provided the service is completed parts.

Neither guarantee claims, supplementary equipment or replacement parts, or counter-claims of whatever type shall entitle the customers to withhold payments.

If other payment conditions between the customer and Rosenteiner have been agreed to and these are not honoured, Rosensteiner is granted the right to demand the complete open purchase price.

In case the payment deadline is missed, guarantees shall forfeit (rebates, discounts, etc.) and shall be added to the invoice.

In case of arrears, the customer shall be invoiced the legal interest on arrears.

All costs and expenses resulting from payment delays (reminders, storage costs, debt collection, judicial and extra-judicial costs, legal fees, etc.) for the Rosensteiner company must be refunded to the company by the customer.

Independent of culpability, the contractual partner shall be obligated In case of payment delays and according to Section 458 UGB to pay a flat-rate fee of EUR 40.00 as compensation for collection costs resulting to us. In case a collection agency is employed, the contractual partner shall furthermore be obligated to replace any resulting costs, provided they do not exceed the maximum remuneration rates permitted to the collection agency according to the regulations of the BMWA.

If the wage costs change due to collective agreement regulations in the industry or on the basis of internal company decisions or other costs required for providing the services (e.g. for materials, energy, transport, third-party services, financing, etc.), then we shall be entitled to adjust our prices accordingly.

Our customer therefore consents that invoices to them may also be created and transferred electronically.

Service provision:

The basis of service provision shall be specified by the available technical documents from Rosensteiner. Sketches, designs, illustrations for special designs shall be sent to the customer by Rosensteiner for confirmation prior to order fulfilment.

We shall only be obligated to consider subsequent change and supplement requests of the customer if they are required for technical reasons to achieve the contractual objective.

Reasonable material and justified negligible changes to our provision of service on behalf of commercial customers qualify as already approved.

If an amendment or addition to the order results for any reason after the contract has been awarded, the delivery/service period shall extend by an appropriate period.

If the customer desires service provision after contract completion within a shorter period, this shall represent a change to the contract. This could make overtime hours necessary and/or incur additional costs to accelerate material procurement, and this may increase the remuneration in relation to the necessary material costs.

Delivery and service deadlines:

All information regarding delivery and service deadlines are non-binding. The customer shall not receive any claim to damage compensation in case delivery times are exceeded or in case of failed deliveries. If an amendment or addition to the order results for any reason after the contract has been awarded, the delivery and service period shall extend by an appropriate period.

In case of force majeure (including pandemics/epidemics), strikes, unforeseeable and delays on behalf of our suppliers that we are not responsible for or other comparable events that are outside of our sphere of influence, deadlines and periods shall be offset by that period for which the corresponding event persists. The customer’s right to withdraw from the contract in case of delays that make honouring the contract unreasonable shall remain unaffected by this.

Partial deliveries and services are permitted and may be invoiced separately.

If pick-up of the device is organised by the customer, then it may be necessary due to space requirements to collect the device within 5 working days after notification of pick-up. The devices shall be invoiced 1 week after notification of readiness for delivery, and we reserve the right to deliver the devices from this point on according to the specified freight rates, without additional questions.

In case of delays with contract completion caused by us, the customer shall be entitled to with from the contract after setting a suitable grace period. A grace period must be set in writing (by registered letter in case of commercial customers) simultaneous to threatening withdrawal.

Risk transfer:

Section 7B KSCHG applies for risk transfer upon delivery of the goods to a consumer.

The risk shall transfer to commercial customers as soon as the purchase object, the material, or the plant are available for pick-up at the plant or warehouse, is itself delivered, or transferred to a courier.

The delivery costs and the risk of transport are borne by our contractual partner.

The commercial customer shall insure himself sufficiently against this risk. We shall be obligated to complete transport insurance upon written request by the customer and at his cost. The customer shall approve every conventional shipping method.

Acceptance delay:

If the customer delays acceptance more than 14 days (refusal to accept, delayed preliminary services, or other), and if the customer has not ensured correction of circumstances attributable to him in spite of a sufficient grace period, which thereby delay or prevent service provision, we may otherwise dispose of the devices, parts, and materials specified for service provision by the upstanding contract, provided we purchase these again within a suitable period according to the respective circumstances in case service provision is continued.

In case of delayed acceptance by the customer, we shall also be entitled to store the goods at our premises if service provision is insisted upon, whereby we shall be entitled to a warehouse fee of 50 euros.

This shall not affect our right to invoice for provided services and to withdraw from the contract after a suitable grace period.

In case of justified withdrawal from the contract, we may demand flat-rate damage compensation amounting to 25% of the order value plus VAT from the customer without proof of the actual damage. The obligation to pay damage compensation by a commercial customer is independent of culpability.

Enforcement of higher damage claim is permitted. This right only exists vis-a-vis consumers if this is negotiated individually.

Retention of title:

The goods shipped, delivered, assembled, or otherwise transferred by us shall remain the property of Rosensteiner until complete payment of the purchase price and all connected costs and expenses.

In case of our approval, the purchase price claim qualifies as already assigned to us and we are authorised at any time to inform the third-party debtor regarding this assignment.

In case of numerous claims on our behalf, payments by the debtor shall primarily be assigned to our claims, which are (no longer) secured by reservation of title or other securities.

If payment by the customer is delayed, we may demand return of the reserved goods after setting a suitable grace period. We may only exercise this right vis-a-vis consumers as customers if at least one outstanding payment by the consumer is overdue since at least six weeks and we have reminded about this by threatening legal consequences and set a grace period of at least two weeks without any success.

The customer declares his explicit consent that we may enter the location of the reserved goods to enforce our reserved title.

The transport and storage costs connected with returning the goods, as well as the affected risk shall be borne by the customer.

The customer must inform us immediately regarding his assets prior to initiating bankruptcy or pledging our reserved goods.

Enforcement of the reservation of title only permits withdrawal from the contract, if this is declared explicitly in writing.

The recovered reserved goods may be utilised by us vis-a-vis commercial customers freely as best as possible.

Third-party property rights:

If the customer provides intellectual creations or documents and these creations, third-party property rights are enforced, then we shall be entitled to cease production of the delivery object at the risk of the employer until clarification of third-party rights and to claim compensation of necessary and appropriate costs incurred by us, unless the unjustified character of the claims is apparent.

The customer shall release us in this regard from damages and liability.

We are entitled to demand cost advances from commercial customers for any possible legal costs.

In case of delivery objects that are produced according to customer documents (construction information, drawings, models, or other specifications, etc), only the customer shall accept the guarantee that completion of the delivery objects does not injure third-party property rights.

If third-party rights are nevertheless enforced, then we shall be entitled to ceases production of the delivery objects at the employer’s risk until clarification of third-party rights, unless the unjustified character of the claims is apparent.

We may also claim compensation for necessary and useful costs incurred by us from the customer.

Our intellectual property:

Plans, sketches, cost estimates, and other documents that are provided by us or that result from our contribution shall remain our intellectual property.

The use of these documents outside of intended use, especially further transfer, reproduction, publication, and provision, also including copying extracts shall require our explicit approval.

The customer shall also be obligated to confidentiality regarding knowledge acquired by him from the business relationship vis-a-vis third parties.

If objects were provided by us to the customer within the scope of contract on-boarding, completion, and processing that were not due within the scope of service provision (e.g. borrowed objects, presentation devices, as well as colour samples, fixtures, lighting, etc), they must be returned to us within 14 days. If the customer does not honour a corresponding demand in time, we may demand flat-rate damage compensation amounting to 25% of the value of the objects provided without actual proof of the damage from the customer. The obligation to pay damage compensation is independent of culpability in case of a commercial customer.

Warranty:

The warranty encompasses the function and quality of the devices. No warranty is provided for traces of wear.

The legal warranty for our devices is 2 years and shall begin with the day of transfer.

In case of wear parts like foot straps, belly straps, ropes, wearing rails, rubber mats, etc., no warranty claims shall be permitted on the basis of traces of wear.

All warranty claims that are received within the warranty period by the dealer or at the plant, Zehetner 26a, A-4596 Steinbach an der Steyr, Austria, shall be accepted. If material or processing defects become apparent within the warranty period, then the warranty claims must be enforced immediately with the dealer or the manufacturer.

The requirement for all warranty and other claims is proper transfer of the device from the merchant to the end consumer. The merchant must make himself and the end consumer familiar with the relevant safety regulations and the affected operating manual. The dealer must prove this via the “Declaration of Acceptance” (https://rosensteiner.at/fileadmin/Resources/Public/UEbergabeerklaerung_Onlineformular.pdf) to Rosensteiner within 4 weeks after successful transfer.

The defective device or defective part must be shown to the merchant. Subsequent repairs or replacement may only take place following confirmation with Rosensteiner. Expenses without explicit approval shall not be accepted by the manufacturer. Defective parts must be kept by the dealer or sent to Rosensteiner, depending on the agreement: The device must be brought to the dealer carriage paid by the customer.

Any possible use or processing of the defective object that threatens further damage or make correction of the cause difficult must be ceased immediately by the customer, insofar as this is reasonable.

Warranty claims cannot be permitted if the device is damaged or destroyed due to incorrect handling, overloading, or the influence of force majeure. Attention: Warranty claims shall also be omitted in case of damage that results due to incorrect handling, overloading, attachment to carrier vehicles that are too large, or lacking maintenance and care!

Warranty claims shall only be permitted if the device is provided with the purchase contract, invoice, or delivery slip, and the device number.

The warranty shall be performed such that the device is repaired or replaced with a functioning, equivalent version.

Further claims, especially for damage or loss, no matter of which type, which result from use of the devices, are excluded.

If a replacement is made by us according to this device, then warranty claims against the dealer as the seller are ruled out.

If the contractual objects are manufactured on the basis of information, drawings, plans, models, or other specifications of the customer, then we shall only permit a warranty for development according to the conditions.

No defect shall justify the condition that the device is not completely suitable for the agreed use, if this is only based on deviating actual circumstances from the information provided to us at the time of service provision, because the customer has not honoured their obligations to cooperate.

The warranty is ruled out if the technical equipment of the customer, e.g. supply lines, cables, etc. are not in a technically problem-free and operable condition or are not compatible with the delivered objects, provided this condition is the cause of the defect.

The costs for return transport of the defective item to us shall be borne completely by the customer.

Liability:

Due to violation of contractual or pre-contractual obligations, especially due to impossibility, delays, etc. we shall only be liable for financial losses in case of intent or gross negligence.

Vis-a-vis commercial customers, liability shall be limited to the maximum liable amount of any possible liability insurance completed by us.

These limits shall also apply with regard to damage to an item that we have accepted for processing.

Furthermore, the limits indicated above shall also apply to damage that result due to test operation.

Damage compensation claims in case of slight negligence are excluded; this shall not apply to personal damages. Compensation claims shall expire within 6 months of discovery of damage and the injuring party, but 3 years after provision of the service or delivery in any case

Our liability is excluded for damages due to incorrect handling or storage, overloading, ignoring operating and Installation regulations, incorrect assembly, commissioning, maintenance, upkeep by the commercial customer and consumer or third parties not authorised by us, or natural wear provided this event was the cause of the damage. The liability exclusion also applies to failure to perform the necessary maintenance, provided we have not contractually accepted the obligation for maintenance.

The liability exclusion also includes claims against our employees, representatives, and auxiliary agents due to damages that occur to the customer without reference to a contract on their behalf with the customer.

The liability exclusion also includes claims in case of device failure, the connected loss of income, and any injuries to animals that are not causally connected with device.

If and provided the customer is able to make insurance claims for damages that we are liable for via indemnity insurance of their own or to their benefit (e.g. liability insurance, comprehensive, transport, fire, disrupted operations, and others), the customer shall be obligated to make an insurance claim and shall limit our liability insofar to the disadvantages that result to the customer due to claiming this insurance (e.g. higher insurance premium).

Those product characteristics with regard to the approval regulations, operating manuals, and other product-related manuals and instructions (especially inspection and maintenance, as well), third-party manufacturers or importers are owed by us that can be expected by the customer in consideration of their knowledge and experience. The customer as seller must complete sufficient insurance for product liability claims and release us from damages and liability with regard to recourse claims.

Any possible recourse claims that are claimed against us from the “product liability” title within the context of PHG are ruled out, unless the recourse claimant is able to prove that defect was caused by our influence and was at least due to gross negligence.

Severability clause:

If individual parts of these GT&Cs are invalid, this shall not affect the validity of the remaining parts.

We obligate the commercial customer and ourselves mutually and as of now, assuming that both parties are bargaining in good faith, to find a replacement provision that matches the economic result of the invalid condition as closely as possible.

General:

Austrian law shall apply.

The UN Convention on Contracts is excluded

The place of fulfilment shall be the location of Rosensteiner GmbH, Zehetner 26a, A-4596 Steinbach an der Steyr, Austria

The jurisdiction for all disputes resulting from the contractual relationship or future relationships between us and the commercial customer shall be the local court responsible at our location. The jurisdiction for consumers, provided they are not domiciled within the country, shall be the court where the consumer has their regular domicile or the place of their employment.

Changes to their name, the company, their address, or their legal form or other relevant information must be indicated to us immediately in writing by the customer.