1. Validity of the Conditions

Offers, orders, shipments and services are carried out exclusively on the basis of the following conditions. Hence they are also valid for all future business connections with the customer, even if they are not agreed upon once more. Divergent, additional or conflicting conditions of the customer will not become subject matters of contract, even though DEWETRON does not expressly excludes them. Variations of these terms must be in writing to be valid.

2. Offers

1. All of DEWETRONS offers are subject to change and noncommittal. A contract is not concluded until a written declaration acceptance by DEWETRON has been received or – partially - a customer order has been made. Field staff and sales representatives are not authorized to accept a binding customer order.
2. All specifications such as dimension, weight, quality, construction and material are best possible determined but only approximated and not binding for DEWETRON. This applies also to specifications made by pre-suppliers.

3. Condition of Goods

1. Goods are delivered in commercial quality and design in consideration of commercial production tolerance concerning dimension, weight and quality. DEWETRON subjects to technical and optical alterations of the goods, which conduce to their improvement and do not affect their functionality.
2. Characteristics of goods, which are stated in publications of DEWETRON or its sales representatives, especially in advertisements, drawings, brochures or other documents or on packaging and labeling on the goods, or which are part of the custom of the trade, can only be seen as part of the contractual properties of the goods if they are stated explicitly in an offer or confirmation of order.
3. Warranties, in particular warranted properties, are only binding for DEWETRON if
   1. they are stated in an offer or confirmation of order,
   2. they are explicitly stated as “Warranty” or “Warranted Properties” and
   3. they explicitly state the obligations resulting for DEWETRON because of this warranty.

4. Prices and Conditions of Payment

1. Prices ex stock and ex factory include the value added tax which is valid at the day of delivery but exclude packaging, cargo and other additional costs. Prices are only valid if the confirmed amount is purchased.
2. If the prices of pre-suppliers, cargo, taxes, salaries or miscellaneous costs which affect the price of delivery, should change in the period between the confirmation of order and the delivery of the goods, DEWETRON is authorized to adjust its prices accordingly. The prices which are valid on the day of delivery will then be calculated and will be substantiatetd to the customer if requested.
3. Invoices are due immediately and have to be paid in full at the latest within 30 days after the invoice date, unless otherwise agreed with the customer.
4. Also in other agreements concerning payment the customer is firstly charged for the oldest debt, as a start for possible costs, then for interests and then for the primary debt.
5. If the customer does not follow his payment obligation as agreed upon or other circumstances emerge, which challenge the customers credit-worthiness and thus seem to jeopardize DEWETRONS payment requests, DEWETRON is authorized to perform further deliveries only against prepayment and perform further service provisions only by way of security and/or to stop performing these until all due payment requests are fully paid respectively.
6. The Customer is only authorized to offset payments against counterclaims and to exercise retention of goods against counterclaims, if these requirements are approved or are established as final and absolute. The exercise of retention of goods requires furthermore, that the counterclaims are based on the same legal position.

5. Delivery Time and Time of Performance

1. Dates of delivery then binding if DEWETRON explicitly characterized them in writing as fixed dates and all needed documents for the performance of the order are handed in by the customer. All dates of delivery, including the fixed dates, are subject to correct and punctual supply to ourselves. For the keeping of the dates of delivery is the point in time decisive where the risk as per point 6 is vested in the customer.
2. Delay in delivery and performance due to force majeure or other unpredictable incidences which are not connected to DEWETRON, which considerably complicate or make a delivery impossible, authorize DEWETRON to defer the delivery or performance for the duration of the obstruction plus an adequate acceleration time. Such obstruction can be problems with material procurement, strike, legal lockout, business disruption, official orders etc. and can also occur at suppliers or sub-suppliers. The mentioned circumstances are not to be represented by DEWETRON if they occur during an already existing delay. DEWETRON will communicate the circumstances of the obstruction and the estimated duration of the obstruction to the customer.
3. If an obstruction as per point 5.2 last for three months or longer, DEWETRON is authorized to withdraw from a contract concerning the not executed portions of the contract.
4. Delay on the part of DEWETRON occurs, except for fixed dates, not until the customer has, after the expiration of the noncommittal date of delivery, set a respite of at least a month in writing and let it elapse unused.
5. If DEWETRON is in default its liability for damages in the case of slight negligence is confined to an amount of 0.5% for every completed week of the delay, but altogether to a maximum of 10% of the invoice value of the concerned delivery. Any further requirements exist only in the case of intention or gross negligence as per point 10. If the obstruction lasts longer than three months, the customer is after adequate respite entitled to withdraw from a contract concerning the not executed portions of the contract.
6. Partial delivery and performance is permitted if reasonable for the customer.
7. Deviation of the order size is allowed to an extent of plus/minus 10% is allowed whereas in this case the actual delivered amount is being charged.

6. Passing of the Risk and Acceptance of the Goods

1. Every delivery, even the one free of carriage charges, takes place at the customers own risk. The risk is passed on as soon as the shipment has been handed to the person who handles the shipment. If an employee of DEWETRON handles the shipment the risk is passed on when the shipment has left the warehouse. This is also valid if the goods are delivered to the customer directly by a third manufacturer on behalf of DEWETRON. If the shipment is delayed or impossible because of circumstances which are not connected to DEWETRON, the risk passes on to the customer with the notification of readiness for shipment.
2. An insurance against damages and loss in transit is only contracted on customer request and has to be paid for by the customer.
3. Claims regarding damages in transit and missing items should be made in writing immediately after receipt and should be documented on the shipping documents. Possible evidence in this regard should be secured.

7. Liability for Defects

1. The warranty rights (warranty claims) of the customer require that the customer has checked the goods and claims the defects accordingly. Claims have to be in written form and feature specific details on the defects. DEWETRON has to be notified of noticeable defects in writing within one week after the delivery, hidden defects within one week after their discovery. The mentioned periods are cut-off periods.
2. If a defect is valid DEWETRON can of its own choice either repair the defect or react with a replacement delivery. If repair or the replacement fails the customer is entitled to either a cancellation of the contract (rescission) or to an adequate abatement of the purchase price (abatement). Repair or replacement take place without acknowledgment of a statutory duty and do not adjourn the limitation of time of the warranty claims for the goods.
3. The limitation of time of the warranty claims amounts to 12 months from the date of delivery. If the risk is passed on to the customer by notification of readiness for shipment, the period starts with this notification.
4. There exist no warranty claims for marginal deviances from the agreed condition, which does not restrain the use of the goods very much, natural abrasion, incorrect or careless handling, improper use, chemical, electro-chemical or electronic influences, improper installation, handling, use or maintenance or non-reproducible software errors, provided the defects cannot be ascribed to DEWETRON. Also excluded are warranty claims which can be ascribed to improper alterations, repairs, the opening of seals or leaded parts or the use of consumable material (chemicals, operating resources), which do not meet the original-specifications given by DEWETRON, by the customer or a by the customer assigned third party.
5. If the customer wrongly claims warranty right, DEWETRON is authorized to charge the customer accordingly for the efforts of repair or deficiency statement.
6. Customer demands concerning the for the function of supplementary performances needed expenditures, in particular transport, work and material costs are excluded, as long as the expenditures rise because of a subsequent delivery to a place of delivery other than previously agreed upon.
7. Further warranty claims, of any kind, are excluded subject to in compliance with point 10 limited claim for damages.

8. Software License

1. As far as no licensing agreement in particular is existent, the following regulations apply for the software provided by DEWETRON.
2. DEWETRON gives the customer a non-exclusive, non sublicensable license for the installation and usage of software which is limited to the usage for those goods DEWETRON supplied it for.
3. The customer is not authorized to do the following:
   1. Changes, adaptation, editing, arrangement or any other revision of the software as well as the duplication of the results of these acts except for when they are necessary for error correction and DEWETRON has not provided an error correction within an adequate period in the case of an assignment;
   2. Disassembling, decompiling, reverse-engineering or usage of a different method to obtain the source code except for when it is used for the creation of interoperability between an independently created computer program and other software and DEWETRON has not provided the necessary information within an adequate period of time;
   3. VDuplication of the software with the exception of installing the software, using the software and making a backup copy of the software (in this case it has to labeled as such);
   4. Displacement or changes of trademark, copyright or other trademark right annotations of the software;
   5. Lending, renting, leasing or any other intermittent handing over to third parties;
4. The customer is only authorized to resale of the software if he does not keep any copies of the software after the transfer and the purchaser commits to adhere to these license agreements as per point 8.

9. Trademark Rights

1. DEWETRON is obligated to deliver the goods free of copyright or other commercial trademark rights (hereinafter referred to as ‘trademark rights’) regarding the country the goods are going to be used in according to contractual agreement (in case of doubt: the country where the place of delivery is situated in). In case of an infringement against the preceding obligation, DEWETRON is liable for the customer subject to the following regulations under the conditions that the goods were used by the customer in accordance with the contract, DEWETRON is liable for the trademark rights infringement and the limitation period for warranty claims as per point 7.3 has not yet expired.
   1. DEWETRON can at its own choice either purchase a, for the agreed upon or provided use adequate, usage right regarding the infringed trademark right at its own expense, or change the goods that way that the trademark right is no longer infringed, or replace the goods as far as the agreed upon or provide use by the customer is not hindered. If this is impossible or not reasonable for DEWETRON, the customer can withdraw from the contract in respect of the affected goods.
   2. DEWETRONS liability concerning compensations is subject to the conditions as per point 10.
   3. The preceding obligations of DEWETRON are only valid as far as the customer
      1. immediately informs DEWETRON about assertion of claims via third parties,
      2. does not admit to third parties that an infringement exists and
      3. leaves any measures of defense and negotiations for dispute settlements to discretion of DEWETRON. If the customer ceases the use of the goods to decrease damages or because of any other legitimate reason, he is obliged to explain to the third party that the cessation of usage is not followed by an acceptance of the asserted infringement.
2. All claims of the customer are excluded if the infringement of the trademark right were caused by a type of use which was not intended by DEWETRON, or a modification of the goods by the customer or third parties assigned by the customer, or their use in combination with products which were not provided or recommended for shared use by DEWETRON.
3. All claims of the customer against DEWETRON or its assistants are excluded if the go beyond the appointed rights as per point 9 and are based on a trademark rights infringement.

10. Liability

1. DEWETRON is only liable for possible damages irrespective of legal basis, if
   1. DEWETRON has violated an essential contractual obligation (cardinal obligation) culpably (i.e. negligent at the least) in a way that jeopardize the purpose of the contract, or
   2. the damage was caused by DEWETRON grossly negligent or on purpose or
   3. DEWETRON has issued a warranty.
2. The liability of DEWETRON is limited to typical, predictable damages, if
   1. DEWETRON has culpably but not grossly negligent or on purpose violated essential contractual obligations (cardinal obligations), or
   2. employees or appointees of DEWETRON, who are not members of the management body or executive staff, have violated other responsibilities grossly negligent, or
   3. if DEWETRON has issued a warranty provided that the warranty is not an explicit warranty for the condition of goods.
3. In the as per point 10.2 mentioned cases exists no liability for indirect damages, secondary damage or loss of profit.
4. Claims for damages of the customer prescribe in the cases as per point 10.2 not later than two years after the customer became aware of the damage or regardless of this knowledge at the latest after three years of the point in time of damaging event respectively. For claims because of defects of the goods remains the prescription as per point 7.3 valid.
5. DEWETRONs liability according to the Austrian product liability act, for the injury of life, body and health, for fraudulent concealment of a deficiency and the acceptance for the warranty of condition remain intact.
6. The points 10.1 to 10.5 are also valid in case of a possible claim for damages by the customer against employees or appointees of DEWETRON.

11. Reservation of proprietary rights

1. Until the fulfilment of all demands of the whole, ongoing business connection with the customer all delivered goods remains property of DEWETRON (goods subject to retention of title).
2. The customer is authorized to resell goods subject to retention of title in ordinary course of business as a conditional sale as long as the customer is not defaulting towards DEWETRON. Bailments or transfers by way of security of the goods subject to retention of title are forbidden.
3. To assure DEWETRONs demands the customer abandons his future claims to DEWETRON of the transmission of goods subject to retention of title as per point 11.2 in the amount of the invoice value (value added tax included) of the goods subject to retention of title until complete payment as per point 11.1; DEWETRON accepts this abandonment. If the goods subject to retention of title were processed with objects which do not belong to the customer, the abandonment only happens according to the joint ownership share of the processed goods as per point 11.6. After the abandonment the customer stays authorized to perform collection of receivables, as long as he discharges all payment obligations from the collected revenue, does not default and in particular has not filed for bankruptcy and stopped payment. DEWETRONs authorization of collecting receivables on its own remains intact. On Request the customer has to notify DEWETRON of the name and address of the respective purchaser as well as the nature and extent of the claims against him. DEWETRON is allowed to disclose the abandonment to assure its pecuniary claim.
4. In the case of seizure or other access of third parties to goods subject to retention of title the customer points out the ownership of DEWETRON and informs DEWETRON immediately in writing. The customer pays for any costs of the intervention proceedings and for other defense measures which are connected to access of third parties.
5. In the case of contrary to contract behavior of the customer, particularly outstanding payments, bankruptcy or financial collapse the goods subject to retention of title can be, at expense of the customer, without withdrawal from the contract, taken in the possession of DEWETRON. The business premises of the customer may be entered for this purpose. Claims for restitution of the customer to his customers are already ceded at this time. The retraction or seizure of the goods subject to retention of title by DEWETRON does not represent a withdrawal from the contract. To withdraw from the contract an express statement is necessary and requires, in the case  of contrary to contract behavior of the consumer, no deadline. DEWETRON is authorized to commercialize the goods subject to retention of title and to collect the revenue under compensation of the pending claim against the customer.
6. The processing or alteration of the goods subject to retention of title by the customer is always performed for DEWETRON. If the goods subject to retention of title are remodeled or processed with objects which do not belong to DEWETRON, DEWETRON acquires joint ownership of the new object in the share of the goods subject to retention compared to the other, remodelled or processed objects at the time of the processing or alteration; for the hereby originated object applies incidentally the same as for the conditionally delivered goods. If the goods subject to retention of title are intrinsically tied to or intermingled with objects which do not belong to DEWETRON, DEWETRON acquires joint ownership of the new object in the share of the goods subject to retention compared to the other, intermingled objects at the time of the mixing or combination. If the mixing or combination happens in a way that the object of the customer can be seen as a main-object, the customer assigns DEWETRON proportional joint ownership. The customer holds the created sole or joint ownership in custody for DEWETRON free of charge. To ensure DEWETRONs claims against the customer, he also assigns all claims that arise through the connection of goods subject to retention of title and property for third parties, to DEWETRON.

12. Additional Services at Software Delivery

1. Software will be delivered ready for installation. Further services, particularly the installation, configuration or maintenance are made on the basis of separate agreements and are charged for according to the charge rates of DEWETRON at that time. Then the customer provides the needed machine time, operating staff of the machine as well as adequate rooms and all needed technical equipment free of charge for the duration of the service.
2. A potential training or introductory course for employees of the customer is not included in delivery and needs to be arranged with DEWETRON separately.

13. Additional Services at Hardware Delivery

1. Hardware will be delivered ready for installation. Further services, particularly the installation, and maintenance are made on the basis of separate agreements and are charged for according to the charge rates of DEWETRON at that time. Then the customer provides the needed machine time, operating staff of the machine as well as adequate rooms and all needed technical equipment free of charge for the duration of the service.
2. The provision of projection and other consulting services has to be assigned separately.

14. Export

The export of goods provided by DEWETRON to non EU countries requires a written consent of DEWETRON, regardless of the fact that the customer has to obtain all official import and export licenses on his own.

15. Other

Place of fulfillment is the registered office of DEWETRON in Graz. Exclusive jurisdiction for all disputes in connection to contractual relationships is Graz, District Court Graz I. DEWETRON is however authorized to file a suit at the responsible court at the registered office of the customer. The law of the Republic Austria applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). As far as correspondence is directed in a foreign language or assembly instructions, documentation or details are composed in foreign languages, the German version overrides in case of contradictions between the English and German versions. Should one or more regulations of these business conditions or a regulation in connection to other agreements be or become ineffective, the validity of all other regulations or agreements will not be affected. Ineffective or missing articles have to be replaced by valid articles which come closest to the initial intention. These Terms & Conditions are valid for the Austrian DEWETRON Ges.m.b.H.
Graz, January 2006