1. General information and scope of application

1.1 These General Terms and Conditions (“GTC”) shall apply to all deliveries and services of K&W Drive Systems WALLISCH Getriebe und Motoren Vertriebs-GesmbH (“K&W” or “We”). The legal relationship between the contractual partner (“You”) and K&W shall be governed by the following contractual and business terms and conditions in the following order: a) the offer on which the respective individual contract is based;

b) the delivery and price conditions

c) any other contractual terms and conditions of third parties (in particular those of manufacturers/producers) to which express reference is made;

d) these General Terms and Conditions.

1.2 Notwithstanding the above order, these GTC shall apply exclusively, unless expressly agreed otherwise in writing. This means that no other GTC shall apply. This shall also apply in the event that the contractual partner bases the conclusion of the transaction on its own GTC or if the validity of these GTC is generally in doubt. K&W expressly objects to other general terms and conditions of the contractual partner, even if it is aware of them.

1.3 Your orders will only be accepted and executed on the basis of the following terms and conditions. The version valid at the time of conclusion of the contract shall be authoritative. In the case of an ongoing business relationship, these terms and conditions shall also form part of the contract even if they are not expressly mentioned in the individual contract.

1.4 You will be notified of any changes to these GTC and they will be deemed to have been agreed if you do not object to them within 14 days (you will be explicitly informed of the significance of your silence in the notification).

1.5 You hereby expressly acknowledge that these GTC are legally binding and have become an integral part of the contract.

2. Conclusion of contract, delivery obligation and partial invalidity

2.1 Our offers are always subject to change. No valid contract is concluded until we have expressly accepted your order.

2.2 The possible ineffectiveness/invalidity/nullity of individual provisions of these GTC shall have no influence on the validity of the remaining provisions. In such a case, K&W and the contractual partner undertake to replace this provision with a provision that is legally effective and valid and corresponds in its economic effect to the replaced provision – as far as possible and legally permissible.

2.3 Verbal agreements and amendments to these terms and conditions must be made in writing to be effective; this also applies to any waiver of the written clause.

3. Delivery, dates and deadlines

3.1 K&W shall be entitled to make partial deliveries and render partial services at any time.

3.2 The agreed delivery dates and deadlines shall only apply as guidelines unless they have been expressly designated as binding in writing. The delivery period calculated for the delivery shall commence at the earliest upon receipt of the information finally fixed in all commercial and technical respects. Subsequent requests for changes and additions shall extend the delivery time appropriately.

3.3 After exceeding a non-binding delivery date or a non-binding delivery period, the contractual partner may request K&W in writing to deliver. K&W shall be in default of delivery at the earliest upon receipt of this request.

3.4 The contractual partner must accept minor overruns of binding delivery dates or deadlines without the consequences of a delay in delivery arising as a result.

3.5 If K&W is in default of delivery, the contractual partner may adhere to the fulfillment of the contract or withdraw from the contract by setting a reasonable grace period in writing. If K&W has already provided partial services, the contractual partner shall only be entitled to withdraw from the contract with regard to outstanding partial services.

3.6 If, during an ongoing delay, delivery becomes impossible by chance, K&W shall not be liable if the damage would have occurred even if delivery had been made on time.

3.7 Delivery shall always be ex warehouse Vienna for the account and at the risk of the recipient. All costs for transportation and transport insurance from Vienna to the place of installation shall be borne by the contractual partner.

3.8 In the event of force majeure or an operational disruption for which we are not responsible (including at our business partners), which temporarily prevents us from meeting the agreed dates and deadlines, these delivery dates and deadlines shall be extended by the duration of the disruption caused by these circumstances.

4. Prizes

4.1 All prices are subject to change. Unless otherwise stated in the offer, all prices are in euros and exclusive of statutory VAT.

4.2 Unless otherwise agreed in writing, the prices quoted are always ex our warehouse in Vienna, excluding packaging, which is charged at cost price. Any transportation costs, in particular freight and insurance charges, customs duties, fees or charges, shall be borne by the contractual partner.

4.3 Prices for services (service, etc.) are always calculated at the rates in force on the day of performance. The same applies to the travel expenses and accommodation costs of our technicians, instructors and fitters.

5. Right of withdrawal, restitution of the delivery

5.1 Force majeure, strikes, natural disasters, transportation blocks and the like shall release us from the agreed delivery period or delivery obligation. This shall also apply in the event that K&W becomes aware of circumstances after conclusion of the contract under which the provision of the main and ancillary services of the contractual partner is no longer considered to be assured. Irrespective of this, we shall have an unconditional and immediate right of withdrawal in this case.

5.2 In the event of non-compliance with essential contractual obligations of the contractual partner (such as default in payment), K&W shall be entitled to demand the return of deliveries already made by the contractual partner or to insist on fulfillment of the contract. In this case, the goods shall be returned at the risk and expense of the contractual partner. Any claims for damages and claims in connection with the retention of title shall remain unaffected by this.

6. Warranty, guarantee, notice of defects

6.1 The warranty and guarantee regulations described here under point 6 of these General Terms and Conditions shall not apply if the products in question were only supplied by K&W and manufactured by other business partners (in particular brand-new machines, devices and appliances) and for which the warranty and guarantee conditions specified by the manufacturer/producer apply. K&W shall only handle the guarantee and warranty process. The question of whether a guarantee or warranty case has occurred at all is again governed by the manufacturer’s provisions. In all other cases, i.e. in all cases in which the warranty and guarantee conditions of manufacturers/producers do not apply conclusively, the warranty and guarantee provisions as described under 6.2. – 6.7. apply.

6.2 The Contractual Partner shall inspect the delivery immediately at the agreed place of acceptance for any obvious defects. If the contractual partner expressly or tacitly waives the inspection, K&W shall generally assume that the goods have been duly delivered. Complaints regarding the quality of our deliveries shall only be recognized if they have been submitted to us in writing within 14 days of receipt of the goods at the place of receipt. The complaint must be sufficiently substantiated and supported by appropriate evidence. Hidden defects must be reported immediately after discovery in the manner described above.

6.3 Minor technical changes and deviations from drawings and catalogs shall be deemed approved in advance.

6.4 All ancillary expenses, such as transportation costs or any customs handling costs etc. shall be borne by the contractual partner.

6.5 Any warranty period shall be a maximum of 12 months from acceptance. The existence of defects must be proven by the contractual partner. § Section 924 ABGB and Section 933b ABGB shall not apply.

6.6 In the case of justified defects, the warranty is limited to improvement, new delivery or replacement of the missing items. Several rectifications and replacement deliveries are permissible. Claims for conversion and price reductions are excluded. The warranty shall expire if the contractual partner or a third party not authorized by K&W has made changes or repairs to the product. In the event of improvement, new delivery or supplementation of the missing part, the period for asserting claims shall not begin to run again.

7. Terms of payment, default and prohibition of set-off

7.1 The terms of payment, in particular the due date and method of payment, are set out in the order confirmation or invoice. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfillment of the contract.

7.2 Transfers shall only be deemed as payment upon receipt of the amount in the account designated by us. Bills of exchange and checks shall only be accepted after written agreement, only on account of payment and shall exclude any discount deduction. Discount interest and all bank charges shall be borne exclusively by the contractual partner.

7.3 We expressly reserve the right to demand a down payment for orders placed by contractual partners.

7.4 In the event of default of payment by the contractual partner, K&W shall be entitled, at its own discretion, to demand compensation for the actual damage incurred or default interest at the statutory rate. For entrepreneurs, this is 9.2 % p.a. above the base interest rate. This claim also includes compound interest. In addition, in the event of default in payment, the contractual partner undertakes to reimburse the judicial and extrajudicial costs as well as the dunning and collection expenses necessary for appropriate legal action. This shall in any case include a lump sum of EUR 40 as compensation for collection costs in accordance with § 458 UGB. The assertion of further rights and claims shall remain unaffected. In the event of default of payment by the contractual partner, K&W shall not be obliged to provide its own service as long as this default continues. Furthermore, in the event of default, K&W shall be entitled to demand immediate payment of all outstanding claims and/or advance payment or provision of security.

7.5 The contractual partner is not permitted to offset any disputed or not legally established counterclaims without our express consent. The contractual partner is also not permitted to exercise a right of retention without a legally binding title or on the basis of claims from other legal transactions.

8. Property rights

8.1 The delivered machines, devices and apparatus, as well as accessories and spare parts shall remain our unrestricted property until full payment has been made.

8.2 The retention of title also serves to secure our claims from the ongoing business relationship until the settlement of claims due in connection with the purchase.

8.3 The pledging of the delivery item by the contractual partner prior to full payment shall be deemed excluded unless we declare our consent to this in writing before the pledging is carried out.

8.4 As long as it has not become the owner, the contractual partner is obliged to ensure appropriate storage of the delivered goods and, if reasonable, to insure them appropriately. In any case, the contractual partner shall bear the risk of destruction, loss or deterioration of the delivered goods.

9. Fulfillment and shipping

9.1 The delivery shall be deemed to have been fulfilled when the delivery items have been handed over to the forwarding agent or transport company.

9.2 The contractual partner is generally obliged to accept the goods at the agreed conditions. In the event of non-acceptance, we may make use of our statutory rights arising from default of acceptance.

9.3 With regard to packaging, the conditions stated in point 4.2 shall apply. The packaging placed on the market by us is licensed under ARA number 10651.

9.4 Any claims for compensation arising from visible transport damage must be raised by the contractual partner immediately upon receipt of the goods with the carrier or transport company and the appropriate preservation of evidence against the carrier or freight forwarder must be carried out. Other complaints must be submitted to us immediately upon receipt of the goods.

9.5 Insurance of any kind shall only be taken out by order and at the expense of the contractual partner to the extent requested by him.

9.6 Storage measures and the associated costs that become necessary due to the fault of the contractual partner shall be borne by the contractual partner. The

Delivery items shall be deemed to have been duly delivered.

10. Liability

10.1 Unless otherwise stipulated in the respective offer (point 1.1. a.) or in the contractual and business terms and conditions of third parties (point 1.1. b.), the contractual partner shall be liable without limitation for compensation for all damages that it has culpably caused. He shall not be liable for slight negligence. Limitations of liability do not apply to compensation for personal injury.

10.2 Unless otherwise stipulated in the respective offer (see point 1.1. a.) or in the contractual and business terms and conditions of third parties (point 1.1. b.), we shall be liable for compensation for damages that we have culpably caused. We are not liable for slight negligence. In the event of gross negligence, liability shall be limited to the value of the delivery concerned. Limitations of liability do not apply to compensation for personal injury. Claims for damages shall in any case only include the mere repair of the damage. We shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, other consequential damage and damage arising from third-party claims.

10.3 The contractual partner must provide proof that any damage incurred by it is attributable to our fault. The contractual partner must also provide proof that it is not at fault for any damage incurred by us. This applies to all forms of fault (slight/gross negligence, intent).

10.4 Claims for damages must be asserted in court within six months of becoming aware of the damage and the damaging party, otherwise they shall lapse.

10.5 In the case of contracts for work and materials, we shall not be liable if the contractual partner insists on a certain implementation despite fulfillment of the warning obligations.

11. Data protection

11.1 Both K&W and the contractual partner are obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.

11.2 K&W processes the personal data required for the purpose of fulfilling the contract. You can find detailed data protection information in accordance with Art. 13 ff GDPR on our homepage at: www.kwds.at .

12. Place of fulfillment, place of jurisdiction, choice of law and contract language

12.1 The place of performance for delivery and payment shall be Vienna.

12.2 All disputes arising directly or indirectly from the contract itself or from the contractual relationship shall be settled by the competent court in Vienna.

12.3 This contract shall be governed by Austrian substantive law to the exclusion of the conflict of laws rules of private international law (e.g. IPRG, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods.

12.4 The contractual language is German. The German version of the GTC shall be used primarily for the interpretation of individual provisions.

13. Miscellaneous

13.1 The assignment of individual rights and obligations arising from these GTC and the contract is only permitted with the express written consent of the other contracting party.

K&W Drive Systems WALLISCH Getriebe und Motoren Vertriebs-GesmbH Forchheimergasse 32 AT – 1230 Vienna

T +43 1 890 1650

E office@kwds.at

W www.kwds.at

Valid from: 31.12.2024