1. Scope of application
Our general terms and conditions (“T&C”) govern all master supply contracts and/or individual sales contracts concluded with the client within Austria and abroad, unless otherwise agreed in a particular case in express and written form. The application of general terms and conditions of the client or of other terms and conditions, which differ from these T&C, is expressly excluded, unless otherwise agreed in express and written form between the parties. The fulfilment of the contract by us cannot be deemed as acceptance of terms and conditions, which differ from these T&C.
2. Conclusion of a contract
A legally binding contract is deemed to be concluded once the offer accepted in writing by the client is received by us, even if sent by simple e-mail. Without prejudice to the following paragraph, any other possibility to conclude a contract is expressly excluded as well as the conclusion of a contract by appointed dealers without appropriate written power of attorney.
Should the client purchase products from us, which have been specifically produced for the client and/or which, compared to standard products, have been modified according to the requests received by the client (so-called “individual products” or “modified standard”), the conclusion of the contract is subject to the suspensive condition that the technical project drawings made by us are approved in writing by the client. In such a case, the conclusion of the contract only occurs once the confirmed project drawing along with the offer pertaining to the drawing confirmed by the client is received by us.
Unless otherwise specified in writing, delivery is carried out FCA Kurtatsch/Cortaccia (Incoterms 2020). In any case, delivery takes place at responsibility and risk of the client, even if paid or organized by us. Any claim towards the carrier is assigned to the client. Place of performance of the delivery is Kurtatsch/Cortaccia (Alto Adige – Italia). Unless specifically and in writing accepted as binding, all dates of delivery are considered to be indicative and non-binding. The dates of delivery indicated by us imply that we ourselves have been timely supplied and that the client fulfils all its obligation in a timely and complete manner. Delays on our side do not entitle the client to terminate the contract for breach, to withdraw from the contract or to advance claims for damages or any other claims against us. We shall not be liable, even in case of binding delivery terms or binding terms for performance, for any delays in the delivery or the performance of the contract, except in cases of gross negligence or wilful intent on our part. In any case, we shall not be liable for delays in the delivery or the performance of the contract caused by force majeure or other events, which are not attributable to us and which do render the delivery/performance not only temporarily significantly more onerous or impossible, in particular strikes, lock-outs or official orders. This liability exemption shall also apply if such events as mentioned in the previous sentence concern our suppliers or their subsuppliers.
In case of delays of more than 60 days, the client has only the right to withdraw from the contract, without having the possibility to advance claims for damages or any other claims against us.
The client shall take delivery of the products on the date communicated by us. If the delivery is not taken, we are entitled, after a period of eight days has lapsed, to charge the purchaser with all related costs for the storage of the products (€ 35,00 per day and palette). Should we withdraw from the contract pursuant to art. 10 for failure by the client to take delivery, the liquidated damages pursuant to art. 10 are due and payable in addition to the aforementioned storage costs until the withdrawal from the contract. Alternatively, we shall also have the right to request the immediate payment of the agreed price, even if not yet due, should the client not take delivery of the products.
The client shall not be entitled to withdraw from the contract in case of excessive onerousness arisen after the conclusion of the contract and concerning the performance of its contractual obligations, even if the onerousness is caused by unforeseeable or exceptional circumstances.
Upon commencement of the production of the products ordered by the client and in any case the latest upon delivery of the products to the carrier or upon failure to take delivery by the client for whichever reason, the payment obligation of the client does not even lapse in cases of force majeure concerning the client.
Without prejudice to statutory provisions, the risk of accidental destruction or accidental deterioration passes to the buyer once the products have been handed over to the carrier. Should delivery be delayed for reasons attributable to the client, the risk passes once the communication, that the products are ready for delivery, has been received by the client.
We are entitled, at our discretion, to make partial deliveries.
4. Price and payments
Prices detailed are FCA Kurtatsch/Cortaccia (Incoterms 2020) unless otherwise agreed, net of VAT and net of other taxes and charges. Unless otherwise agreed in writing between the parties, the client shall make an advance payment of 50% upon conclusion of the contract pursuant to art. 2. The payment of the remaining amount shall be due once the products are ready for delivery. Payment is to be made within 30 days date of invoice, unless otherwise agreed. We shall have the right, even after conclusion of the contract, to unilaterally change the payment conditions for clients which are subject to credit limits, in order to take the credit limits and their possible exceeding into account. We shall have the right, even in the absence of specific agreements, to request advance payments or partial payments. Without any specific agreement, no discounts shall be applicable. In case of delayed payment, also with regard to partial payments or advance payments, any agreements regarding discounts shall be automatically voided and revoked. Client’s payments shall be deemed effected once the corresponding amount has been credited on our bank account. Should the financial situation of the client worsen after the conclusion of the contract (e.g. credit rating downgrade), we shall have the right to request immediate payment of all outstanding amounts, regardless of their due date. In such a case, extension of payments already granted or any agreed payment terms shall be deemed revoked.
In the case of delayed payment, interest on arrears amounting to 10% above the base rate is charged from the due date. For all other matters, § 456 UGB (Austrian Commercial Code) shall apply. Further claims for damages, in particular claims for higher interest, remain unaffected.
The client shall not be entitled to retain payment for whichever reason, in particular the exception pursuant to art. 1052 Austrian Civil Code is waived. Furthermore, the client shall not be entitled to offset any payments due to us with any possible claims against us, unless the client’s claims have been expressly recognized by us in writing or have been definitely awarded in a final and non-appealable judgment.
5. Retention of title and its assertion
a) All goods and products are delivered under retention of title and remain our property until they have been paid for in full.
b) In case of revindication or redemption by us of goods delivered under retention of title, the contract shall be deemed withdrawn only if the withdrawal the contract is expressly declared. In case of return of goods, we shall be entitled – without prejudice to other claims -to request reimbursement of transportation and handling costs.
c) Even if the buyer processes or adapts goods or products delivered by us under retention of title prior to fulfilment of all our claims, the buyer shall not acquire any property on the goods or products for this reason. We acquire co-ownership on the new goods resulting from the processing or the adaptation. Our share of co-ownership is determined by putting the value of the goods delivered by us in proportion to the value of the other processed goods at the moment of processing or adaptation.
d) The goods delivered under retention of title must not be pledged or transferred as security. In case of execution or other claims on the goods by third persons, the buyer shall assert our ownership rights und shall notify us immediately.
e) Only an entrepreneur/trader, whose ordinary business is, among others, trade with the products acquired by us, shall be entitled to dispose of the goods under retention of title until full payment of the outstanding purchase price.
f) The client shall take full risk for the goods under retention of title, in particular the risk of destruction, loss or deterioration.
6. Complaints and Warranty
6.1. Warranty period and assertion of warranty claims
a) We do not warrant, that the products are suitable for a specific use by the client.
We warrant that products with a maximum average operation of 4,200 hours per year will not have any significant faults in their materials, construction and fabrication within a period of one year from the invoice date. After the period of one year from the invoice date has lapsed, any liability/guarantee/warranty of us for material, construction or fabrication faults is excluded.
The warranty issued is valid only on condition that the products are used in accordance with the prescribed product and use specifications (datasheet), and that they were installed and put into operation professionally, according to the provisions outlined in the manual for overvoltage protection of LED fixtures (ewo 10 February 2017). Thresholds for temperatures, voltages, and currents must not be exceeded. The product must not be subjected to any mechanical loads not in line with its destination. The warranty encompasses only product failures caused by proven defects in materials, construction, or fabrication and failure rates that exceed the nominal failure rate. The failure of individual or several LEDs in LED modules is not covered under this warranty if the function of the entire assembly is not significantly affected and if a specific, unavoidable nominal failure rate is not exceeded. For lighting units, the nominal failure rate is 0.2%/1,000 hours of operation with reference to the specification values (datasheet). A decrease in luminous flux in LED modules is considered normal up to a level of 30% within 50,000 hours of operation and consequently is not covered under this warranty. Any loss of luminous flux as a result of pollution or incorrect maintenance of the lamps is not covered under the warranty.
b) Warranty claims by the client shall be fulfilled in case of remediable defects at our discretion either by replacement or repair within an adequate time period. Claims for price reduction by the client shall be excluded. In case of valid warranty claims, we shall bear any possible costs for the return and the reshipment of the goods. Claims for damages by the client related to the elimination of the defect shall be excluded, unless the defect has been caused by gross negligence on our part. Furthermore, any claims for consequential damages relating to the defect shall be excluded, unless the defect has been caused by wilful intent on our part. The client must prove our gross negligence or wilful intent. The elimination of the defect through repair shall not lead to the commencement of a new warranty period, unless a further warranty claim concerns the already eliminated defect or is a direct consequence of the eliminated defect.
c) Pursuant to § 377 f UGB (Austrian Commercial Code) the goods have to be examined by the client immediately upon delivery and in any case within six working days. Any defects found must be notified in writing immediately and in any case within three working days after their discovery, indicating both the type and the extent of the defect. Hidden defects must be notified in writing immediately and in any case within three working days upon delivery. Should the notification of a defect not occur or not be carried out timely, the goods delivered shall be deemed accepted and any claims of the client regarding defects or in connection with defects shall be excluded.
d) The burden of proof that the defects have been already present at the moment of delivery lies with the client. The reversal of the burden of proof pursuant to § 924, 2nd sentence shall not be applicable.
e) Any claims of the client regarding defects or in connection with defects must be asserted judicially within a year upon delivery.
f) Only if and where the client is entitled to claims under this agreement that extend beyond the mere delivery of a replacement product and are arising from any mandatorily applicable and binding legal provisions, the client shall provide advance written documentation of this to us, submitting written cost estimates for the replacement and the installation of replacement products on site or for any on-site repair works and providing us with the opportunity, in writing, to either carry out the replacement, installation or repair itself or to commission a third party to do so. In case of non-compliance with the above provisions, the client shall lose all claims regarding the reimbursement of any costs.
Replacement products or repair components may contain new or recycled materials that are equivalent or superior to new products or parts in terms of performance and reliability. The functionality of all replacement products and repair components is equivalent or superior to that of the product to be replaced. We warrant that all replacement products or repaired products will be free from any material and manufacturing defects for the remainder of the warranty period applicable to the product being replaced or repaired. All other matters shall be governed by the same warranty terms, conditions, scope and exclusions applicable to the original, defective product.
The guarantee shall immediately become void if modifications or repairs are carried out on the goods without prior written consent, or if the goods were improperly installed or installed by an unqualified person. As a result of technical progress as well as of use-related changes in the luminous flux and the colour point of the lighting modules, replacing products may lead to variations of the lighting characteristics (colour temperature or luminous flux) in comparison with the original products. Should any installation be planned in a critical environment - in terms of temperature, moisture or salty air – said installation must first be agreed with us. We will verify whether special processing or materials are necessary in order to guarantee the product’s longevity in such particular cases. Claims for performance under the warranty shall only be valid if the following cumulative conditions are all fulfilled and if proper evidence for such fulfilment is given, where appropriate in writing only, by the client:
1) The product was used in accordance with the prescribed product and use specifications (datasheet), and was professionally installed and operated.
2) No changes or overhauls (hardware or software) were undertaken without our written consent.
3) All works have been carried out in accordance with the assembly and operating manual, and their execution has been duly documented.
4) The ratings for temperatures, voltages and currents were not exceeded.
5) Defects were not caused by unforeseen and unforeseeable occurrences, such as fortuitous circumstances and/or force majeure, electrical discharges, lightning or excess voltage, not linked to any defect in the manufacturing process of the product;
6) The product has not been subjected to any mechanical loads not in line with its destination.
7) Installation of the product in a special environment that might impair the product’s longevity was agreed with us;
8) The product was fully paid for in accordance with the purchase contract.
9) The warranty claim was communicated in writing to us via e-mail to email@example.com within the term indicated under letter c).
10) Where the lighting planning and calculation of the installation was not carried out directly by us, the client provides written evidence that such lighting planning and calculations done by himself or by appointed third parties were carried out in full compliance with the prescribed product and use specifications (datasheet).
g) Defective products must be sent to us for examination. In the event that no defect is established in the course of such examinations or should be established that the warranty is not applicable, we have the right to claim reimbursement of the costs borne in the course of the examinations in order to determine the cause of the defect. Components or products replaced by us under the warranty become our property.
6.2. Extended warranty to the benefit of final clients:
For all products sold under the „ewo“ trade mark, we offer a five year long extended product warranty provided by ewo s.r.l./GmbH, Etschweg 15, 39040 Kurtatsch (BZ) Italy. The same conditions, limitations and liability exemption set forth under this art. 6 shall also apply to the extended product warranty. The extended warranty can be activated by the final client under www.ewo.com/company/guarantee.
6.3. Limitation of liability
a) All claims for damages against us are excluded in case of ordinary negligence. Furthermore, claims for consequential damages, loss of profit and the like are also completely excluded, unless they are based on wilful intent on our part. The burden to prove ordinary or gross negligence lies with the client.
b) The statute of limitations for any claims for damages is two years from the moment the risk passes.
6.4. Product liability
Recourse claims pursuant to § 12 of the law on product liability are excluded, unless the person entitled to claim recourse proves that the fault has occurred in our sphere und has been caused at least by gross negligence.
7. No- assignment clause
In case of deliveries under retention of title, the client already assigns to us, on account of payment, any claims against third parties, which arise in connection with the sale or the processing of our products, until full payment of all our claims. Should the client be in arrear with its payment obligations towards us, the client shall segregate all proceeds of sale, which shall be deemed to merely be hold in our name by the client. Any possible claims against an insurer are assigned already assigned to us within the limits set by § 15 of the law on insurance contracts.
The client shall not assign to any third party the contract and/or claims, including claims for damages, arising out of the contract without our consent.
8. Right to suspend performance
Should the client not timely and completely fulfil its payment obligations towards us, also with regard to partial payments or advance payments, and/or should the client not fulfil any obligations, which are necessary for the performance of the contract, in particular contractual details as well as preparatory works and measures, we shall be entitled to suspend the performance of our own contractual obligations until any advance payments have been paid in full and/or until the client has fulfilled all of its obligations. Should we suspend performance in application of this clause, the client shall not be entitled to advance claims against us for damages or any other indemnity in relation to possible damages caused by the suspension and suffered by the client.
9. Intellectual property and copyright
The conclusion of a contract between the parties shall have no influence, unless otherwise agreed in writing, on ownership and licensing rights regarding trademarks, patents or any other intellectual property rights on the products. All intellectual property rights shall remain with us.
Drawings and other documents handed out to the client in the course of contract negotiations, are copyright protected in our favour, remain our property and can be handed out to third parties only upon previous express and written consent by us. If no contract is concluded, all documents have to be immediately returned upon our request and the client shall not be entitled to retain copies of drawings and documents in any form.
10. Withdrawal from the contract
Apart from the legal provisions, we shall also be entitled to withdraw from the contract in case of delays by the client in taking delivery of the products or other important reasons, in particular the commencement of insolvency proceedings against the other contracting party or the dismissal of bankruptcy filings due to lack of assets.
In case of withdrawal from the contract attributable to the client, we shall have the right to claim either liquidated damages amounting to 15% of the gross invoice total or to claim compensation for the actual damages suffered.
We shall also be entitled to withdraw from the contract in case of delays concerning the payment of any amounts due by the client, possibly after setting a last deadline to receive payment.
Should the client withdraw from the contract – without being entitled – or unjustifiably request the termination of the contract, we shall have the choice to either insist on performance of the contract or to consent to the termination of the contract. In the latter case, the client shall be obliged, upon our choice, to pay either liquidated damages amounting to 15% of the gross invoice total or to compensate us for the actual damages suffered.
11. Applicable law - jurisdiction
All contracts are governed by Austrian law and the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. The language of the contract is German.
The parties agree on Austrian, domestic jurisdiction. For all disputes arising out of or in connection with the contract concluded with the client, the courts at the seat of our company, which are competent ratione materiae, shall have exclusive jurisdiction.
12. Data protection clause
The parties shall treat personal data in compliance with EU regulation n. 679/2016 and the applicable national provisions.
13. Costs for reminders and debt collection
In case of delayed payment, the client shall bear all reminder fees, which are determined as a fixed amount of € 9,00 plus postal charges for each reminder. In addition, all necessary costs related to an adequate judicial debt collection, shall be refunded by the client.
Any amendment and/or integration of the contract shall only be deemed valid if made by way of a written agreement duly executed by both parties and shall otherwise be considered null and void. The parties expressly exclude that this clause may be amended tacitly or through conclusive conduct.
Should single clauses of these T&C be wholly or partially void, ineffective or inexecutable, the validity of the other clauses shall not be affected.
Innsbruck, June 2020
ewo srl - via dell'Adige 15 - IT-39040 Cortaccia (BZ) - T +39 0471 623087 - firstname.lastname@example.org - P.IVA IT 01603000215