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GENERAL TERMS AND CONDITIONS

1. SCOPE

The following General Terms and Conditions (hereinafter referred to as GTC) of AMIUM GmbH serve as the basis for all present and future deliveries and services, even if they are not specifically referred to in individual cases. Amendments or side agreements require written confirmation by AMIUM GmbH to be effective; they are valid only to the extent specified in the confirmation and only for the particular business transaction. The purchasing, business, and delivery terms of the client are only valid if explicitly acknowledged in writing (i.e., also via email) by AMIUM GmbH.

2. ORDERS, SERVICES

2.1. Offers from AMIUM GmbH are non-binding and generally have a validity period of 14 days from the offer date, subject to price changes and product availability.

The order is considered accepted when AMIUM GmbH confirms its binding nature to the client or executes the delivery.

2.2. The scope of activities of AMIUM GmbH includes, in particular:

Development of electronic systems, programs, and concepts Creation of custom programs Development/delivery of hardware Delivery of library (standard) programs Participation in commissioning Telephone consultation Program maintenance Creation of program carriers Other services The specific activities provided by AMIUM GmbH in individual cases are determined by the contractual agreement.

2.3. The development of custom hardware and programs is based on the type and extent of binding information, documents, and resources provided by the client. This includes practical prototypes, test data, and sufficient testing opportunities, which the client provides in a timely manner during regular business hours at their own expense. If the client is already operating in live mode on the system provided for testing, AMIUM GmbH is not responsible for securing live data.

2.4. The basis for creating hardware and programs is the written requirements specification, which AMIUM GmbH prepares at the client’s expense based on the provided documents and information (performance description) and which the client must review for accuracy and completeness and approve with their endorsement. If the client requests changes afterward, AMIUM GmbH is entitled to make appropriate price adjustments and schedule changes. Such change requests will only become part of the contract if and to the extent that AMIUM GmbH agrees to them in writing.

2.5. Custom hardware, software, or adaptations must be accepted by the client within four weeks at the latest and confirmed in a protocol. The accuracy and completeness check is based on the performance description accepted by the client and the provided test data listed under point 2.3., as well as any change requests expressly accepted by AMIUM GmbH under point 2.4. If the client lets the four-week period pass without acceptance, the delivered hardware or software is considered accepted after this period. If the software is used in live operation by the client, it is considered accepted. If defect rectification is necessary according to the provisions of point 8 of these GTC, a new acceptance by the client is required after the defects have been remedied.

2.6. When ordering library (standard) programs, the client confirms their knowledge of the performance scope of the ordered programs to the extent of their order.

2.7. If the execution of the order according to the performance description becomes impossible for factual or legal reasons, and the client does not agree to a change in the performance description or create the conditions to make execution possible, AMIUM GmbH is entitled to withdraw from the order. In this case, the client is obliged to reimburse the services rendered so far, including any expenses and dismantling costs. If the reasons for the impossibility of execution or continuation of the order lie in the client’s sphere, AMIUM GmbH is also entitled to demand a flat rate of 30% of the fee for the unexecuted parts of the order for the unexecuted part of the agreed services.

2.8. The dispatch of program carriers, documentation, and performance descriptions is at the client’s expense and risk. Insurance is only provided at the client’s request, who also bears the costs incurred.

Additional training, explanations, etc., will be separately invoiced to the client.

2.9. When delivering hardware, shipment and choice of transportation means are made by AMIUM GmbH. The client is obliged to accept partial deliveries and the corresponding partial invoices. All deliveries are made at the client’s expense and risk. The client must report transport damage immediately, but no later than the next working day after receipt of the goods, to the carrier and AMIUM GmbH.

3. PRICES

3.1. All prices are in € without VAT. They apply only to the individual agreed order. Since price changes due to exchange rate fluctuations or other reasons are possible, AMIUM GmbH is entitled to charge the client price increases for hardware components that occur up to the day of delivery, unless fixed prices have been agreed upon. The costs of program carriers and any contract fees will be invoiced separately to the client.

3.2. For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, development, programming, training, conversion support, telephone consulting, etc.), the work effort is charged at the rates valid on the day of service delivery. Deviations from an agreed time effort, which are due to circumstances in the client’s sphere, will be additionally charged based on actual occurrence.

3.3. Costs for travel, daily allowances, and overnight stays are to be paid according to the applicable rates, and travel times are considered working time.

4. DELIVERY, DUE DATES

4.1. AMIUM GmbH’s statements on delivery completion dates are non-binding unless they are explicitly confirmed in writing as binding. AMIUM GmbH is not liable for delays due to delays in supply.

4.2. Due dates can only be met if the client provides all necessary work and documents, especially the performance description, completely and on time and fulfills their cooperation obligations to the required extent. Delivery delays and delays in completion, etc., resulting from incorrect, incomplete, or subsequently changed information and documents provided, are the client’s responsibility and extend the due date of AMIUM GmbH’s services accordingly. The resulting additional costs are borne by the client.

4.3. Delivery dates for hardware are considered non-binding, except for fixed transactions; exceeding these dates does not entitle the client to claim damages. Claims for damages due to non-fulfillment can only be made in cases of intent or gross negligence. In case of unforeseen disruptions, difficulties, complete or partial failure of deliveries to AMIUM GmbH, or force majeure, AMIUM GmbH is not obliged to purchase the contract goods from other sources.

5. PAYMENT TERMS

5.1. The contractually agreed fee is due within eight days from the receipt of the invoice by the client and payable without any deduction and free of charges, unless otherwise stated in the invoice document. For partial invoices, the payment terms agreed for the total order apply analogously.

5.2. For orders comprising multiple units (e.g., programs and/or training, realizations in partial steps), AMIUM GmbH is entitled to invoice after delivery of each individual unit or service.

5.3. Adherence to the agreed payment dates is a crucial condition for the delivery and contract fulfillment by AMIUM GmbH. Non-compliance with the agreed payments entitles AMIUM GmbH to stop ongoing work and withdraw from the contract by setting an eight-day grace period and indicating withdrawal from the contract. Further rights of AMIUM GmbH remain unaffected. All costs of the client associated with the withdrawal by AMIUM GmbH, as well as any lost profit, are borne by the client. In the event of default, the client undertakes to pay default interest of 8% above the base rate and to reimburse AMIUM GmbH for all necessary and reasonable collection costs. If a rate is not met in the case of agreed partial payments, the entire remaining outstanding amount becomes due immediately. AMIUM GmbH is entitled to fill out any blank acceptances handed over with the remaining amount, including all accrued expenses and interest, and make them due.

5.4. The client is not entitled to withhold payments due to incomplete total delivery, alleged warranty obligations, or warranty claims.

5.5. Unless otherwise agreed, a down payment of 50% of the gross total order amount is to be made for an order sum of €5,000.00 or more upon order placement.

5.6. Objections to the amount invoiced by AMIUM GmbH must be made in writing within eight days of receipt. If no objection is made within this period, the invoice amount is considered approved by the client.

5.7. The client is neither entitled to offset claims of AMIUM GmbH with their own claims nor to withhold their performance due to alleged contract violations not acknowledged by AMIUM GmbH.

6. RETENTION OF TITLE

6.1. AMIUM GmbH retains ownership of the delivered products until full payment of the purchase price, including all ancillary claims, has been made, including claims from previous transactions. As long as the retention of title is in effect, the client may only dispose of the product with prior written consent from AMIUM GmbH. In addition, the client assigns all claims arising from a disposition as payment to AMIUM GmbH. The client undertakes to inform their contract partners of the assignment and that payments with a debt-discharging effect can only be made to AMIUM GmbH. AMIUM GmbH is entitled to make such notification at any time.

6.2. If the client violates their contractual obligations, especially by making dispositions without prior consent from AMIUM GmbH, treating the product under retention of title improperly, or falling into payment arrears, AMIUM GmbH is entitled to reclaim the product and/or withdraw the software license at the client’s expense until the contractual condition is restored. The client’s contractual obligations remain unaffected in such cases.

6.3. AMIUM GmbH’s ownership of products remains in effect even in case of processing or connection with other items. If separation is not possible or economically unreasonable, AMIUM GmbH acquires co-ownership of the newly created item in proportion to the respective value shares.

6.4. If claims are made on items owned or co-owned by AMIUM GmbH, if they are seized or confiscated, or if insolvency proceedings are initiated against the client’s assets, the client is obliged to inform AMIUM GmbH immediately and to point out the existence of foreign or co-ownership to the creditors or in the insolvency proceedings.

7. SOFTWARE LICENSES AND COPYRIGHTS

7.1. In return for payment of the amount agreed in point 3, the client grants AMIUM GmbH the non-exclusive and non-transferable right to use the contractual hardware and software to the extent specified in the offer (hardware license/software license). Use is limited to the areas of application and hardware specified in the contract and to the number of workstations agreed in the contract. The software license exclusively includes the rights specified in §§ 40 d and 40 e of the Copyright Act. It does not include any rights of the client to updates, upgrades, improvements, or similar. All copyrights and usage rights remain with AMIUM GmbH or its licensors. The client is not entitled to transfer or disclose the software, in whole or in part, for a fee or free of charge, or to make it accessible to third parties in any other way.

7.2. The creation of copies for archiving and data backup purposes is permitted to the client, provided that the respective software does not contain an explicit prohibition from the licensor or third parties and that explicit notices of third-party rights are included in these copies unchanged.

7.3. If the disclosure of interfaces is necessary to achieve interoperability of the software, the client must commission this from the contractor for a fee. If AMIUM GmbH does not comply with this request and decompilation is carried out in accordance with the Copyright Act, the results are to be used exclusively to achieve interoperability.

7.4. Software licenses transferred to the client by AMIUM GmbH under point 7.1 expire if the software is passed on to third parties contrary to these obligations. AMIUM GmbH is entitled to withdraw the software licenses if the client grossly violates obligations under this contract.

7.5. In the event of expiration or withdrawal of the software license, the client loses the right to use the software and is obliged to delete it from all data carriers and grant AMIUM GmbH access to all systems/computers and data carriers to verify compliance with this obligation.

7.6. In case of violation of the above obligations, the client undertakes to pay a contractual penalty amounting to twice the gross total price agreed for the software according to point 3; further claims for damages (including full compensation) remain reserved.

7.7. Points 7.1 to 7.6 apply mutatis mutandis to rights to databases.

8. WARRANTY, MAINTENANCE, CHANGES

8.1. Warranty for Services

8.1.1. The warranty period for goods delivered by AMIUM GmbH is six months. This also applies to items permanently connected to a building or land. After six months, all warranty claims expire, and the customer cannot claim recourse against AMIUM GmbH under §933b ABGB. During the warranty period, the customer must prove the existence of the defect at the time of handover and that it was not caused by usage. Definition: Defects are deviations from the written specification sheet and any changes requested by the client and accepted by AMIUM GmbH under point 2.4. Defects must be adequately documented by the client and reported to AMIUM GmbH for correction.

8.1.2. AMIUM GmbH warrants that the software meets the specifications stated in the specification sheet and the agreed functions under the change requests agreed under point 2.4. Interruptions, system failures, downtime, and errors can always occur with hardware and software and are not considered warranty defects, provided the hardware and/or software can continue to be used for the contractually agreed purpose.

8.1.3. Warranty defects reported under point 8.1.1 will be rectified within a reasonable period, either by improvement or, if that is not possible or economically unreasonable, by replacing the affected goods/programs. This only applies if the client provides the necessary and requested cooperation.

8.1.4. The client is obliged to cooperate in the rectification of defects to the required extent, i.e., allowing AMIUM GmbH to use the facilities and hardware on which the software affected by the defect is used and to access the data as necessary for defect rectification.

8.1.5. If the client fails to comply with the cooperation obligations under points 8.1.3 and 8.1.4, the warranty expires. The warranty is also excluded for defects, disturbances, or damages caused by improper or inadequate maintenance, care, or operation, abnormal or improper operating conditions, the use of unsuitable organizational tools, client carriers, software or interface connections, and attempts at repair or changes to hardware components and parts, configuration, programs, program parts, or program settings by the client or third parties, computer viruses, transport damages, or similar.

8.1.6. The costs incurred by AMIUM GmbH for assistance, diagnosis, and elimination of disturbances and errors attributable to the client, as well as other corrections, changes, or additions carried out by AMIUM GmbH in this context, are not considered defect rectification and are to be reimbursed separately by the client. This also applies to defects caused by program changes, additions, or other interventions carried out by the client or third parties.

8.1.7. There is no warranty claim against AMIUM GmbH for programs subsequently altered by the client’s programmers or third parties. If the order involves changing or supplementing existing programs, the warranty only covers these changes, not the original program.

8.2. Warranty for Hardware

8.2.1. AMIUM GmbH warrants, analogously to the warranty periods of manufacturers or suppliers, that the delivered devices exhibit the required or agreed properties when treated, operated, and maintained in compliance with the handling, operating, and maintenance instructions and stored and used under usual commercial conditions. These periods are not extended or interrupted by improvement attempts. After these periods, the assertion of warranty claims is excluded, even for hidden defects.

8.2.2. The client is obliged to inspect the delivered goods immediately and to report defects in writing within four weeks of receipt, otherwise, the warranty claim is excluded. The defect complaint does not entitle the client to withhold open invoice amounts. If the defect complaint is justified, AMIUM GmbH may choose to satisfy the client’s warranty claims through improvement, replacement of missing goods, price reduction, exchange, or return with a refund of the purchase price. In this sense, defect rectification by third parties is only permissible if AMIUM GmbH unjustifiably and despite a reasonable grace period explicitly refuses to rectify the defect. The client has no right to choose between price reduction and improvement (repair or exchange). All other further claims due to defective delivery, such as consequential damages, downtime, or lost profit, are excluded. Rescission or price reduction claims can only be asserted if AMIUM GmbH unjustifiably refuses legitimate improvement claims by the client.

8.2.3. Damages caused by improper handling, wear, or unusual external influences (e.g., moisture, heat, cold, acids, alkalis, electromagnetic fields, vibrations, excessive mechanical stress, UV radiation, X-ray radiation, radioactive radiation), modifications, processing, or attempts at defect rectification by the client or third parties, the use of incorrect hardware/software, and operation with devices for whose compatibility AMIUM GmbH has not guaranteed are also excluded from the warranty. The warranty does not cover the replacement of parts subject to natural wear.

8.2.4. AMIUM GmbH does not warrant and assumes no liability for data loss or lost profit of the client.

8.2.5. AMIUM GmbH also does not warrant the compatibility of delivered goods with other hardware and software products unless this requirement was explicitly part of the order. Furthermore, they have no duty to warn or inform about devices whose compatibility with the delivered hardware was not agreed upon.

9. DAMAGES

9.1. AMIUM GmbH is liable for damages except in cases of slight negligence within the framework of existing regulations. The liability provisions also apply to damages arising from the violation of pre-contractual obligations, positive breach of contract, tort, or other legal grounds. If the client fails to comply with the investigation, cooperation, and/or complaint obligations, damage claims are excluded. Furthermore, there is no liability for indirect damages, legal costs, lost profit, unachieved savings, interest losses, and similar. AMIUM GmbH does not guarantee nor assumes liability that the software supplied meets the client’s requirements, works with other programs of the client, or that all software errors can be rectified. When setting up firewall systems or security solutions (e.g., antivirus products), AMIUM GmbH follows the state of the art but does not guarantee their absolute security and does not assume liability for it. Likewise, AMIUM GmbH is not liable for any disadvantages arising from bypassing or disabling the firewall system or security solutions installed at the client. Liability is limited to €7,000 per damaging event, except for personal injury, unless caused by intent or gross negligence.

9.2. The client is obliged to pass on the above liability limitations to their customers to the extent that claims against AMIUM GmbH may arise. If the client fails to do so despite being required under point 9.2, they shall indemnify and hold AMIUM GmbH harmless in this regard in the event of third-party claims.

10. DATA PROTECTION, CONFIDENTIALITY

The client is subject to the provisions of the Data Protection Act 2000 (“DSG 2000”) and obliges their employees to comply with the provisions of the DSG 2000. If the client makes information or data publicly available to third parties (website, database, other systems, etc.), they assume the role of a media owner in the sense of the Media Act. If the client makes data available for third-party queries or dissemination, they must comply with all applicable laws and regulations regarding “illegal and harmful content” (code of conduct). The sole responsibility for the content of the website or data made available for queries lies with the client, who must indemnify and hold AMIUM GmbH harmless if they are held accountable.

The contractual parties undertake to keep confidential any information explicitly and in writing designated by the respective other party as confidential or otherwise clearly identifiable as business or trade secrets of the respective other party and, unless necessary to achieve the contractual purpose, not to record, disclose, or exploit such information indefinitely.

11. DESIGN CONCEPTS

11.1. In contracts for “design concepts,” the client must provide all information and, if necessary, the hardware required to fulfill the order. This includes texts and other content (logos) to be used. They must also ensure that a competent and authorized contact person is available during test runs to make binding decisions about defects, functional disturbances, program changes, etc. If test data is required for test runs or a contract-compliant handover of the work, it must be provided by the client.

All works (drafts, test versions, final versions, etc.) provided by AMIUM GmbH must be checked immediately for defects and contract conformity. If this deadline is missed, the client’s claims against AMIUM GmbH are reduced to the extent that would have been the case if claimed on time.

11.2. All media provided by the client remain their property. AMIUM GmbH assumes no liability for the loss of materials. The client is liable for ensuring that they have the rights to all media provided (logos, elements, drafts, graphics, design, etc.) and indemnifies AMIUM GmbH for any consequences of a legal violation (e.g., under copyright law, competition law, etc.).

11.3. AMIUM GmbH is entitled but not obliged to review the legality of media provided by the client, especially content. If there is suspicion of illegal content, AMIUM GmbH has the right to refuse the use, dissemination, or processing of such content. AMIUM GmbH’s entitlement claims are not affected.

11.4. Unless otherwise explicitly agreed, AMIUM GmbH grants the client the sole and perpetual right to use the created work (drafts, devices, applications, etc.) for their own purposes on the internet upon full payment of the agreed fee. Any other use or right grant to third parties requires prior written consent from AMIUM GmbH.

12. SECURITY

AMIUM GmbH applies the utmost care corresponding to the state of the art for offered, installed, operated, and checked IT security solutions. Nevertheless, it cannot be ruled out that security systems can be bypassed or disabled. Therefore, absolute security and full functionality are not guaranteed. AMIUM GmbH is not liable for disadvantages arising from illegal “external attacks” unless they acted with gross negligence. Additionally, the liability limitations of point 9 apply.

13. FINAL PROVISIONS

Unless otherwise agreed, Austrian substantive law applies, excluding Austrian international private law and the UN Sales Convention, even if the order is carried out abroad. The place of performance for obligations of AMIUM GmbH is Kufstein, Austria. The court with jurisdiction over AMIUM GmbH shall have exclusive jurisdiction for all legal disputes in connection with and arising from this contractual relationship.


NO RE-EXPORT TO RUSSIA CLAUSE

(1) The [Importer/Buyer] shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.

(2) The [Importer/Buyer] shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.

(3) The [Importer/Buyer] shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).

(4) Any violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this Agreement, and the [Exporter/Seller] shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of this Agreement; and (ii) a penalty of 20% of the total value of this Agreement or price of the goods exported, whichever is higher.

(5) The [Importer/Buyer] shall immediately inform the [Exporter/Seller] about any problems in applying paragraphs (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). The [Importer/Buyer] shall make available to the [Exporter/Seller] information concerning compliance with the obligations under paragraph (1), (2) and (3) within two weeks of the simple request of such information.

AMIUM GmbH, November 2023