Terms & Conditions

of KW open promotion consulting & trading gmbh, hereinafter called KW open

All deliveries and services ("Supplies") of KW OPEN rendered to another businessperson ("Unternehmer") in the sense of § 14 BGB (German Civil Code), including but not limited to any body corporate or special fund under public law, (hereinafter: "Purchaser") are subject to the following General Business Terms, unless agreed on otherwise.

I. General

1. The scope of deliveries and/or services (Supplies) shall be determined by the written declarations of both Parties. General terms and conditions of the Purchaser shall apply only if and when expressly accepted by KW OPEN in writing.

2. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.

II. Prices and Terms of Payment

1. Prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate.

2. If KW OPEN is also responsible for any additional services, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. travel costs, costs for the transport etc.

3. Payments shall be made to the account mentioned on the invoice.

4. The Purchaser may set off only those claims that are undisputed or against which no legal recourse is possible.

III. Retention of Title

1. Items pertaining to the Supplies („Retained Goods“) shall remain the property of KW OPEN until each and every claim KW OPEN has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of KW OPEN exceeds the value of all secured claims by more than 20 %, KW OPEN shall release a corresponding part of the security interest if so requested by the Purchaser.

2. The Purchaser shall inform KW OPEN forthwith of any seizure or other act of intervention by third parties.

3. Where the Purchaser fails to fulfil its duties, including failure to make payments due, KW OPEN shall be entitled to take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by KW OPEN; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.

IV. Time for Supplies; Delay

1. Times set for Supplies can only be observed if all Documents to be supplied by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where KW OPEN is responsible for the delay.

2. If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike or lockout, such time shall be extended accordingly.

3. Upon request of KW OPEN the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.

V. Transfer of Risk

The risk shall pass to the Purchaser if dispatch, shipping, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

VI. Receiving of Supplies

The Purchaser shall not refuse to receive Supplies due to minor defects.

VII. Defects as to Quality

KW OPEN shall be liable for defects as to quality („Sachmängel“, hereinafter referred to as „Defects“,) as follows:

1. All parts or services where a Defect becomes apparent within the limitation period shall, at the discretion of KW OPEN, be repaired, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the Defect had already existed at the time when the risk passed.

2. Claims based on Defects are subject to a limitation period of 12 months. This provision shall not apply where longer periods are prescribed by law as well as in cases of injury of life, body or health, or where KW OPEN intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The legal provisions regarding suspension of expiration („Ablaufhemmung“), suspension („Hemmung“) and recommencement of limitation periods remain unaffected.

3. The Purchaser shall notify Defects to KW OPEN in writing and without undue delay.

4. In the case of notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defect occurred. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect occurred is justified beyond doubt. Unjustified notifications of Defect shall entitle KW OPEN to have its expenses reimbursed by the Purchaser.

5. KW OPEN shall be given the opportunity to supplement its performance („Nacherfüllung“) within a reasonable period of time. However, if the supplementary performance is unsuccessful, the Purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. XI.

6. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment or from particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or other work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.

7. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the Purchaser’s branch office, unless doing so complies with the intended use of the Supplies.

8. The Purchaser’s right of recourse against KW OPEN pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against KW OPEN pursuant to Sec. 478 para. 2 BGB.

VIII. Industrial Property Rights and Copyright; Defects in Title

KW open shall supply products under the brand- and property rights of TRIDONIC.
The right to deliver and sell is limited to the contract between KW open and TRIDONIC.

IX. Impossibility of Performance; Adaptation of Contract

1. To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim damages, unless KW OPEN is not responsible for the impossibility. However, the Purchaser’s claim for damages shall be limited in any case to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.

2. Where unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the business of KW OPEN, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, KW OPEN shall have the right to cancel the contract. If KW OPEN intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event. This shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.

X. Other Claims for Damages

1. Any claims for damages and reimbursement of expenses the Purchaser may have („Claims for Damages“), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded.

2. The above shall not apply in the case of mandatory liability, e. g. under the German Product Liability Act („Produkthaftungsgesetz“), in the case of intent, gross negligence, injury of life, body or health, or breach of a condition which goes to the root of the contract („wesentliche Vertragspflichten“). However, Claims for Damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.

3. To the extent that the Purchaser has a valid Claim for Damages according to this Art. XI, it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. VIII No. 2. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.

XI. Venue and Applicable Law

1. If the Purchaser is a businessperson (“Kaufmann”, with the meaning as ascribed to such term in Sec. 1 ff. HGB), sole venue for all disputes arising directly or indirectly out of the contract shall be Dornbirn /Austria. However, KW OPEN is also entitled to bring an action at the Purchaser’s place of business.

2. Legal relations existing in connection with this contract shall be governed by substantive law of Austria, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XII. Severability Clause

The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions.