Allgemeine Geschäftsbedingungen

GENERAL CONTRACT AND DELIVERY TERMS AND CONDITIONS

1 AREA OF APPLICATION
1.1 These General Terms and Conditions, together with the operating instructions
included in the Annex, constitute an inseparable integral part of the sales contract
that has been or will be concluded and shall be applicable unless the parties to the
contract have expressly and in writing agreed otherwise. Any supplemental ora
agreements are null and void.
1.2 The following provisions for the delivery of goods shall apply accordingly for
other services as well.
1.3 These provisions also apply specifically to replacement part deliveries and to
deliveries resulting from warranty claims to the extent that such claims are not
excluded in the following provisions.
2. ESTABLISHMENT OF THE CONTRACT
2.1 The contract is established when the written order confirmation is sent to
Customer; the order confirmation is the sole standard for the scope and execution
of the order. Additional oral or written agreements outside of the order confirmation
are themselves valid only when confirmed in writing by Seller.
2.2 Seller’s quotations are subject to change without notice. The right to prior sale
is reserved.
2.3 Customer shall notify Seller prior to contract conclusion of the legal, official and
other regulations that relate in particular to the execution of the delivery, the
operation, the prevention of sickness and accidents, provisions restricting the
import or export of foreign currencies, and all other official provisions that may
delay, prevent or otherwise affect the delivery in a manner adverse to Seller;
Customer is responsible for the timely acquisition of all necessary official permits
under penalty of the legal consequences of Sections 12.2 and 12.3 of these Terms
and Conditions.

3. COPYRIGHT
Product, quotation, operating instructions, function, descriptions, illustrations and
the like are the intellectual property of Seller and may not be copied, reproduced,
made known to third parties in any manner or used without authorization t
manufacture a product or components. They must be returned to Seller upon
request if the order is not executed.

4. PRICES
4.1 Unless otherwise agreed, Seller’s prices shall be valid ex works and excluding
packaging, shipping insurance and freight.
4.2 Taxes, contract fees, stamps, import/export/transaction fees, discount interest
fees, customs and duties, official factorages and the like shall be borne by
Customer.
4.3 Seller’s prices are drawn up according to the wage and material expenses
applicable at the time of order confirmation; should these expenses rise between
order confirmation and order execution, Seller shall be entitled to pass on these
increases to Customer. The same applies to other increases beyond the control of
Seller that arise due to new taxes, duties or shipping tariffs.
4.4 If the contract is concluded with price disclosure, Seller is entitled to charge the
sales prices applicable on the day of delivery.
4.5 Should an appreciation or depreciation alter the ratio of one or the other of the
currencies in the in invoice, the ratio of the two currencies on the day of contract
conclusion shall be used as a basis for calculating the sales price.

5. PAYMENT TERMS
5.1 Payments shall effect a discharge of debt only when made to Seller’s account
at the bank indicated on the invoice or order confirmation and in the currency
defined in the quotation and order confirmation.
5.2 In the absence of a written order confirmation specifying otherwise, half of the
sales price shall be due and payable upon receipt of the order confirmation and the
remainder when the notification is given that the order is ready for dispatch.
5.3 The payment date is the day payment is received at the paying agent named
by Seller.
5.4 Customer is not entitled to withhold or offset payments as a result of possible
warranty claims—should such claims even be allowed at all—or other
counterclaims, including those from other transactions.
5.5 If Customer is in arrears with an agreed payment or other service, Seller can
either insist on the performance of the contract and
- postpone the performance of its own obligations until the payments or other
services in arrears are carried out;
- demand payment of the entire outstanding sales price;
- if Customer is at fault under the terms of the Austrian General Civil Code (ABGB),
assess default interest from the due date at a rate of 7.5% above the current bank
rate of the Austrian National Bank; or declare a withdrawal from the contract,
granting an appropriate grace period.
5.6 If Customer has not rendered the payment or other service in arrears when a
grace period granted by Seller has elapsed, Seller may withdraw from the contract
by means of a written notification. Upon Seller’s request, Customer shall return to
Seller any goods already delivered and compensate Seller for the resultant
depreciation of the goods as well as all legitimate expenses Seller was forced to
incur in executing the contract. As regards goods not yet delivered, Seller is
entitled to provide Customer with the finished or partially manufactured parts and
to demand in return the corresponding portion of the sales price.

6. RETENTION OF TITLE

6.1 Prior to the complete performance of all obligations of Customer, Seller
reserves the property rights to the goods it has supplied. Customer must comply
with all necessary formal requirements to protect the retention of title. In the case
of attachment or any other claims, Customer must assert the property rights and
notify Seller without delay.

7. DELIVERY PERIOD
7.1 In the absence of any agreement to the contrary, the delivery period shall
commence with the latest from among the following points in time:
7.1.1) Date of order confirmation;
7.1.2) Date of the completion of all technical, business and financial requirements
for which Seller is responsible;
7.1.3) Date on which Seller receives a down payment due prior to delivery of
goods and/or a pending letter of credit has been opened.
7.2 Seller may, at its discretion, extend the delivery period or withdraw from the
contract:
7.2.1) if information required by Seller for execution of the order is not received by
Seller in a timely manner or is subsequently changed by Customer;
7.2.2) if obstacles arise that are outside the control of Seller, irrespective of
whether they arise with Seller, Customer or a third party. Such obstacles might be
epidemics; mobilizations; war; rioting; severe interruptions of operations; accidents;
labor disputes; late or defective supply of necessary raw materials, semi-finished
or finished goods; official measures or acts of nature;
7.2.3) if Customer is in arrears with the work it is to carry out or with the
performance of its contractual obligations, in particular if it fails to adhere to the
payment terms, in which case Seller may also claim damages as well as lost
profits for each instance of fault.
7.3. In no instance shall there be interest paid on the payments already received
from Customer. Customer shall, from this point on, relinquish any possible
compensation exceptions and retention rights. The provisions of Section 12.2
apply analogously.
7.4 Seller is entitled to make partial or preliminary deliveries.

8. SHIPPING AND PACKAGING
8.1 Packaging shall be according to normal trade practice in order to prevent the
weather conditions from affecting the delivery contents under normal shipping
conditions. No further packaging shall be undertaken by Seller, even if Incoterms
specifying otherwise are agreed.
8.2 Seller must be notified in a timely manner of any special requests regarding
packaging. Such notification is timely if the desired packaging instructions can be
carried out without causing delay and without difficulty. If the request of a special
packaging type is not made in a timely manner or requires a significant expense,
Seller is entitled to reject the special packaging request without any legal
consequences. Such a rejection shall be made immediately and in writing.
8.3 In any event, shipping and packaging are invoiced separately to Customer, and
the packaging will not be taken back.

9. SHIPPING AND INSURANCE
9.1 The shipping arrangements are made by Customer at its own risk and
expense. If the carrier is hired per agreement by Seller and at the expense of
Seller, Customer shall still bear the risk and is required to bear responsibility for
properly securing the delivery en route from warehouse to warehouse against
slippage and shifting, tipping, possible external mechanical impacts, and the like.
9.2 Complaints associated with shipping must be directed by Customer to the last
carrier immediately upon receipt of the delivery or the shipping documents.
Customer is further obligated to claim any shipping damages to the carrier without
delay under the terms of the carrier agreement and the General Carrier Terms and
Conditions. Seller shall be notified concurrently of any such complaint.
9.3 Customer is obligated to purchase at its own expense warehouse-towarehouse
transit insurance with a value corresponding to that of the delivered
goods. Even if this insurance is to be purchased by Seller per agreement, it shall
be at Customer’s risk and expense; in no instance, however, shall Seller be liable
for shipping damages.
9.4 If delivery with service has been arranged, the prices do not include unloading.

10 TRANSFER OF RISK AND USE
10.1 The moment of the passing of risk takes place “ex works” such that the risk
passes from Seller to Customer when the goods are provided to Customer. Selle
must notify Customer of the time from which Customer may dispose of goods. Said
notification must take place in time for Customer to take the customary requisite
measures. In the case of “Railway carriage, truck, barge” (agreed dispatch
location), “Border,” “Destination” or “Freight free to…” (“Free to…”) sales, risk
passes from Seller to Customer at the moment in which the means of transport
loaded with the goods is taken over by the first carrier.
10.2 Unless otherwise agreed in writing, the goods are considered sold “ex works.”
10.3 Seller is only required to purchase insurance if and to the extent this has been
agreed in writing.
10.4 In other respects, the Incoterms shall be applicable in the current version of
the day of contract conclusion.
10.5 In the case of a delay in dispatch ex works that is not the fault of Seller, risk
passes to Customer on the day of notification of readiness for dispatch.

11 ACCEPTANCE OF THE DELIVERY
11.1 The delivery is to be inspected immediately upon receipt by Customer, any
defects being made known to Seller without delay and in writing. Failure to do so
excludes any claims.
11.2 If, at time of acceptance, the delivery does not correspond to the terms of the
contract, Customer must promptly provide Seller with the opportunity to repair the
defects. Seller shall enjoy sole discretion as to the manner and location of repair.
11.3 Customer may not decline to accept the delivery due to its defectiveness.
11.4 Should Customer nevertheless decline to accept, the provisions of §373 of
the Austrian Commercial Code (HGB) shall apply.
12. DELAY OF PERFORMANCE
12.1 If Seller intentionally caused a delay in delivery, Customer may either demand
compliance or, setting an appropriate grace period for making up the delivery,
declare withdrawal from the contract under the terms of the following. In the case
of customized designs, calculation of the grace period must take into consideration
that Seller will not have any other use for parts already finished.
12.2 If the grace period provided under 12.1 for Seller’s intentional negligence has
not been met, Customer may, by means of written notification, withdraw from the
contract as regards all goods not yet delivered and all delivered goods that
Customer cannot use in an appropriate manner without the goods that were not
delivered.
In this case, Customer has a right to a refund of the payments for the undelivered
goods or for the unusable goods (without interest and in consideration of the
following deductions) and—if the delay in delivery was a result of intentional
negligence on the part of Seller—to compensation for legitimate expenses that
were necessary for the execution of the contract until its dissolution and that have
no further application.
In the case of a withdrawal, Customer must surrender to Seller goods which were
received and cannot be used, compensating for their interim depreciation
(relinquishing any compensation or right of retention) and reimburse Seller for all
outlays, in particular for transportation costs, duties, fees, travel expenses,
construction and administration expenses, etc. The outlays also include expenses
Seller had to incur or must still incur for the purchase of parts of the delivery from
third parties (subcontractors). Depreciation is equal to 3% of the purchase price
monthly applied proportionately to the service already provided. In the case of
customized designs, Seller may present Customer with the manufactured parts
and demand in return the appropriate share of the sales price.
12.3 Customer is not entitled to claim damages for the late performance of a fixeddate
transaction.
12.4 Claims due to default by Customer against Seller other than the above-named
shall be excluded.
12.5 Should Customer fail to accept the contractually provided goods at the
contractually agreed location or at the contractually agreed time, and if the delay is
not due to an action or omission on the part of Seller, Seller may either demand
compliance or withdraw from the contract after setting a deadline for acceptance.
If the goods were set aside, Seller may carry out the restocking of the goods at the
expense and risk of Customer. Seller is also entitled to demand reimbursement
due to a delay for all legitimate mandatory expenses for the execution of the
contract that were not reflected in the payments received
12.6 Except in cases of intent, Seller shall in no instance be liable for damage
claims for delivery (performance) that is late or otherwise in breach of contract.
12.7 Should Customer withdraw from the contract under the terms of these
provisions, it shall have a claim to the payment rendered to Seller but not to any
interest accumulated thereon. Customer must for its part surrender what it has
received from Seller through this contract, relinquishing any possible compensation
and retention rights. The return of the mutual payments shall be carried out
concurrently.
12.8 If a previously rendered partial delivery has already been put into operation by
Customer and if this partial delivery is basically still usable by Customer, a
withdrawal in regard to this partial delivery shall be excluded.

13 WARRANTY
13.1 For deliveries that Seller makes, Seller shall commit to repair or replace as
quickly as possible all parts that are determined by a court-sworn expert approved
by both contract parties to be defective or unusable due to poor material, faulty
construction or imperfect workmanship. Seller shall enjoy sole discretion over the
manner and location of repair. The replaced parts shall become the property of
Seller.
13.2 Other warranty claims by Customer shall be excluded, including those for
expressly or implicitly promised properties of the delivery (“dicta et promissa”).
13.3 Unless otherwise agreed, Seller shall bear only the costs that arise as a result
of repairing or replacing the defective parts in Seller’s workshops. If defective parts
cannot be repaired or replaced in Seller’s workshops for reasons beyond the
control of Seller, such as parts manufactured to Customer specifications in
departure from the delivery contents in the catalog, Customer shall bear all
resulting additional expenses.
13.4 Customer shall be obligated to inform Seller immediately and in writing of all
defects that appear. Failure to do so shall result in the loss of all warranty claims.
13.5 The warranty period is 1 year. It begins upon dispatch of the delivery ex works
or, if Seller is also monitoring the initial operation, with the completion thereof.
If the dispatch or initial operation are delayed for reasons other than intentional
misconduct by Seller, the warranty period shall end no later than 1 year after
notification of readiness for dispatch.
13.6 The warranty period per 13.5 shall be extended by defect repair or
acknowledgment—even in the case of the insertion of new parts into the main
delivery—neither for the main delivery nor for new parts.
13.7 If defects should appear in the product of Seller or a third party determined by
Seller, Customer shall be obligated upon request to return the defective goods or
the defective parts to said party for the purpose of repair or replacement; here,
Customer shall assume the cost and risk of the transport to Seller as well as of the
return transport of the repaired or replaced parts to Customer.
13.8 Damages due to normal wear and tear, insufficient maintenance, disregard of
operational instructions, non-compliance with operating instructions/improper use,
excessive strain, inappropriate equipment, chemical or electrolytic influences, as
well as damages due to other reasons not resulting from fault by Seller, shall be
excluded from the warranty.
13.9 The warranty shall expire if Customer or third parties make changes or repairs
to the delivery without the written consent of Seller, in particular operation that
deviates from the operating instructions or improper use of the product, of the
product’s deployment or another installation of the product; the warranty shall also
expire if Customer does not immediately take appropriate measures to limit the
damage and Seller can repair these defects.
13.10 If an order is manufactured according to Customer’s construction
specifications, drawings or models, Seller’s liability shall not include the structural
integrity but only the design according to Customer’s specifications. Customer shall
indemnify Seller from any infringement of third-party protected rights.
13.11 Seller shall assume no liability of any kind in taking on repair orders or in
changing or structurally altering old or third-party products.
Old products are those for which the warranty period per Section 13.5 has elapsed
or which, with the knowledge of Customer, had already been in use at Seller or a
third party.
13.12 Seller shall be liable for parts it purchased from subcontractors only within
the scope of Seller’s own warranty rights vis-à-vis the subcontractor.
13.13 If the delivery as a whole or components thereof are taken back, Customer
shall be assessed a depreciation fee equal to 3% monthly from the total or partial
price for the duration of use of the retracted whole or partial delivery.
13.14 After the start of the warranty service, Seller shall assume no additional
liability beyond that determined in this clause, not even for defects whose origin
predates the passing of risk.

14 DAMAGES
14.1 Seller shall incur liability for damages only in cases where Seller’s intent can
be demonstrated. Damages for lost profits shall be excluded in all instances. If the
defect appears in the object or product delivered by Seller, Seller’s sole obligation
under the warranty in cases of irreparability shall be an exchange.
14.2 The object of sale offers only the safety that can be expected on the basis of
Seller’s permit regulations, operating instructions and regulations regarding the
handling of the object of sale—in particular with regard to universally prescribed
inspections—and any other indications. It shall be established through the
presence of a CE label that the product is in compliance with the regulations on
which this label is based and also offers the safety stipulated thereby.
14.3 All damage claims due to defects in deliveries and/or services must be
asserted by legal process within the contractually established warranty period, or
shall otherwise expire, unless the defect is expressly recognized by Seller.

15 PLACE OF PERFORMANCE AND VENUE
15.1. The place of contract performance is the corporate headquarters of th
company active photonics AG, even if the transfer is agreed to take place
elsewhere.
15.2. Customer may not transfer its rights under the contract to third parties without
Seller’s consent.
15.3. The contract shall remain binding even if individual points of its provisions are
ineffective.
15.4 This contract is subject to Austrian law to the exclusion of the UN Convention
on the International Sale of Goods.
15.5 The court in the headquarters of active photonics AG having jurisdiction as
regards the subject matter is locally competent for all disputes that result directly or
indirectly from this contract. Seller may, however, also seek redress in a different
court competent for Customer.

16 GENERAL
16.1 Changes and deviations from Seller’s General Contract and Delivery Terms
and Conditions shall be valid only upon express written agreement. Any other
terms and conditions of Customer in conflict with Seller’s General Contract and
Delivery Terms and Conditions shall apply only if and to the extent that Seller has
expressly recognized them in writing.
16.2 Promises and agreements of Seller’s employees are legally binding only if
confirmed by at least one institution authorized to represent the company.
16.3 Customer’s claims for damages shall be excluded in all instances, except in
cases of intentional damage by Seller. Seller shall never be liable for any type of
consequential damages, in particular for loss of profits.
16.4 Seller is entitled to store, transmit, process and delete personal data of
Customer within the context of the business transactions.
16.5 The contract parties agree not to disclose to third parties any of the
knowledge they obtain through the business dealings.
16.6 It shall be established that the company active photonics AG will provide only
the active head-up without the helmet. The contract parties shall exclude any
liabilities that may arise through a connection of the helmet or another object to the
active head-up. By signing the sales contract, Customer states expressly that it
has been instructed in operation and has been notified that in connecting active
head-up to a helmet or other object, changes may occur, but that no liability shall
be assumed by Seller.

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