SELLER shall be entitled to additional liquidated damages based on the value

GENERAL TERMS OF DELIVERY of Starlinger & Co of the GOODS at a rate of 0,2 % per week for the first 4 weeks of delay and
Gesellschaft m.b.H., dated July 1st 2017 thereafter 0,5 % per week in case the delay lasts more than 4 weeks.

5.6. Notwithstanding the above SELLER shall at any time but earliest 90 calendar
Definitions:
days after lapse of the grace period have the right to dispose the GOODS for
“Acceptance Run” – shall mean operation of GOODS in order to achieve the acceptance
other purchasers. In case SELLER decides to do so, this present contract shall
parameters as defined by SELLER and BUYER
be amended accordingly and the Parties shall agree on a new delivery time.
In such case the liquidated damages as well as the handling and storage costs
“approx.” and/or “approximately” – shall mean ± 10 %
shall apply until the GOODS are being despatched to the respective other
purchaser.
“Calendar Day” - shall mean calendar days according to Gregorian calendar
5.7. However the above liquidated damages shall in total not exceed more than
5% of the total value of the GOODS. In case the overall delay in delivery due
“Commissioning” – shall mean initial start up of the GOODS, i.e. setting into operation and
to causes which rest with BUYER, exceeds a period of 120 calendar days
training of BUYER`s personnel by SELLER`s specialists i.e. take over of the GOODS by
SELLER reserves the right to adjust the contractual price for the GOODS by
BUYER.
3% p.a.
5.8. Upon arrival of the packed GOODS at BUYER`s premises, the BUYER shall
“Confidential Information” – shall mean sensitive technical or commercial information, e.g.
thoroughly inspect the packages for completeness in accordance with the
trade secrets, business plans, process parameters, construction drawings, test results,
packing list and obvious damages. Short-shipments or deficiencies that have
specifications, samples or models, software, miscellaneous documents, statements of
been discovered must be reported with a detailed written explanation to
intention, experience, knowledge or know-how of either Party disclosed to the other Party
SELLER within 15 calendar days after unloading of the GOODS. or any right in
whether orally, in writing (including but not limited to e-mail and/or fax),in material form
connection therewith shall lapse. SELLER reserves the right to contradict to
or to which either Party gained visual access within the course of this Contract.
BUYERs claims.
“Delivery” – shall mean Goods being delivered in accordance with the applicable
Article 6 – PRICE
INCOTERM according to ICC`s Incoterms 2010.
6.1. Unless otherwise agreed, all prices shall be ex works of SELLER, without
“Despatch” shall mean – Goods leaving SELLER`s premises
packing and loading.
6.2. The prices shall be based on the costs at the time of the quotation, unless
“EUR” – shall mean EURO
otherwise agreed.
“GOODS” – shall mean scope of supply as specified by BUYER and SELLER
Article 7 – PAYMENT TERMS
“Installation” – shall mean erection and assembling of the GOODS at site of BUYER or at
7.1. The payments shall be made in strict accordance the agreed conditions of
any other place of destination agreed upon in writing duly signed by BUYER and SELLER
payment under the Contract.
by BUYER`s staff under supervision of SELLER`s specialists.
7.2. The BUYER is not permitted to defer payment or to offset any amount against
the payment without the prior written approval of SELLER.
“L/C” – shall mean Letter of Credit
7.3. If BUYER defaults on the agreed payment or any other performance, SELLER
may either insist on the performance of the Contract or announce the
“Time of Despatch” – shall mean the date on which the GOODS leave SELLER’s premises
withdrawal from the Contract, granting a reasonable respite of at least
fourteen calendar days but not more than thirty calendar days. In all events,
“Transport Document” – shall mean AWB or B/L or CMR or FIATA B/L or FCR,
BUYER shall refund to SELLER the dunning charges and collection costs which
constitute a further damage caused by the delayed performance.
“AWB” – shall mean airway bill.
If BUYER has not fulfilled his payment obligations due (or any other of BUYERs
obligations) within the granted respite, SELLER may withdraw with immediate
“B/L” – shall mean Bill of Lading
effect from the Contract by means of a written notice (for purpose of this
article e-mail and/or fax shall be considered sufficient). BUYER shall return to
“CMR” – shall mean road consignment note
SELLER, upon SELLER ’s request, any delivered GOODS and compensate
SELLER for any reduction in the value of the GOODS that has occurred, as
“FCR” – shall mean the forwarder’s certificate of receipt
well as refund to SELLER all expenses that SELLER had to incur in connection
with the performance of the Contract.
“FIATA B/L” - shall mean multimodal transport document issued in accordance with
7.4. If the BUYER defaults on the agreed payment, SELLER has the right to charge
International Federation of Forwarding Agents Associations.
interest on arrears, of 10 % p.a.. It is further agreed between the Parties that
in case of any installments not being paid in full or at all, SELLER may
“USD” – shall mean US-Dollars
terminate the Contract in accordance with Article 7.3. In such case SELLER
shall be entitled to retain any amount paid by the BUYER as liquidated
“Working Day” - shall mean Monday to Friday, except Saturdays, Sundays and public
damages.
holidays.
Article 8 – RETENTION OF OWNERSHIP
Article 1 – MAKING A CONTRACT
8.1. The GOODS shall remain the sole and absolute property of SELLER as legal
1.1. Unless the Parties have expressly agreed otherwise in writing, these present
and equitable owner until such time as any amount outstanding in terms of
General Terms of Delivery shall apply.
this Contract has been paid, irrespective of the fact that the sold GOODS have
1.2. The below provisions on the delivery of GOODS shall also apply mutatis
been handed over to the BUYER. The BUYER shall insure the GOODS against
mutandis to services to be performed by SELLER for BUYER.
any risk of loss or destruction for the benefit of the SELLER until any amount
1.3. The Contract shall be deemed to have been concluded if the SELLER has sent
outstanding in terms of the Contract has been paid.
a written order confirmation upon receipt of an order from the BUYER and if
8.2. It is further agreed between the Parties that in case of any instalments not
there is no evidence that the BUYER has opposed to same within ten days.
being paid in full or at all, SELLER shall be entitled to retain any amount paid
1.4. SELLER shall be bound by BUYER’s terms and conditions only if SELLER has
by the BUYER as liquidated damages in case of the Contract being cancelled.
accepted them separately and expressly in written form.
8.3. In case legal registration of ownership is required due to law, the BUYER is
obliged to fulfil the registration proceedings at his costs and to present to
Article 2 – TECHNICAL INFORMATION
SELLER a written proof of such registration before shipment.
8.4. SELLER may for the purpose of recovery of their GOODS enter upon any
2.1. The data on weights, measures, content, prices, performances, or alike, as
premises where they are stored or where they are reasonably thought to be
contained in catalogues, brochures, circular letters, advertisements, pictures
stored and may repossess the same. In case the premises where the GOODS
and price lists, etc. shall only be binding for SELLER if the particular quotation
are located are being rented by BUYER, BUYER shall ensure its landlord`s
and/or the Contract expressly refers to them.
consent to SELLER`s entering to said premises in order to reposes the
2.2. Drawings, design drafts and other technical documents, as well as samples,
GOODS.
catalogues, brochures, pictures and alike shall always remain the intellectual
property of the SELLER. Any use, copying, reproduction, dissemination and
Article 9 – RIGHT TO ASSIGN
transfer to third Parties, and any publication and presentation thereof requires
the prior express approval of the SELLER.
SELLER shall be entitled to sub-contract, cede, assign and transfer any or all of its rights,
title and interest in and to the Contract to a third party without the BUYER’s consent.
Article 3 – PACKING
Article 10 - WARRANTY
Unless other arrangements have been agreed upon
a) the listed prices are without packaging;
SELLER warrants that the GOODS supplied under this Contract shall be brand new and
b) the GOODS are packaged according to normal trade practice in order to avoid any
manufactured of high quality materials and first class workmanship in accordance with the
damage of the GOODS under normal transport conditions on the way to their agreed
specifications given in the Contract and in accordance with applicable European legal
destination. The GOODS are packaged at BUYER’s expense, and the packaging
prerequisites.
material will only be taken back if so agreed by the Parties. In case the GOODS
have to be stored after unloading at BUYER`s site, the BUYER is obliged to provide a
10.1. SELLER`s warranty is limited to the following defects occurring within the
proper storage facility inside of a building.
following warranty periods:
Article 4 – PASSING OF RISK
- for mechanical defects during a period of fifteen months after shipment
(i.e. date of respective Transport Document)respectively twelve months
Risk of loss or damage to the GOODS shall pass to the BUYER according to ICC Incoterms
after setting into operation, whatever comes first,
2010.
- for electrical defects during a period of nine months after shipment (i.e.
Article 5 – DELIVERY/ Despatch/Inspection at arrival
date of respective Transport Document) respectively six months after
setting into operation, whatever comes first.
5.1. Time or date of Despatch as per the Contract.
5.2. SELLER shall have the right to make partial or advance shipments.
As regards services performed by SELLER a warranty period of six
5.3. In case Time of Despatch is delayed due to causes which rest with the BUYER
months from date of final completion of the services shall apply.
all consequential measures subject to timely Despatch (including but not
limited to Installation, start-up and acceptance run) shall be delayed
Such defects must be reported with a detailed written explanation to
accordingly without liquidated damages or penalty to SELLER.
SELLER immediately and shall be remedied by SELLER on SELLER`s cost
5.4. In case delivery is delayed for more than 30 calendar days due to causes
and choice as follows:
which rest with the BUYER, SELLER shall have the right to store the GOODS
a) by reworking the defective GOODS on BUYER’s site or
on BUYER`s account and to charge handling of EUR 15.000,00 (1 time) and
b) by having the defective GOODS or the defective parts shipped back to
the accrued storage costs until the GOODS will be finally despatched.
SELLER for reworking or
5.5. After lapse of a grace period of 30 calendar days beginning from the delay

Starlinger & Co. Gesellschaft m.b.H., Sonnenuhrgasse 4, 1060 Vienna, Austria, T: +43 1 59955-0, F: -25, www.starlinger.com
Raiffeisen Bank International AG, BIC RZBAATWW, IBAN AT26 3100 0001 0042 5611
UniCredit Bank Austria AG, BIC BKAUATWW, IBAN AT43 1100 0006 8161 6900
Sitz der Gesellschaft: Wien, Registriert: Handelsgericht Wien FN 117230 Y, UID-Nr. ATU 14653604. A member of Starlinger Group
 c) by replacing the defective parts or
d) by replacing the defective GOODS.
SELLER shall deliver replacement parts FCA Vienna Airport acc. to ICC
INCOTERMS 2010.
Whereas the costs for freight are on SELLER`s account. Costs for import
clearance of the GOODS in the country of destination are on BUYER’s
account.
10.2. In order to enable SELLER to fulfill its warranty obligations BUYER shall be
obliged to return the defective equipment or the defective parts thereof to
SELLER or SELLER`s nominee.
10.3. The warranty does not cover wear and tear parts which are subject to or
damaged by normal wear and tear. These wear and tear parts are
specified in separate lists added to the operating manuals of the GOODS.
10.4. SELLER assumes no warranty and/or liability for deficiencies or damages
resulting from insufficient or faulty handling and/or insufficient or faulty
maintenance and/or faulty Installation performed by the BUYER or any
third party.
10.5. Any warranty of SELLER shall be excluded in case the BUYER unpacks or
carries out any Installation work of the GOODS without participation of
SELLER.
10.6. Any warranty or guarantee shall automatically become null and void with
immediate effect for the entire scope of supply in case the BUYER uses
other spare or wear parts than the - parts delivered by SELLER or in case
BUYER uses spare or wear parts which were not expressly approved in
advance and in written form by SELLER.
10.7. SELLER assumes no warranty or liability whatsoever for damages or
deficiencies resulting from any modifications of the GOODS carried out by
the BUYER. This applies regardless of the nature and extent of the
modifications and regardless if SELLER had notice or had to have
knowledge of said modifications. In case the BUYER carries out any
modifications on the GOODS, it is exclusively BUYER’s responsibility to
attach corresponding warning signs on the modified GOODS as well as to
procure for adequate security measures. In case of BUYER’s modifications
of the GOODS any Certification of Conformity issued by SELLER becomes
null and void and it shall be exclusively BUYERs responsibility to provide for
the particular machine acceptance by local technical inspection authorities
and the conformity of the GOODS to local standards and regulations. In
case of modifications of BUYER the signs of Certification of Conformity
attached on the GOODS, in particular on the type plate, shall be
immediately made unrecognizable by BUYER.
10.8. The BUYER shall not have the right to withhold or to offset payments due
to warranty claims.
10.9. In case it is found during the course of SELLER’s performance of its
warranty obligations stipulated hereinunder that BUYER’s claim is
unfounded, BUYER shall bear all costs arisen from SELLER`s performance.
10.10. The BUYER shall have at any time the burden of proof that the GOODS
supplied have already been defective at the time of delivery.
10.11. SELLER shall have the right to make minor variations of details of design
and construction of the GOODS due to technical modernization having no
adverse effect on the GOODS.
ARTICLE 11 - LIABILITIES
11.1. To the extent permitted by applicable laws the SELLER shall be liable only
for intentional acts and serious gross negligence and personal injury or
death of a person.
11.2. To the extent permitted by applicable laws the liability for loss of
production and loss of profit as well as consequential and indirect damages
shall be excluded.
11.3. This restriction of liability shall apply to all damage claims, regardless of
their legal grounds, including but not limited to pre-Contractual and
ancillary Contractual claims.
11.4. SELLER assumes no liability for damages resulting from BUYERs non-
adherence to applicable national technical regulations or/and operating
instructions given by SELLER as well as the stipulations of the SELLERs
operating manual. SELLER assumes no liability or guarantee for the
outcome of inspections performed by national state authorities in BUYERs
country.
11.5. Any damage claims of the BUYER against SELLER must be asserted within
a period of six months from the moment BUYER gained knowledge of the
damage. The BUYER shall bear the burden of proof in regard to any
damages as well as in regard to any default of SELLER.
11.6. Any operation and serial production prior to or without performance of the
Acceptance Run as per the Contract shall be at BUYER`s own risk and
expense. In such case SELLER assumes no liability whatsoever for any
damages and/or deficiencies resulting from BUYER`S operation and/or
serial production without contractual performance of the Acceptance Run.
Further in such case any and all outstanding payments shall become due
and payable with immediate effect.
This present Article 11.6. shall not apply in cases, where the performance
of the Acceptance Run has been prevented by reasons which lie with
SELLER.
Article 12 – MODIFICATIONS
12.1. Modifications and amendments to the Contract are valid and binding only if
they have been made in writing and duly signed by the authorized
representatives of the BUYER and the SELLER.
12.2. Should any modification in design, drawings and/or specifications, shipping
instruction and time schedules affect the price of the Contract and/or Time
of Despatch and/or any applicable time schedules, an equitable
adjustment in the price and/or Time of Despatch and/or applicable time
schedules will be mutually agreed upon.
Article 13 – GENERAL TERMS
13.1. In the event that import and/or export licenses or foreign-currency permits
or similar authorizations are required for the performance of the Contract,
the BUYER is responsible for obtaining such documents, licenses or permits
necessary in due time. SELLER shall at all times provide information
concerning which documents, permits and licenses are necessary for the
respective transaction in Austria.
13.2. The invalidity of any provision of the Contract shall not have any influence
upon the validity of the remaining provisions. Both contracting Parties shall
replace the invalid provisions by valid provisions corresponding as much as
possible to the original intentions of both Parties to the Contract.
Starlinger & Co. Gesellschaft m.b.H., Sonnenuhrgasse 4, 1060 Vienna, Austria, T: +43 1 59955-0, F: -25, www.starlinger.com
Raiffeisen Bank International AG, BIC RZBAATWW, IBAN AT26 3100 0001 0042 5611
UniCredit Bank Austria AG, BIC BKAUATWW, IBAN AT43 1100 0006 8161 6900
Sitz der Gesellschaft: Wien, Registriert: Handelsgericht Wien FN 117230 Y, UID-Nr. ATU 14653604. A member of Starlinger Group
Article 14 – CONTRACTUAL LANGUAGE
The Contract and the appendices thereto, which form an integral part of the Contract, as
well as all exchanges between the Parties hereto shall be in English language. In case the
Contract has been translated into other languages the English text shall in any case
prevail.
Article 15 – FORCE MAJEURE
15.1. The term "FORCE MAJEURE" is understood by both Parties to mean any
cause to prevent either party from performing any or all of its obligations
which arises from or is attributable to acts, events, omissions or accidents
beyond the reasonable control of the party so prevented and are not
reasonably avoidable by the party so prevented including strikes, lockouts
or other industrial disputes (whether involving the workforce of the party
so prevented or any other party), acts of God, war, riots, civil commotion,
malicious damage, compliance with any law or governmental order, rule,
regulation or direction, by any competent body or authority, accident,
breakdown of plant or machinery, fire, flood or storm, restraints or delays
affecting shipping or carriers, inability or delay in obtaining supplies of
adequate or suitable materials or products, currency restrictions. Neither
party shall be liable to the other party in any manner whatsoever for any
failure or delay in performing its obligations under the Contract due to
force majeure provided always that clause this shall not apply in respect of
an obligation to pay monies.
15.2. In case of an event of force majeure, the Parties shall meet to decide on
and take appropriate measures.
15.3. Any party wishing to plead force majeure must notify the other party
within fifteen (15) days by registered letter with return receipt, stating the
nature, the starting date and the probable end of the event of force
majeure.
15.4. Failure to comply with this requirement shall result in full and irrevocable
liability of the defaulting party for all risks and consequences of the event
of force majeure.
15.5. Provided the above notification requirement has been adhered to, in the
event a Party is unable to meet its obligations under the Contract due to
Force Majeure for a period of more than 4 weeks the other Party shall be
entitled to terminate the Contract in whole or in part.
Article 16 – COVENANT OF CONFIDENTIALITY
16.1. The PARTIES shall treat Confidential Information as strictly confidential and
shall not disclose it to any third party. PARTIES undertake to disclose
Confidential Information only to their personnel having a need to know
thus being directly involved in the execution of this Contract (including but
not limited to Installation, Commissioning, Acceptance and operation of the
GOODS).
BUYER shall not copy or reproduce any drawings, flow-sheets, layouts
sketches, technical information sheets or operating handbooks supplied by
SELLER on the terms of this Contract without the express prior written
consent of SELLER. In the event that Confidential Information and/or other
information of SELLER including but not limited to drawings, flow-sheets,
layouts, sketches, technical information sheets or operating handbooks
should have to be given or disclosed to third parties by BUYER in order to
implement the GOODS at BUYERs premises, the BUYER shall inform
SELLER of such need in advance and in written form by specifying purpose
and identifying the receiving third party. In such cases BUYER shall
verifiably ensure that the duty of confidentiality shall also be complied with
by any such third party. BUYER shall prove at SELLER`s request at any
time that said third parties have been bound to this confidentiality
obligation or to a confidentiality obligation at least as strict as the
obligation stipulated under this present Article 16.
16.2. Either PARTY shall verifiably ensure that this duty of confidentiality shall
also be complied with by any of its employees having a need to know. Each
PARTY shall prove at the other PARTY`s request that said employees have
been bound to this confidentiality obligation or to a confidentiality
obligation at least as strict the obligation stipulated under this present
Article 16.
16.3. The covenant of confidentiality does not apply to Confidential Information
which a) is already known to the receiving Party at the time when it is
communicated to him by the other Party; b) at the time when it is
communicated, is already publicly available without breach of
confidentiality, i.e. is accessible to anyone; c) at the time when it is
communicated, is already available to the receiving Party through own
research, or at the time when it is communicated is already standard
technology; d) by written permission of the disclosing Party, the receiving
Party is authorised to utilise or to disclose to third parties; e) has to be
disclosed to public authorities due to provisions of mandatory law.
Notwithstanding any such disclosure shall be made only to such an extent
that confidentiality of other Confidential Information shall remain
unaffected far as permitted by applicable law.
16.4. The covenant of confidentiality as per this present Article 16 shall
automatically terminate upon expiry of the warranty period as per Article
10 above.
16.5. BUYER acknowledges that any attempts or measures to have the GOODS
or parts thereof manufactured or copied by third parties or by
BUYER itself are strictly prohibited and entitle SELLER to terminate this
Contract with immediate effect and to retain any received payment.
SELLER shall in such cases seek injunctive reliefs as well as any other
legal remedies SELLER deems appropriate to stop any such measures of
BUYER.
Article 17 – ARBITRATION CLAUSE, APPLICABLE LAW
17.1. All disputes arising out of or in connection with the Contract shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance with the
said Rules
17.2. The arbitration proceedings shall be governed by the Rules of Conciliation
and Arbitration of the International Chamber of Commerce, Paris, France.
The proceedings shall take place in Vienna, Austria in the English
language. The arbitrators shall apply the laws of Austria to the case at
hand, CISG and the conflict of law principles shall be excluded. The
Emergency Arbitrator Provisions shall not apply.
17.3. The ruling of the arbitrators shall be final and binding on BUYER and
SELLER