Dynamic Projection Institute
Any delivery of goods, supply of services and offers of the company Dynamic Projection Institute Herstellungs und Vertriebs GmbH Renngase 4/1/1 1010 Wien / Vienna, hereinafter referred to as DPI, is carried out exclusively in accordance with these terms and conditions (hereinafter: Terms and Conditions) in the version currently in force. Any deviant condition requires our written consent. The Terms and Conditions are available under the link “AGB” at website of DPI. The conditions of delivery and sales of the contractual partner (hereinafter: “Customer”) are not subject matter of the respective contract unless expressly agreed otherwise in writing on a case-by-case basis, further, they are not accepted by maintaining silence or by delivery.
2. Applicability, Conclusion of the contract
All offers submitted by DPI are subject to change and without obligation. All declarations, information, advice and oral agreements of any kind become binding only by means of DPIs written consent. Oral Agreements concluded by our employees are valid only with DPIs written endorsement. Where it is not otherwise agreed, our Terms and Conditions are applicable also to future orders of the Customer; regardless if we refer to the Terms and Conditions in the particular case.
3. Prices and Terms of Payment
The price-details in our price-lists are subject to change and non-binding. Where it is not explicitly noted, the prices announced by us are without VAT. Misprints are reserved. Unless it is agreed otherwise, the Customer bears the costs for packaging, freight and insurance. Cost estimates provided by DPI for services shall be non-binding.
Relieve of payment for purchased products is granted only for payments which are paid directly to DPI or to a bank account named by DPI. Payments to the bank account of DPI are considered as being paid at the time of incoming. Bills from DPI are due immediately, unless it is otherwise agreed. In any case date of payment is the agreed date of payment from the date of the receipt. Cash discount deductions require a separate agreement. Reorders are considered and billed as new orders and are not included in possible lump sums. DPI has the right to transfer all rights from the contract with Customer several times pursuant to §§ 1392 ff of the Austrian Civil Law Code (ABGB). The setoff provision of Section 1168 of the Austrian General Civil Code [ABGB] shall be excluded.
4. Reminder Fees and Expenses of Collection
In case of delay, the Customer is obliged to reimburse adequate reminder fees and expenses of collection which incurred to us in asserting our legal rights. In particular, the Customer agrees to reimburse those expenses of collection, which result out of the regulation of the Austrian Ministry of Economics about the maximum compensation of professional collectors.
5. Retention of title
All goods are delivered under retention of title and remain our property until full payment. The retention of title shall be a withdrawal from the contract only where we have issued an explicit statement. In the event of a return of goods we have the right to charge fees of transportation and manipulation. In the event that third parties access the goods subject to reservation of proprietary rights – in particular through execution – Customer agrees to point out that the Products are our property and notify us immediately. If Customer is consumer and no business man whose business is the trade with the Products purchased from us, he may not dispose, in particular by selling, bonding, giving away or lending the goods under reservation of proprietary rights, until we received the complete payment of the purchase price. The customer bears the full risk for the Products under reservation of proprietary rights, in particular the danger of destruction or deterioration. If Customer is a business man, he has the right to sell the Products in course of his business; for this case he assigns already now all his claims – including VAT –from the sale towards buyers or third parties, regardless, whether the goods have been sold without or after processing to DPI. Customer has still the right to collect the receivables after the assignment of claims. This does not affect DPIs right to collect afore mentioned receivables. We however agree to not collect the receivables, as long as Customer complies with his payment obligations without default and in particular as long as there is no application for insolvency or default of payment. In this case, Customer loses his authorization to collect the receivables and we may demand that he informs us about all assigned receivables and the respective debtor and provides us with all information necessary to collect the receivables and that he provides us with the respective documents and that he notifies the (third party) debtors of the assignment. We agree to release the securities granted to us as far as their realized value exceeds the secured receivables more than 10%; whereby we have the right to select, which securities are released.
6. Delivery of Goods and Transfer of Risk
Delivery dates are approximate, unless a fixed delivery date is agreed upon. The period of delivery either starts at the date of confirmation, the date of completion and verification of obligations of the Customer, or completion of conditions which are to be fulfilled by Customer, whatever is the latest. Times of delivery are subject to unforeseeable or unavoidable circumstances or circumstances which can not be influenced by DPI, such as force majeure, strike, delay of delivery by sub-supplier, which are due to aforementioned circumstances. In the event that a delivery or service becomes impossible, DPI has the right to withdraw from the contract either in the whole or in parts by written notification. In the event that Customer does not accept the delivery of goods as agreed (default of acceptance), we have – after unsuccessful extension of time – the right to either store the goods at our company, whereby we bill a storing fee in the amount of 0,1% of the gross amount of the receipt, or to store the goods at costs and risk of Customer at an authorized storage-place. Simultaneously, we have the right to either insist on fulfilment of the contract or to withdraw from the contract after an extension of time of at least two weeks and to make other use of the goods. We have no obligation of performance before the Customer has fulfilled all his obligations necessary for our performance, in particular before he has rendered all technical and contractual obligations and conducted possible preparatory works and preparations.
Conditions of delivery and time limits which are agreed upon require the written form. In the event of shipment of goods, the goods are shipped at our choice either per parcel service, post, train or forwarding company. Partial deliveries are also possible. In the event of forwarding at cash on delivery we have the right, to conclude respective insurance agreements at the costs of the Customer. The risk is transferred to Customer at the time where the Product is delivered to Customer or to the person conducting the transportation or where it has left DPI for Shipment. In the event that shipment is being delayed at the request of Customer, the risk is transferred to him at the time of notification of disposition for shipment. The Customer bears the costs of shipment for samples which were provided by DPI on loan. The samples remain in the property of DPI. Deliveries from DPI to Customer are carried out to the last address Customer has communicated to DPI. Customer is obliged to duly inform DPI of any changes in the address of delivery; otherwise deliveries to the last communicated address shall be deemed as being received.
7. Reshipment, Replacement
In the event of legitimate claims, the dispatch route has to be agreed before reshipment. DPI reserves any on-site reparations. DPI principally does not accept carriage forward or goods delivered by cash on delivery. If a device has been left at the Customer for inspection, it has – in case no return-agreement exists – to be returned to DPIs disposal at the latest 14 days after receipt. In this case, it is not sufficient to merely forward the device prior to this date. The Customer has to pay the costs of the forwarding. If the device was damaged, Customer agrees to purchase it.
In case of purchase of mail-ordered goods, Customer has the right pursuant to § 5 e KSchG to withdraw from the agreement within seven working days from the delivery of the product, whereby Saturdays are not considered working days. The Customer may also within seven working days choose an exchange of goods. Software and lamps are principally excluded from an exchange. It is prerequisite for an exchange that the good is being returned free from defects, in original packaging under inclusion of the receipt-number and the number of the delivery note. The return-goods must be delivered free. In the event that the Customer does not wish an immediate replacement against other goods, he receives a voucher in the amount of the value of goods. The voucher has to be redeemed within 6 months after the issue-date.
8. Withdrawal from the Agreement
In the event of default of acceptance or because of other important reasons, such as bankruptcy or decline of bankruptcy due to insufficient assets and default of payment DPI has the right to withdraw from the agreement, if it has not been completely fulfilled by both parties. In the event of a withdrawal due to default of the Customer, DPI shall choose between liquidated damages in the amount of 15% of the gross receipt amount or real damages. In the event of default of payment, DPI is released from all obligations to render a service or deliver Products and we have the right to hold back goods not yet delivered and to demand advance payments and securities or to withdraw from the agreement after a reasonable extension of time. In the event that Customer withdraws from the agreement without justification or that Customer demands termination of the agreement, we may choose between the fulfilment of the agreement or consent to the termination of the contract; in latter case the client is obliged to pay – at our choice – liquidated damages in the amount of 15% of the gross receipt-amount or the real damage.
9. Warranties, Liabilities and Damages
In the event that the subject of delivery is defective or that it does not possess warranted qualities or that it becomes defective due to deficiencies of fabrication or material within the warranty period, DPI shall, at exclusion of other warranty-claims, upon its choice, replace the product or grant a correction of defects. Several corrections of defects are allowed. Further, we may satisfy justified claims at our choice by means of rectification of defects, free replacement and voucher against return of the defective goods or reducing the purchase price. In case of asserted defects, the further proceeding will be determined by DPI. If a correction of the defect and an exchange of the Product would require disproportional efforts, the Customer has the right to price reduction or, unless at a minor defect, the right to reversal of the contract.
The warranty period is six months long, unless a longer warranty period is mandatory by law. The defect of the good has to result out of a defect which was present at the time of delivery to Customer. If such defects are located, we immediately have to be notified. Replaced parts become our property. The defective Products have at shipment to be in the same condition as at the time of assertion of the defect; the Products have to be shipped to DPI immediately – but subsequently to having reached an agreement about the modalities of shipment. Customer bears all costs of shipment. In the event that the goods were altered, modified, repaired or otherwise impaired by Customer, all warranty claims are excluded.
Technical calculations, constructions, documents and specification sheets prepared by DPI for the Customer service have to be examined by theCustomer in any direction foraccuracy and completeness. If several Products which do not belong together are delivered, a defect of one of the goods does not entitle to claims with respect to the whole delivery. Afore mentioned conditions do not apply to unexamined used goods, those are delivered under exclusion of any warranty.
Regarding third parties software, exclusively the terms of the respective producer apply. Where parts and accessory as well as reparations due to external influences (such as the use of unauthorised data mediums or interferences by third parties) are excluded from warranty. If contract-subjects are used in combination with devices/programs of third parties, there is warranty for defects in function or capacity only, where such defects occur also without such combination. Any exceeding liability, except in case of gross negligence, is excluded. In any case, the liability for property damage and secondary damage, in particular due to default, incapacity of service, loss of profits, losses which were expected but not incurred, damage due to claims of third parties towards customers, indirect damage as well as damage to recorded data is excluded. Damage claims are excluded in cases of slight negligence. This does not apply to personal injury. Unless the claim is based on a consumer transaction, the claimant bears the burden of proof of slight or gross negligence. If the claim is not based on a consumer transaction, the period of limitation for damage claims is two years from the transfer of risk. The provisions covering damage included in the present terms and conditions or otherwise stipulated are valid also where the damage claim is raised besides or instead of a warranty claim. Claims to damages pursuant to § 12 of the Austrian Law of Product Liability are excluded, unless the claimant proofs that the defect was caused in our sphere and that it was the result of at least gross negligence.
10. Jurisdiction and Applicable Law
The contract is subject to Austrian law. Place of jurisdiction is – for district court proceedings – the district court for the Inner City of Vienna, respectively – for civil court proceedings – the commercial district court of Vienna or the civil court of Vienna.
Side-agreements, changes and supplements require the written form. If one or more of the provisions of this Terms and Conditions are inapplicable for any reason, this has no effect on the validity of the remaining provisions.
If and as long as one of the provisions of this Terms and Conditions is contradictory to a mandatory provision of law, it is replaced by the respective legal provision for the period of the validity of the legal provision. This does not have an effect on the validity of the remaining provisions. The invalid, inexecutable or missing provisions shall be replaced by a reasonable provision which insofar as legally possible comes closest to what the parties would have agreed upon or would have agreed upon according to the intent of the parties and the purpose of the agreement, if the parties at the time of conclusion of the agreement had considered this point.