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|VAT Register No.||ATU 64101527|
|Commercial Register No.||FN307714x|
|Company headquarters||municipality Vienna|
|Place of jurisdiction||Commercial Court Vienna|
|Chamber membership||Member of Austrian Federal Economic Chamber Vienna|
|Management||Mag. Christian Schachinger
Mag. Angelika Kiessling
Offer and Conclusion of Contract
The provisions set out in this offer shall apply exclusively. Zeno Track will not recognize any terms and conditions from the client that conflict with these provisions, without written consent. All agreements between the parties must be in writing.
Duty to Cooperate
If Zeno Track is impeded in fulfilling its service obligations due to any negligence of the client to fulfill its duty to cooperate, which then leads to additional costs, the client is obligated to reimburse any proven additional costs incurred. If Zeno Track is impeded in fulfilling its service obligations due to any negligence of the client to fulfill its duty to cooperate or any other impediment for which the client is liable, which then leads to a delay, Zeno Track will be granted appropriate extensions of deadlines for the fulfillment of its service obligations.
Retention of Ownership
The delivered goods remain the property of Zeno Track until the purchase price has been paid in full. The client is under obligation to inform Zeno Track immediately about any access of third parties to any goods (reserved goods) that are subject to retention of ownership, in particular with regard to foreclosure measures or any other seizures, and about any damage to the reserved goods. If the goods are to be installed in a country in which the aforementioned retention of ownership provision would be not fully effective, the client is obligated to provide Zeno Track with an equivalent assurance.
In order to ensure operational reliability and value retention, regular checks and maintenance measures are defined in the operating instructions. The aim of these measures is to prevent hazards to people as well as interruptions in operations. The client will conclude a maintenance agreement with Zeno Track, the content of which complies with the provisions set forth in this offer.
Zeno Track recommends the provision of spare parts proposed in this offer to be maintained by the client. During the 12-month warranty period, the spare parts are provided by Zeno Track free of charge. At the end of the warranty period, the client is obliged to acquire such spare parts at the prices quoted in this offer.
Deadlines are considered binding if they are stipulated as binding in this offer.
If Zeno Track informs the client about its request for an extension of the delivery date and any other defined deadlines within 15 days after the occurrence of an impediment or interruption which is caused by a force majeure or unforeseeable obstacle that is sufficient to cause a hindrance or delay to its service obligations, then Zeno Track will be granted an adequate extension the length of which will be agreed between Zeno Track and the client. This also applies in the case of any additional service requests made by the client.
If such an interruption in accordance with this provision is expected to last longer than two months, Zeno Track may request settlement of payment for all deliveries and services provided thus far, including those that have not yet been completed.
Amendments or Additional Services
At the client’s request, and subject to an assessment and written consent, Zeno Track must undertake any additional service obligations or any service obligations that differ from those specified in the contract, which result from subsequent amendments to the service specifications. Zeno Track may not unreasonably deny its consent. Zeno Track will specifically inform the client in writing about any resulting additional costs and effects on delivery dates prior to execution. Zeno Track is entitled to deny execution of the additional service obligations if the client unduly delays or refrains from concluding a payment arrangement.
The following applies in cases where acceptance is defined in the scope of delivery and services: as soon as the system is in place in such a way that its installation is complete and the assembly and test phases have been concluded – with the exception of smaller tasks that do not have a more than insignificant influence on the use of the system or any of its parts for the contractually agreed purpose – Zeno Track will notify the client that they are ready to carry out the acceptance procedure.
The client must carry out acceptance with Zeno Track within 10 days after receipt of notification. During this process, the correct set-up of the system will be checked and tests will be carried out. Successful completion of these tests denotes acceptance of the system.
If any defects are found that would hinder production and therefore have a more than insignificant influence on the use of the system or any of its parts, then acceptance must be repeated. To this end, Zeno Track will schedule an appointment to take place as soon as possible – under consideration of all circumstances – after the failed acceptance procedure.
Zeno Track will provide a protocol of the successful acceptance within 14 days after acceptance. If necessary, this protocol may also contain a list of any insignificant defects that were found together with deadlines for their rectification. The protocol will be signed by both parties together with the date of completion of the acceptance procedure.
If acceptance cannot be carried out for reasons for which the client is responsible, then the system is considered accepted. This is also the case as soon as the system is put into productive use.
Warranty and Liability
The warranty extends to proper materials as well as a faultless functioning of the electronics and software. The warranty does not extend to normal wear and tear or damages caused by a force majeure, inadequate maintenance, harsh or improper handling, or overloading. Any repairs to the electronics or software by outside personnel will result in the termination of Zeno Track’s obligation of warranty.
Zeno Track will only pay compensation, irrespective of their legal grounds, to the following extent:
For intent and acceptance of a warranty regarding the agreed quality, in full; for gross negligence, to the typical and foreseeable amount of damages, which should be avoided by due diligence; in other cases, only for breach of a material contractual obligation and for delay, compensation for the typical and foreseeable damage limited to Zeno Track’s liability insurance, conditions of which can be viewed at Zeno Track.
Legal liability for personal injury and in accordance with the Product Liability Act shall remain unaffected. Zeno Track maintains the right to object to comparative negligence. To the extent permitted by law, with regard to the level and conditions, liability is limited to Zeno Track’s liability insurance coverage. Finally, liability is excluded for the initial planning and its effects.
Any claims by the client with regard to material defects or deficiencies in title, fall under the statute of limitations within one year after delivery. If the deficiency in title is based on the real right of a third party, on the basis of which goods can be retained, then the statutory periods of limitation shall apply.
For any other claims by the client arising from the agreement or contractual obligations, the period of limitation is one year from the statutory date of commencement of the period of limitation. All claims fall under the statute of limitations with the expiration of the maximum statutory period at the latest.
For personal damages as well as intent and gross negligence, the statutory periods of limitation shall apply.
The parties undertake to treat this offer, the agreement to be concluded, its annexes and all documents that have arisen or will arise in relation to the development of the agreement as confidential, and ensure confidential treatment by their employees. There will be no disclosure of any technical or commercial information received in relation to the agreement.
The obligation to maintain confidentiality does not apply to documents and information which demonstrably are already or will become known to the public through no fault of the concerned party, were already in the possession of the party receiving them prior to disclosure by the other party, or were made available to the receiving party by a third party entitled to do so without any obligation to maintain confidentiality with regard to the other party.
The aforementioned obligations remain in force for a period of five years after the termination of this agreement.
Upon consent by the other party, the project may be included in publications or for advertising purposes. Consent may not be withheld without good reason.
Unless this agreement expressly provides otherwise, all communication required by the agreement is to be in writing, delivered either by fax, email or letter.
Rights to the Software
If the offer includes the supply of software, the following provisions apply notwithstanding any further contractual provisions:
Zeno Track software that has been developed, revised and/or adapted and/or changed may only be used upon adherence with the agreed conditions of payment, and only by the customer and location stipulated in the offer.
Zeno Track provides the client a non-exclusive and non-transferable right of use for the software for an indefinite period of time. The software may only be used to operate the intended hardware.
The client may not sell, give away or hire out the software to any third party.
In cases where the program code is provided, retranslation into other code forms (recompiling) as well as any other kind of inverted development of the diverse manufacturing phases of the software (reverse engineering) including program amendments of any kind is forbidden, particularly for the purpose of rectifying errors or extending the functionality scope.
Under no circumstances may the client delete or alter copyright notices, serial numbers or any other features relating to program identification.
All other rights related to the software remain property of Zeno Track.
Court of Arbitration / Place of Jurisdiction
Place of jurisdiction is Vienna, Austria. The agreement is subject to Austrian law.
The offer is valid for eight weeks.
Any modifications and additions to this offer and the agreement to be concluded shall only be effective if made in writing.
In case a provision of the agreement becomes invalid or should the agreement be incomplete, this will not effect the other provisions of the agreement. The parties agree to replace such void provision with one that, to the legal extent possible, best achieves the intent and purpose of the void provision. The same applies to omissions in the agreement