General Terms and Conditions of Purchase

As of June 2023

Neotecha GmbH
Gewerbepark Strasse 3
4615 Holzhausen
Company No. 96238b
Wels District Court

1. Jurisdiction and definition of terms

1.1. All orders, purchase orders, purchases and other transactions and payments shall be based exclusively on the present Conditions of Purchase. Deviating terms and conditions of the Seller in an offer, confirmation of order or in any of the Seller’s business documents shall not be recognised by NEOTECHA GmbH and shall apply only subject to our written confirmation. The acceptance of goods and services or payment for the same shall not be deemed to constitute consent to the Seller’s terms of business. The version valid at the time of conclusion of the contract shall be decisive.

In the event of conflict between the constituent parts of the contract, the order of priority shall be applied as follows, to the extent that the said parts are confirmed in writing: NEOTECHA GmbH Conditions of Purchase; non-mandatory legal norms. Any (general) conditions of purchase of the Seller are hereby repudiated; NEOTECHA GmbH shall not be bound by the said conditions even where NEOTECHA GmbH does not exclude them when concluding the contract. The Conditions of Purchase of NEOTECHA GmbH shall also apply as a Framework Agreement for all further transactions with the Seller.

1.2. For the purpose of the present Conditions of Purchase: “Seller” denotes any contracting partner or negotiating partner of NEOTECHA GmbH, regardless of whether an order has been produced or a contractual agreement reached; “Services” denotes (material or intangible) products/ goods and (material or intangible) services provided by the Seller, regardless of type; “Purchase Order” denotes any binding request of NEOTECHA GmbH for provision of services by the Seller for NEOTECHA GmbH and “Order/Contract” denotes a binding transaction between NEOTECHA GmbH and the Seller.

1.3. Where individual provisions of these Conditions of Purchase be or become ineffective, in whole or in part, the validity of the remaining terms and conditions shall not be prejudiced. The ineffective provision shall be substituted by a provision that is effective and that comes closest to the content and purpose of the ineffective provision.

2. Offer, Purchase Order, Order

2.1. Offer: The Seller must adhere to the amount and nature of the goods delivered as specified in the Purchase Order from NEOTECHA GmbH and shall provide written notice in advance in the event of any deviations. Where the Seller neglects to provide such written notice, it shall have no claim to higher remuneration for the said deviations. Smaller and larger delivery quantities are only permissible after consultation and subject to the approval of NEOTECHA GmbH. All offers by the Seller shall be binding and free of charge.

2.2. Only Purchase Orders/ Orders signed by NEOTECHA GmbH shall have validity. Agreements made verbally, by telephone or by email shall require written confirmation in order to be binding on NEOTECHA GmbH.

2.3 In the event of discrepancies between the content of the order and the content of the order confirmation, the content of the order confirmation shall be deemed agreed as the content of the contract, unless the customer objects in writing within three working days. The objection must contain the objected error and the desired correction. A contract with the new content shall only be concluded through a new order confirmation by NEOTECHA.

3. Prices

3.1. The agreed prices shall be inclusive of packaging, insurance and other transportation costs or shipping expenses, including transport license costs. Prices provided are fixed prices in euros (€) and cannot be increased for any reason. Unless otherwise agreed, delivery shall be effected free of charge to the receiving office (destination point). Transportation shall be carried out by the Seller at its expense and risk.

3.2. The term of payment – subject to Clause 7.2 – shall be three days net from receipt of the goods and invoice. All supplementary agreements in this respect shall apply only to the extent that NEOTECHA GmbH has provided written confirmation of the same. If payment is made within 14 days, NEOTECHA GmbH shall be entitled to a discount of 2%.

3.3. Where NEOTECHA GmbH requests a change to services, the Seller undertakes to inform NEOTECHA GmbH immediately and in writing of any increase or reduction in price and any change in delivery dates.

4. Delivery times and delivery periods

4.1. Deliveries shall be effected at the time and in the quantities specified in the Order or Purchase Order. Delivery periods shall begin to run from the date of the Purchase Order from NEOTECHA GmbH. For adherence to the delivery deadline or delivery period and for punctuality of successful acceptance, receipt of the goods at the point of receipt or point of use specified by NEOTECHA GmbH shall be decisive. Acceptance of goods delivered late shall be subject to the reservation of all claims by NEOTECHA GmbH.

4.2. The Seller shall be obliged to notify NEOTECHA GmbH immediately and in writing of any delay in delivery. In the event of a delay in delivery, regardless of fault of the Seller, NEOTECHA GmbH shall be entitled to a contractual penalty in the sum of 1% of the order value for each week begun, to a total amount of not more than 10% of the contract value. In the event of delay on the part of the Seller, NEOTECHA GmbH shall also be entitled to cancel the contract without granting a grace period. In the event of such cancellation, no claims of any nature against NEOTECHA GmbH shall accrue to the Seller. The right of NEOTECHA GmbH to make other claims for compensation for all damages caused by the delay in delivery and for prejudicial consequences of any type remain unaffected.

4.3. The Seller can only assert the absence of necessary documents that NEOTECHA GmbH must supply if it has requested the documents in writing and has not received them without delay; in this event, no delay in delivery shall be deemed to arise where NEOTECHA GmbH is in default with provision of the documents. The Seller shall bear the burden of proof.

5. Order documentation

5.1. All data, drawings and other technical documents provided to the Seller for manufacture of the delivery item for NEOTECHA GmbH and drawings and other technical documents prepared by the Seller based on the specifications of NEOTECHA GmbH must not be used by the Seller for any other purpose than to comply with the Purchase Order of NEOTECHA GmbH and must not be duplicated or made available to third parties. The said documents shall remain the property of NEOTECHA GmbH and must be returned to NEOTECHA GmbH without delay upon request along with all transcriptions and duplications. Where delivery does not take place, for any reason whatsoever, the Seller undertakes to return all documentation to NEOTECHA GmbH automatically and immediately. Purchase Orders, all related work and other technical documents shall be considered as business secrets and shall therefore be treated as strictly confidential. The Seller shall be liable for all damages caused to NEOTECHA GmbH arising from a breach of these obligations.

5.2. The Seller may only cite or refer to its business relationship with NEOTECHA GmbH in promotional material and publications of any type with the express, written consent of NEOTECHA GmbH.

6. Shipping

6.1. Every consignment shall enclose a shipping note. The Seller shall be liable for all damages, costs and demurrages that arise as a result of failure to observe this provision. Delivery will not be accepted without the corresponding shipping documentation and shall be returned to the Seller at its expense and risk. Deliveries must be packaged appropriately for transportation.

6.2. Partial deliveries shall only be permissible if agreed in writing, otherwise NEOTECHA GmbH is entitled to refuse to accept the delivery. Partial deliveries shall not be regarded as independent transactions under any circumstances and must be identified with a description of the total quantity and the quantity contained in the partial delivery.

7. Invoices and payment

7.1. Invoices must comply with applicable legal provisions, in particular with Austrian VAT Law and with any special agreements; they must not be enclosed with the respective consignment but must be sent to NEOTECHA GmbH immediately after shipping in paper form. Sending an invoice in electronic form requires the prior, express consent of NEOTECHA GmbH. Invoices must bear the complete Purchase Order number and the date of order in every case. The Seller shall be liable for any additional costs or consequential damages resulting from incorrect or incomplete billing.

7.2. Payment periods shall begin to run from the date that the invoice is received. Where goods are delivered after receipt of the invoice, then the payment period shall begin to run from the date of delivery of the goods. Payment shall not be deemed to constitute recognition of correctness of the delivery nor waiver of any claims whatsoever. The Seller is prohibited from assigning claims against NEOTECHA GmbH to third parties, with the exception of pecuniary claims.

Where the Seller fails to provide delivery in conformity with the contract, NEOTECHA GmbH shall be entitled to withhold payment until the contract has been duly performed.

8. Warranty, notice of defect and indemnification

8.1. The Seller warrants complete performance of the contract free from defects and in conformity with the Purchase Order and call-off. In particular, it warrants properties equivalent to those expected on the basis of public statements or in accordance with samples and guarantees observance of all relevant, valid, legal and official regulations at destination and/or at NEOTECHA GmbH market outlets in the provision of its goods and services. The Seller undertakes to make NEOTECHA GmbH aware of all risks which normally have to be taken into account when using the product (including installation/assembly/further processing by NEOTECHA GmbH). The Seller shall be liable in the same way for goods and components that it does not produce but delivers and services that it provides.

8.2. The Seller’s warranty expires only after the period that NEOTECHA GmbH bears warranty obligations towards its customers for goods or services provided by the Seller, at the earliest 24 months, and, at the latest, 36 months after acceptance of the delivery or service by NEOTECHA GmbH. Time periods pertaining to entitlement to damages remain unaffected. The Seller shall also assume the warranty for hidden defects, whereby the warranty period shall begin to run only from NEOTECHA GmbH’s full knowledge of the defect.

NEOTECHA GmbH is under no obligation to examine the goods nor to notify the Seller of possible defects (including quality defects), thus the applicability of §§ 377 and 378 Austrian Company Code is hereby expressly waived.

8.3. NEOTECHA GmbH is entitled – at its discretion – to require its contractual partner to provide a remedy (in the form of repair or supply of missing goods) at its own expense and risk and/or to provide substitute goods/ services (at short notice) or a reduction in price or to return the goods to its contractual partner at its expense or to declare rescission of the contract or to remedy the defect or unfulfilled or defective services itself or by means of a third party at the expense and risk of its contractual partner.

8.4. In the event of a claim on warranty grounds, the Seller shall bear the burden of proof during the entire warranty period that the defect was not present upon delivery. In case of defects of any type, NEOTECHA GmbH is entitled to retain the entire, outstanding purchase price or cost of processing until the defect has been completely remedied.

For any damage incurred by the Seller in the course of a business transaction, NEOTECHA GmbH shall be liable to a maximum amount not exceeding the value of the order and shall only be liable in the event of gross negligence on the part of NEOTECHA GmbH or its vicarious agents, with the exception of personal injury, for which NEOTECHA GmbH shall be liable in the event of minor negligence. Damages for consequential loss, pecuniary loss, lost profit and damages resulting from third party claims against NEOTECHA GmbH are excluded. In the event of gross negligence, the Seller bears the burden of proof.

9. Product liability

9.1. The Seller shall provide instructions for use and warning notices for its delivery in the German and/or English language. As far as possible and reasonable, the said notices should be displayed on the delivered goods themselves. Where, upon acceptance of a delivery by NEOTECHA GmbH, it transpires or is discovered that the delivered goods are defective within the meaning of the Product Liability Act so that the properties of the product no longer comply with state-of-the-art technology within the meaning of the Product Liability Law, then the Seller shall be obliged to take back the said goods and to refund the entire purchase price.

9.2. Where a claim is made against NEOTECHA GmbH on grounds of product liability in relation to goods delivered by the Seller, the Seller shall undertake to provide to NEOTECHA GmbH without delay any means of evidence that it should require, such as, in particular, quality and inspection reports, certificates and the like. The Seller shall, furthermore, indemnify NEOTECHA GmbH against all claims of third parties and hold NEOTECHA GmbH completely harmless in this context.

9.3. The Seller undertakes to take out adequate insurance against product liability risks. NEOTECHA GmbH reserves the right to request proof of the provision of insurance coverage. Should the Seller fail to comply with such a request within 14 days, NEOTECHA GmbH shall be entitled to cancel the contract and can demand compensation including lost profit.

10. Quality assurance

10.1. Unless otherwise agreed, the Seller undertakes to ensure that all relevant quality specifications, such as conformity certificates and factory certificates are kept in their respectively valid versions. The Seller is under an obligation to arrange, schedule, carry out and monitor systematic measures to ensure quality that will guarantee the highest levels of quality. The Seller will provide NEOTECHA GmbH or its representatives with the opportunity to access its production and business premises upon request – including by means of unannounced visits – in order to obtain information about its quality management system and to satisfy itself of the observance and effectiveness of the aforementioned measures. The said rights and duties extend to any subcontractors and upstream suppliers who shall also be bound by these obligations.

11. Retention of title, transfer of risk

11.1. Title to goods and services provided by the Seller and risk shall pass to NEOTECHA GmbH upon complete acceptance at the place of performance (destination point). Partial deliveries and partial services – even where contractually agreed – and the commissioning or setting up of partial deliveries and partial services by NEOTECHA GmbH shall not result in any transfer of risk.

11.2. NEOTECHA GmbH expressly excludes reservation of property rights by the Seller. Where NEOTECHA GmbH accepts offered goods and services subject to reservation of property rights, this cannot be deemed to constitute consent to reservation of property rights. Special agreements with regard to reservation of property rights shall only be effective if made in writing and with the express agreement of NEOTECHA GmbH.

12. Third party property rights

12.1. The Seller guarantees that use of the delivered items or services in compliance with the contract does not infringe any third party property rights (rights relating to patents, brands, design, copyright, equipment, product designation, technical expertise, marketing rights and all other rights of such types even where licensing has not been sought). NEOTECHA GmbH is under no obligation to investigate whether intangible rights exist in relation to the goods or whether such rights are infringed, but is entitled to assume that the Seller possesses all rights vis-à-vis third parties which are necessary for the proper completion of the order. The Seller undertakes to indemnify NEOTECHA GmbH and hold NEOTECHA GmbH harmless against any third party claims in this context.

12.2. Without prejudice to further rights on the part of NEOTECHA GmbH, NEOTECHA GmbH is entitled in such cases to refuse acceptance of goods/ services until clarification of the validity of the claims asserted or to place deliveries already accepted at the Seller’s disposal at its expense and to retain payment for the total purchase price.

13. Cancellation of the contract

13.1. On the basis of delayed delivery or other important reason, in particular, dismissal of insolvency proceedings in relation to the Seller’s assets for lack of assets, suspension of payments or act of God, NEOTECHA GmbH is entitled, without prejudice to other claims of any kind, to cancel the contract or parts thereof with immediate effect and without a grace period. No claims of any type against NEOTECHA GmbH shall arise as a result of such cancellation. The Seller undertakes to notify NEOTECHA GmbH immediately and in writing of any of the aforementioned circumstances. Cancellation shall be effective in law upon unilateral declaration by NEOTECHA GmbH.

14. Place of performance, applicable law and place of jurisdiction

14.1. The headquarters of the company in Holzhausen, Austria, shall be the place of performance for both parties for the rights and duties arising from all legal transactions with NEOTECHA GmbH. Where, in individual cases, the order form or order specifies another destination point, the ordered goods are to be delivered there.

14.2. The exclusive place of jurisdiction for the Seller for all disputes arising from the present contractual relationship or in connection with it shall be the competent court in Holzhausen/ Austria. NEOTECHA GmbH is nonetheless entitled – at its discretion – to bring a claim against the Seller in another court with competency under domestic or international law.

14.3. This agreement shall be governed exclusively by Austrian substantive law. The principles on conflict of laws of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG) are hereby expressly excluded.

15. Concluding provisions

15.1. Invalidity of individual provisions in the present Conditions of Purchase shall not affect the validity of the remaining provisions in the present Conditions of Purchase. The contracting parties undertake to agree a new provision which comes closest to the purpose of the invalid provision.

15.2. Headings contained in the present Conditions of Purchase are provided for clarity only and shall not affect the interpretation of the provisions.

15.3. Any changes or supplements to these Conditions of Purchase shall only be valid if confirmed in writing by NEOTECHA GmbH and the same shall apply for waiver of the requirement of the written form.

15.4. No business development effected by the Seller and NEOTECHA GmbH nor negligent delay nor failure to act in the exercise of the rights and remedies in accordance with the above Conditions of Purchase shall operate as a waiver of these rights. Each of the rights and remedies for NEOTECHA GmbH contained in these Conditions of Purchase is cumulative and to be treated on an equal footing, alongside and in addition to other rights and remedies provided by statutory law.