StreamUnlimited Engineering GmbH (SUE)
As of June 2013
§ 1. Area of application
1. Delivery of goods, an offer, order confirmation, acceptance of the sale of any goods are made by us exclusively on the basis of these General Terms and Conditions of Sale and Delivery (GTCSD) provided the customer is an entrepreneur, a legal entity under public law or a special fund under public law.
2. Contrary terms and conditions of the customer or customer's terms and conditions which deviate from our GTCSD become part of the contract only by our express written consent. In addition, deviating terms and conditions will not become part of the contract even if we do not expressly disagree with them.
§ 2. Offers; creation of contract
1. Our offers are non-binding. A contract is created if we accept the customer's order within fourteen days after receipt. Acceptance or confirmation of acceptance will be made in writing or by telefax or electronic communication including but not limited to e-mail.
2. Amendments and supplements to the contents of the contract must be agreed between the contract parties or confirmed by us in writing or by telefax or electronic communication including but not limited to e-mail.
3. If any provision of the contract is ineffective or held unenforceable by a court of competent jurisdiction, either in whole or in part, this will not affect the validity of the remaining provisions. The remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms and conditions of the contract.
§ 3. Export provisions
1. The customer must be aware of the fact that some of the products sold by us are subject to export restrictions in accordance with the applicable foreign-trade regulations and that exports of such products to countries subject to such restrictions are, therefore, either totally prohibited or permitted only with special official approval regardless of whether the products are in their original state or have been processed or installed. In case of export of products by customer, customer undertakes to comply strictly with such export regulations and exercise due care to obtain all the necessary official and other approvals for any such exports.
2. In the case of export sales we are entitled to rescind the contract in whole or in part without compensation if necessary approvals, export licences or consents are not given to us. We are obliged to advise customer as reasonably possible about this and reimburse to the customer as soon as reasonably possible any consideration made by customer.
§ 4. Prices
1. If cost clauses are agreed, the terms and definitions of the INCOTERMS as amended from time to time will apply provided these GTCSD do not contain a contrary provision.
2. Deliveries are made at the agreed prices, plus the applicable value-added tax at the statutory rate ("Purchase Price").
3. In the event of cost reductions or increases arising after the contract is entered into - particularly as the result of changes in the cost of labor, materials and energy, changes in levies, taxes or other charges on the goods, particularly EU levies and anti-dumping or equalization duties or similar charges or changes in exchange rate parities - we reserve the right to demand a corresponding and appropriate adjustment of the agreed Purchase Price unless performance takes place within two months after conclusion of the contract.
No price adjustment may be demanded in the aforementioned circumstances if the factors causing the price increase arise during delivery default or when the goods have already been delivered. The reasons causing the price changes will be notified by us to the customer on request.
4. In case agreed prices are linked to volume per defined time frame we reserve the right to adjust prices for future goods deliveries.
§ 5. Deliveries; delivery default; default in acceptance of delivery
1. Delivery times start on the date when the contract is entered into. If at this time not all technical details have been finalised or the customer has not yet provided us with all the documentation required by us for the delivery, the delivery time will start only after clarification of all technical details and receipt of all the necessary documentation. If contract amendments are subsequently agreed, a new delivery date or delivery time may be agreed as appropriate.
2. Delivery times will be extended for the duration of any delay in meeting the agreed delivery time or date by reason of any cause beyond our reasonable control, including any postal or other strikes or similar industrial action, acts or regulations of any government or supra national bodies or authorities or regulatory body, acts of God, war, civil disturbance, terrorist act or any similar events, ("force majeure").
We reserve the right to withdraw from the contract if, as a result of such an force majeure event, delivery to the customer becomes impossible or can no longer be reasonably expected of us. Delivery cannot be reasonably expected of us if, when considering contractual obligations and the principle of good faith, delivery as contractually agreed would result in costs in gross disproportion to the customer's interest in performance. We are obliged to inform the customer as soon as reasonably possible about non-delivery and to reimburse without delay any consideration made by the customer.
3. Delivery times will also be extended by any period during which we, despite careful selection of our suppliers, are not supplied by them or not supplied by them in good time and consequently cannot meet the delivery times agreed with customer. In addition, we will use reasonable efforts to inform the customer as soon as reasonably possible about non-availability of goods.
We reserve the right to withdraw from the contract in the event that our supplier fails to make delivery to us and we are therefore unable to meet our performance obligations under the contractual relationship with the customer. We will use reasonable efforts to inform the customer as soon as reasonably possible about non-delivery.
4. Delivery times may furthermore be extended by any period during which the customer is in default with its principal contractual obligations. Further rights on our side due to customer's default remain unaffected.
5. If the customer fails to give sufficient guarantees with regard to his ability to pay, particularly, for example, if it fails to meet its payment obligations for a previous delivery, or fails to provide sufficient securities to secure our claim or fails to demonstrate secure financial means, we are entitled to refuse delivery until the customer makes payment or provides adequate security for payment.
If customer neither made his due payment nor provided security step-by-step with delivery of the goods until expiration of an appropriate deadline we are entitled to withdraw from the contract after expiry of this deadline.
6. If we are in delay of delivery or if a delivery or a service becomes impossible for us, irrespective of the reason, our liability for damages is limited in accordance with clause 9 ("Liability") of these GTCSD.
7. Within the delivery period we are entitled to make part deliveries against the total order to the extent that the customer can reasonably be expected to accept this when considering the nature of the object of delivery and its typical use.
8. If the customer is in default in calling off, accepting or collecting the goods or is responsible for delays in dispatch or delivery, we are entitled without prejudice to further claims:
a. to store the goods on our own or third-party premises and charge the customer- for each commenced week - storage costs of 0.5% of the invoice amount attributable to the quantities not called off, not accepted or not collected unless the customer can prove that the storage costs incurred by us are less than that or that we incurred no storage costs. If the actual storage costs are higher than 0.5% of the invoice amount attributable to the quantities not called off, not accepted or not collected we are entitled to claim also the excess amount; or
b. to withdraw from the contract to the extent of the goods not called off, not accepted or not collected, provided that we have previously given the customer a reasonable period of grace for performance or cooperation respectively.
9. If delivery of the goods is postponed upon customer's request, we are entitled at the customer's expense and risk either to store them in our own premises or in a third-party warehouse or in a haulage-contractor's store. The same applies if delivery is impossible for a prolonged period because of circumstances outside our control.
10. Returns of transportation packaging and other packaging are not accepted by us. The customer is obliged to dispose of packaging at its own expense.
11. In case goods are shipped with software or will be flashed by the customer or one of his suppliers with software delivered by SUE or SUOS the following applies (licenses for the delivered software aren't part of the goods delivery and a separate contract applies):
a. Any kind of 3rd party licenses are not part of the goods delivery and need to be obtained by the customer unless otherwise agreed in the contract for good delivery or in the contract for software delivery.
b. Any kind of legal requirements (eg; FCC, UL, etc) are not part of the goods delivery and need to be covered by the customer unless otherwise agreed in the contract for goods delivery or in the contract for software delivery.
c. Any kind of certification (eg; WiFi, AirPlay 2, music services, etc) are not part of the goods delivery and need to be covered by the customer unless otherwise agreed in the contract for good delivery or in the contract for software delivery.
§ 6. Payment; due date; default interest
1. In the absence of contrary agreement Purchase Prices are due for payment upon receipt of the invoice.
2. The customer is in default if customer fails to make payment within ten days after receipt of the invoice.
3. Subject to individual agreements, payments must be made net by bank transfer. They are deemed to be received on the date on which we have the amount at our disposal. In order for the invoice amount to considered to be completely paid, the customer must ensure that StreamUnlimited is credited with the full invoice amount without deduction of any bank charges (own or third-party) or any other fees. StreamUnlimited reserves the right to offset, through additional invoicing, any bank charges resulting from the customer's payment transfer.
4. During any period in which the customer is in default with payment, the outstanding amount will accrue interest. Default interest will be at a rate of five percentage points above the annual base rate of the ECB. We deserve the right to demand a higher interest rate for other legal reasons. The right to claim further damages is not excluded.
5. If part performance by us is agreed or we are entitled in accordance with § 5 to make part deliveries, we may demand a partial payment appropriate to the part performance.
6. If customer has not fulfilled several of his payment obligations of a similar type despite being due, customer will not be entitled to decide the debt against which it wishes to make payment. We will be entitled to offset received payments against outstanding customer liabilities plus costs and interest in accordance with §366 and §367 of the Austrian Civil Code / ABGB.
7. Set-off against our claims is not permitted unless customer's claim is undisputed or established by a final and non-appealable court decision.
Equally the customer is not permitted to exercise any right of retention because of claims which are disputed or not established by a final and non-appealable court decision. If the customer nevertheless without justification exercises a right of retention over a thing to be surrendered, customer is prohibited from using this thing.
§ 7. Retention of title
1. Goods supplied by us are subject to retention of title by us until the fulfilment of all receivables which have arisen on the basis of the business relationship with customer If an open-account relationship exists between us and the customer, we retain title until fulfilment of the receivables resulting from a recognised closing balance.
2. Goods subject to retention of title may be sold by the customer in the normal course of customers business but not pledged , transferred by way of security or disposed of in any other exceptional way. The customer hereby already assigns to us by mutual consent the receivables resulting from resale including receivables resulting from an open-account relationship with its customers - or any other legal ground through which our ownership is affected - in the amount of our receivables (invoice value including incidental costs and taxes); customer hereby also already assigns to us by mutual consent receivables arising from a sale of customer's company (eg; asset deal) in the amount of our receivables (invoice value including incidental costs and taxes).
3. If the good subject to retention of title are resold together with other goods, the advance assignment extends to the invoice amount (invoice value including incidental costs and taxes) of the goods subject to retention of title.
We are entitled to revoke the authorizations for resale and collection of assigned receivables at any time with immediate effect if the customer is in default with payment or fails to meet its other obligations or an application is filed for the opening of insolvency proceedings or cessation of payment exists. If one of the aforementioned grounds arises, the customer is obliged at our request on revocation of the collection authorization to notify the receivables and the respective debtors to us, to notify the assignment to the debtors and to provide all the information and documents required for us to collect the receivables.
4. Any processing or transformation is carried out by the customer on our behalf without any obligation arising on our part. If the goods delivered by us are transformed or processed with other things which do not belong to us, we acquire joint title to the new thing in proportion to the value (invoice value including incidental costs and taxes) - at the time of transformation or processing - of the transformed or processed goods subject to retention of title compared with the value - at the time of transformation or processing - of the other things processed. For the thing created by transformation or processing the same applies as for goods delivered subject to retention of title.
5. If goods subject to retention of title are combined with things which do not belong to us in such a way that they become essential parts of a uniform thing or are inseparably mixed with each other, we acquire joint title to the new thing in proportion to the value (invoice value including incidental costs and taxes) - at the time of combination or mixing - of the goods subject to retention of title compared with the value - at the time of combination or mixing - of the other things. If the combination or mixing is carried out in such a way that a thing of the customer is to be regarded as the main thing, it is deemed to be agreed that the customer transfers proportionate title to us in the amount of the value (invoice value including incidental costs and taxes) of the goods subject to retention of title. The property thereby created is kept by the customer on our behalf without charge.
6. Financing agreements (eg; leases) involving the transfer of ownership of our goods subject to retention of title require our prior written approval unless the agreement obliges the financial institution to pay directly to us the share of the Purchase Price which is due to us.
7. Goods subject to retention of title must within the customary parameters be treated by the customer with due care and maintained by it at its own expense. Customer must insure them appropriately against all customary risks, store them separately and label them in accordance with our wishes. Claims against the insurer as a result of a damage event or loss are hereby already assigned to us by mutual consent in the amount of the value (invoice value including incidental costs and taxes) of the goods subject to retention of title. If the customer breaches these obligations we are entitled to withdraw from the contract after allowing a reasonable period of grace.
8. Legal or actual access by third parties (particularly seizures) to the goods subject to retention of title or the receivables assigned in advance must be promptly notified to us by the customer. In addition customer is obliged to provide all the information and documents required by us to intervene. Customer must promptly inform the third party about our retention of title.
9. We undertake that securities due to us will on request by the customer be released by us to the extent that the realizable value of the securities exceeds the value of the secured receivables by more than 10%. The choice of securities to be released will be made by us.
§ 8. Inspection / Warranty 1. The customer must carefully and completely examine each delivery promptly after receipt. Apparent defects or shortages must be reported in writing, per fax or e-mail within 10 working days of receipt of the goods. The whole delivery is otherwise deemed to be accepted. If a defect which is not immediately apparent is subsequently found ("hidden"), the customer must notify us promptly, otherwise the goods are deemed to be accepted even in view of this hidden defect. In reporting defects the customer must describe the purported defect in detail and in particular state the manner and circumstances (incoming inspection, during assembly or production process, outgoing inspection) in which this defect appeared.
Failures due to improper handling (not obeying general technical standards such as but not limited to insufficient or no grounding of operators while handling electronic goods, stressing mechanical components during assembly, sharply bending or stressing cables or connectors) of the goods are excluded from warranty claims.
2. We warrant that goods delivered to customer are free from defects in material and workmanship and comply with applicable and agreed specifications. In case specifications have not been explicitly agreed for goods the applicable specifications available on our web-pages, FTP server or made available via any other means at the time of concluding the sales contract shall become part of the sales contract. 3. An agreement regarding the specifications for goods shall not be equated with the granting of a guarantee. We shall grant particular guarantees only on the basis of a separate agreement which, independently of the underlying sales contract, regulate the content and scope of such guarantees. 4. To the extent that defects have been exclusively or substantially caused by customer or third parties, no claims for defects shall exist. This shall in particular be assumed when the defect is due to one of the following circumstances:
- defectiveness or unsuitability of the directions issued by customer for implementation,
- unsuitable or improper storage, use, natural wear and tear, erroneous or negligent treatment, improper maintenance, chemical, electronic or electrical influences caused by either customer or third parties.
5. If the delivered goods are defective, we will, at our option, either remedy the defect or deliver defect-free goods ("subsequent performance"). No warranty rights shall exist in case of an insignificant defect.
6. We shall have the right to make the subsequent performance dependent
upon payment of the price still owed by the customer to us.
7. Customer shall provide us with the necessary time and opportunity to
complete the subsequent performance; particularly, it shall provide the goods deemed being defective to us for purpose of assessment upon our request.
8. Any claims on the part of customer for damages and/or reimbursement of
expenses shall exist only pursuant to clause 9 (“Liability”) of these GTCSD. Any additional claims shall be excluded.
9. The time limit for claims for a defect is four months from the statutory
commencement of time limitation except in the case of strict liability in tort, if liability exists for injury to life, body or health, if quality characteristics have been guaranteed or if a defect has been maliciously concealed. § 479 of the Austrian Civil Code/ABGB is unaffected.
§ 9. Liability
1. Regardless of the legal basis, we shall be liable for compensation of
damages only in cases of intent and gross negligence.
2. The amount of liability is limited to the value of the sold goods per year.
3. The above-specified liability applies to the same extent in favor of our organs, legal representatives, managerial and other employees, and other vicarious agents.§ 10. Assignment; Factoring
1. Receivables in existence towards the customer may be assigned by us
without prior approval by the customer and in particular sold in the course
of factoring. Statutory prohibitions of assignment are unaffected.§ 11. Place of Performance and jurisdiction
1. Unless otherwise agreed the place of performance is the location of our
registered business offices in Vienna/Austria and for deliveries the place of performance is the location from which dispatch to the customer takes place.
2. All disputes arising from or in connection with these GTCSD or related to its violation, termination or nullity shall be finally decided and settled under the ICC Rules of Arbitration by three arbitrators appointed in accordance with these rules. Austrian Law shall apply (with the exception of its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods, CISG). The language to be used in the arbitral proceedings shall be English. The place of arbitration shall be Vienna, Austria.§ 12. Governing Law
1. Contractual relationships with customer are governed by and construed in accordance with the laws of Austria without reference to any of its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.