General Terms and Conditions of Sale and Delivery (GTCSD)

StreamUnlimited Engineering GmbH (SUE)

StreamUnlimited Optical Storage GmbH (SUOS)

As of June 2013


§ 1 Area of application

  1. Delivery of goods, an offer, order confirmation, acceptance or 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 prior 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 to 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 licenses or consents are not given to us. We are obliged to advice customer as soon 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 a 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 finalized 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 governmental 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 the 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 reasonable 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 goods or is responsible for delays in dispatch or delivery, we are entitled without prejudice to further claims:
  1. to store the goods on our own or third-party premises and charge thecustomer - 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

  2. 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.
  1. 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.

  2. Returns of transportation packaging and other packaging are not accepted by us. The customer is obliged to dispose of packaging at its own expense.

  3. 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 SW aren't part of the goods delivery and a separate contract applies):
    • 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 goods delivery or in the contract for software delivery.
    • Any kind of legal requirements (e.g. 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.
    • Any kind of certification (e.g. Wi-fi, AirPlay, 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 goods delivery or in the contract for software delivery.     

§ 6 Payment; due date; default interest

  1. In the absence of a 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.

  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 reserve
    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
    fulfillment 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 fulfillment of the receivables
    resulting from a recognized closing balance.

  2. Goods subject to retention of title may be sold by the customer in the
    normal course of customer’s 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 grounds 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 (e. g. asset deal) in the amount of our receivables(invoice value
    including incidental costs and taxes).

  3. If the goods 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 joint 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 (e.g. leases) involving the transfer of ownership of
    our goods subject to retention of title require our prior written approval
    unless the agreement obliges the financing 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
    ownexpense. 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 the 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 for 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 inwriting, per fax or e-mail within ten working days after receipt of thegoods. The whole delivery is otherwise deemed to be accepted. If a defectwhich 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. Failures occurring after the outgoing
    inspection in an already sold product (“field returns”) 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.