STANDARD TERMS AND CONDITION OF BUSINESS
- “Customer” shall mean the person, firm or body corporate giving the order and LITHEXX shall mean LITHEXX-Systems GmbH, Europastraße 8, A-9524 Villach St. Magdalen / Austria
- “System Components” shall mean any product sold by LITHEXX and, unless the context requires otherwise, all components, accessories and parts thereof, which are subject of LITHEXX quotation and/or order of customer and LITHEXX order acknowledgement.
- “Service” shall mean any action as offered by LITHEXX in the context of service and maintenance interventions for any semi-conductor equipment, customer training and other consulting concerning all technical matters arising from the operation of semi-conductor equipment.
- “Shipment” shall mean the actual transfer of system components from the place of manufacture or acquisition to customer’s premises, effected by a carrier commissioned by customer.
- “Quotation” shall mean the document supplied by LITHEXX which contains information about extension and subject of Service-Interventions, on available System Components and other parts/items, prices, specifications, possible configurations, estimated delivery periods, etc. The quotation shall inform customer and enable him to place a detailed order.
- Acceptance of orders
- No customer orders shall be binding on LITHEXX until the issue of LITHEXX official order acknowledgement. Pricelists, if any, and quotations of LITHEXX do not constitute offers; catalogues and other information provided by LITHEXX are only indications of the type of services and products that may be available and do not form part of any contract nor constitute a representation by LITHEXX.
- These conditions together with Quotation, Order and the Order Acknowledgement represent the entire agreement between the customer and LITHEXX in relation to the System Components and Services save as otherwise specifically agreed in writing by LITHEXX and override and cancel any terms and conditions of the customer. Without prejudice to the foregoing, shipment of any of the System Components or the start of any Service upon order of the customer shall be deemed to constitute acceptance of these conditions. If there is a conflict between statements/provisions in the quotation or the order acknowledgement by LITHEXX on one side and these terms and conditions on the other side, the statements/provisions or the order acknowledgement shall prevail.
- Except as otherwise stated, the price of the System Component includes packing and crating, installation of the Component, post-installation testing, instructions for use, and a documentation of the System Component, if made available by supplier.
- Prices for Services are made up by hourly or daily rates for a offered Service, additionally expenses ( like i.e. travelling expenses, meals, overnight stay etc.) are not included and will be charged separately.
- The price does not include shipping, transportation, freight or insurance beyond the place of manufacture or acquisition, sales ~, use ~, property ~ or similar taxes, customs, duties, licenses and export fees.
- Payment Terms
- The purchase price of any System Component, spare part or other item ordered is due within 30 days after receipt of LITHEXX notice of readiness for delivery. Delivery will be carried out by a freight carrier named by customer. Services rendered by LITHEXX will be charged according to the rates (hourly, daily) of the price list effective at the starting date of Service. Such price list will be made available upon customers request. The amount due is payable within 14 days after presentation of invoice.
- If customer delays installation of the System Component (whether by reason of failure to complete site preparations or otherwise) for more than 10 days after LITHEXX gives notice that he is ready to commence uncrating and installation of the System Component, the entire purchase price shall become due immediately and payable within 14 days of such notice.
- If customer uses the System Component for product development or production prior to executing the applicable System-Acceptance-Test, any unpaid balance of the purchase price shall thereupon become due and payable within 10 days after the first such use, and the warranty period shall commence to run upon such first use.
- Notwithstanding any other legal rights or remedies, LITHEXX is entitled to collect interest rate on overdue amounts at an annual rate of 5% above the discount rate of the Österreichische Bundesbank.
- Risk and Title
- LITHEXX will bear the risk of loss and damage of System Component up to the time of transfer to customer’s carrier.
- Title to the System Component shall be retained by LITHEXX until any and all claims against the customer out of the business relation, including all costs incurred have been settled by the customer. The retention of title by LITHEXX applies also to any new products which possibly may result from the connection, mixture of the System Component or part thereof.
- During the period of retention of title, a sale, pledge, transfer of ownership by way of security, letting and any other handing over the System Component or parts thereof, impairing the right to title of LITHEXX as well as any amendment, connection, mixture of the System Component or parts thereof are only admissible with previous written consent by LITHEXX. In case of seizure by third parties, especially pledges, the customer has to immediately give written notice to LITHEXX and has to promptly draw the third parties’ attention to the title to the System Component of LITHEXX. Customer will bear all costs incurred for the release of the seizure and replacement of the System Component or the parts thereof as far as such cannot be collected by third parties. To cover the legal position from retention of title, the customer does herewith assign to LITHEXX all its future claims and secondary rights resulting from resale in the amount of the value of the delivered System.
- If the amount of security for LITHEXX represented by the retention of the title exceeds the amount of any open claims of LITHEXX against the customer by more than 10%, LITHEXX will release at his choice any fully paid deliveries.
- Delivery, Shipment
- The actual transfer of a System Component to a carrier selected by the customer, unless otherwise agreed by the parties in writing, shall be deemed delivery to the customer.
- LITHEXX will give notice in writing to the customer when the System Component is ready for shipment. Any delivery date quoted by LITHEXX or agreed is approximate only. LITHEXX shall use reasonable endeavours to comply with such dates but shall have no liability to the customer for any failure to do so.
- Shipment of any System Component shall be made FCA from place of manufacture or acquisition by LITHEXX, in the name and on account of the customer, by the best available method and as soon as he received notice from LITHEXX that the System Component is ready for shipment.
- Installation of the System Component shall be carried out in accordance with manufacturer’s applicable installation instructions and shall be LITHEXX’ responsibility unless installation by LITHEXX is not applicable to the items concerned. When LITHEXX is responsible for installation, the customer shall complete the following at its own expense to LITHEXX’ reasonable satisfaction:
- transportation of the System Component to the relevant site at the installation location ready for installation. LITHEXX will be notified in writing immediately when transportation has been completed;
- provision of access for LITHEXX and his employees and contractors at all reasonable times for the purposes of installation;
- completing the site preparation works specified in manufacturer’s installation instructions (where applicable) not less than one week before LITHEXX’ quoted delivery date;
- obtaining all building regulations, landlord’s and other consents that may be required.
- LITHEXX will carry out uncrating and installation of the System Component without any undue delay after notification as per 7.1a) above, and will in turn notify customer when it is ready for installation.
- Acceptance Testing
- LITHEXX will test the System Component – if applicable – at customer’s premises upon completion of the installation. The test procedures are summarised in the applicable manufacturer’s System Acceptance Form, a copy of which will be provided on request.
- LITHEXX will start the Post-Installation Testing within one working day after completion of installation. When the specifications set out in the Form for the Post-Installation Test are demonstrated to have been met, customer will sign the System Acceptance Form.
- The customer will have at least one authorised representative present throughout the tests, failing which it shall have no right to object to the results as notified by LITHEXX in writing, and the tests will be deemed to have been passed and the System Component to have been accepted by the customer as per said notification of LITHEXX. The System will also be deemed to have been accepted if customer does not object in detail to the test results within five (5) days after completion in writing. The customer may not begin to use the System without LITHEXX’ written consent until he has signed the System Acceptance Form in accordance with 8.2.
- Limited Warranty
- LITHEXX warrants that each System Component sold hereunder upon passing of the risk is free of any defects in materials or workmanship and in good operating condition and does comply with the specifications, if any, as stated in LITHEXX’ quotation or order acknowledgement.
- LITHEXX’ warranty obligations are limited to the repair or replacement (at LITHEXX’ option) of the defective System Component or the parts concerned. If repair, and/or replacement finally prove to be unsuccessful, customer is entitled to an appropriate reduction of the purchase price or cancellation of the agreement.
- Any notices of defects must be given by customer to LITHEXX in detailed, written form not later than 14 days after completion of the Post-Installation Test. Notice of any defects which could not be discovered in spite of the careful testing carried out during this 14-days-period, must be given to LITHEXX in writing immediately after discovery. LITHEXX disclaims any liabilities or warranties for defects or breach of warranties of which it has not been notified by the customer according to the foregoing.
- The warranty period with respect to System Components is 12 months and commences upon completion of the Post-Installation Test, or with first use of the System Component by the customer, if prior. If shipment, installation and/or Post-Installation Testing of the System Component are delayed, prevented, or refused by customer without LITHEXX’ consent or fault the warranty period commences upon LITHEXX’ notice that the System Component is ready for shipment.
- The warranty does not apply to any non-compliance to the extent that they result from:
- failure of items after normal life expectancy within the warranty period, or
- accident, wear and tear or misuse of the System Component or provision of an environment not in accordance with LITHEXX’ specifications, or
- the manner in which the System is installed if LITHEXX is not responsible for the installation of the System Component, or
- any repair, alteration, or addition to the System Component made by the customer without LITHEXX’ prior written approval, or
- failure to keep the System Component maintained in accordance with manufacturer’s requirements according to the published documentation delivered with the System Component.
- The clauses above state the complete warranty provisions in respect of any defects of the System or of any spare parts or other smaller items delivered by LITHEXX and exclude any other warranty or liability claims of the customer of whichever nature including claims for direct, indirect or consequential damages, losses, expenses. Except as stated herein, all expressed or implied representations of warranties whether as to quality of fitness for certain purposes of the System Component or of any other kind are hereby excluded. This does not apply if the particular damage has been caused by failure of the System Component to perform according to a validly warranted particular quality and this warranty was intended to protect against the particular damage that occurred.
- Information about LITHEXX’ products in the quotation or order acknowledgement do not constitute warranties in the legal sense. They are descriptions of the product only. Warranties in the legal sense must be given by separate written agreement between the customer and a representative of LITHEXX.
- The price of the System Component has been calculated by LITHEXX on the basis of the terms of this section 9. LITHEXX will quote upon request separately for supply of the System Component under alternative warranty provisions.
- LITHEXX will be liable, regardless of the legal ground of such liability (including delay, breach of contract, non-performance, tort) in the case of direct damage, damage to persons, goods or property only, if such damage has been caused by intent or gross negligence by LITHEXX, his employees involved in the performance or his representatives, or in cases of breach of substantial obligations through executive officers by negligence or intent. Any liability for indirect, incidental, special or consequential damages of any kind, including loss of profits, interruption of business, claims of third parties is expressly excluded.
- Any liability of LITHEXX based upon or in connection with this Agreement is limited to the amount of EURO 2.000.000 (two million EUROs).
- The statute of limitation for any damage claim is 12 months.
- Cancellation on Customer Delay
- If the customer wants to cancel an order in whole or in part after receipt of acknowledgement of the order by LITHEXX but no later than 90 days prior to the quoted delivery date and LITHEXX is not responsible for such request for cancellation, then the customer shall pay as liquidated damages a percentage of the agreed purchase price for such System Components based on the following schedule:
|Number of days prior to quoted delivery date
||Cancellation charge (as a % of total price of system component)
|0 – 90 days
||no cancellation permitted
|91 – 180 days
||cancellation charge of 50%
|181 – 270 days
||cancellation charge of 15%
|over 270 days
With regard to Services, all already spent or due additionally expenses (see 3(2)) caused by the preparation for or the inception of such Services will be charged if cancellation is filed later than 30 days before an agreed starting date.
- Customer shall give written notice of any cancellation. The date that LITHEXX receives such notice shall determine the cancellation charge. Cancellation charges shall be due within 30 days of receipt by LITHEXX of the cancellation notice.If after acceptance of an order by LITHEXX prior to the quoted delivery date the customer requests all or any part of the order to be suspended, rescheduled, placed on hold or otherwise delayed, either for a definite period or indefinitely and LITHEXX agrees in writing, then customer shall pay to LITHEXX within 30 days after such request by way of liquidated damages a non refundable amount of 15% of the purchase price or the agreed Service price.
- LITHEXX reserves its rights according to sec. 5.2.
- Order changes, technical data
- After acceptance of the order by LITHEXX any changes of the order have to be requested by customer by written change order and require the written consent of LITHEXX. LITHEXX reserves the right to revise the purchase price and/or to charge extra fees to reflect any changes to which it may have agreed.
- LITHEXX reserves the right to vary the specifications of the System Component as quoted or ordered at its discretion in accordance with the policy of continued technical review of the manufacturer provided that the change has no adverse effect on the performance and functioning of the System Component and does not alter the purchase price.
- Customer accepts that the technology incorporated in the System Component may be subject to governmental restrictions. The customer agrees that after delivery the System Component and associated technical documentation will be used only by the customer for the purposes of its own business.
- LITHEXX will hand over to the customer (if available) a copy of each of the manuals, user guides and schematics applicable to the System Component. All copyrights in such documentation remain for all times vested in the manufacturer of the System Component. All technical information contained in such documentation or embodied in the System Component will at all times be treated by the customer as strictly confidential and the customer will not use it or disclose it to any third party save for the purposes of operation or maintaining the System.
- Force Majeure
LITHEXX shall not be held liable for delay and/or complete or partial non-delivery or non-performance, caused directly or indirectly by acts of god, governmental regulations or requirements, unavailability of materials or boycotts, strikes or other industrial actions at LITHEXX’ , the manufacturer’s, the sub-contractor’s/agent’s and customer’s sites, or other circumstances beyond LITHEXX’ reasonable control.
Customer is not entitled to assign this contract in part or in full to a third party without a prior written consent by LITHEXX.
- Any alterations or amendments to the terms and conditions of this Agreement, any representational, any other declarational Agreement as to the subject matter of this Agreement shall only be valid if they have fully and expressly been acknowledged by LITHEXX in writing.
- Both parties agree to comply, and do everything necessary to comply, with all applicable, federal, state and local laws, regulations and ordinances including, but not limited to the regulations of the United State’s Department of Commerce and State relating to the export of technical data and commodities insofar as they relate to the transactions contemplated herein. Both parties agree to obtain the required government documents and approvals prior to export from the United States of any such technical data or commodity.
- Any notice to be served by LITHEXX shall be duly served if sent to the customer at the installation location and any notice by the customer shall be duly served if sent to LITHEXX at his/its registered office or (in each case) to such other address that the receiving party may previously have notified to the other for the purpose.
- If any of these conditions or any part of them is held to be invalid for any purpose, it shall for that purpose be deemed to have been omitted but shall not prejudice the effectiveness of the rest of these conditions.
- This Agreement shall be governed by and construed in accordance with Austrian law. Exclusive place of jurisdiction shall be at the seat of LITHEXX if the customer is classified as “Vollkaufmann” (businessman) according to Austrian legislation.