Conditions

Rental conditions of CHS Container Handel GmbH

I. General provisions and scope of applicability

CHS Container Handel GmbH, FN 554502 w, Betriebsstraße I/Objekt 4, 2482 Münchendorf shall hereinafter also be referred to as “CHS” or the “lessor”.
These rental conditions apply for business relationships concerning the rental of containers and related transactions with CHS. Irrespective of whether a contract has already been concluded or only a precontractual relationship of trust has been established, business partners of CHS shall hereinafter be uniformly referred to as “lessees”.
Our rental conditions apply exclusively. We shall not recognise terms and conditions of the customer being contrary to or differing from our rental conditions unless we explicitly agree to their applicability in writing. Our rental conditions also apply if we accept the rental contract without reservations in the knowledge of terms and conditions of the lessee being contrary to our terms and conditions of business or differing from them.
We shall have the right to subsequently adjust these rental conditions in ongoing contracts. Such adjustments shall only become effective when the lessee has agreed to the adjustment or if its consent is deemed granted in accordance with the following sentences: We shall inform the lessee in writing of the new rental conditions no later than two months before their envisaged effective date and at the same time point out to it the changed clauses. Consent to the applicability of the new rental conditions shall be deemed granted if the customer fails to inform us of its rejection before the envisaged effective date. We shall specifically inform the customer of this approval mechanism in our notification.
Our rental conditions also apply exclusively for all future contracts with the lessee in connection with the business relationships existing between the lessee and us concerning the provision of containers for use for a fee.
Any individual arrangements made with the lessee in an individual case (including additional arrangements, additions or amendments) shall in any event take precedence over these rental conditions. A written contract / our written confirmation shall be decisive for the content of such arrangements, subject to proof to the contrary.

II. Subject of the contract, the conclusion of the contract, termination and delivery

The subject of the rental is any item that we as the lessor provide to the lessee for use in performance of a rental agreement.
Unless otherwise agreed above, the date of delivery specified on page 1 of the contract shall be deemed the beginning of the rental.
The end of the rental, unless otherwise agreed above, shall be deemed the day when the container (hereinafter also referred to as the “subject of the rental”) is received by the lessor (hereinafter also referred to as “us”). If damage is caused by the lessee on or in the container, the end of the rental shall be deemed the date when the lessee approves the performance of the repair work.
A rental relationship with an indefinite term may be terminated by either party in writing, giving 14 days’ notice, effective at the end of a month. The provisions of law on termination without notice for good cause remain unaffected. All costs for taking back the rented property, including any costs which are necessary for the purpose of stopping an intervention by third parties or for the recovery of the subject of the rental, shall be borne by the lessee.
Events of force majeure (e.g. industrial disputes affecting us or our suppliers, war, fire, pandemics, transport obstructions, shortages of raw materials, measures of governmental authorities or natural disasters) shall interrupt our obligation to make delivery for the period of their duration plus a reasonable lead time and to the extent of their impact. This shall also apply if we are already late in making delivery. We shall promptly notify the customer of the occurrence of an event of force majeure and the expected duration of the impediment. We shall have the right to entirely or partially rescind the contract with respect to the part thereof which has not yet been performed if, also taking into account the customer’s interests, we cannot be reasonably expected to continue the contract due to the duration of an event of force majeure.
Notwithstanding the fact that the COVID-19 crisis has been public knowledge since February 2020, the effects of the crisis are currently still unforeseeable. We shall therefore be exempted from our obligation to perform in the event of effects of the COVID-19 crisis that affect us associated with the performances provided for in the contract (e.g. delays due to official orders such as quarantine, prohibitions, etc., supply disruptions or a lack of resources or personnel, transport disruptions such as blocked transport routes, scarcity of containers and packing materials, etc.) for the duration of the effects in question and the relevant restart phases. If deadlines are affected, we shall agree new ones with the customer and an appropriately updated schedule. We shall also take any useful action we can reasonably be expected to take in order to minimise as far as possible the effects on the contractual provision of the services.

III. Obligations of the lessee

Any obvious defects or deficiencies must be promptly reported to the lessor after the receipt of the container(s), i.e. on the delivery date and no later than the next day. Concealed defects must be reported accordingly, without delay after their discovery.
The rent shall be payable without deductions monthly in advance by the third business day of each month. Unless we have agreed otherwise with the lessee, it must pay invoice amounts without deductions in cash or by wire transfer free of all charges into one of our accounts, without delay after the receipt of the invoice. The date when the funds are credited rather than the date when the funds are sent shall be decisive as to whether payment is made on time.
The rent includes a 14-day period of storage without warehouse fees. After the end of the period of storage without warehouse fees, the lessee shall pay the lessor a warehouse fee of €3 per day and TEU (plus statutory VAT).
The lessee shall take out insurance for the rental period against fire damage, storm damage, loss in transit, breakage and theft at the replacement value of the subject of the rental. The lessee shall notify the insurance company that we are the owner of the subject of the rental and shall specify us as the beneficiary of the insurance policy. Furthermore, upon the conclusion of this rental agreement the lessee assigns to us any claims against its insurer. We hereby accept the assignment.
The lessee shall be liable in accordance with the provisions of law for any damage to containers that occurs during the rental period and for any damage that occurs due to a violation of its duty of due care and notification. In particular, it shall bear the risk of loss or destruction. It shall not bear the risk of normal wear and tear due to use in accordance with the contract. If we provide proof that the damage falls within the area of risk and responsibility of the lessee, the lessee shall bear the burden of proof with regard to demonstrating that it is not responsible for the damage in question.
Provision to third parties or subletting is only permitted with explicit prior written consent of the lessor.
Any change of the container’s location must be promptly reported to the lessor. If the lessee intends to relocate or deploy the subject of the rental outside the territory of the Republic of Austria, it must inform us to that effect before the conclusion of the rental agreement or, insofar as such relocation or deployment is planned after the conclusion of the contract, promptly and before the transfer outside the territory of the Republic of Austria. We may object to the relocation of the containers abroad if there is a good reason for doing so.
The lessee may only use the container for the agreed purposes. It is a matter for the lessee to ascertain whether permits or approvals under private law or official permits or approvals, e.g. construction permit, permission to fall short of statutory limit distances, structural calculations, etc., are required in any way for the intended use. If they are required, the lessee shall be responsible for obtaining them. Any delays that occur in this context shall not affect the running of the rental period.
Insofar as the tax authorities consider the containers’ spatial elements to constitute buildings, the lessee shall bear the tax consequences that arise for the period of its use, particularly in the form of property tax.
The lessee shall be obliged to carry out decorative repairs at reasonable intervals during the rental period without a specific request to that effect from us. The lessee must properly carry out minor repair and maintenance work on the subject of the rental that arises after the beginning of the contract, at its own expense. This also applies for any interior fittings inside the container. Minor repair and maintenance work is deemed to include any measures that do not exceed €80.00 (net) in an individual case. The obligations of the lessee under this section are additionally limited to €500.00 (net) per calendar year.
The container must be returned in clean and proper condition, otherwise the lessor will be able to carry out the cleaning or maintenance work itself or have it carried out at the lessee’s expense without a further demand. For the event that the subject of the rental is not returned in good time, we object already now to an extension of the rental relationship under Article 1114 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch – ABGB).
If keys or furnishings are not returned or if furnishings are damaged when returned, the lessor shall have the right to charge the lessee for the costs of replacement / repairs. If the key in question is a key from a security system, the losses to be compensated for by the lessee shall amount to €35.00 per affected lock cylinder. Any other costs shall be invoiced according to expenditure.
In the case of long-term rental of refrigerated containers, the lessee must have professional maintenance of the refrigeration unit carried out every three months at its own expense.

IV. Liability of CHS Container Group

Claims of the lessee due to malfunctions of or defects in the rented property, particularly for compensation for losses, shall be based on the provisions of law, unless otherwise agreed below.
a) Also in the event of initial defects in the subject of the rental, we shall only be liable if we are culpable and in that case in accordance with this section III.10.
b) We shall be liable without limitation under the Product Liability Act (Produkthaftungsgesetz) in the event of fraudulent concealment of a defect, for losses due to loss of life or injury to the body or health, in the event of wilful misconduct or if we have provided a guarantee. In the event of gross negligence, our liability shall be limited to the foreseeable losses under a typical contract.
c) In the event of a merely negligent violation of key rights or obligations that result from the content and purpose of the contract, our liability shall also be limited to the foreseeable losses under a typical contract.
d) Except for the cases referred in sections a) – c), we shall not be liable for losses caused by simple negligence.
e) Our liability under section IV.1.c) is also limited to the amount of €50,000 per claim and €150,000 per contract. The above limitations of liability shall not apply insofar as the customer specifies to us a higher maximum liability amount in writing before the conclusion of the contract. In the event of such a value declaration, the maximum liability amount shall be determined according to the declared value. For the increased limit, we shall charge the customer an additional fee which, in particular, covers the additional costs that we incur as a result (e.g. higher insurance costs).
f) Outside the scope of applicability of section b), any further claims for compensation for losses shall be excluded, particularly claims for compensation for indirect losses or compensation for lost profits.
Insofar as the liability is excluded or limited with respect to us, this shall also apply with respect to any personal liability of our employees or representatives.
If containers from a rental agreement are acquired by purchase, a maximum of 70% of the rent paid for three months may be credited, without taking into account the rest of the rental period.
If a rental agreement lasts more than 15 months, the lessor shall have the right to set different prices for deinstallation and removal from the one calculated today, insofar as the development of wages, fuel costs or insurance premiums in the meantime justifies this and it is not responsible for such developments. The flat prices in this respect shall therefore be invoiced for the above-mentioned performances at the end of the rental on the market terms prevailing at that time.
In the event of leasing or the acquisition of containers from a rental agreement through purchase, they shall remain the property of the lessor until payment has been made in full by the lessee/buyer of all receivables arising from the business relationship. For that period, the lessee must keep the subject of the contract free from all encumbrances, including rights of lien of third parties, and promptly notify the lessor/seller by registered letter of any third-party claims, particularly attachments. The lessee/buyer must provide all documents necessary for the purpose of asserting the rights of the lessor/seller and make any necessary declarations. The lessee must indemnify the lessor against any costs incurred or yet to be incurred due to third-party action. The lessor's terms and conditions of sale and delivery apply on a supplementary basis.

V. Place of jurisdiction, place of performance, applicable law, final provisions

If the lessee is a company, a legal person under public law or a public law special fund, the materially competent courts for Münchendorf shall be the exclusive place of jurisdiction for any disputes arising from or related to the business relationship between CHS and the lessee.
Paragraph 1 shall also apply if the lessee has no general place of jurisdiction in Austria or relocates its place of residence or habitual place of residence abroad after the conclusion of the contract, or if its place of residence or habitual residence are not known at the time when the action is brought. However, we reserve the right to bring an action against the lessee at its general place of jurisdiction.
Unless explicitly agreed otherwise between CHS and the lessee, the place of performance is Münchendorf.
Austrian law applies, to the exclusion of the conflict of laws rules under Austrian international private law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The legal transaction fees shall be borne by the lessee and it shall fully indemnify the lessor and hold it harmless in this respect.
Should individual provisions of the contract concluded between us and the lessee be or become ineffective or void, the effectiveness of the rest of the contract shall not be affected as a result. The ineffective or void provision shall be deemed replaced by a provision which comes closest to the economic meaning and purpose of the ineffective or void provision in a legally effective manner. The above provision applies accordingly with regard to unintended gaps/omissions.
No action taken by us, except for an explicit waiver declaration, shall constitute a waiver of a right to which we are entitled under the contract, these terms and conditions of business or the law. A delay in asserting our rights shall also not be deemed a waiver of the right in question. A one-off waiver of a right shall not be deemed a waiver of that right with regard to a different matter or occasion.
All contracts or amendments or additions thereto must be in writing. Oral arrangements shall only be effective if they are confirmed by CHS in writing. This also applies for this clause on the requirement of written form.

Terms and conditions of sale and delivery

General provisions and scope of applicability
CHS Container Handel GmbH, FN 554502 w, Betriebsstraße I/Objekt 4, 2482 Münchendorf, shall hereinafter also be referred to as “CHS”.
These terms and conditions of sale and delivery (hereinafter also referred to as the “terms and conditions of business”) apply for business relationships with CHS involving sale or delivery. Business partners of CHS shall hereinafter be referred to uniformly as “customers”, irrespective of whether they have already concluded a contract or as yet only a precontractual relationship of trust has been established.
Our terms and conditions of business apply exclusively. We do not recognise any terms and conditions of the customer being contrary to or differing from our terms and conditions of business, unless we explicitly agree to their applicability in writing. Our terms and conditions of business also apply if we carry out the delivery to the customer without reservations in the knowledge of terms and conditions of the customer being contrary to or differing from our terms and conditions of business.
We shall have the right to subsequently adjust these terms and conditions of business in ongoing contracts. Such adjustments shall only become effective when the customer has agreed to the adjustment or if its consent is deemed granted in accordance with the following sentences: We shall inform the customer in writing of the new terms and conditions of business no later than two months before their envisaged effective date and at the same time point out to it the changed clauses. Consent to the applicability of the new terms and conditions of business shall be deemed granted if the customer fails to inform us of its rejection before the envisaged effective date. We shall specifically inform the customer of this approval mechanism in our notification.
Our terms and conditions of business also apply exclusively for all future contracts with the customer in connection with the business relationships existing between the customer and us.
Insofar as we also take on the tasks of a forwarder, the latest version of General Austrian Forwarders' Terms and Conditions (Allgemeine Österreichische Spediteurbedingungen – AÖSp) (currently AÖSp 2003) shall apply on a priority basis, whose applicability we hereby separately point out. Article 54 AÖSp 2003 currently provides for the following liability limitations: €7,267.28 per damage claim resulting from misappropriation or embezzlement by an employee (not including legal agents or holders of a statutory authority, whose actions are not subject to limited liability) of the forwarder, €1.09 per kg gross of any damaged or lost package, but a maximum of €1,090.09 per damage claim, and for any other damage, with the exception of the liability limit referred to at the beginning of this clause, a maximum of €2,180.19 per damage claim, unless the value of the goods is lower – in this respect the further provisions of Article 54 AÖSp 2003 apply.
Any individual arrangements made with the customer in an individual case (including additional arrangements, additions or amendments) shall in any event take precedence over these terms and conditions of business. A written contract / our written confirmation shall be decisive for the content of such arrangements, subject to proof to the contrary.

II. Offer, the conclusion of a contract and offer documents

Our offers are subject to confirmation and merely constitute an invitation for the customer to submit an offer (invitatio ad offerendum). Acceptance of one of our offers by the customer shall only be deemed accepted by us following our written confirmation to the customer (conclusion of the contract).
We reserve all ownership and copyrights to any images, drawings, calculations or other documents (hereinafter also referred to as “documents”), including if they are created by the customer according to our specifications.
We may deviate, to a degree being reasonable for the customer, from the documents included in the contract, such as images, drawings, information on weights and dimensions (hereinafter referred to jointly as “specifications”), due to technical progress or production-related factors, unless we have explicitly designated the specifications as binding. We also reserve the right to make technical changes or changes of form, colour, material and/or weight due to technical progress and within the limits of what is reasonable for the customer.
By placing an order the customer declares with binding effect that it wishes to purchase the ordered goods to be delivered. If the order is not based on an offer submitted by us, we shall have the right to accept the contract offer contained in the order within two weeks from our receipt thereof. Such acceptance may be declared either through a written order confirmation or by beginning the delivery of the goods in question to the customer. In the latter case our delivery note shall be deemed an order confirmation; the order confirmation and our terms and conditions of business shall be decisive for the content of the contract.
If we ourselves do not receive correct or timely delivery from our suppliers we shall be exempted from our obligation to perform and may rescind the contract. This shall only apply if we are not responsible for the failure to make delivery, particularly where a congruent covering transaction has been concluded with our supplier. We shall promptly inform the customer of the unavailability of the performance and refund any already received counter-performance.
If there are justified reservations with regard to the customer’s creditworthiness upon or after the conclusion of the contract, particularly if attachments or other enforcement measures are carried out against it or if an application for the initiation of insolvency proceedings has been filed or such initiation is rejected on grounds of a lack of assets, and as a result our entitlement to the purchase price is jeopardised due to the customer’s inadequate financial capability, we may make the performance of the contract conditional on prepayment or the provision of security by the customer or rescind the contract in accordance with the provisions of law on refusal of performance, possibly after setting a time limit. The rest of the contract shall remain binding for the customer even if it becomes ineffective with regard to individual items.
Any prospectuses, promotional literature or catalogues issued by us or the manufacturer, as well as the information contained therein, shall only form a part of the contracts concluded by us if they are explicitly included in the contract. Otherwise they are non-binding and subject to confirmation.
The customer must do everything in its power to support us in the provision of our services and fulfil all the requirements within its sphere of responsibility necessary for the correct fulfilment of the order. In particular, it must provide us, in good time and in full, with all the documents and information necessary for the provision of our services.

III. Prices and payment terms

Unless we have agreed otherwise with the customer, our prices should be understood as being net prices ex Münchendorf warehouse (EXW – INCOTERMS 2020), excluding additional costs such as freight charges and customs duty, which shall be separately invoiced insofar as they are incurred. VAT is not included in our prices. Insofar as VAT arises, it shall be separately indicated on the invoice in the current statutory amount as of the invoice date.
The sales price includes a 14-day period of storage without warehouse fees. After the end of the period of storage without warehouse fees, the customer shall pay us a warehouse fee of €3 per day and TEU (plus statutory VAT).
Unless explicitly provided otherwise in the contract, the customer shall be obliged to pay invoice amounts without any deductions by way of a wire transfer free of all charges into one of our accounts, within 14 days from the invoice date. The receipt of the funds by us or the crediting of the amount to our account shall be decisive.
Cheques and bills of exchange shall only be accepted as payment on the basis of an explicit prior arrangement. Any expenses or costs that arise in connection with cashing bills of exchange or cheques shall be borne by the customer.
The customer will only be able to set off if its counterclaims have been established with legally binding effect or are undisputed. This also applies to the same extent for the assertion of rights of retention and rights to refuse the performance by the customer. Notwithstanding sentence 1, setting off or asserting a right of retention or a right to refuse the performance on the basis of a counterclaim to compensation for costs related to the elimination of a defect or additional completion costs stemming from the same legal relationship are always possible.

IV. Transfer of risk, shipping and transit insurance

Unless explicitly provided otherwise in the contract, for CHS, delivery ex Münchendorf warehouse (EXW - INCOTERMS 2020) is agreed.
The risk of accidental loss or accidental deterioration of the subject of the delivery shall transfer to the customer upon handover or, in the case of a mail order purchase, upon delivery to the forwarder, carrier or other person appointed to carry out the shipment, irrespective of the shipping location. This shall also apply with regard to partial deliveries, irrespective of whether freight-paid delivery has been agreed. If the shipment is delayed at the customer’s request or if it defaults on acceptance or payment, the risk shall transfer to it on the date when the goods are ready to be shipped. The customer shall bear the costs incurred due to the delay (particularly of placing the goods in storage).
Unless explicitly provided otherwise in the contract, we shall pack the subject of the delivery at the customer’s expense and invoice the customer for the resulting costs.
If the customer so desires, we shall take out transport insurance for the delivery. The customer shall pay the related costs.
If the intended use envisaged by the customer requires permits or approvals under private or public law (e.g. permission to fall short of statutory limit distances, building permits, structural calculations), it shall be a matter for the customer to obtain them at its own expense and it shall bear the related risk.

V. Delivery, delivery time, acceptance of delivery and late delivery

Partial deliveries shall be permissible, provided that they are reasonable for the customer.
A precondition for the beginning of the delivery period specified by us is the clarification of all technical questions with the customer. If the customer fails to fulfil its cooperation obligations, particularly obligations in connection with technical approval and the obligation to provide necessary information, section V.4 shall apply. We reserve the right to claim non-performance of the contract (Article 1052 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch – ABGB).
A further precondition for the fulfilment of our obligation to make delivery is that the customer fulfil its obligations correctly and in good time, particularly with regard to making the agreed payments and providing any agreed security. We reserve the right to claim non-performance of the contract.
If the customer defaults on acceptance, it shall have to compensate us for any additional expenses (e.g. expenses related to placing the goods to be delivered in storage). If the customer culpably breaches other cooperation obligations, it shall have to compensate us for the resulting losses (including additional expenses). We reserve the right to assert further claims, particularly claims to compensation for losses, if upon default of acceptance the customer defaults on payment at the same time.
Events of force majeure (unforeseen circumstances and events for which we are not culpable and could not have avoided even when exercising the diligence of a prudent businessman, e.g. industrial disputes affecting us or our suppliers, war, fire, transport obstructions, shortages of raw materials, pandemics, measures of governmental authorities, natural disasters or lock-outs) shall interrupt our obligation to make delivery for the period of their duration plus a reasonable lead time and to the extent of their impact. This shall also apply if we are already late in making delivery. We shall promptly notify the customer of the occurrence of an event of force majeure and the expected duration of the impediment. We shall have the right to entirely or partially rescind the contract with respect to the part thereof which has not yet been performed if, also taking into account the customer’s interests, we cannot be reasonably expected to continue the contract due to the duration of an event of force majeure.
Notwithstanding the fact that the COVID-19 crisis has been public knowledge since February 2020, the effects of the crisis are currently still unforeseeable. We shall therefore be exempted from our obligation to perform in the event of effects of the COVID-19 crisis that affect us associated with the performances provided for in the contract (e.g. delays due to official orders such as quarantine, prohibitions, etc., supply disruptions or a lack of resources or personnel, transport disruptions such as blocked transport routes, scarcity of containers and packing materials, etc.) for the duration of the effects in question and the relevant restart phases. If deadlines are affected, we shall agree new ones with the customer and an appropriately updated schedule. We shall also take any useful action we can reasonably be expected to take in order to minimise as far as possible the effects on the contractual provision of the services.
If the impediment lasts longer than three months, after a reasonable additional time limit has been set the customer shall have the right to rescind the contract with regard to the part thereof which has not yet been performed.
Our liability due to late delivery is based on section VIII.

VI. Retention of ownership

We shall retain the ownership title to the subject of the delivery (hereinafter also referred to as “goods subject to retention of title”) until the purchase price and all receivables arising from the ongoing business relationship with the customer have been settled. The inclusion of individual claims in a running account and the balancing of the account shall not affect the retention of title; in such a situation the retention of title shall relate to the acknowledged or actual balance. Payment shall only be deemed to have been made when we receive funds of equivalent value or they are credited to our bank account. The retention of ownership shall not be revived for delivered goods if, after the customer has acquired the ownership title to those delivered goods, new receivables from the customer arise from the business relationship.
In the event of conduct by the customer in breach of contract, particularly in the event of a payment default, we shall have the right under the provisions of law to rescind the contract and demand the surrender of the goods subject to retention of title. For the purpose of taking the goods back, the customer hereby irrevocably permits us to freely enter its business and storage premises and take the goods away. The collection of the goods subject to retention of title by us shall always constitute rescission of the contract. After taking back goods subject to retention of title, we shall be authorised to utilise them. The proceeds of such utilisation shall be credited to the customer’s liabilities, less reasonable utilisation costs, in accordance with Article 1416 ABGB.
The customer must treat the subject of the delivery with due care. In particular, it must sufficiently insure the subject of the delivery, at its own expense, at replacement value against fire and water damage and theft. If maintenance and/or inspection work is necessary, the customer must regularly carry it out at its own expense and risk.
In the event of attachments or other interventions by third parties, the customer must promptly notify us in writing so that we can bring attachment nullity proceedings in accordance with Article 37 of the Austrian Enforcement Regulation (Exekutionsordnung – EO).
The customer shall have the right to resell and/or process the goods subject to retention of title in the normal course of its business; this shall not apply if it is agreed in connection with the sale that the customer’s claim against the third party will expire through setting off. The customer assigns to us already now, in the final invoice amount (including VAT) of our claim, any receivables (including all balance claims from a current account, including those that arise after the termination of a current account relationship) to which it is entitled against its customers or third parties from the resale or on a different legal basis. The assignment is conditional on whether the goods subject to retention of title are sold without or after processing. We hereby accept the assignment. The customer shall remain authorised to collect those receivables after the assignment. Our authorisation to collect the receivables ourselves is not affected by this. However, we undertake to refrain from collecting the receivables as long as the customer fulfils its payment obligations from the collected proceeds, does not default on payment and does not cease making payment. If, however, this does occur, we may demand that the customer inform us of the assigned receivables and the debtors, provide us with all the information necessary for the collection, particularly information on the address of the debtor, as well as the related documents, and notify the debtors of the assignment.
The entitlement under section VI.5 does not include assigning or pledging the goods subject to retention of title or items produced from them without our consent for the purpose of providing security. The conclusion of financing contracts (for example leasing) that include the assignment of our retained rights shall require our prior written consent unless the contract obligates the financing institution to directly pay us the share of the purchase price to which we are entitled.
Processing or alteration of goods subject to retention of title by the customer shall always be carried out for us, without any liabilities arising for us as a result. If the goods subject to retention of title are processed with other items that do not belong to us, we shall acquire a co-ownership right to the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of the processing. Otherwise, the same provisions apply for the item that arises due to the processing as for goods subject to retention of title.
If the goods subject to retention of title are inseparably connected to or combined with other items that do not belong to us, we shall acquire a co-ownership title to the new item in the ratio of the value the goods subject to retention of title (final invoice amount including VAT) to the other connected or combined items at the moment of the connection or combining. If such connection or combining occurs in such a manner that the customer's item is to be deemed the main item, it shall be deemed agreed that the customer already now transfers to us a pro rata co-ownership title. We hereby accept that transfer. The customer shall safekeep our sole or joint property free of charge.
The customer hereby assigns to us, as security for our receivables from it, the receivables against a third party that arise for it through connection of the goods subject to retention of title to real property. We hereby accept the assignment.
The customer shall bear all pre-litigation and court costs that have to be incurred for the purpose of annulling an attachment or other intervention of a third party with respect to the goods subject to retention of title and for the recovery of the goods subject to retention of title, insofar as the costs cannot be collected from the third party. If, on the basis of this section VI, we have the right to assert claims assigned to us, the customer must reimburse us for the necessary pre-litigation and court costs.
We undertake to release the security to which we are entitled at the customer’s request insofar as the realisable value of our security exceeds the claims to be secured by more than 10%. We shall be responsible for selecting the security to be released.

VII. Warranty

A prerequisite for claims and rights of the customer due to defects (hereinafter also referred to as “defect claims”) is that it has properly fulfilled its inspection and complaint obligations under Article 377 of the Austrian Commercial Code (Unternehmensgesetzbuch – UGB).
Defect claims shall not exist in the event of merely insignificant deviations from the agreed quality/characteristics or in the event of merely insignificant impairments of usability.
Insofar as the subject of the delivery has a defect, with regard to the supplementary performance, notwithstanding Article 932 ABGB, we shall have a choice between eliminating the defect or delivering a new defect-free item. In the event that we render a supplementary performance we shall bear the expenses necessary for that purpose, particularly transport, travel, labour and material costs, insofar as that they do not increase as a result of the subject of the delivery having been taken to a location other than the place of performance, unless such relocation is in keeping with its intended use. Any replaced parts shall become our property.
If the supplementary performance fails, the customer shall have the right, according to its choice, to demand rescission or a price reduction. Any demand of the customer for compensation in lieu of performance or, in the case of a work contract, self-repair by the customer shall be excluded until the supplementary performance has failed, unless a demand for supplementary performance is dispensable under the provisions of law. The supplementary performance shall be deemed to have failed if two attempts to eliminate the defect being the subject of the complaint have not led to the delivered goods being free from defects in that respect or are not been undertaken within a reasonable period of time.
If we are culpable for the defect, the customer will be able to claim compensation only subject to the additional requirements provided for in section VIII.
In the case of used goods, claims for defects are excluded, subject to the following sentence on claims for compensation for losses.
For claims for compensation for losses, section VIII and section IX items 2 to 4 also apply for used goods.

VIII. Liability

Our liability, irrespective of the legal basis, particularly due to impossibility, late delivery, breach of obligations in the course of contractual negotiations or impermissible action, is limited in accordance with this section VIII.

We shall be liable without limitation under the Product Liability Act (Produkthaftungsgesetz), in the event of a fraudulently concealed defect, for losses arising from loss of life or injury to the body or health, in the event of wilful misconduct or insofar as we have provided a guarantee. In the event of gross negligence, our liability shall be limited to the foreseeable losses under a typical contract.

In the event of a merely negligent violation of key rights or obligations that result from the content and purpose of the contract, our liability shall also be limited to the foreseeable losses under a typical contract.

The amount of our liability under section VIII.3 is also limited to €50,000 per claim and €150,000 per contract. The above limitations of liability shall not apply insofar as the customer specifies to us a higher maximum liability amount in writing before the conclusion of the contract. In the event of such a value declaration, the maximum liability amount shall be determined according to the declared value. For the increased limit, we shall charge the customer an additional fee which, in particular, covers the additional costs that we incur as a result (e.g. higher insurance costs).

Except for the cases specified in section VIII items 2 and 3, we shall not be liable for losses caused by simple negligence.

Outside the scope of applicability of section VIII.2, any further claims for compensation for losses shall be excluded, particularly claims for compensation for indirect losses or compensation for lost profits.

Insofar as the liability is excluded or limited with respect to us, this shall also apply with respect to any personal liability of our employees or representatives.

IX. Time limitation for claims

The warranty period for defects in the subject of the delivery amounts to one year. The statutory warranty periods under Article 933 ABGB remain unaffected.
Other claims of the customer due to breaches of obligation by us, particularly claims for compensation for losses, or claims under a warranty shall expire by time limitation after one year. The right of the customer to rescind the contract due to a breach of obligation for which we are responsible that does not lie in a defect remains unaffected. Notwithstanding item 1, the statutory time limitation periods apply for the following claims of the customer:

2.1 under the Product Liability Act or due to losses resulting from loss of life or injury to the body or health or the violation of key rights or obligations under the contract,

2.2 due to losses resulting from an intentional or grossly negligent breach of obligation by us or our vicarious agents,

2.3 due to fraudulent concealment of a defect,

2.4 for claims against the predecessor in title in accordance with Article 933b ABGB.
Unless explicitly provided for otherwise, the provisions of law on the beginning of the time limitation period, suspension of expiry, suspension and recommencement of time limits remain unaffected.
Our claims against the customer shall expire by time limitation in accordance with the provisions of law.

X. Data protection and confidentiality

We shall have the right to process and store or have processed and stored by third parties commissioned by us, in accordance with data protection regulations, particularly the GDPR, data concerning the customer received by us in connection with the business relationship, including if it originates from third parties.
The customer must refrain from disclosing to third parties any confidential information (including business secrets) of which it gains knowledge in connection with a contract with us and its performance. Confidential information is any information marked as confidential or whose confidentiality arises from the circumstances, irrespective of whether it has been provided in written, electronic, material or oral form. Confidential information includes, in particular, our technologies, business data, business plans and strategies, economic relationships and economic status, personnel information, unpublished protective rights or other information which is not publicly available.
In particular, the customer shall be prohibited from obtaining confidential information by way of reverse engineering. Reverse engineering includes any action, including observation, testing, examination or dismantling and possible reassembly, undertaken for the purpose of obtaining confidential information.
XI. Place of jurisdiction, place of performance and applicable laws
If the customer is a company, a legal person under public law or a public law special fund, the materially competent courts for Münchendorf shall be the exclusive place of jurisdiction for all disputes stemming from or related to the business relationship between CHS and the customer.
Paragraphs 1 and 2 shall also apply if the customer has no general place of jurisdiction in Austria or relocates its place of residence or habitual place of residence abroad after the conclusion of the contract, or if its place of residence or habitual residence are not known at the time when the action is brought. However, we reserve the right to bring an action against the customer at its general place of jurisdiction.
Unless explicitly agreed otherwise between CHS and the customer, the place of performance for all deliveries/performances to be provided/rendered by the supplier is Münchendorf.
Austrian law applies, to the exclusion of the conflict of laws rules under Austrian international private law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

XII. Final provisions

Should individual provisions of the contract concluded between us and the customer be or become ineffective or void, the effectiveness of the rest of the contract shall not be affected as a result. The ineffective or void provision shall be deemed replaced by a provision which comes closest to the economic meaning and purpose of the ineffective or void provision in a legally effective manner. The above provision applies accordingly with regard to unintended gaps/omissions.
Insofar as individual provisions of the contract concluded between us and the customer have not become an integral part of the contract or are ineffective, the content of the contract shall be based on the provisions of law.
The customer does not have the right to assign claims against us to which it is entitled to third parties. Article 1396a ABGB remains unaffected by this provision. The customer also does not have the right to transfer the contract or parts thereof to third parties without our explicit prior consent.
No action taken by us, except for an explicit waiver declaration, shall constitute a waiver of a right to which we are entitled under the contract, these terms and conditions of business or the law. A delay in asserting our rights shall also not be deemed a waiver of the right in question. A one-off waiver of a right shall not be deemed a waiver of that right with regard to a different matter or occasion.
All contracts or amendments or additions thereto must be in writing. Oral arrangements shall only be effective if they are confirmed by CHS in writing. This also applies for this clause on the requirement of written form.

(As at: May 2021)