1. Scope

1.1 These General Terms and Conditions apply to all deliveries of work, services, testing, goods and deliverables (the "Products") which are provided by ATT advanced thermal technologies GmbH (the "Supplier") to the customer (the "Customer"), together referred to as the “Parties”. The Products are typically, but not necessarily, provided within the framework of projects (each of them a "Project"). In case of software licensing, deliveries and installations, specific Supplier Conditions for Software, Licenses and Installations are also applicable.

1.2 At the latest by issuing its declaration of agreement with the Supplier, the Customer irrevocably accepts these General Terms and Conditions.

1.3 Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise that are different, or vary from or are in addition to the General Terms and Conditions and any such terms or conditions shall be null and void and of no effect whatsoever.

1.4 The Supplier reserves the right to update these General Terms and Conditions at any time. The currently valid version of the General Terms and Conditions is published on the Supplier's website. In the event of an update, the Customer will be notified of the changes. If the Customer does not object to the updated General Terms and Conditions within four weeks of receiving the notification, the new terms and conditions will be considered accepted by the Customer.

2. Offers

2.1 Unless otherwise stated in writing and signed by both Parties, all offers made by the Supplier are non-binding. The prices stated in the offers are based on the Supplier's estimation at the time of the offer's preparation and are subject to change.

2.2 Specifications and quotes in catalogues, brochures, etc., are only binding if expressly referred to in the offer or order confirmation.

2.3 The Project concept and content of the offer is Supplier's intellectual property. Therefore, the offer and/or Project documentation must neither be reproduced nor disclosed to third Parties without Supplier's written consent. The documentation remains Supplier's property and must be returned to Supplier upon its request.

2.4 Supplier will not disclose the content and existence of the offer to third Parties without Customer's consent.

2.5 Any changes to the specifications, quantities, materials or design of the Products after the conclusion of the contract shall be agreed upon in writing between the Parties. If such changes affect the Supplier's performance or delivery schedule, the Supplier may adjust the offer accordingly and will inform the Customer of any such adjustments. However, it is important to note that the Customer's right to cancel the contract is governed by the conditions specified in Clause 15 of this document. The Customer may only terminate the contract in accordance with the provisions of that Clause, and any cancellation outside of these provisions will not be considered valid.

3. Conclusion of Contract

3.1 Customer’s orders not containing a deadline for acknowledgement shall bind the Customer for at least four weeks.

3.2 The contract is effective only upon the signature of the contract by both Parties, or Customer's receipt of Supplier's written confirmation of a purchase order issued by Customer (“Order Confirmation”), and, if agreed upon, Supplier's receipt of the down payment and/or notification of a (confirmed) letter of credit to Supplier.

3.3 Any deviations in the Order Confirmation, or the documents referred to in it, in relation to any prior declarations by the Parties shall be considered as accepted if the Customer does not contradict the deviation in question expressly and in writing, within a reasonable period of time, latest within seven days from the receipt of the Order Confirmation. The Customer shall have no right to object the applicability and validity of these General Terms and Conditions.

3.4 No contract may be cancelled or altered by Customer except on terms and conditions acceptable to Supplier, as evidenced by Supplier's written consent.

3.5 Any costs of a modification requested by Customer or caused by circumstances not known to Supplier at the time of the signing of the contract shall be priced separately and are Customer's responsibility.

4. Subject of Contract

4.1 The Products supplied under the contract shall be exclusively determined by the terms and specifications set out in the Supplier's offer. Any provisions or specifications in the Customer's purchase order or related documents will not become part of the contract unless specifically referred to and confirmed in the Supplier's Order Confirmation.

It should be noted that, in the event of any discrepancies or conflicts between the Supplier's terms and the Customer's terms or related documents, the Supplier's terms and conditions shall take precedence and govern the contract. This includes any terms and conditions contained in the Customer's own documents or referenced in them, even if they purport to be the only valid terms and conditions. By entering into the contract with the Supplier, the Customer agrees to be bound by the Supplier's terms and conditions exclusively.

4.2 The Product parameters specified in the Supplier’s respective offer may not be changed after works commenced unless agreed among the Parties in writing.

4.3 If, on account of the production process involved, it is impossible to delimit in advance a certain output quantity for the contract works, the Supplier shall be entitled to make excess or short deliveries. Similarly, in the event of individual or special fabrications or small-scale series, the Buyer shall buy the actual output as contract works.

5. 5. Project Risk

5.1 The Parties acknowledge that every project involves some degree of risk, which may include, but is not limited to, technical, operational, market, financial, legal, or other risks.

5.2 Prior to entering into the Contract, the Supplier shall provide the Customer with a Risk Assessment report, which will outline the risks associated with the proposed project, and the impact each risk may have on the project.

5.3 The Parties may agree to assign a risk level to the project, which will be specified in the corresponding offer. The risk level may impact the scope, duration, cost, and quality of the project.

5.4 The Supplier shall take reasonable measures to mitigate the identified risks and prevent or minimize their impact on the project.

5.5 In case the actual outcome of the project deviates from the agreed specifications due to a risk event, the Customer shall not be entitled to refuse or delay payment for the services performed and resources consumed, unless otherwise agreed in writing by the Parties.

5.6 The Parties agree that the Supplier's liability for any damages arising from the project risks shall be limited to the amount of the Contract price, unless otherwise agreed in writing by the Parties.

5.7 Any changes to the project scope, schedule, resources, or specifications that may affect the project risks shall be agreed upon in writing by the Parties.

5.8 The Customer acknowledges that it has read and understood the Risk Assessment report, and the associated risks and impact of the project, and hereby assumes the risk and consequences associated with the project as set out in the corresponding offer.

6. Prices

6.1 All prices represent an estimation based on the Supplier’s experience. In case if actual and/or forecasted Project efforts exceed the scope of work planned by the Supplier, the Supplier is obliged to inform the Customer about this fact in a timely manner. The Supplier reserves the right to charge the cost of these additional efforts to the Customer. If Customer does not agree to such additional charging, the Supplier has the right to trigger a premature termination of contract as described in Clause 15.

6.2 All prices are based on the information and/or specifications and the time schedule available as of the date of the offer or contract. The adherence to this schedule depends significantly on the Customer providing all requested and required information (drawings, specifications, CAD data, material data, materials etc.) on time. A failure of the Customer to provide any of the agreed information may therefore lead to resources standing idle and to commensurate increases of the Project cost (“Delay Costs”) which will be passed on to the customer based on the provisions of Article 6.4. Any changes requested by the Customer may result in an increase of costs. Prices are valid for the respective offer or contract and are not applicable for any other offer or contract.

6.3 Prices are quoted for delivery ex Supplier's works, plant, office or warehouse and excluding packaging, shipping and VAT except explicitly stated in the offer. Any fees, taxes, duties and other expenses except only taxes computed on Supplier's income are Customer's responsibility.

6.4 The prices quoted are based on the assumption that:

1. a) The Project work will commence at the date confirmed by Supplier and will be performed according to the time schedule set forth in Supplier's offer, and
2. b) In case the start or execution of the entire Project or parts thereof is delayed for reasons outside Supplier's control prices will be adjusted according to any increases reflected in the latest Austrian Consumer Price Index published by the Central Office for Statistics in Vienna and/or the wage index of the applicable collective labor agreement, whichever is higher.

6.5 The prices quoted do not include, unless stated otherwise:

1. a) License and/or engineering fees levied by component or system supplier(s).
2. b) Materials and components supplied by component or system supplier(s).
3. c) Unforeseen and unplanned charges due to delays or additional work caused by Customer and/or component or system supplier(s).
4. d) Effect(s) of revisions of the Project requested by Customer and agreed to by Supplier.
5. e) Travel, accommodation and subsistence costs for Customer's personnel participating in Project meetings and witnessing of results at Supplier’s offices, and
6. f) Travel, accommodation and subsistence costs for any Supplier personnel travelling beyond the scope of the Project.

6.6 The parties acknowledge that delays by the Customer in the performance of the contract can cause significant losses to the Supplier. In order to compensate for such losses, the parties agree that the Supplier shall be entitled to claim delay costs in the amount of a certain percentage to the project volume for each full day. The delay costs shall be added to the defined invoices which the parties have agreed on prior to the contract and invoiced accordingly. The parties acknowledge that the delay costs are a fair and reasonable estimation of the actual losses incurred by the Supplier due to the delay.

6.7 All prices quoted are payable in EURO.

7. Payment

7.1 Unless agreed otherwise, the contract price shall be paid as follows:

3. a) A down payment of 25 % of the total price shall be made within 15 days after the effective date of the contract (as per 3.1) or, if agreed, against submission of a bank guarantee by Supplier's bank. Payments for the remaining 75 % are due in instalments over the duration of the Project and will be invoiced by the Supplier at his discretion at Project milestones or monthly / quarterly.
4. b) If requested by the Supplier, the payments for the amount of 75 % of the total contract price shall be secured by an irrevocable, confirmed letter of credit, to be issued by a prime bank within 30 days after the effective date of the contract or Customer's signing of the order, which shall provide for payment against Supplier's invoice, and shall be in form and substance satisfactory to Supplier.

7.2 All payments for Supplier's Products supplied pursuant to the contract are due within 30 (thirty) days net upon receipt of Supplier's invoice. Interest will be charged on overdue accounts at the Rate of  4 (four) % over the EURIBOR 12 Months in effect at the time a payment is due. In case of delayed payment Supplier is, in addition to the interest charged, entitled to postpone its own obligations until receipt of the payments due.

7.3 Invoices will be sent by e-mail in PDF format to Customer’s respective e-mail address designated for incoming invoices and debit notes. If no such address is specified to the Customer, invoices will be sent to the person in charge of the Project on Customer’s side with a request to forward the document to Customer’s service in charge. Invoices will be considered as validly issued by Supplier and thus payable according to the payment conditions specified therein upon dispatch of the respective e-mail.

7.4 Customer shall not be entitled to withhold or reduce any payments due because of alleged claims against Supplier.

7.5 Until Customer has fulfilled all financial obligations, the Products supplied shall remain Supplier's property. Customer shall be obliged to meet all legal requirements in order to safeguard Supplier's property or security interest. In case of attachment or other kinds of seizure Customer shall evidence Supplier's title and notify the latter immediately. The retention of title shall not affect the passing of risk under 8.1.

8. Delivery, Passing of Risk

8.1 Delivery of Products to a carrier by Supplier shall constitute delivery to Customer; all risk of loss or damage in transit shall be borne by Customer. This also applies if, after arrival at Customer's site, Supplier still has to perform installation work.

8.2 If delay in delivery is caused by any of the circumstances mentioned in Clause 14 or by an act or omission of Customer, including the failure to procure any required permits for delivery in Customer's country, the time for delivery shall be extended by a period which is reasonable considering all the circumstances.

8.3 If delivery of Products ready for shipping is not possible or not desired by Customer, the Products can be stored at Customer's cost and risk, and delivery shall then be considered as performed.

9. Intellectual Property Rights

9.1 "Intellectual Property" includes in each and every case inventions, developments, copyright protected works, findings, work results, other intellectual or industrial property rights and applications thereof, as well as trade secrets and know-how.

9.2 Any pre-existing Intellectual Property owned by Supplier, not resulting from work carried out under the contract ("Background IP"), shall remain Supplier's sole and exclusive property. Any Intellectual Property developed by Supplier independently of this contract during the term of the contract ("Sideground IP"), shall also be and shall remain the sole and exclusive property of the Supplier. No license to any Background IP or Sideground IP is granted hereunder, and a license thereto would require the conclusion of a separate written agreement.

9.3 Any Intellectual Property created by Supplier (including Supplier's employees or subcontractors) as a result of work carried out under the contract generally represent a customization of already existing technology developed and owned by Supplier and shall be and shall remain Supplier's sole and exclusive property ("Foreground IP"). Supplier shall in particular be solely entitled to apply for and register and industrial property rights, such as patents, utility patents, design rights etc, for such Foreground IP.

9.4 Upon fulfillment of its financial obligations under the contract, Customer acquires a non-exclusive, non-transferable and non-sublicensable license to use the Foreground IP for the purposes of the subject matter of the Project, but for no other purposes. Specifically, Customer does not acquire any exclusivity rights to the Foreground IP. Exclusivity rights in most cases represent significant monetary value and must be subject of a separate contract. The license granted in this provision 8.4 is subject to, and conditional upon Customer's payment of all due amounts. Should Customer be in default with any payments, the license is automatically revoked, and Customer shall immediately cease exploitation of such Foreground IP.

9.5 Any drawings and technical documents relating to the Project (including Project documentation) in any manner submitted by one party to the other, prior or subsequent to the conclusion of the contract, shall remain the exclusive property of the submitting party and shall be treated as confidential information by the receiving party, and may be utilized only for work performed pursuant to the contract.

9.6 In case of shared registration of any Intellectual Property (IP), the company ATT shall have the unrestricted and non-exclusive right to commercially use the IP for its own purposes without requiring any written consent from the Customer. This right is valid regardless of any other provision in the contract and is not subject to any limitations or restrictions imposed by the Customer.

10. Third Party Patents, Trademarks, Copyrights

10.1 Unless otherwise agreed in writing, Supplier does not warrant that Products designed and developed pursuant to the contract will not infringe any intellectual property rights of third Parties.

10.2 In the event the normal intended use of a Product leads to a claim alleging infringement of a third party's intellectual property right, Customer shall give Supplier immediate notice in writing of any such suit. Supplier shall provide Customer with reasonable non-financial assistance in the defence of any such claims. If the use of a Product is permanently enjoined by reason of an infringement of a valid third party's intellectual property right, Supplier will use commercially reasonable efforts to:

1. a) Modify or replace the Product to render it non infringing,
2. b) Obtain a license from the third party who is the owner of the intellectual property right, or
3. c) terminate the contract.
   Supplier's obligation as set out above is conditional upon being notified of an infringement claim within the periods set forth in 11.6.

10.3 Notwithstanding the foregoing, Supplier shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the Products in combination with other goods or materials not furnished by Supplier. The foregoing 10.2 states the entire liability of Supplier for infringement, and in no event shall Supplier be liable for

1. a) Any direct damages or consequential damages attributable to an infringement,
2. b) Customer's cost of litigation and/or negotiation, or
3. c) Compensation of any damages awarded to third Parties.

10.4 Supplier shall not be liable, and Customer shall indemnify and hold Supplier harmless against all losses and expenses incurred by Supplier as a result of any claim for infringement of any proprietary right of third Parties relating to any:

1. a) Products furnished by Supplier to Customer, based on drawings, designs or specifications proposed or supplied by Customer, or
2. b) Products, systems, components, parts, etc. which are specified by Supplier but furnished by third Parties, or
3. c) Products, vehicles, systems, components, parts, etc. which are furnished by Customer to Supplier, or
4. d) Claims of inducement of infringement or contributory infringement resulting from the implementation, use, development or modification of Supplier's Products by Customer or customers of Customer.

11. Warranty

11.1 Supplier warrants that any technical targets set out in its offer will be achieved, provided that:

1. a) Technical specifications of the Products suggested by Supplier within the limits of state of the art in Supplier's industry are accepted by Customer, and
2. b) Any systems or components supplied by Customer or its designated component or system supplier meet and perform within their specifications.

11.2 Supplier warrants that he will execute the Project work in a professional and competent manner according to state of the art in Supplier's industry. The Products will be in compliance only with such laws, standards, and regulations which were specified in the Supplier’s offer. Any laws, standards and regulations not specified in the Supplier’s offer in the Customer’s order will not become part of the contract. All documentation for work rendered pursuant to the contract will be according to the existing general practice in Supplier's place of registration and industry and will be subject to Customer supervision and final validation.

11.3 Customer shall examine Products provided under the contract upon receipt and shall notify Supplier in writing of any defect within 10 (ten) working days. Unless this duty of examination and immediate written notification is adhered to, warranty claims are forfeited.

11.4 Customer shall arrange for the recording of all required operating conditions, characteristic data and results of analyses for the duration of the warranty period to be able to document any warranty claim under 10.1. In case of deficiencies of Products (including incomplete or incorrect documentation) Supplier will either repair such deficiencies (complete or correct documentation) or replace deficient goods (parts) with new ones. Any warranty claims shall be forfeited if a Product is modified or repaired without Supplier's prior written consent.

11.5 A presumption of defectiveness in the first six months after delivery (§ 924 ABGB) is excluded.

11.6 The warranty contained in this clause 10 is exclusive and in lieu of all other representations and warranties, express or implied. Specifically excluded are damages caused by non-observance of instructions for use and maintenance of Products, warning, safety and other regulations provided by Supplier, and improper handling of Products. Supplier shall not be liable for further (consequential) damages resulting from deficient Products, except as provided for in Clause 13. Further, Supplier disclaims any liability for damages or malfunction the cause of which does not lie within the scope of work to be performed by Supplier under the contract.

11.7 Unless provided otherwise, the duration of the warranty will be 12 (twelve) months after the signing of the acceptance protocol under Clause 12, if applicable, or delivery of the Products as provided in 8.1, whichever is earlier. Thereafter, any warranty claims are time-barred. The performance of a warranty obligation does not prolong the original warranty period.

12. Fulfillment of Contract

12.1 The contract is fulfilled on one or both of the following events, depending on the scope of the Project:
a) Supplier's delivery of the reports and documentation containing the results of the Project as well as any hardware that may be agreed upon between Customer and Supplier, subject to the terms of Clause 7.
b) Performance of a formal acceptance test conducted at Supplier's plant.

12.2 Conditions for a formal acceptance test (if required) and warranted technical targets to be achieved shall be defined in the contract. Supplier shall notify Customer of the acceptance test in sufficient time to permit Customer to be represented at the test. A protocol stating the results of the acceptance test will be drawn up and signed by authorized representative(s) of Supplier and Customer. If Customer is not represented, the protocol will be sent to Customer and accepted as accurate. If the warranted technical targets are met, a particular phase of the contract or the entire contract, as the case may be, is fulfilled.

13 Liability

13.1 Supplier shall be liable for damages only if Supplier acted with intentional misconduct or gross negligence. Any liability for indirect and/or consequential damages, including loss of property or profit, costs of product recall, is specifically disclaimed.

13.2 Supplier shall not be subject to any obligations arising from product liability claims. Customer shall indemnify and hold harmless the Supplier against any and all losses, liabilities, damages and expenses that supplier may incur as a result of any product liability claim of a third party. In any event, Customer shall be excluded from any recourse against Supplier in case Customer is held liable on the basis of product liability law or similar (including foreign) provisions.

13.3 Customer shall bear the burden of proving any fault, including the degree of fault.

13.4 In any event, any liability of Supplier shall be limited to typical and foreseeable damages.

13.5 Insofar as semi-finished products or prototypes are handed over within the scope of the business relationship, the following shall apply in addition: semi-finished products or prototypes are products whose development has not yet been finally completed. They do not yet fulfil the safety expectations of a fully developed product. Semi-finished products or prototypes may therefore still have corresponding defects in view of the necessary further development. By handing over one or more semi-finished products or prototypes, Supplier does not intend to place these semi-finished products or prototypes on the market. The transfer of semi-finished products or prototypes to third parties and/or the use of semi-finished products or prototypes by third parties is therefore prohibited, without the express and written consent of the Supplier. Under no circumstances are semi-finished products or prototypes intended for consumers or other end customers. The liability of Supplier for damages caused by any use of semi-finished products or prototypes which is not in accordance with their intended purpose and/or by defects of the semi-finished products or prototypes which occur in view of the necessary further development or by unauthorized passing on to third parties is excluded in its entirety. Customer shall therefore indemnify and hold harmless Supplier and Supplier's directors and employees from and against any and all damages, losses, claims and expenses (including all related costs and expenses, such as, without limitation, attorneys' fees and court costs) arising out of or in connection with this use of semi-finished products or prototypes. The limitations of liability set forth in this Clause 13.5 shall not apply to the extent that Supplier is liable (i) under the Product Liability Act, or (ii) for injury to life, body or health.

13.6 In any event, any liability of Supplier shall be limited to [*]% of the [*purchase price] per claim.

13.7 All claims against Supplier – Irrespective of their legal grounds – shall become time-barred within 12 (twelve) months after the signing of the acceptance protocol under Clause 12, if applicable, or delivery of the Products as provided in 8.1 (or in the case of semi-finished products or prototypes: after handover), whichever is earlier. In the case of claims for damages this limitation period shall start to run from knowledge or grossly negligent ignorance of the damage and the damaging party.

13.8 Insofar as the liability of Supplier is excluded or limited, this shall also apply to its representatives, employees and other agents.

14. Force Majeure

In the event Supplier or one of its component or system suppliers is subject to an event of force majeure or an event beyond the control of Supplier or its component or system suppliers, such as war, acts of terrorism, natural disasters, pandemics, governmental interventions and bans, energy and raw-material shortages, strikes, civil unrest, transport damages or delay, Supplier shall be entitled to extend the time of delivery set forth in Supplier's offer, provided Supplier notifies Customer within 10 (ten) days in writing of such event.

15. Premature Termination of Contract

15.1 Either party may immediately terminate the contract by giving written notice to the other party if any of the following occurs:

1. a) A bankruptcy proceeding is instituted against either party's assets, or such proceeding is not instituted because of insufficient assets;
2. b) Such other party materially breaches the contract and fails to remedy such breach within 60 days after written notice is given.

15.2 In addition to the circumstances set forth in 15.1 Supplier may immediately terminate the contract by giving written notice to Customer, if

1. a) Delivery or performance becomes impossible for reasons attributable to Customer, or is delayed due to such reasons beyond a reasonable grace period established in writing;
2. b) Customer's financial situation has worsened notably after signing the order and Customer is unable or unwilling to provide adequate security for payment of its financial obligations under the contract;
3. c) Payments are not received when due from Customer despite Supplier's fulfillment of its obligations and Customer fails to pay within a reasonable grace period established in writing; or
4. d) A change of Customer's ownership takes place which has a substantial impact on Supplier's interests;
5. e) Supplier has reasonable cause to suspect that the delivery of Products by Supplier or any of its affiliates or any other performance of the contract infringe any sanctions, prohibitions or restrictions under resolutions of the United Nations or laws and regulations of the European Union, the Republic of Austria or any other state which are applicable to the Supplier and/or any of its affiliates;
6. f) Supplier's Products become subject to the restrictions imposed by the EC-Dual-use-Regulation No. 428/2009 as amended after the contract has been concluded if the Supplier does not obtain an export license under the EC-Dual-use-Regulation;
7. g) According to Supplier’s current Project plan, actual and/or forecasted Project efforts exceed the scope of work planned by the Supplier in his offer and Customer refuses to bear the additional cost to be charged by Supplier to achieve fulfillment of contract.

15.3 In case of premature termination, all performances or parts thereof, which have already been fulfilled by Supplier, shall be settled and paid according to Supplier’s calculation. This also applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by Supplier.

15.4 In case of premature termination Customer shall be obligated to pay to Supplier a penalty depending on the stage of Project completion (defined as working hours and material costs invested divided by working hours and material costs planned in Supplier’s offer) according to the following schedule:

1. a) Project completion 0-30%: 30% of total Project price;
2. b) Project completion 31-60%: 60% of total Project price;
3. c) Project completion above 60%: 100% of total Project price.

16. Miscellaneous

16.1 In case if any provision of these General Terms and Conditions turns out to be ineffective, valid or not enforceable, this will not affect the effectiveness, validity or enforceability of the remaining provisions. In this case the respective provision shall be replaced by an effective, valid and enforceable provision that best matches the purpose of the original provision.

16.2 Any contracts concluded between Supplier and Customer according to Clause 3 are complementary to these General Terms and Conditions and do not render them inapplicable unless otherwise agreed in writing. In case of deviations or discrepancies between provisions of these General Terms and Conditions and the respective contract, the provisions of the contract shall prevail, while all other provisions of these General Terms and Conditions shall remain in full force and effect.

17. Applicable Law and Jurisdiction

17.1 The contract shall be construed and interpreted according to Austrian law. It is mutually agreed that the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL) does not apply.

17.2 In case of controversies or disputes between Supplier and Customer the competent courts for Supplier's seat in Graz, Austria, shall have jurisdiction. Supplier shall, however, also have the right to bring a claim before another court which has jurisdiction for Customer's seat or domicile.

Version R12 **20.02.2023**