general terms and conditions
neoom international gmbh
Status March 2022
1. Scope of application
1.1 The following General Terms and Conditions of sale (hereinafter referred to as "terms and conditions") of neoom international gmbh (hereinafter referred to as "neoom") shall apply to all business transactions between neoom and the contractual partner (hereinafter referred to as "Customer") for all energy and charging solutions sold by neoom.
1.2 All offers made by neoom in the field of energy and charging solutions are made exclusively on the basis of the following terms and conditions, and all contracts are concluded exclusively on the basis of these terms and conditions.
1.3 Any conflicting or deviating terms and conditions of the Customer shall not be recognised by neoom, unless neoom has expressly agreed to their validity in writing.
1.4 These terms and conditions shall also apply if neoom carries out the delivery to the Customer without reservation in the knowledge of terms and conditions of the Customer that are contrary to or deviate from these terms and conditions.
1.5 Offers made by neoom on the basis of these terms and conditions are exclusively directed to businesses as defined by the Austrian Commercial Code (UGB) as well as to liberal professions and farmers, but not to consumers as defined by the Consumer Protection Act (KSchG).
2. Conclusion of contract and subject matter of contract
2.1 Offers of neoom are subject to confirmation and non-binding. This applies in particular to offers in brochures, advertisements and other advertising material. Technical changes, as well as changes in form, color, material, weight or similar are reserved within the scope of technical progress and what is reasonable. Not binding and possibly no longer up to date in this sense are mere catalogue details or details on Internet pages.
2.2 Calculations of profitability which can be called up on neoom's internet pages, shown in brochures and other documents of neoom, as well as possible calculations of profitability by means of software provided by neoom, if applicable, serve exclusively as an orientation on the possible profitability of a system. These calculations expressly do not offer any certainty about the actual profitability of the system to be achieved and in particular do not represent any assurance on the part of neoom. neoom expressly points out that the legal framework conditions as well as also e.g. the running operating costs, the own consumption, subsidies and similar variables can change at any time. The Customer is aware of this and has to ask for the current data in each case, as well as to advise his end Customer accordingly and to point this out.
2.3 The acceptance of the order by neoom is subject to the technical feasibility as well as the self-delivery by the suppliers. The Customer will be informed immediately of the non-availability of products.
2.4 Subject matter of the contract are the products and services designated in the order confirmation. The delivery of specific components used for the manufacture of a product is expressly not guaranteed. The selection of the individual components of products is exclusively incumbent on neoom.
2.5 neoom is in any case entitled to use subcontractors (third parties) for the fulfilment of the contract. The Customer's consent is not required for this.
3. Handed over documents, industrial property rights
neoom remains the owner of all industrial property rights, copyrights and usage rights to the plans, construction drawings, presentations as well as all illustrations, drawings, recordings, construction and circuit diagrams and other documents, no matter whether in written or electronic form, which were made by neoom or its contracting partners and which were handed over to the Customer within the scope of the order fulfilment. They may not be made accessible to third parties or utilised by the Customer without the approval of neoom. Upon request of neoom they are to be returned with an affidavit that no copies have been made. The Customer shall be liable for any use of the information and documents in his possession contrary to these conditions, irrespective of his fault. For each breach of these obligations, the client shall owe a penalty of EUR 30,000.00. The payment of the penalty shall not release the client from compliance with the obligation. The right to assert further claims for damages and injunctive relief is expressly reserved.
4. Prices, terms of payment, cancellation fees
4.1 Prices are subject to change and are net prices in Euro. Prices are EXW according to Incoterms 2020, excluding packaging, disposal fees. Neoom is entitled to invoice these separately.
4.2 neoom is entitled to adjust the prices according to the cost increases that have occurred between the order and the delivery.
4.3 Payments shall be made within 14 days after receipt of the invoice. neoom shall invoice the Customer with the order confirmation for the anticipated total price as advance payment. Debt-discharging payment shall be made exclusively to the account stated in the invoice.
4.4 If the performance of the product or the model type specified in the order confirmation changes subsequently at the request of the Customer, neoom shall offer these services separately.
4.5 The Customer is only entitled to set-off rights if his counterclaims are legally established, undisputed or acknowledged by neoom. The Customer is only entitled to exercise a legally established right of retention insofar as his counterclaim is based on the same contractual relationship. A warranty claim or other counterclaim does not entitle the Customer to offset or withhold payments under any circumstances.
4.6 neoom is entitled to offset payments first against older claims against the Customer from the current business relationship. If costs and interest have already arisen due to default, neoom is entitled to offset payments first against the costs, then against the interest and finally against the main claim.
4.7 In the case of foreign orders, payments are to be made in euros to the specified paying agent. Domestic or foreign charges, which would burden neoom's paying agent, shall always be borne by the Customer.
4.8 neoom has the right to send invoices electronically via email, downloadlink or fax. The Customer expressly agrees to the electronic transmission. A Customer request for a paper invoice will be invoiced by neoom as additional expenditure and has no suspensive effect with regard to the due date of the electronic invoice.
5. Delivery time
5.1 Delivery dates stated in the order are non-binding as expected delivery dates.
5.2 Binding delivery periods and dates confirmed in writing shall be deemed to have been complied with if the goods have left neoom's warehouse by their expiry or, if the goods cannot be dispatched on time through no fault of neoom, notification has been given that the goods are ready for dispatch.
5.3 The commencement of the delivery period stated by neoom presupposes in any case the timely and proper fulfilment of the Customer’s obligations from the entire business relationship, in particular receipt of payment and timely fulfilment of all owed acts of cooperation. The plea of non-fulfilment of the contract is expressly reserved.
5.4 neoom is entitled to carry out partial deliveries.
5. 5. Should neoom, despite the application of reasonable care, be prevented from the fulfilment of its obligation by force majeure, in particular by the occurrence of unforeseeable, extraordinary circumstances such as war, civil unrest, seizure, energy supply difficulties, national and international shortages of raw materials, strike or lockout, operational disturbances, a pandemic determined by the WHO, or other circumstances which are not the responsibility of neoom and which can only be eliminated with unreasonable effort, even if they occur with suppliers and sub-suppliers, the delivery period shall be extended to a reasonable extent. If neoom is prevented from delivery and performance in such cases, neoom shall be released from its performance obligations.
5.6 If the Customer is in default of acceptance or if he culpably violates other obligations to cooperate, neoom is entitled to demand compensation for the damage incurred by it as a result, including any additional expenses. Further claims or rights remain reserved.
6. Dispatch, transfer of risk
6.1 Unless otherwise stated in the order confirmation, delivery EXW (Incoterms 2020) is agreed. Any fees for customs clearance outside the European Customs Union shall be borne by the Customer and shall be stated separately on the order confirmation.
6.2 The choice of the type of dispatch and packaging is at neoom's discretion. The costs of packaging can be charged separately by neoom to the Customer. Packaging materials are to be disposed of by the Customer.
6.3 The delivery is to be checked by the Customer for visible damages upon acceptance by the forwarding agent. Visible damages are to be noted in writing in the forwarding agent's handover protocol and to be documented by photo. neoom is to be informed immediately about ascertained damages. In case of damages which are not disclosed by the Customer to the forwarder at the time of takeover, both the forwarder and neoom are to be indemnified and held harmless.
6.4 If, due to a circumstance for which the Customer is responsible, dispatch or acceptance is delayed or made impossible through no fault of neoom, the risk shall pass to the Customer upon dispatch of the notice of readiness. The Customer is liable for all damages and additional costs incurred and further incurred.
7. Further services of neoom
Insofar as neoom renders services or work performances for the Customer in accordance with the order confirmation, the Customer shall duly and punctually render the respective necessary acts of cooperation for the performance of the performances.
8.1 Prerequisite for a delivery obligation of neoom is the creditworthiness of the Customer. If neoom receives information after conclusion of the contract, according to which the granting of a credit in the amount of the order volume is not secured, neoom is entitled, despite agreements to the contrary, to demand advance payments, securities or cash payment.
8.2 In case of negative credit information, which makes the fulfilment of the contractual obligations of the customer appear questionable, neoom is entitled to terminate existing contracts for good cause. The Customer shall bear the damage incurred by neoom as a result of this. This also applies in particular if execution measures have been carried out against the Customer, insolvency proceedings have been applied for, such proceedings have been opened or the opening of such proceedings has been rejected for lack of assets.
8.3 Furthermore, neoom is entitled to terminate the contractual relationship without notice, as far as the Customer is in default with one of his obligations from the contractual relationships binding the parties and this condition is not remedied within the set period despite a reminder.
9. Claims for defects, liability, recourse, warranty
9.1 The Customer’s rights in respect of defects shall be subject to timely notification of defects (§ 377 UGB). In addition, the Customer has to ensure that he has duly fulfilled the obligations agreed upon in item 6 and that he has immediately reported any defects found to neoom.
9.2 Changes in the execution of the services as well as other changes that serve technical progress do not constitute defects and are only to be notified to the Customer in the event of an increase in costs.
9.3 The presumption of defectiveness (§ 924 ABGB) is excluded.
9.4 If operating or maintenance instructions, in particular the storage conditions in accordance with the data sheets provided (Technical data battery packages and Technical data sheet), are not followed, if changes are made to the products, if parts are processed or replaced by the Customer or unauthorised and certified third parties, or if the Customer or an unauthorised and certified third party performs other services on the products, the claims for rectification of defects shall lapse insofar as the defect arose as a result thereof. The same applies to defects caused by excessive use or incorrect handling deviating from the product specifications.
9.5 In the event of a defect, neoom shall, at its discretion, either remedy the defect or deliver a replacement.
9.6 Defective products and components are to be returned to neoom by the Customer after request by neoom and in accordance with the respective instructions given by neoom. For a proper collection of returned goods at neoom, it is essential that the Customer uses the procedure specified by neoom, in particular also transmitted return labels, and that the products/components are properly marked. As far as an acceptance of returned goods is not possible or only possible with difficulty due to a lack of proper labelling of the goods by the Customer at neoom, the customer is exclusively liable for this. This includes any increased processing costs as well as the possible loss of returned goods in the warehouse of neoom due to lack of possible allocation.
9.7 If neoom is not successful with the supplementary performance within a reasonable period, which allows for at least three attempts at rectification, the Customer is entitled to set neoom a reasonable final period of grace, which allows for at least three further attempts at rectification. If the rectification is also unsuccessful within this last grace period, the Customer is entitled to a price reduction or to withdraw from the contract at his discretion.
9.8 neoom shall be liable in accordance with the statutory provisions if it culpably breaches an essential contractual obligation. In the case of simply negligent breaches of non-essential contractual obligations, liability is excluded.
9.9 Insofar as the Customer is entitled to a claim for compensation for damage instead of performance, the liability of neoom shall in principle be limited to compensation for the foreseeable, typically occurring damage.
9.10 The performance and product warranties of the manufacturers of the components used (e.g. for inverters) are exclusively granted by the respective manufacturers. After expiry of the warranty periods, any claims of the Customer arising from these warranties must be asserted directly against the manufacturer.
9.11 Any further liability is excluded regardless of the legal nature of the asserted claim. neoom is in particular not liable for damages that have not occurred to the products themselves, such as financial losses. Liability for loss of profit and any consequential harm caused by a defect is excluded.
9.12 Insofar as liability is excluded or limited, this shall also apply to the personal liability of neoom's employees, representatives and vicarious agents.
9.13 If the examination of the notice of defects shows that there is no defectiveness, the costs incurred in this regard shall be borne by the Customer.
9.14 The warranty period begins with the proper delivery.
9.15 Insofar as liability for damages cannot be excluded, such claims shall become statute-barred within one year beginning with the accrual of the claim.
10. Retention of title
10.1 neoom retains ownership of the delivery item until full payment of all claims arising from the business relationship with the Customer.
10.2 In case of default of payment by the Customer, neoom is entitled to take back the delivered item. The taking back of the goods by neoom constitutes a withdrawal from the contract. After taking back the delivered item, neoom is authorised to realise it. The realisation proceeds are to be credited against the liabilities of the Customer (minus actual realisation costs).
10.3 In the event of seizure or other interventions by third parties, the Customer must inform neoom of this immediately in writing. Insofar as the third party is not in a position to reimburse neoom for the court and out-of-court costs and fees, the Customer shall be liable for the expenses incurred by neoom.
10.4 The Customer is entitled to resell the delivered goods in the ordinary course of business. However, he already now assigns to neoom all claims in the amount of neoom's claims (including VAT), which accrue to him from the resale against his Customer or third parties, irrespective of whether the delivery item has been resold without or after processing. The Customer remains authorised to collect this claim even after the assignment. The authority of neoom to collect the claim itself remains unaffected by this. neoom commits itself, however, not to collect the claim as long as the Customer fulfils his payment obligation from the collected proceeds, does not get into default of payment and, in particular, no application for the opening of insolvency proceedings is filed or cessation of payments exists. If this is the case, the Customer is obliged to inform neoom of the assigned claims and their debtors, to provide all information necessary for collection and to hand over all documents.
11. Software use
With regard to the NTUITY software included in the scope of delivery of individual products, the separate General Terms and Conditions for NTUITY shall apply. These are available at www.ntuity.io/agb in the current and valid version.
12. Data protection
12.1 neoom treats the data entrusted to it confidentially and handles it responsibly. The corresponding data protection declaration can be viewed at www.neoom.com/datenschutz at any time. Therein you will find information about type, extent and purpose of data collection.
12.2 neoom expressly points out that there is a separate data protection declaration for the NTUITY software, which can be viewed under www.ntuity.io/datenschutz.
13. Jurisdiction and place of performance
13.1 Place of performance is the registered office of neoom, 4240 Freistadt.
13.2 For all present and future claims arising from the business relationship, the exclusive place of jurisdiction is the relevant court at the registered office of neoom. neoom is, however, also entitled to sue the Customer at any other court in Austria or abroad in whose jurisdiction the Customer has his registered office, a branch or assets. The law of the Republic of Austria shall apply. The validity of the UN Convention on Contracts for the International Sale of Goods as well as the international reference standards is excluded.
14. Final provisions
14.1 Amendments or supplements to these contractual terms and conditions must be made in writing in order to be effective. This also applies to the written form requirement itself.
14.2 If circumstances arise during the term of the contract which affect the technical, legal or economic effects of the contract so substantially that performance and consideration are no longer in reasonable proportion to each other, either contracting party may demand an adjustment of the contract to the changed conditions.
14.3 The Customer is not entitled to transfer and/or assign rights or obligations from the contractual relationships binding the parties to third parties without the prior written consent of neoom.
14.4 Should individual provisions of these terms and conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid, void or unenforceable provision shall be replaced by a provision which comes closest to the invalid, void or unenforceable provision in terms of its economic sense and purpose. This shall also apply in the event of a loophole.