Terms and Conditions

1. SCOPE OF APPLICATION

1.1. These Terms and Conditions apply to all deliveries and (research) services provided by Silicon Austria Labs GmbH, hereinafter referred to as “SAL,” and are an integral part of all offers and order confirmations. The client expressly accepts that these General Terms and Conditions shall also apply to all future transactions; therefore, no further reference to the effective application of these General Terms and Conditions is required.

1.2. Any deviations from the terms and conditions set forth in Section 1.1 are effective only if SAL acknowledges them in writing.

2. OFFER

2.1. Offers made by SAL are subject to change without notice.

2.2. No quotation or project documents may be reproduced or made available to third parties without SAL’s consent. They may be reclaimed at any time and must be returned to SAL immediately if the order is placed elsewhere.

2.3. SAL is entitled to reasonable compensation for expenses incurred in connection with drafts, sketches, samples, calculations, designs, etc., even if the prospective order, contract, or collaboration does not materialize.

2.4. Any permits or approvals from government agencies and/or third parties that are necessary for the performance of the contract/ contract/collaboration, shall be obtained exclusively by the Client, who shall inform SAL accordingly and, if necessary, indemnify and hold SAL harmless. SAL will not begin performing its services until all necessary and legally binding approvals have been obtained.

3. CONCLUSION OF THE CONTRACT

3.1. A contract is deemed to have been concluded when SAL has sent a written order confirmation to the client or when a written contract—which must at least meet the requirements of an order confirmation— has been concluded in writing between the parties.

3.2. Any deviations from the order confirmation/contract contained in emails, other written documents, or verbal statements are binding only if the order confirmation/ the contract expressly refers to them.

3.3. Any subsequent amendments or additions to the order confirmation or the contract must be confirmed in writing by both parties to be valid.

3.4. This contract does not provide for a specific outcome (as in a contract for work and services), but rather for a “mere effort” in the sense of contract research and the resulting potential developments. 

3.5. With regard to research contracts, SAL does not undertake to achieve a specific result or deliver a specific work in the sense of producing technological results or specifications that have been precisely defined in advance, particularly since this is not possible in the field of research. SAL undertakes to provide the necessary expertise and research capabilities for the duration of the contractual relationship, exercising scientific diligence and in accordance with the state of the art.

3.6. If SAL has committed to performing technical procedures (e.g., test procedures, measurements, etc.) that are precisely defined in the offer, (e.g., test procedures, measurements, etc.), SAL shall apply them in accordance with the principles of scientific diligence; however, this shall not entitle the contracting party to a specific result.

3.7. Upon completion of the assignment, SAL is obligated to provide the contracting party with the results and materials or documents that were the subject and objective of the respective assignment (final results). If the contractual relationship has not yet ended, the contracting party may not demand the delivery of interim results unless this was explicitly agreed upon in advance. The handover of materials, results, research protocols, documents, or the like—which allow inferences to be drawn regarding SAL’s research methods, technologies used, working and research practices, or development methods, and which were not explicitly included in the scope of the contract—the client has no claim. However, SAL is obligated, upon request, to provide the client at any time with a report on the progress of the research that is comprehensible to the client, as well as to point out any unexpected and significant obstacles to the research that could significantly impair the achievement of the research objective.

3.8. In the case of a research contract, the economic risk associated with commercial viability and usability, the development risk, and any technological impossibility of carrying out the research project—in short, the entire research risk—shall be borne by the client.

4. PRICES

4.1. Price quotations become binding when SAL confirms them in writing in the order confirmation. Deliveries or services that go beyond the scope of services described in the order confirmation may be invoiced to the customer by SAL, even at different prices or under different terms and conditions.

4.2. Prices are generally Ex Works (Incoterms 2020) unless otherwise expressly agreed in writing. Sales tax, packaging, loading, insurance, and any fees, taxes, or other charges incurred in connection with a delivery are not included in the price and must be borne by the customer.

4.3. If an order differs from the offer, SAL reserves the right to adjust the price accordingly.

4.4. Prices are valid as of the date the offer is made. SAL is entitled to adjust prices if costs have changed by the time the service is rendered. If a contract is concluded with prices left open, the price in effect on the date of delivery or completion of the delivery will be charged.

4.5. SAL is entitled to charge the client for any additional costs incurred, provided that such costs were necessary to clarify technical and/or legal prerequisites for the order, contract, or collaboration, or were due to overtime requested by the client, overtime, night work, or Sunday work requested by the client were decisive factors in this regard. This also applies to services and additional services whose necessity only becomes apparent during the performance of the assignment, contract, or collaboration, in which case no separate notification to the client is required.

5. DELIVERY

5.1. The delivery period begins on the latest of the following dates:

• 5.1.1. the date specified in the order confirmation/contract
• 5.1.2. The date on which all technical, commercial, and other requirements incumbent upon the client have been met (including the obtaining of any necessary permits, etc.);
• 5.1.3. The date on which SAL receives the down payment or agreed-upon security to be provided by the Client.

5.2. The Client is responsible for obtaining any official approvals and any third-party approvals required for the performance of orders, services, or projects. If such approvals are not obtained in a timely manner, the delivery period shall be extended accordingly.

5.3. SAL is entitled to make partial or advance deliveries and to issue interim invoices.

5.4. If SAL’s services have been completed and, through no fault of its own, have not been accepted by the Client within three months of the date of invoicing, or if the handover of the services has been postponed at the Client’s request, SAL’s service shall be deemed to have been rendered on the date the invoice was issued. If the service involves physical goods, SAL is entitled to store the goods at the client’s expense. The client must reimburse SAL for the associated storage costs without delay. The agreed-upon terms of payment remain unaffected by this. Risk passes to the client at the time SAL notifies the client of completion.

5.5. Packaging materials are selected by SAL, billed at cost, and are not accepted for return by SAL.

5.6. If unforeseeable circumstances or circumstances beyond the parties’ control—such as all cases of force majeure—occur that prevent compliance with the agreed delivery deadline, the deadline shall in any event be extended by the duration of such circumstances; These include, among other things, armed conflicts, government intervention and prohibitions, delays in transportation and customs clearance, acts of terrorism and their consequences, damage during transportation, shortages of energy and raw materials, natural disasters, labor disputes, and the failure of essential suppliers who are difficult to replace, etc. The aforementioned circumstances shall also entitle the supplier to extend the delivery period if they occur at suppliers or subcontractors of SAL.

5.7. In the event of a delay in delivery attributable to SAL, the client is obligated to grant SAL a reasonable grace period for performance. The grace period must not be less than 4 weeks in order to be considered reasonable. Only after the grace period has elapsed without success is the client entitled to withdraw from the contract. The grace period begins on the day the notice setting the grace period is received; this notice must be sent by certified mail to SAL’s headquarters. Claims for damages by the client due to delayed delivery or withdrawal are excluded to the extent permitted by law.

5.8. If, at the time the contract was concluded, the contracting parties expressly agreed on a contractual penalty for a delay in delivery attributable to SAL, the following provisions shall apply, unless otherwise specified in individual cases: A delay in performance that is demonstrably attributable solely to SAL’s fault entitles the Client to claim a contractual penalty of up to ½% for each full week of delay, but not exceeding 5% in total, of the value of that portion of the relevant total delivery which cannot be used as a result of the untimely delivery of a substantial part, provided that the client has suffered a proven loss of at least this amount.

5.9. Any further claims arising from default are excluded.

6. TRANSFER OF RISK AND PLACE OF PERFORMANCE

6.1. Unless otherwise agreed, the goods are deemed to be sold EXW in accordance with INCOTERMS® 2020.

6.2. The place of performance is generally specified in the order confirmation; if this is not the case, the place of performance shall be the location of the SAL facility where the service is predominantly performed. The transfer of risk for a service/goods or an agreed partial service takes place upon SAL’s notification of completion and is thereby transferred to the client.

6.3. If it has been agreed that the Client is to call off the service during a specific period, SAL is entitled to withdraw from the contract in whole or in part without setting a grace period in the event of a call-off not being made on time. In any case, however, SAL is entitled to charge any storage fees for the duration of the delay and, three months after notification of completion, to consider the service to have been called off and to demand payment of any outstanding amounts from the Client.

6.4. Models, manuscripts, originals, drafts, sketches, samples, prototypes, films, and other documents or products provided to SAL for the purpose of performing the services are handed over exclusively at the client’s risk. Insuring these items—against any risk whatsoever—is the sole responsibility of the client. SAL is exempt from any liability for damage, destruction, or loss of these items, for whatever reason, unless it caused the damage or loss through gross negligence.

7. PAYMENT

7.1. Unless separate payment terms have been agreed upon, 1/3 of the price is due within 14 calendar days of receipt of the order confirmation, 1/3 within 14 calendar days after half the delivery period has elapsed, and the balance within 14 calendar days after delivery.

7.2. In the case of partial settlements, the corresponding partial payments are due 14 calendar days after receipt of the respective invoice. This also applies to amounts arising from subsequent deliveries or other agreements that exceed the original final amount, regardless of the payment terms agreed upon for the main delivery.

7.3. Payments must be made without any deductions by bank transfer to the SAL account specified on the invoice, in the agreed currency. All interest and fees associated with the payment transaction (such as collection and discount fees) shall be borne by the client.

7.4. The Client is not entitled to set off claims by SAL against counterclaims of any kind and on whatever alleged (legal) grounds.

7.5. A payment is deemed to have been made on the day SAL can access it.

7.6. If the Client is in default of an agreed payment or other performance arising from this or other legal transactions, SAL may, without prejudice to its other rights:

• 7.6.1. Defer the performance of its own obligations until payment or other performance has been made and claim a reasonable extension of the delivery period,
• 7.6.2. declare all outstanding claims arising from this or other legal transactions due and payable (loss of the payment term)
• 7.6.3. charge reminder fees at the customary rate and, from the due date, charge default interest at a rate of 9.2% above the applicable base rate
• 7.6.4. in the event of a qualified default—that is, after two instances of late payment—to fulfill other legal transactions only upon receipt of advance payment
• 7.6.5. to withdraw from the contract in the event of failure to comply with a reasonable grace period
• 7.6.6. In any case, SAL is entitled to invoice pre-litigation costs, in particular collection fees and attorneys’ fees.

7.7 Any discounts or bonuses granted are contingent upon the timely payment of the full amount due.

7.8 SAL reserves title to all services rendered and goods delivered by it until full payment of all claims due from the Customer, plus interest and costs. The Customer hereby assigns to SAL, as security for SAL’s claim for the purchase price, its claim arising from the resale of goods subject to retention of title, even if such goods have been processed, transformed, or mixed. The customer is authorized to dispose of the goods subject to retention of title in the event of resale with deferred payment of the purchase price only on the condition that that, at the same time as the resale, it notifies the secondary purchaser of the assignment for security or records the assignment in its business records. Upon request, the client must disclose to SAL the assigned claim along with its debtor, provide all information and documents necessary for the collection of the claim, and notify the third-party debtor of the assignment. In the event of attachment or any other form of enforcement, the client is obligated to indicate SAL’s right of ownership and to notify SAL immediately.

8. WARRANTY

8.1. SAL provides a warranty only for those characteristics of results, specifications, intended use, potential applications, operational safety, etc., that were expressly warranted to the Client in the contractual relationship, regardless of whether SAL was aware of the intended use. Any warranty claims that go beyond an express written assurance are expressly excluded between the parties.

8.2. In the event of a justified and timely notice of defects, the defects shall—to the extent technically possible— — be remedied within a reasonable period of time, provided that the Client grants SAL all access necessary for inspection and rectification. The client is primarily entitled only to a claim for rectification; only if repeated attempts at rectification fail or if there is technical impossibility or economic disproportion that the client is entitled to a price reduction or rescission of the contract.

8.3. The presumption of defectiveness pursuant to § 924 ABGB is deemed excluded.

8.4. The warranty period is 6 months, unless specific warranty periods have been agreed upon in writing in individual cases. Upon expiration of this period, any existing warranty claims shall be barred by the statute of limitations. The warranty period begins at the time of transfer of risk in accordance with Article 6.

8.5. For repaired or replaced goods/parts, the warranty period begins anew; however, it ends in any case 6 months after the expiration of the original warranty period.

8.6. If delivery or performance is delayed for reasons beyond SAL’s control, the warranty period shall begin 2 weeks after the goods or services are ready for delivery or performance.

8.7. A warranty claim requires that the Client report the defects that have occurred in writing within a reasonable period of time, describe them in detail and in a manner that can be verified, and deliver the notice to SAL. The Client must provide evidence of the defect within a reasonable period of time, in particular by making the documents and data in its possession available to SAL.

8.8. All incidental costs arising in connection with the rectification of defects and/or the identification of causes (such as for installation and removal, transportation, disposal, travel and travel time, additional test procedures, measurements, etc.) shall be borne by the Client. For warranty work performed at the Client’s premises, the necessary personnel and equipment must be provided free of charge.

8.9. If a product or service is manufactured by SAL based on design specifications, drawings, models, or other specifications provided by the client, SAL’s liability shall be limited to the proper execution of the work in accordance with the terms and conditions.

8.10. The warranty does not cover defects resulting from layout and installation not performed by SAL, improper setup, failure to comply with installation requirements and terms of use, overloading of parts beyond the performance specified by SAL, negligent or improper handling, and the use of unsuitable operating materials; this also applies to defects attributable to materials provided by the customer. SAL is also not liable for damage attributable to the actions of third parties, atmospheric discharges, power surges, or chemical influences. The warranty does not cover the replacement of parts subject to normal wear and tear. SAL assumes no warranty for the sale of used goods.

8.11. The warranty shall expire immediately if, without SAL’s written consent, the client itself or a third party not expressly authorized by SAL makes changes, repairs, or maintenance to the delivered services/results/ documents, protocols, goods, items, etc. without SAL’s written consent.

9. DAMAGES

9.1 SAL shall be liable for damages exclusively in cases of proven gross negligence or willful misconduct. However, liability is limited exclusively to the direct damage incurred to the subject matter of the contractual performance/goods. SAL shall not be liable for slight negligence, nor shall it be liable for damages exceeding the direct damage (e.g., indirect damages, consequential damages, loss of production, financing costs, costs for replacement energy, loss of energy, data loss, pure financial loss, loss of information, consequential damages resulting from defects, lost profits, unrealized savings, loss of interest, damages arising from third-party claims, non-pecuniary damages, etc.) is—to the extent permitted by law—expressly excluded between the parties.

9.2 For each claim, SAL’s liability is limited to 25% of the net contract value or to an amount of EUR 125,000, whichever is lower. SAL’s total liability is limited to the net order value or EUR 500,000, whichever is lower. This limitation of liability applies within the framework of statutory provisions.

9.3 The Client is obligated to pass this limitation of liability on to its customers and to require them to pass it on accordingly to the end user, so that the validity of the limitation of liability is guaranteed all the way to the end user.

9.4 If a lump-sum compensation payment has been agreed upon with the Client, the agreed penalty payment shall be deemed the final compensation payment in the event of damage, and any further claims arising from the damaging event are excluded.

9.5 The provisions and limitations of liability set forth in Article 9 shall apply exclusively to all claims by the Client against SAL, regardless of the legal basis or title, and, due to the Client’s obligation to ensure compliance with these provisions, are also effective with respect to all of the Client’s employees, subcontractors, and suppliers, etc.

9.6 The Client is prohibited from asserting claims based on laesio enormis, mistake, or the lapse of the basis of the transaction.

10. WITHDRAWAL FROM THE CONTRACT

10.1. Unless otherwise specified, the Client may withdraw from the contract only if SAL is in material default of delivery attributable solely to its own gross negligence. Withdrawal is justified only if SAL has previously been granted a reasonable grace period (at least 4 weeks) and this period has elapsed without result. Withdrawal must be asserted by registered letter.

10.2. Notwithstanding its other rights, SAL is entitled to withdraw from the contract,

• 10.2.1. if the performance of the delivery or the commencement or continuation of the service becomes impossible for reasons attributable to the Client, or is further delayed despite the setting of a reasonable grace period, 10.2.2. if concerns have arisen regarding the Client’s ability to pay and the Client, upon SAL’s request, neither makes an advance payment nor provides suitable security prior to delivery,
• 10.2.3. if the extension of the delivery period due to the circumstances listed in Article 5.6 totals more than half of the originally agreed delivery period, but at least 6 months, or
• 10.2.4. if the customer fails to fulfill the obligations imposed on it by Article 12 in a timely or proper manner
• 10.2.5. if, in the course of the performance of the contract, it becomes apparent that the performance of the service is technically impossible or economically disproportionate.

10.3. Withdrawal may also be declared with respect to any outstanding portion of the delivery or service for the reasons stated above.

10.4. If insolvency proceedings are initiated against the Client’s assets, or if a petition to initiate insolvency proceedings is dismissed due to insufficient assets, SAL is entitled to withdraw from the contract immediately without setting a grace period. If this right of withdrawal is exercised, it takes effect immediately upon the decision that the business will not be continued. If the business continues to operate, a withdrawal shall not take effect until 6 months after the commencement of insolvency proceedings or after the application for commencement has been dismissed due to lack of assets. In any case, the contract is terminated with immediate effect, provided that the insolvency law to which the client is subject does not preclude this, or if the termination of the contract is essential to avert significant economic disadvantages to SAL.

10.5. Without prejudice to SAL’s statutory claims for damages (including pre-litigation costs), in the event of withdrawal, services or partial services already rendered shall be invoiced in accordance with the contract and paid by the Client. This also applies if the client has not yet accepted the delivery or service, as well as to preparatory work performed by SAL. Alternatively, SAL shall also be entitled to demand the return of services, goods, or items already delivered.

10.6. The Client shall have no claims against SAL arising from SAL’s withdrawal based on the circumstances set forth in Articles 10.2–10.4.

11. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT

11.1. If SAL manufactures a product or provides a (research) or other service based on design specifications, drawings, models, or other specifications provided by the Client, the Client shall indemnify and hold SAL harmless against any resulting infringements of intellectual property rights by third parties.

11.2. Unless expressly agreed otherwise in writing, the ownership rights to research results and the resulting intellectual property rights, such as, in particular, those under copyright law, patent law, design law, and/or trademark law, with SAL.

11.3. As a general rule, each party remains the owner of the background IP it contributes. Should it become apparent that the Client’s background IP is necessary for the performance of the research contract, the Client grants SAL a non-exclusive right to use the Background IP for the duration of the contract, limited in time and scope to the performance of the contract, without the right to grant sublicenses.

11.4. Unless otherwise agreed, the Client is granted a perpetual, non-exclusive, and personal right to use and exploit the results for its own purposes. Any transfer of these rights of use or of (partial) results to third parties—even for a short period—for any legal reason whatsoever, whether in the course of the dissolution or liquidation of the company, and in particular in the event of bankruptcy, is prohibited. To the extent that the Client provides SAL with background IP or materials, supporting documents, documentation, or anything else for the performance and use within the project/ the assignment, and if, as a result, third parties assert claims against SAL, the Client is obligated to fully indemnify and hold SAL harmless.

11.5. Unless otherwise agreed in writing, implementation documents provided by SAL or used or created in the project—such as plans, sketches, models, and other technical documents, as well as samples, catalogs, brochures, illustrations, and the like, shall remain the intellectual property of SAL and are subject to the applicable legal provisions regarding reproduction, imitation, and competition.

12. COMPLIANCE WITH EXPORT REGULATIONS

When transferring the services/works/ goods, as well as the associated documentation—regardless of the manner of provision or the services rendered by SAL, including technical support of any kind—to third parties, the Client must comply with the applicable provisions of national and international (re-)export regulations. In any case, when transferring the services/works/goods to third parties, the Client must comply with the (re-)export regulations of the country where SAL is headquartered, the European Union, and the United States of America. If required for export control checks, the Client must, upon SAL’s request, immediately provide SAL with all necessary information, including details regarding the final recipient, the final destination, and the intended use of the goods or services.

13. SEVERABILITY CLAUSE

Should any individual provisions of the contract or these terms and conditions be invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid clause that comes as close as possible to the intended purpose and the parties’ intent.

14. JURISDICTION AND GOVERNING LAW

The court in Graz with subject-matter jurisdiction shall have exclusive jurisdiction to resolve all disputes arising from this contract—including those concerning its existence or nonexistence. The contract is governed by Austrian law, excluding conflict-of-laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

15. RETENTION OF TITLE

SAL is entitled to withhold delivery of the results until full payment of the fee or other claims has been made, whereby a connection between the withheld results and the claims is not required. Until full payment of the contractual fee, all rights to the results shall remain the property of SAL, even if the results have already been delivered or (partial) rights to them have already been granted. 16. RESERVATION CLAUSE SAL’s performance under the contract is subject to the condition that no obstacles to such performance exist due to national or international (re-)export regulations, in particular no embargoes and/or other sanctions.

November 2023 Edition