General Terms and Conditions ("T&CS")

1. SCOPE

1.1 These terms apply for all deliveries and (research) services of Silicon Austria Labs GmbH, hereinafter referred to as “SAL”, and are an integral part of all quotations and order confirmations. The client expressly accepts that the present T&Cs will also apply for all future transactions; a further notification of the applicability of the present T&Cs is therefore unnecessary.

1.2. Deviations from the terms set out in Point 1.1 are only valid when acknowledged by SAL in writing.

2. QUOTATION

2.1. Quotations issued by SAL are subject to confirmation.

2.2. All quotation and project documentation must not be reproduced or made accessible to third parties without the consent of SAL. Their return can be demanded at any time and they shall be returned to SAL without delay if the order is placed elsewhere.

2.3. SAL is entitled to charge reasonable compensation for expenses for drafts, sketches, samples, calculations, designs, etc. produced in the course of the contract initiation and/or quotation submission, even if the prospective order/contract/cooperation does not materialize.

2.4. Any approvals or consents from authorities and/or third parties which are necessary for the execution of the order/contract/cooperation shall be obtained exclusively by the client, who shall inform SAL accordingly and indemnify SAL of any damages and/or claims. Only after all necessary and legally binding approvals have been obtained shall SAL commence with the provision of services.

3. CONCLUSION OF THE CONTRACT

3.1. A contract is deemed to be concluded when SAL has sent a written order confirmation to the client or if a written contract, which must at least satisfy 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 shall only be relevant if they are expressly referred to in the order confirmation or the contract.

3.3. Subsequent changes and additions to the order confirmation/contract require written confirmation from both parties in order to be valid.

3.4. The present contract does not envisage any (work contract) success, but a "mere effort" in the sense of contract research and the developments that may result from it.

3.5. In the case of research contracts, SAL does not undertake to deliver a certain success or work in the sense of producing technological results or specifications as precisely defined in advance, especially as this is not possible in the field of research. For the duration of the contractual relationship, SAL undertakes to provide competence and research capability subject to the application of scientific due diligence and in accordance with the current state of the art.

3.6. If SAL has committed itself to the provision of precisely defined technological procedures (e.g. test procedures, measurements, etc.) as set out in the quotation, SAL will apply these procedures with scientific due diligence, whereby no entitlement to a certain result shall arise from this for the contractual partner.

3.7. After completion of the order, SAL undertakes to provide the contractual partner with those results and documentation or documents which were the subject and aim of the respective order (final results). If the contractual relationship has not yet ended, the contractual partner is not entitled to demand the delivery of partial results unless this was explicitly agreed in advance. The client is not entitled to be sent documentation, results, research protocols, documents or the like which allow conclusions to be drawn about research methods, technologies used, the working and research methods or the development methods of SAL and which were not explicitly covered by the scope of the order. SAL is, however, obliged to provide a report on the progress of the research that is comprehensible for the client at any time upon request and to indicate any unexpected and substantial obstacles to research which could significantly impair the outcome of the research objective.

3.8. In the case of a research contract, the economic risk concerning commercial exploitability and usability, the development risk and the risk of the research project proving to be technologically impossible to carry out, and thus the overall 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. SAL is entitled to invoice the client for deliveries or services exceeding the scope of services described in the order confirmation with the same or deviating prices/conditions.

4.2. Prices are understood to be ex-works (Incoterms 2020) unless expressly agreed otherwise in writing. Value added tax, packaging, loading, insurance, and fees, taxes or other charges incurred in connection with any delivery are not included in the price and shall be borne by the client.

4.3. In the event of an order which deviates from the quotation, SAL reserves the right to change prices accordingly.

4.4. Prices are understood to be valid at the time the quotation is submitted. SAL is entitled to amend the prices if the costs have changed by the time services are provided. If the contract is concluded with the prices left pending, the price valid on the day of delivery or completion of the delivery shall be charged.

4.5. SAL is entitled to charge the client for additional costs incurred if they were necessary in order to clarify technical and/or legal requirements for the order/contract/cooperation or if overtime, night work or Sunday work requested by the client were the reason for these. This also applies to services and additional services whose expediency only becomes apparent during the execution of the order/contract/cooperation, whereby no special notification to the client is required.

5. DELIVERY

5.1. The delivery period shall commence upon the latest of the following dates:

5.1.1. the date indicated in the order confirmation/contract,
5.1.2. the date of completion of all technical, commercial and other prerequisites for which the client is responsible (including obtaining any required approvals, etc.),
5.1.3. the date on which SAL receives from the client the advance payment due or the agreed guarantee.

5.2. Official approvals and any third party approvals required for the execution of orders/services/projects shall be obtained by the client. If approvals of this nature are not obtained in time, the delivery period shall be extended accordingly.

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

5.4. If the service provided by SAL has been completed and has not been called off by the client within three months after invoicing without any fault on the part of SAL, or if the handover of the service is postponed at the request of the client, the service provided by SAL shall be deemed to have been rendered on the day of invoicing. If this entails physical goods, SAL is entitled to store the goods at the expense of the client. The storage costs in this regard shall be reimbursed to SAL by the client without delay. This shall not effect any change of the agreed terms of payment. The risks are transferred at the point in time when SAL issues the notice of completion to the client.

5.5. Packaging material will be selected by SAL, invoiced at cost and will not be taken back by SAL.

5.6. If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as for example all cases of force majeure, which hinder compliance with the agreed delivery period, it shall be extended by the duration of these circumstances; these include, but are not limited to, armed conflicts, official interventions and prohibitions, delay in transport and customs clearance, acts of terrorism and their consequences, transport damage, shortage of energy and raw materials, natural disasters, labor disputes as well as the loss of essential suppliers who are difficult to replace, etc. These aforementioned circumstances also constitute entitlement to an extension of the delivery period if they occur for SAL’s suppliers or subcontractors.

5.7. If the delivery time is exceeded due to fault on the part of SAL, the client is obliged to set SAL a reasonable grace period to provide the service. The grace period must not be less than 4 weeks in order to be deemed reasonable. Only once the grace period has expired without provision of the services is the client entitled to withdraw from the contract. The grace period shall commence on the day notification of the agreed grace period is received. This notification is to be sent to SAL’s headquarters by registered mail. Claims for compensation on the part of the client due to delayed delivery or withdrawal are excluded as far as legally permissible.

5.8. If a contractual penalty for a delay in delivery for which SAL is responsible was expressly agreed between the parties to the contract at the time the contract was concluded, the following provisions shall apply, unless otherwise agreed in individual cases:

A verifiable delay in performance through the sole fault of SAL entitles the client to claim a contractual penalty of no more than ½% for each completed week of delay, but no more than a total of 5% of the value of that part of the total delivery in question which cannot be used due to late delivery of an essential part, provided that the client has demonstrably suffered damage of at least this amount.

5.9. Further claims in relation to the delay are excluded.

6. TRANSFER OF RISK AND PLACE OF PERFORMANCE

6.1. Unless otherwise agreed, the delivery of the goods shall be deemed sold EXW in accordance with INCOTERMS® 2020.

6.2. The place of performance is in principle stated in the order confirmation; should this not be the case, the place of performance shall be the location of the SAL premises in which the majority of the service is provided. The risks for a service/goods or an agreed partial service are transferred upon notification of completion by SAL and thus passes to the client.

6.3. If it has been agreed that the service must be called off by the client during a certain period, SAL shall be entitled to withdraw from the contract in whole or in part without setting a grace period if the call-off does not occur within this period. In any case, however, SAL is entitled to charge any storage fees for the duration of the time overrun and to regard the service as called off 3 months after notification of completion and to demand the outstanding payment from the client.

6.4. The models, manuscripts, originals, drafts, sketches, samples, prototypes, films and other documentation or products handed over to SAL for the purpose of providing the service shall be handed over exclusively at the risk of the client. The insuring of these goods – against any risk whatsoever – is the exclusive responsibility of the client. SAL is released from any liability for the damage, demise or loss of these objects, for whatever reason, unless SAL has caused the damage or loss through gross negligence.

7. PAYMENT

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

7.2. In the case of partial invoices, the corresponding partial payments are due 14 calendar days after receipt of the respective invoice. This shall also apply to invoice amounts resulting from subsequent deliveries or other agreements in excess of the original final amount, irrespective of the terms of payment agreed for the main delivery.

7.3. Payments are to be made without any deduction by means of bank transfer to the SAL account stated in the invoice and in the agreed currency. All interest and charges in connection with payment transactions (such as collection and discount charges) shall be borne by the client.

7.4. The client is not entitled to offset any counterclaims of whatever kind and on whatever alleged (legal) grounds against claims of SAL.

7.5. A payment shall be deemed to have been made on the day on which SAL has access to it.

7.6. If the client is in default with an agreed payment or other performance from this or other legal transactions, SAL can, without prejudice to their other rights:

7.6.1. defer fulfillment of its own obligations until payment or other performance has been effected and claim a reasonable extension of the delivery period,
7.6.2. declare all outstanding claims from this or other legal transactions due (default),
7.6.3. charge reminder fees in the customary amount as well as interest on arrears of 9.2% above the respective base interest rate as of the due date,
7.6.4. in the case of a qualified delay in payment, meaning after two previous delays in payment, perform other legal transactions only against payment in advance,
7.6.5. withdraw from the contract after a reasonable grace period.
7.6.6. In any case, SAL is entitled to charge pre-litigation costs, in particular reminder fees and lawyer's fees.

7.7. Discounts or bonuses granted are conditional upon the timely payment of the full amount.

7.8. SAL retains title to all services/goods it has delivered until full payment of all due claims against the client plus interest and costs.

The client hereby assigns to SAL its claim from a resale of goods subject to retention of title, even if these have been processed, transformed or mixed, in order to secure SAL’s purchase price claim. In the event of resale with deferment of the purchase price, the client shall only be entitled to dispose of the goods subject to retention of title upon the condition that it simultaneously notifies the second purchaser of the assignment by way of security, or notes the assignment in its business records. Upon request, the client must inform SAL of the assigned claim and its debtor, provide all information and documents required for the collection of the claim and inform the third party debtor of the assignment. In case of seizure or other availment, the client is obliged to indicate SAL’s right of ownership and to inform SAL immediately.

8. WARRANTY

8.1. SAL only warrants for those characteristics of results, specifications, intended use, utilization possibilities, operational safety, etc., which were expressly assured to the client in the contractual relationship, irrespective of whether SAL was aware of the planned intended use. Any warranty claims which go beyond an express written assurance are expressly excluded between the parties.

8.2. If the notice of defects is justified and submitted in due time, the defects shall be remedied within a reasonable period – insofar as this is technically possible – whereby the client must enable SAL to take all measures necessary to examine and remedy the defects. The client shall first and foremost be entitled exclusively to a claim for improvement; only in the event of the failure of repeated attempts at improvement or if it is technically impossible or not economically viable shall the client be entitled to a price reduction or rescission of the contract.

8.3. The presumption of defectiveness according to Article 924 of the Austrian Civil Code (ABGB) is excluded.

8.4. The warranty period shall be 6 months unless other warranty periods have been agreed in writing in individual cases. After expiry of this period, any existing warranty claims shall become statute-barred. The warranty period shall commence at the time of the transfer of risk in accordance with Article 6.

8.5. For improved or exchanged services/parts, the warranty period shall commence anew, but shall in any case end 6 months after expiry of the original warranty period.

8.6. If the delivery or service is delayed for reasons beyond the control of SAL, the warranty period shall commence 2 weeks after SAL’s readiness for delivery/service.

8.7. The warranty claim requires the client to notify SAL of the defects within a reasonable period in writing, describe them in detail and in a comprehensible manner and deliver the notification to SAL. The client must furnish proof of the existence of the defect within a reasonable period of time, and in particular must provide SAL with the documents or data at its disposal.

8.8. All additional costs incurred in connection with remedying the defect and/or identifying the cause (e.g. for installation and removal, transport, disposal, travel and travel time, additional test procedures, measurements, etc.) shall be borne by the client. The labor and equipment necessary for warranty work at the client's premises shall be provided free of charge.

8.9. If a product/service is manufactured/delivered by SAL on the basis of design data, drawings, models or other specifications of the client, SAL’s liability shall extend only to execution in accordance with the stated conditions.

8.10. Excluded from the warranty are defects which result from arrangement and assembly not effected by SAL, inadequate equipment, non-compliance with the installation requirements and conditions of use, overloading of the parts beyond the performance specified by SAL, negligent or incorrect handling, and use of unsuitable operating materials; this also applies to defects which are attributable to material provided by the client. SAL is also not liable for damages caused by actions of third parties, atmospheric discharges, overvoltages or chemical influences. The warranty does not cover the replacement of parts which are subject to natural wear. SAL accepts no liability for the sale of used goods.

8.11. The warranty shall expire immediately if, without the written consent of SAL, the client itself or a third party not expressly authorized by SAL undertakes changes, repairs or maintenance activities with respect to the services/results/documents/protocols/goods/objects etc. provided by SAL.

9. COMPENSATION FOR DAMAGES

9.1. SAL shall be liable with regard to tort law only in the event of proven gross negligence or deliberate intent. However, liability is limited exclusively to direct damage caused to the object of the contractual service/goods. Liability for slight negligence and compensation for damages exceeding the direct damage (e.g.: indirect damages, consequential damages, loss of production, financing costs, costs for replacement energy, loss of energy, loss of data, purely financial loss, loss of information, consequential harm caused by a defect, loss of profits, savings not achieved, loss of interest, damages from claims of third parties, moral damage, etc.) is – as far as legally permissible – explicitly excluded between the parties.

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

9.3. The client is obliged to pass on this limitation of liability to its customers and to oblige them to pass it on 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 has been agreed 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 damage event shall be excluded.

9.5. The provisions and limitations of liability in Article 9 shall apply conclusively to all claims of the client against SAL, irrespective of the legal basis and title, and shall also apply to all employees, subcontractors and sub-suppliers etc. of the client as a result of the client's obligation to pass on the imposition of these clauses.

9.6. The exercise of claims by the client due to laesio enormis, error and cessation of the basis for the transaction is excluded.

10. WITHDRAWAL FROM THE CONTRACT

10.1. Unless a more specific provision has been made, the prerequisite for the client's withdrawal from the contract is a qualified delay in delivery on the part of SAL which can be attributed to SAL’s own sole gross negligence. The client is only entitled to withdraw from the contract if SAL has previously been granted a reasonable grace period (at least 4 weeks) and this has elapsed fruitlessly. Withdrawal must be made by registered letter.

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

if execution of the delivery or the commencement or continuation of the service is impossible for reasons for which the client is responsible or is further delayed despite the setting of an appropriate grace period,
if doubts regarding the solvency of the client have arisen and the client, at SAL’s request, neither makes advance payment nor provides suitable security prior to delivery,
if, as a result of the circumstances referred to in Article 5.6., the delivery period has been extended by more than half of the originally agreed delivery period, but not less than 6 months, or
if the client fails to comply with the obligations imposed on it by Article 12 in a timely or proper manner,
if in the course of the performance of the contract it becomes apparent that the provision of the service is technically impossible or economically disproportionate.

10.3. Withdrawal may also be declared with regard to an outstanding part of the delivery/service for the above reasons.

10.4. If insolvency proceedings are opened against the client’s assets or if an application for insolvency proceedings is rejected 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 becomes effective immediately upon the decision to discontinue the existence of the company. If the company is to continue to exist, a withdrawal only becomes effective 6 months after the opening of insolvency proceedings or after rejection of the application for the opening of insolvency proceedings due to lack of assets. In any case, the contract shall be dissolved with immediate effect if the insolvency law to which the client is subject does not oppose this or if the dissolution of the contract is essential to avert significant economic disadvantages for SAL.

10.5. Irrespective of 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 for by the client. This shall also apply if the delivery or service has not yet been accepted by the client as well as for preparatory actions performed by SAL. In lieu of this, SAL shall also be entitled to demand the return of services/goods/objects which have already been delivered.

10.6. Claims on the part of the client against SAL as a consequence of SAL’s withdrawal from the contract due to the circumstances set out in Article 10.2-10.4. are excluded.

11. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT

11.1. If a product/(research) or other service is produced/provided by SAL on the basis of design data, drawings, models or other specifications of the client, the client shall indemnify SAL against any possible infringements of industrial property rights over and against third parties.

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

11.3.As a matter of principle, each party remains the owner of the background IP it provides. If it turns out that background IP of the client is necessary for the execution of the research contract, the client grants SAL for the duration of the contract a non-exclusive right to use the background IP that is limited both temporally and materially to the fulfillment of the contract, without the right to grant sublicenses.

11.4. Unless otherwise agreed, the client is granted an indefinite, 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 is prohibited, even for brief periods and for whatever legal reason whatsoever, including in the course of the dissolution or liquidation of the company, and in particular in the event of bankruptcy. Inasmuch as the client provides SAL with a background IP or materials, documentation, documents or whatever else for the execution of and use within the project/order, and resulting claims of third parties are directed against SAL, the client is obliged to fully indemnify SAL of any damages and/or claims.

11.5. Unless otherwise agreed in writing, any execution documents made available by SAL or used in the project or created by SAL, such as plans, sketches, models and other technical documentation, as well as samples, catalogs, brochures, illustrations and the like, shall remain the intellectual property of SAL and shall be subject to the relevant statutory provisions regarding reproduction, imitation and competition.

12. COMPLIANCE WITH EXPORT REGULATIONS

The client must comply with the respective applicable provisions of the national and international (re-)export regulations when passing on the services/works/goods supplied by SAL as well as the associated documentation to third parties, irrespective of the manner in which they are made available or the services provided by SAL including technical support of any kind. In any case, when passing on the services/works/goods to third parties, the client must observe the (re-)export regulations of the country in which SAL has its registered office, the European Union and the United States of America.

If necessary for export control inspections, the client must immediately provide SAL with all necessary information, including information on the final recipient, final destination and intended use of the goods or services, upon SAL’s request.

13. SEVERABILITY CLAUSE

If individual provisions of the contract or these provisions should be void, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid clause that comes as close as possible to the intended purpose and will of the parties.

14. COURT OF JURISDICTION AND LAW

The materially competent court in Graz shall have exclusive jurisdiction to decide on all disputes arising from the contract, including those concerning its existence or non-existence. The contract is subject to Austrian law to the exclusion of the conflict of law rules. The application of the UNCITRAL United Nations Convention on Contracts for the International Sale of Goods is excluded.

15. RETENTION OF TITLE

SAL is entitled to withhold the transfer of the results until the fee or other claims have been paid in full, whereby a relation between the retained results and the claims is not necessary.

All rights to the results shall remain the property of SAL until the contractual fee has been paid in full, even if results have already been transferred or (partial) rights have been granted.

16. PROVISO CLAUSE

SAL’s performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international (re-)export regulations, and in particular no embargoes and/or other sanctions.

Version of November 2023