Terms & Conditions

These General Terms and Conditions of Sale and Delivery (the “Terms”) of Qraken Quantum FlexCo, a flexible company (Flexible Kapitalgesellschaft) under Austrian law, registered with the Austrian Commercial Register (Firmenbuch) under FN 678067 h at the Commercial Court of Vienna (Handelsgericht Wien), VAT ID ATU83322049, with its registered office at Boltzmanngasse 5, 1090 Vienna, Austria, e-mail contact@qraken-quantum.com (“Seller”), apply to all offers, quotations, Order confirmations, sales and deliveries of Products by Seller to its customers (each a “Customer”), irrespective of the country in which Customer is established or to which the Products are delivered.

Seller supplies exclusively to entrepreneurs (Unternehmer) within the meaning of § 1 of the Austrian Consumer Protection Act (KSchG) and § 1 of the Austrian Commercial Code (UGB), to legal persons under public law, and to public or private universities and research institutions. Seller does not sell to consumers. By placing an order, Customer confirms that it is not acting as a consumer.

Seller refers to these Terms in its quotations and Order confirmations. They apply in the version published at https://www.qraken-quantum.com/legal/terms.html at the time Customer places its order, and by placing an order Customer accepts them. They also apply to all future transactions with Customer even if not expressly referred to again. Seller may amend these Terms with effect for future orders. Customer’s attention is drawn in particular to the provisions on delivery periods (Section 6), warranty (Section 10), limitation of liability (Section 11), restrictions on reverse engineering and use of technical information (Sections 12 and 13), retention of title (Section 14) and jurisdiction (Section 18).

Seller and Customer are each a “Party” and together the “Parties”.

1.1“Products” means the hardware expressly identified in the Order, including only the components and accessories expressly listed there.

1.2“Order” means Seller’s written order confirmation identifying the Products, quantity, price and delivery details.

1.3“Specifications” means only those technical specifications expressly identified by document name, version and date in the Order and expressly accepted by Seller as contractual specifications.

1.4“Business Day” means a day other than a Saturday, Sunday or public holiday in the place where Seller has its registered office.

1.5Headings are for convenience only and do not affect interpretation. “Including” means “including without limitation”.

1.6“Agreement” means each individual contract for the supply of Products between Seller and Customer concluded in accordance with Section 4, which incorporates these Terms. References to “this Agreement” include these Terms and the Order.

2.1Individual agreements with Customer that deviate from or supplement these Terms (“Special Conditions”) are effective only if expressly agreed in writing, either in the Order or in a separate document signed by authorised representatives of both Parties (see Section 4.6). Each Special Condition should identify the provision it amends or supplements.

2.2In the event of a conflict, the following order of precedence applies, but only to the extent of the conflict:

1. (a)Special Conditions agreed in accordance with Section 2.1;
2. (b)the Order;
3. (c)these Terms;
4. (d)the Specifications expressly incorporated into the Agreement;
5. (e)Seller’s quotation, to the extent expressly accepted by Seller.

2.3No Customer purchase order terms, procurement portal terms, supplier registration terms, standard terms, policies or other Customer documents shall amend or form part of this Agreement merely because they are referenced in a purchase order, uploaded to a portal, acknowledged, or included in correspondence. They apply only if Seller expressly accepts them in a document signed by an authorised representative of Seller. This applies even if Seller, with knowledge of such terms, performs or accepts payment without reservation.

3.1Seller shall sell and Customer shall purchase the Products described in the Order, subject to this Agreement.

3.2Unless expressly stated in the Order or a Special Condition, the sale is for hardware only. The purchase price does not include installation, commissioning, integration, configuration, on-site attendance, training, maintenance, support, research assistance, software development, certification, testing at Customer’s premises or other services.

3.3Seller is not responsible for integrating the Products into Customer’s equipment, laboratory, network, optical setup, quantum communication system or other environment, nor for ensuring compatibility with third-party equipment, software, fibre, connectors, protocols, operating conditions or experimental configurations, unless a specific compatibility requirement is expressly stated as a Specification.

3.4The Products are intended for the use stated in the Order. Unless expressly agreed in the Specifications, Seller does not warrant that the Products will achieve any particular research result, experimental outcome, scientific conclusion, transmission distance, fidelity, switching performance in Customer’s setup, or other research or commercial objective. Customer is solely responsible for verifying that the Products are suitable for its intended use, in particular in combination with other components and systems.

3.5Demonstrations, prototypes, published research, presentations, forecasts, indicative performance data and statements concerning future development are informational only unless expressly incorporated into the Specifications as binding requirements.

3.6Any services requested by Customer may be supplied only under a separate written order or statement of work accepted by Seller. Unless otherwise agreed in that document, such services will be provided on a time-and-materials basis, at Seller’s then-current rates, on a best-efforts basis, without a commitment to achieve a particular result or completion date. Customer shall pay all agreed fees, expenses, travel, accommodation, shipping and other costs. No service obligation arises merely from the sale of Products or from informal technical discussions. Where services are performed at Customer’s premises, Customer shall ensure in good time that the site, utilities, infrastructure, safety instructions and access required for the services are available; waiting times and additional visits caused by Customer shall be charged. If Customer cancels or postpones scheduled on-site services less than ten (10) Business Days before the agreed date, Seller may charge non-refundable travel costs and reserved working time. Travel time is charged as working time, and commenced hours are charged as full hours. Cost estimates for services are prepared to the best of Seller’s knowledge but without guarantee of their accuracy (§ 1170a(2) ABGB); unavoidable cost overruns of up to fifteen (15)% may be invoiced without separate notice, and Seller will notify Customer without delay of expected overruns exceeding fifteen (15)%.

3.7Seller may make changes to the design, components, materials, firmware or manufacturing process of the Products before delivery, including to reflect technical progress, component availability or legal requirements, provided that such changes do not materially adversely affect the form, fit or function of the Products as defined in the Specifications. Seller is not obliged to inform Customer of such changes unless they affect an expressly agreed Specification.

3.8Intended and Prohibited Use. Unless expressly agreed otherwise in writing, the Products are intended for research, development and industrial use by qualified personnel only. They are not designed, tested or approved for use as or in medical devices, for diagnostic or therapeutic use on humans or animals, in life-support, safety-critical, nuclear, aviation or military applications, or in any other application where failure could lead to death, personal injury or severe property or environmental damage. Any such use is at Customer’s sole risk, and Customer shall indemnify Seller against third-party claims arising from it, to the extent legally permissible.

3.9Product Information; No Guarantee. Information in catalogues, data sheets, brochures, websites, drawings and images (including dimensions, weights and performance data) is approximate and non-binding unless expressly designated as binding in the Order. Specifications and other product descriptions are not guarantees (Garantien) of quality or durability unless expressly designated in writing as “guaranteed”. Sales by sample warrant only the technical correctness of the sample itself. Operating instructions and technical documentation are provided in English.

4.1Customer’s order is an offer to purchase. No order is binding on Seller until Seller issues a written Order confirmation or otherwise expressly accepts the order in writing.

4.2Seller may reject an order before acceptance. Any quotation is valid only for the period stated in it and, if no period is stated, for 30 days from its date. A quotation is subject to availability and may be withdrawn before acceptance. Seller’s quotations are non-binding (freibleibend) unless expressly designated as binding.

4.3Any change to quantity, Specifications, delivery location, packaging, documentation, testing or other requirements must be agreed in writing by both Parties. Seller may adjust the price and estimated delivery period to reflect the change and any resulting costs, procurement commitments or delays.

4.4Customer is responsible for the accuracy and completeness of information, technical requirements, shipping details and end-use information it supplies to Seller. Seller is not liable for malfunction or unsuitability of the Products resulting from inaccurate, incomplete or late information provided by Customer.

4.5Customer’s order remains binding on Customer for fourteen (14) calendar days after its receipt by Seller, during which period Seller may accept it. If Seller’s Order confirmation deviates from Customer’s order, Customer shall object in writing within three (3) Business Days after receipt; otherwise the Order confirmation is deemed accepted, except for deviations that are material and to Customer’s detriment and of which Customer could not reasonably be expected to approve.

4.6Only Seller’s managing directors, holders of statutory commercial power of attorney (Prokuristen) and other persons expressly authorised by Seller in writing may conclude, amend or waive Orders or this Agreement on Seller’s behalf. Statements, assurances or commitments made by other Seller personnel (including sales or technical staff) are not binding on Seller unless confirmed in writing by an authorised person.

4.7Seller may correct obvious clerical, typing and calculation errors in quotations, Order confirmations and invoices at any time.

5.1Product prices are as stated in the Order and are exclusive of all transportation, freight, shipment, packing, export packaging, crating, palletising, handling, cargo insurance, customs clearance, duties, import taxes, value added tax, goods and services tax, sales or use taxes, withholding taxes, bank charges, storage, demurrage, special documentation and other costs or charges associated with the sale, packing, export, transportation, import or delivery of the Products, unless a specific item is expressly stated in the Order as included in the Product price. Such costs shall be payable by Customer in addition to the Product price in accordance with Section 5.7.

5.2Customer shall pay invoices net within thirty (30) calendar days of the invoice date, without discount or other deduction except as expressly permitted in this Section 5.2. Set-off against Seller’s claims is excluded unless the counterclaim has been acknowledged by Seller in writing or finally established by a court. Payments shall be made in the currency and to the bank account specified by Seller. Payment is deemed made only on the date the full amount is unconditionally credited to Seller’s account. Justified complaints entitle Customer to withhold only a portion of the invoice amount not exceeding three times the expected cost of remedying the defect. Customer may not otherwise withhold payments or exercise any right of retention on account of warranty claims, alleged defects or other counterclaims, unless the counterclaim has been acknowledged by Seller in writing or finally established by a court.

5.3No advance payment is required unless expressly agreed in the Order or requested by Seller under Section 5.5. Where an advance payment has been agreed or requested, Seller is not required to commence manufacture, procurement or dispatch before its receipt.

5.4Payments shall be made by bank transfer in EUR. All bank charges, including those of intermediary banks and charges arising outside Austria, are borne by Customer (charge option OUR). Overdue amounts shall accrue interest irrespective of fault, at nine point two (9.2) percentage points above the base interest rate (Basiszinssatz) published by the Oesterreichische Nationalbank, corresponding to the statutory rate under § 456 of the Austrian Commercial Code (UGB); this rate is agreed contractually and also applies where § 456 UGB is not applicable to Customer. Seller is further entitled to the fixed compensation of EUR 40 under § 458 UGB and to reimbursement of reasonable out-of-court collection and legal costs (§ 1333(2) ABGB), including the costs of a collection agency up to the maximum rates set by the applicable Austrian regulation on fees of collection agencies, without prejudice to any further damages. Any discounts, rebates or other price concessions granted to Customer lapse if Customer is in payment default.

5.5If Customer fails to pay an amount when due, or Seller has objectively reasonable grounds to doubt Customer’s ability to pay, Seller may, after written notice and subject to mandatory law, suspend procurement, manufacture, delivery or other performance until overdue amounts are paid or adequate security is provided. In such cases Seller may also require advance payment or adequate security for any outstanding deliveries, declare all outstanding claims against Customer immediately due, and, if such payment or security is not provided within a reasonable period set by Seller, withdraw from the unperformed part of the affected Order.

5.6If a tax, duty or governmental charge is imposed on the transaction or its performance, the Parties shall cooperate in good faith to determine the legally responsible party. Customer shall pay all import duties, import VAT or GST, customs brokerage and import clearance charges for which it is legally responsible, subject to mandatory law and the agreed delivery term.

5.7All costs associated with packing, export packing, protective materials, crates, pallets, handling, freight, carriage, fuel or security surcharges, carrier fees, export handling, export documentation, certificates or attestations specifically requested by Customer, cargo insurance arranged at Customer’s request, customs brokerage, duties, taxes, storage, demurrage, re-delivery and similar charges shall be borne by Customer in addition to the Product price, to the extent such charges may lawfully be passed on to Customer. Seller may arrange shipment, packaging and related logistics as a convenience to Customer; Customer shall reimburse Seller for the actual third-party charges and other agreed costs, against invoice. Seller may request advance payment of estimated shipping and packaging costs and shall not be obliged to dispatch the Products until such requested advance payment has been received. Any estimate of such costs is non-binding; Customer shall pay the actual charges incurred, with any overpayment credited or refunded. This clause applies irrespective of the Incoterms® rule agreed, unless the Order expressly states that specific costs are included in the price, and does not change the point or time at which risk transfers.

5.8VAT Treatment and Supporting Information

5.8.1Prices are net prices exclusive of value added tax (VAT). Austrian VAT is added at the applicable statutory rate unless the supply qualifies for a VAT exemption or the reverse-charge mechanism applies. Where the transaction qualifies (a) as an intra-Community supply to a Customer in another EU Member State, Seller may invoice without Austrian VAT pursuant to Art. 6(1) in conjunction with Art. 7 of the Annex (Binnenmarktregelung) to the Austrian VAT Act 1994 (Umsatzsteuergesetz 1994 – UStG 1994); or (b) as an export delivery to a destination outside the European Union, Seller may invoice without Austrian VAT pursuant to § 6(1) Z 1 in conjunction with § 7 UStG 1994. The applicable VAT treatment depends on the facts of the transaction and satisfaction of the statutory requirements; these Terms do not, by themselves, establish entitlement to any exemption.

5.8.2Any VAT exemption is subject to the applicable legal requirements, including, for intra-Community supplies, Customer’s valid VAT identification number issued by another EU Member State and the transport of the Products to another Member State and, for export deliveries, the actual export of the Products from the European Union, as well as sufficient evidence and accounting records. Customer shall provide accurate and complete information reasonably required for VAT records and customs declarations, including its full legal name, registered address, VAT identification number, consignee and importer details, EORI number where applicable, and any tax, business registration or customs identifiers it has or is required to use for import clearance in the country of destination. For intra-Community supplies, Customer shall confirm receipt of the Products in the destination Member State in the form reasonably requested by Seller.

5.8.3Customer shall promptly notify Seller of any change to the importer of record, consignee, delivery address, destination or other information relevant to the export declaration, and shall reasonably cooperate in providing documents or confirmations needed to evidence the export. Customer shall notify Seller without delay if its VAT identification number becomes invalid or changes.

5.8.4If Austrian VAT is legally chargeable, including because the statutory conditions for the exemption are not met, Seller may issue or correct the relevant invoice accordingly. To the extent the VAT liability or related statutory charges result from Customer’s inaccurate or incomplete information, failure to cooperate, or other breach of this Agreement, Customer shall pay the additional amount legally chargeable to Seller, including applicable VAT and related interest or charges, to the extent permitted by law. This paragraph does not transfer to Customer any obligation that applicable law places exclusively on Seller.

5.9Changes in Charges. If, after Order acceptance and before delivery, export duties, export levies, tariffs or other governmental charges affecting Seller’s supply of the Products are newly imposed or increased, Seller may pass on the resulting additional cost to Customer against reasonable evidence. If such increase exceeds ten (10)% of the net Order price, Customer may cancel the affected Order by written notice within ten (10) Business Days after Seller’s notification, subject to reimbursement of costs already incurred by Seller.

5.10Seller may invoice partial deliveries separately and may issue and transmit invoices electronically, to which Customer agrees. Discounts, including early-payment discounts, apply only if expressly agreed in writing.

5.11Price Adjustment. If the agreed or estimated delivery date is more than four (4) months after Order acceptance, Seller may adjust the price to reflect documented increases in the cost of components, materials, energy or freight occurring after Order acceptance, to the extent such increases exceed five (5)% of the net Order price. Seller shall notify Customer in writing with reasonable evidence before invoicing. No adjustment applies for any period of delay caused by Seller.

5.12Payments are applied first to costs (including collection costs), then to interest, then to claims not (or no longer) secured by retention of title or other security, and then to the oldest outstanding principal claims, irrespective of any contrary designation by Customer (deviating from § 1416 ABGB).

5.13If payment in instalments has been agreed and Customer is in default with an instalment for more than ten (10) days, the entire outstanding balance becomes due immediately (Terminsverlust).

5.14If Customer is in payment default for more than thirty (30) days, Seller may, after setting a grace period of at least fourteen (14) days, withdraw from the Agreement in whole or in part (§ 918 ABGB) and claim damages, including the costs and losses listed in Section 15.3.

5.15Invoices are deemed approved unless Customer raises a reasoned written objection within four (4) weeks after receipt.

6.1Any delivery date or period stated by Seller is an estimate only unless expressly identified in a written agreement signed by both Parties as a “Binding Delivery Date”. Even a Binding Delivery Date does not constitute a fixed-date transaction (Fixgeschäft, § 919 ABGB) unless it is expressly designated as such.

6.2An estimated delivery period is based on information available at the time and may change due to manufacturing, testing, component availability, supplier lead times, export clearance, carrier availability, customs procedures or other circumstances beyond Seller’s reasonable control. Seller will use commercially reasonable efforts to meet its estimate but does not guarantee it.

6.3Unless a Binding Delivery Date is expressly agreed, delay beyond an estimate shall not, by itself, constitute a breach of contract and shall not entitle Customer to a penalty, liquidated damages, price reduction, cancellation or termination. This clause does not exclude any remedy that cannot lawfully be excluded.

6.4If a Binding Delivery Date is agreed and Seller anticipates missing it, Customer shall give Seller written notice and a reasonable additional period of not less than thirty (30) days to perform before exercising any remedy for delay, to the extent such notice and additional period are legally permissible and required. Minor delays in delivery shall be accepted by Customer and do not entitle Customer to damages or withdrawal.

6.5Seller may make partial deliveries where reasonable and where the Products can be used separately, unless the Order expressly requires delivery as an indivisible unit.

6.6Delivery periods shall be extended to the extent of delays caused by Customer, including late payment, missing information, approvals, import details or failure to arrange receipt.

6.7A delivery period or date is met if, before its expiry, Seller has notified Customer that the Products are ready for dispatch or has handed them over to the carrier. Delivery before the estimated date is permitted.

6.8Self-Supply Reservation. Seller’s delivery obligations are subject to correct and timely supply by Seller’s own suppliers, provided that Seller has concluded a corresponding purchase contract with its supplier and is not responsible for the failure of supply. Seller shall inform Customer without delay if components are unavailable and may withdraw from the affected Order, in which case any payment already made for the undelivered Products shall be refunded.

6.9Compensation for Delay. If Seller is in delay with a Binding Delivery Date for reasons other than intent or gross negligence, Seller’s liability for damages caused by the delay is limited to zero point five (0.5)% of the net price of the delayed Products for each completed week of delay, up to a maximum of five (5)% of that price. This does not apply to personal injury or to an expressly agreed fixed-date transaction. Any contractual penalty is subject to judicial moderation (§ 1336 ABGB).

6.10Expedited delivery requested by Customer after Order acceptance is at Seller’s discretion and may be subject to an expedite fee and the actual additional carriage costs.

7.1Unless otherwise agreed in the Order or a Special Condition, delivery shall be DAP to the delivery address stated in the Order (Incoterms® 2020), using a carrier selected by Seller. If Customer wishes a different Incoterms® rule (e.g. FCA or CPT) or its own freight forwarder, Customer shall state the rule, the freight forwarder and its carrier account in its order. Any Incoterms® rule applies as varied by Sections 5.1, 5.7 and 7.2.

7.2Irrespective of the Incoterms® rule agreed, Customer bears all carriage, packing, insurance and related logistics costs in accordance with Sections 5.1 and 5.7, unless the Order expressly states that specific costs are included in the price; the agreed Incoterms® rule is varied only as regards the allocation of these costs. Risk of loss or damage passes in accordance with the agreed Incoterms® rule. Where Seller arranges carriage or other logistics at Customer’s request beyond its obligations under the agreed Incoterms® rule, it does so as a service for Customer and at Customer’s risk.

7.3Customer is responsible for import clearance in the country of destination, import permits and licences required of the importer, import VAT or GST, customs duties and other import charges, unless mandatory law or a Special Condition provides otherwise. Seller is not required to act as importer of record in the country of destination.

7.4Seller may select a reputable carrier and a packaging method reasonably appropriate for the Products and international shipment. All packing, export packing, crating, pallets, protective materials and handling costs shall be charged separately to Customer in accordance with Section 5.7. If Customer requests a particular carrier, route, packaging, special handling or insurance arrangement, any additional costs shall be borne by Customer and the arrangement must be agreed in writing.

7.5Unless expressly agreed, Seller is not obliged to procure cargo insurance. Customer is responsible for arranging insurance from the time risk transfers to Customer. If Customer asks Seller to arrange insurance, the premium and any related fees shall be charged separately to Customer in accordance with Section 5.7.

7.6Customer shall ensure that the delivery address is accurate, that the consignee can receive the Products, and that all necessary import and delivery arrangements are in place. Additional storage, redelivery, demurrage or other costs caused by Customer’s failure to receive or clear the Products shall be borne by Customer to the extent legally permissible. Customer may not refuse to take delivery on account of minor defects; its warranty rights remain unaffected.

7.7Seller shall provide ordinary shipping documents reasonably available to it. Special certificates, attestations, legalisations, destination-specific compliance documents or additional testing reports are excluded unless expressly listed in the Order.

7.8Customer Delay in Taking Delivery. If dispatch or delivery is delayed at Customer’s request or for reasons for which Customer is responsible, risk passes to Customer on the date Seller notifies Customer that the Products are ready for dispatch. Seller may store the Products at Customer’s cost and risk and charge storage fees of zero point five (0.5)% of the net price of the affected Products for each commenced week, up to a maximum of five (5)%, unless Seller proves higher costs or Customer proves lower costs. Seller may invoice the Products upon notification of readiness for dispatch. If Customer fails to take delivery within a reasonable additional period set by Seller, Seller may withdraw from the Order and otherwise dispose of the Products. In that case Customer shall pay a contractual penalty (Konventionalstrafe) of ten (10)% of the net price of the affected Products, subject to judicial moderation (§ 1336 ABGB); Seller may claim damages exceeding the penalty.

8.1Each Party shall comply with export control, sanctions and other mandatory laws applicable to it and to the transaction. This includes, where the Products contain items of United States origin, the U.S. Export Administration Regulations (EAR) to the extent applicable.

8.2Seller’s performance is conditional upon any required export authorisations, licences and governmental approvals being obtained. Seller may suspend or withhold delivery to the extent reasonably necessary to comply with applicable law or a competent authority’s direction.

8.3Customer shall promptly provide accurate information reasonably requested by Seller concerning the end user, end use, destination, intended transfer, installation location and any onward transfer of the Products.

8.4Customer shall not re-export, transfer, use or make the Products available in violation of applicable export control or sanctions laws. Customer shall not provide misleading end-use or end-user information.

8.5Seller does not warrant that the Products may be imported, installed or used in every jurisdiction or for every end use. Customer is responsible for identifying and complying with import, laboratory, radiofrequency, optical safety, electrical safety and other local requirements applicable to Customer’s possession, installation or use, except for obligations that legally rest with Seller as exporter or supplier.

8.6If a required authorisation is refused, delayed or made subject to conditions that make performance unlawful or commercially impracticable, Seller may suspend the affected obligations. If lawful performance is ultimately impossible, either Party may terminate the affected portion of the Order by written notice. The Parties shall account for Products delivered, work performed, non-cancellable commitments and amounts paid in accordance with applicable law.

8.7End-Use Statement. Customer shall, before dispatch and at Seller’s request, provide a signed end-use / end-user statement in the form reasonably required by Seller or the competent export control authority (including where the Products are subject to Regulation (EU) 2021/821 (EU Dual-Use Regulation) or national export controls). Seller is not obliged to dispatch the Products until such statement has been received and any required authorisation has been granted.

8.8No Re-Export to Russia/Belarus. To the extent the Products, or any related intellectual property rights, trade secrets or technical information, fall within the scope of Article 12g or 12ga of Council Regulation (EU) No 833/2014 or Article 8g of Council Regulation (EC) No 765/2006, as amended: (a) Customer shall not sell, export or re-export, directly or indirectly, such items to the Russian Federation or Belarus or for use in the Russian Federation or Belarus, and shall not use such rights or information in connection with such items intended for those countries; (b) Customer shall undertake its best efforts to ensure that the purpose of (a) is not frustrated by any third party further down the commercial chain, including possible resellers, and shall maintain an adequate monitoring mechanism to detect such conduct; (c) Customer shall promptly inform Seller of any problems in applying (a) or (b) and shall provide information concerning compliance within two (2) weeks of Seller’s simple request; and (d) any breach of this Section 8.8 constitutes a material breach of an essential element of this Agreement entitling Seller to terminate the Agreement and any Order with immediate effect, without prejudice to Seller’s claims for damages. In case of culpable breach, Customer shall pay a contractual penalty of one hundred (100)% of the net Order price, subject to judicial moderation (§ 1336 ABGB); further damages remain unaffected. Where the delivery destination is a partner country listed in Annex VIII to Regulation (EU) No 833/2014, this clause applies as a contractual obligation.

9.1Customer shall inspect the Products promptly after receipt for quantity, identity and externally visible damage.

9.2Customer shall notify Seller in writing of any apparent defect, shortage or shipping damage within seven (7) calendar days after receipt. Latent defects shall be notified promptly after discovery and, in all cases, within the applicable Warranty Period. If a defect is not notified in time, the Products are deemed approved, and claims for warranty, damages and avoidance for mistake (Irrtumsanfechtung) on account of that defect are excluded (§ 377 UGB).

9.3A notice must describe the alleged defect in reasonable detail and include the product serial number, relevant operating conditions, diagnostic information and supporting evidence reasonably available to Customer.

9.4The Parties acknowledge that mandatory Austrian commercial inspection and notification rules, including Section 377 of the Austrian Commercial Code (UGB) where applicable, may apply. The notice periods in this Section are additional contractual requirements to the extent legally effective and do not purport to disapply mandatory law.

9.5Customer shall preserve the allegedly defective Product and allow Seller a reasonable opportunity to inspect, test or remotely diagnose it before repair, modification or disposal, except where urgent action is reasonably necessary to prevent injury or material damage.

9.6Acceptance Testing (only where expressly agreed). Where the Order provides for an acceptance test, Customer shall carry it out within ten (10) Business Days after delivery in accordance with the agreed test procedure. The Products are deemed accepted upon the earliest of: (a) successful completion of the acceptance test; (b) expiry of that period without Customer having notified Seller in writing of a material non-conformity with the agreed acceptance criteria; or (c) Customer’s use of the Products for any purpose other than the acceptance test. Minor deviations that do not materially impair the agreed functionality do not entitle Customer to refuse acceptance.

9.7Transport Damage. Customer shall check the shipment on receipt for visible transport damage and missing packages, record any such damage or loss on the carrier’s delivery receipt, have it confirmed by the carrier, and notify the carrier in writing within the applicable carrier and statutory deadlines, with a copy to Seller. Customer bears any loss resulting from failure to do so.

9.8Commissioning. Customer shall put the Products into operation or carry out a functional test within thirty (30) days after receipt and shall notify Seller in writing of any defects detectable in this way within seven (7) days after the operation or test. Defects that would have been detected by such operation or test and are not notified in time are deemed accepted, to the extent legally permissible.

10.1Subject to this Agreement, Seller warrants that, at the time risk passes, the Products will materially conform to the Specifications expressly identified in the Order.

10.2The contractual warranty period is six (6) months from the date risk passes under Section 7, to the extent this limitation is valid under applicable law (“Warranty Period”).

10.3The warranty applies only to defects existing at the time risk passes and notified in accordance with Section 9 during the Warranty Period. Customer bears the burden of providing reasonable evidence of the alleged non-conformity, subject to applicable mandatory law.

10.4The warranty does not cover defects, damage or performance issues caused by:

1. (a)misuse, improper handling, storage, operation or maintenance;
2. (b)installation, repair, alteration or modification by anyone other than Seller or its authorised service provider;
3. (c)operation outside the agreed Specifications or environmental limits;
4. (d)connection or use with equipment, software, fibre, components or systems not approved or specified by Seller;
5. (e)accidents, power surges, contamination, electrostatic discharge, unsuitable environmental conditions or other external causes;
6. (f)ordinary wear, consumables or cosmetic deterioration that does not affect agreed functionality;
7. (g)Customer’s instructions, designs, materials, data or requirements;
8. (h)third-party products, software, services or infrastructure, except to the extent the defect is caused by Seller’s breach of this Agreement;
9. (i)loss of optical alignment, calibration or adjustment occurring after transfer of risk, including as a result of transport, shock, vibration, temperature changes or handling, unless caused by inadequate packaging supplied by Seller; re-alignment or re-calibration may be ordered from Seller as a chargeable service under Section 3.6;
10. (j)Products identified by Seller as prototypes, pre-series, alpha, beta, evaluation or demonstration units, which are supplied “as is” without warranty to the extent legally permissible;
11. (k)Products manufactured or modified to Customer’s specifications, for which Seller warrants only conformity with those specifications.

10.5For a valid warranty claim, Seller’s first remedy shall be, at Seller’s option and to the extent legally permissible, repair of the defective Product, replacement of the defective Product or component, or an appropriate price reduction, except where Customer is entitled by law to terminate the contract. If repair or replacement is not reasonably possible, the Parties shall agree on an appropriate remedy consistent with mandatory law.

10.6Customer shall provide reasonable access to the Product and information required for diagnosis. Unless expressly agreed, Customer is responsible for de-installation, re-installation, shipment to Seller, customs charges, travel, on-site work and other costs associated with a warranty claim, except to the extent mandatory law requires Seller to bear them.

10.7A repaired or replacement Product is covered only for the remainder of the original Warranty Period, unless mandatory law requires otherwise.

10.8No other express or implied warranty, representation or condition is given, to the fullest extent permitted by applicable law. In particular, Seller does not warrant fitness for a particular experimental purpose, uninterrupted operation, error-free operation in Customer’s setup, compatibility with third-party systems or achievement of a particular scientific result, unless expressly included in the Specifications.

10.9Nothing in this Agreement excludes or limits any warranty, guarantee or right that cannot lawfully be excluded or limited, including mandatory statutory guarantees under the law of the country in which Customer is established, where applicable.

10.10Return Procedure. Products may be returned only after Seller has issued a Return Material Authorisation number (“RMA”). Customer shall request the RMA in writing, quoting the Order number, invoice number, serial number and a description of the defect. Returned Products must be shipped in the original or equivalent protective packaging, marked with the RMA number and accompanied by any customs documentation required for temporary export/re-import. Customer bears the cost and risk of shipping to Seller. If a warranty claim is valid, Seller bears the cost of returning the repaired or replacement Product to Customer using a carrier and service level selected by Seller. Products returned without an RMA may be refused or returned at Customer’s cost.

10.11Unjustified Claims. If Seller’s examination shows that no defect covered by the warranty exists, Customer shall reimburse Seller’s reasonable costs of examination, testing, handling and return shipping at Seller’s then-current rates.

10.12Austrian Statutory Warranty Provisions. To the extent legally permissible between entrepreneurs: (a) the statutory presumption that a defect existed at the time of delivery (§ 924 ABGB) does not apply; (b) recourse claims under § 933b ABGB are excluded; and (c) warranty claims must be asserted in court within three (3) months after expiry of the Warranty Period, failing which they become time-barred. Customer’s right to price reduction or termination of the contract (Auflösung des Vertrags, § 932 ABGB) exists only if repair and replacement have failed, are impossible or would involve disproportionate effort for Seller, and termination is excluded for minor defects.

10.13Warranty claims are available only to the original Customer and are not transferable without Seller’s prior written consent.

10.14For third-party products resold by Seller without modification and identified as such in the Order, Seller’s warranty is limited, to the extent legally permissible, to assigning to Customer its warranty claims against the relevant manufacturer or supplier, or asserting them for Customer’s account.

10.15Replacement parts and products may be new or refurbished and at least functionally equivalent. Replaced parts become Seller’s property.

10.16Examination of claims, repairs, replacements and other remedial actions are carried out without acknowledgement of any legal obligation, unless Seller expressly states otherwise in writing, and do not restart the Warranty Period or any limitation period.

10.17As long as Customer is in default with payment of undisputed amounts, Seller may withhold warranty performance to a reasonable extent proportionate to the outstanding amount.

10.18Components with a limited service life (such as light sources, laser diodes, lamps and other consumables) are warranted only for the shorter of the Warranty Period and the operating hours or service life stated in the product documentation. Major third-party sub-systems integrated into the Products are covered only by Section 10.14, unless otherwise stated in the Order.

11.1To the fullest extent permitted by applicable law, Seller shall not be liable for indirect, consequential, special, exemplary or punitive loss, or for loss of profit, revenue, anticipated savings, business opportunity, research funding, data, use, production, contracts, goodwill, or business interruption, or for the cost of substitute equipment or services.

11.2To the fullest extent permitted by applicable law, Seller shall not be liable for loss arising from the Customer’s experimental setup, laboratory environment, network configuration, third-party equipment, software, fibre infrastructure or failure to achieve a research or commercial objective, except to the extent directly caused by Seller’s breach of an express contractual obligation.

11.3To the fullest extent permitted by applicable law, Seller’s aggregate liability arising out of or in connection with the relevant Order, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the net purchase price actually paid to Seller for the specific Product giving rise to the claim.

11.4The exclusions and cap in this Section do not apply to liability to the extent it cannot lawfully be excluded or limited, including liability for wilful misconduct or gross negligence where such limitation is prohibited, death or personal injury where exclusion is prohibited, fraud, or any mandatory statutory liability.

11.5Customer shall take reasonable steps to mitigate loss. Seller shall not be liable for the portion of any loss that could reasonably have been avoided or reduced by Customer.

11.6No claim may be brought after expiry of the applicable statutory limitation period. Nothing in this Agreement shortens a statutory limitation period where such shortening is prohibited by law.

11.7The limitations in this Section apply collectively to all claims arising from the same event or series of connected events, to the extent legally permissible.

11.8Slight Negligence; Burden of Proof. To the extent legally permissible, Seller shall not be liable for damage caused by slight negligence (leichte Fahrlässigkeit), except for personal injury. Customer bears the burden of proving that Seller acted with fault and, where relevant, with gross negligence.

11.9Product Liability. Liability under the Austrian Product Liability Act (PHG) for damage to property suffered by Customer as an entrepreneur is excluded pursuant to § 9 PHG. Recourse claims within the meaning of § 12 PHG are excluded unless the party entitled to recourse proves that the defect originated within Seller’s sphere and was caused at least by gross negligence. Customer shall impose these exclusions on any party to which it transfers the Products. Mandatory product liability laws in the country of use remain unaffected.

11.10Time Limit for Damage Claims. To the extent legally permissible, claims for damages against Seller must be asserted in court within one (1) year after Customer becomes aware of the damage and the identity of the liable party, and in any event within ten (10) years after delivery or performance.

11.11To the extent Seller’s liability is excluded or limited, this also applies to the personal liability of Seller’s directors, employees, representatives, agents, subcontractors and suppliers.

11.12Integration into Other Products. If Customer incorporates the Products into other equipment, systems or products, or uses them in an application not covered by the Specifications, Seller makes no representation regarding the safety, accuracy, reliability or regulatory compliance of the resulting product or application. Customer shall indemnify and hold Seller harmless from third-party claims, damages and reasonable costs (including legal fees) arising from such integration or use, except to the extent caused by a defect for which Seller is liable under these Terms.

12.1All intellectual property rights in or relating to the Products, designs, drawings, specifications, documentation, firmware, software, methods, know-how, inventions and developments remain with Seller or the relevant third-party rights holder.

12.2No intellectual property rights are transferred to Customer by sale of the Products except for the limited right to use the Products for their intended purpose and, where applicable, any software licence expressly supplied with them.

12.3Restrictions on Reverse Engineering and Product Replication. To the fullest extent permitted by applicable law, Customer shall not, and shall not permit any third party to: (a) reverse engineer, disassemble, dismantle, deconstruct or otherwise analyse the Products for the purpose of discovering or reconstructing their internal design, architecture, circuitry, optical configuration, component selection, operating principles, manufacturing methods or other non-public technical features; (b) use microscopy, imaging, destructive testing, material analysis or other analytical techniques for the purpose of reproducing the Products or discovering non-public design or manufacturing information, except for testing expressly permitted by the agreed Specifications; (c) copy, reproduce, replicate, adapt or create a product derived from the Products or their non-public technical design, or commission a third party to do so using Seller’s Confidential Information or information obtained in breach of this Agreement; or (d) remove, obscure or alter proprietary notices or identification markings on the Products. Nothing in this Section prohibits ordinary operation of the Products, testing expressly contemplated by the agreed Specifications, or any activity that cannot lawfully be restricted under applicable mandatory law.

12.4Any third-party software or components may be subject to separate licence terms. Seller shall identify any material third-party terms supplied with the Products where applicable.

12.5Seller is not required to disclose source code, internal design files, manufacturing information or confidential know-how unless expressly agreed in writing.

12.6Proprietary Technology and Permitted Use. Customer acknowledges that the Products may embody proprietary technical concepts, designs, configurations, know-how and other intellectual property belonging to Seller or its licensors. Customer may use the Products for its internal business, research and experimental purposes in accordance with this Agreement. No right is granted to use the Products or any information obtained in breach of this Agreement to reproduce the Products, develop a copy or substantially equivalent product, or enable a third party to do so. This Section does not prohibit the independent development of technology without use of Seller’s Confidential Information or information obtained in breach of this Agreement, nor does it restrict rights that cannot lawfully be excluded.

12.7Protection of Confidential Technical Information. Customer shall restrict access to Seller’s confidential technical information to its employees, researchers and contractors who reasonably need access for the permitted use of the Products and who are bound by confidentiality obligations appropriate to the information concerned.