General terms and conditions

1.1 These General Terms and Conditions apply exclusively to all business transactions between eologix sensor technology gmbh, Waagner-Biro-Strasse 124, 8020 Graz, FN 420349k and/or the 2. location Ping Services Pty. Ltd., Suite 28, Stone & Chalk Startup Hub Marnirni-apinthi Building, Lot Fourteen, North Terrace, Adelaide SA 5000 Australien (hereinafter referred to as “eologix-Ping”) and third parties (natural or legal entities).

1.2 The third party, hereinafter also referred to as “Contract Partner” or “Customer”, is expressly advised that these General Terms and Conditions serve as the basis for all business transactions between eologix and the respective Contract Partner without exception.

1.3 These General Terms and Conditions (hereinafter also referred to as “Terms and Conditions”) are binding for all current and future business transactions with eologix-Ping, even if they are not expressly referred to. When concluding a contract, the current Terms and Conditions always apply, which can also be seen on the company’s website https://www.eologix-ping.com/en/gtc.

1.4 Regulations deviating or amending these General Terms and Conditions – in particular general business or purchasing conditions of the Customer – only become part of the contract if this is expressly confirmed in writing by eologix-Ping and the Customer. The Customer’s terms and conditions do not become part of the contract even if eologix-Ping does not expressly contradict them.

2.1 Offers from eologix-Ping are subject to change, unless expressly referred as binding. An order from the Contract Partner is only binding on eologix-Ping, if eologix-Ping has accepted this order with an order confirmation. By signing the order confirmation, the Contract Partner confirms that they have been informed of these Terms and Conditions and that those are the basis for the contract between eologix-Ping and the Customer.

2.2 Commitments, assurances and guarantees from eologix-Ping as well as agreements deviating from these Terms and Conditions only become binding upon express written order confirmation.

3.1 It is the sole responsibility of the Customer to check the suitability of the contractual products for their intended purpose.

3.2 If no other agreements are made, eologix-Ping does not assume any liability for the suitability of the contractual products for the purpose intended by Customer.

3.3 Improper use of the contractual products and their operation outside of listed standard or norm ranges is not permitted.

4.1 A cost estimate is made by eologix-Ping to the best of its knowledge, but eologix-Ping does not assume any liability for the correctness of these estimates. Therefore, cost estimates these are non-binding.

4.2 If after the receipt of the order confirmation there are cost increases of more than 10%, eologix-Ping will inform the Contract Partner immediately. The Customer acknowledges that such notice triggers eologix-Ping claim for additional costs.

4.3 If the additional costs are less than 10%, a separate notification is not required to be delivered by eologix-Ping and these additional costs can be charged.

5.1 The Contract Partner hereby irrevocably undertakes to keep confidential all trade and business secrets within the meaning of section § 26b UWG (Austrian Law against Unfair Competition) that are made available to him, provided or are otherwise made known to him by eologix-Ping in connection with or due to a business relationship or contact with eologix-Ping and to protect such confidential information against the unauthorized access by third parties and to comply with the legal and contractual data protection regulations when processing confidential information. This also includes state-of-the-art technical security measures (Art. 32 GDPR) and the obligation of employees to maintain confidentiality and to comply with data protection (Art. 28 Para. 3 lit. b GDPR).

5.2 Furthermore, the Contract Partner undertakes to use information only on a “need to know” basis and only within the framework of a concluded contract. This obligation of confidentiality remains valid for three years after the termination of the business relationship with eologix or independently of a business relationship for three years after any offer made by eologix-Ping.

5.3 The contractual partner agrees to be used as a reference by eologix-Ping. This reference only includes naming the company and the use of the partners logo, unless otherwise agreed. This can be refused at any time.

6.1 All contractual products and related implementation documents, plans, sketches, cost estimates and other documents, as well as software provided by eologix-Ping are and remain the intellectual property of eologix-Ping. The Contract Partner does not acquire any title or – with the exception of the use for the contractually agreed purpose – other usage rights to eologix-Ping intellectual property (in particular to know-how, registered or pending patents, copyrights or other intellectual property rights) on the basis of these Terms and Conditions or otherwise due to implied behaviour.

6.2 The use, in particular the transfer, duplication, publication and provision also by partial copying, as well as the imitation, processing or exploitation of intellectual property of eologix-Ping requires the express written consent of eologix-Ping.

7.1 The prices of eologix-Ping are stated in EURO plus statutory value added tax, if any, in the applicable amount. Any taxes, fees or other costs have to be borne by the Customer.

7.2  The following payment terms apply: Upon receipt of invoice within 14 days net. Unjustified cash deductions will be invoiced. If the Customer does not object to the order confirmation, partial billing in accordance with the percentage of completion method is deemed to be accepted by Customer. Unless otherwise stated in the offer, the quoted prices apply.

7.3 Services, including training and introduction of the Customer’s employees, will be invoiced additionally at cost, unless explicitly included in the offer.

7.4 In the event of payment default, even if only one instalment is not paid in full and timely by Customer, the full outstanding amount at the time of default shall become due and payable. In this case, eologix-Ping has the right to store the goods that are delivered subject to retention of title without rescinding the purchase contract until the outstanding claim is fully paid.

8.1 The place of performance is the company seat of eologix-Ping. The Customer approves of any appropriate shipping method chosen by eologix-Ping.

8.2 Unless otherwise agreed in writing, deliveries and thus the transfer of risk and costs are deemed to have taken place as soon as the contractual products are available at eologix-Ping locations or warehouses (ex works (EXW), ICC Incoterms as applicable at the time of order) or upon notification of readiness for shipment.

8.3 If the shipment or acceptance is delayed or does not take place due to circumstances that are not attributable to eologix-Ping, the risk transfers to the Customer on the day he is informed about the shipment or acceptance readiness by eologix-Ping. eologix-Ping undertakes to take out transport insurance upon request of Customer at the Customer’s expense.

8.4 Unless otherwise agreed, the risk of loss or corruption of data passes to the Customer as soon as downloaded or if sent via internet as soon as the data crosses eologix-Ping network interface.

9.1 The assembly of the delivered contractual products is carried out either by eologix-Ping, its agents or by third parties acting on behalf of the Customer.

9.2 eologix-Ping will inform the Customer in detail in the form of assembly instructions, in case the delivered contractual products are assembled by a third-party retained by Customer.

9.3 The assembly of the delivered contractual products by third parties must be carried out by a trained specialist.

9.4 The installation and assembly of the contractual products by third parties are made at the Customer’s risk and expense.

10.1 The contractual products generate technical and non-personal data that are not subject to the provisions of the General Data Protection Regulation (GDPR). Ice detection and temperature data are transmitted directly to the Customer via the contractual products and also to eologix (“Primary Data“). The provision of this Primary Data is part of eologix-Ping scope of services. The contractual products collect further information about the wind turbine(s) operated by the Customer, which are sent directly to eologix on their server or IT system, and subsequently saved and processed by eologix (“Secondary Data”). The Primary Data and Secondary Data are recorded and processed by eologix-Ping on an anonymous basis, so that no assignment to a location of the Customer or the Customer himself is possible. For the duration of the contractual relationship, the Customer grants eologix-Ping the exclusive, irrevocable and free right to record, use and process both the Primary and Secondary data. In this context, the parties note that the Secondary Data without the technical processing and linkage with other data by eologix-Ping are of no economic value. The generated Primary and Secondary data are used by eologix-Ping for further product development. Upon written request, the Customer will be provided with the Secondary Data through a separate agreement.

10.2 eologix-Ping does not guarantee a minimum availability of the Primary Data.

10.3 In addition, the availability of data, the availability and the transmission rate and speed depend on the communication module chosen by the Customer and the respective network coverage on site. Also, in this context, eologix-Ping assumes no guarantees or liability for the availability, accessibility and transmission rates of Primary Data.

11.1 It is the sole responsibility of the Customer to comply with all legal, official and safety-relevant regulations.

11.2 The contractual products supplied by eologix-Ping and the data generated by these products never replace legally required controls. This also applies to the restarting of a wind turbine after the contract products supplied by eologix-Ping indicate that the rotor blades are no longer icing up.

11.3 All and any liability on the part of eologix-Ping for damages of any kind that arises due to incomplete defrosting of a wind turbine, which is put back into operation by the operator or its agent, is excluded.

eologix-Ping retains ownership in the item(s) delivered under the contract concluded with the Customer until all payments including for additional services have been made in full. The Customer may neither sell, pledge nor assign the delivered contractual products until they have been fully paid. In the event of seizures, confiscation or other dispositions by third parties, the Customer must immediately inform eologix-Ping thereof.

13.1 The Contract Partner is obliged to accept the deliveries made available by eologix-Ping, including partial deliveries and services.

13.2 If installation services are included, the service shall be deemed accepted at the earliest occurrence of the following events: If the Customer accepts the delivery (confirmation of acceptance), if the installed product is being operated by the Customer or end customer, but in no case longer than four weeks after installation by eologix-Ping or its agents.

13.3 Other services (e.g. training) are deemed to be accepted upon delivery.

14.1 Unless expressly agreed as binding, the delivery times and dates are non-binding and are always meant as expected time of provision and transfer to the Customer.

14.2 In case of delay in delivery Customer shall only entitled to rescind or withdraw from the contract, if the Customer provides eologix-Ping with a reasonable – at least four weeks – grace period.

14.3 Any withdrawal from the contract has to be made by registered letter. The right of withdrawal relates only to the delivery and / or service part that has not been delivered timely.

15.1 It can be agreed that eologix-Ping will make available the scope of its deliveries and services as so-called “test set-up” to the Customer. This means that deliveries and services remain the property of eologix-Ping, but are attached to the Customer’s and / or end customer’s wind turbines. Data is only made available to the Customer / end customer over a defined period. At the end of the defined period, the deliveries are removed and / or no more data is made available to the Customer.

15.2 It may be agreed with the Customer whether and when the contractual products will be purchased. A right of purchase of the Customer and or end customer is excluded.

15.3 The Customer is strictly prohibited from opening the delivered components, in particular the sensors as well as the base stations, or disassemble the delivered goods into individual parts.

15.4 Should eologix-Ping become aware of such activities, the Customer is obliged to pay a penalty of € 50,000 (fifty thousand Euros) per breach to eologix-Ping upon first request. In addition, eologix-Ping right to assert additional damages claims shall remain unaffected.

16.1 In accordance with § 922ff ABGB eologix represents that its systems are functional in accordance with the certificates valid at the time of order. Among other things, these certificates define a certain number of sensors, depending on the respective application (e.g. ice shutdown, automatic restart of the system after icing, etc.), which are necessary for the certificate-compliant operation of the system. eologix represents for this certificate-compliant operation of its systems for a period of 24 months after installation of the system.

16.2 The failure of individual sensors during the warranty period, which have not the effect on the operation of the system in accordance with the certificate, does not result in a warranty claim of Customer. The additional provision of sensors compared to the sensors required for operation according to the certificate serves to increase redundancy and is normally not required for fault-free operation of the system.

16.3 The Contract Partner must provide evidence of defects. Section § 924 ABGB (Austrian Civil Code) does not apply.

16.4 The Customer must report any defects immediately, in writing and in detail. The notice of defects (§ 378 UGB (Austrian Entrepreneurial Code)) must be made within a period of 14 days from delivery of the contractual products.

16.5 In the case of warranty breach, eologix-Ping is entitled to determine the type of remedy (rectification, exchange, price reduction or change).

16.6 The replacement of sensors on the rotor blade is not carried out by eologix-Ping itself, but must be carried out by a trained, relevant specialist. If the Customer initiates the shutdown of the wind turbines specifically for the replacement of the sensors, eologix-Ping is not liable for any consequences, such as profit loss, etc.

16.7 If the Customer’s notice of defects is unjustified, eologix is entitled to invoice all resulting additional expenses.

17.1 In all possible cases, eologix-Ping is only obliged to pay compensation in the case of intent or crass gross negligence. eologix-Ping is not liable for slight and gross negligence. eologix-Ping is only liable to the Customer for positive damages. eologix-Ping is not liable for indirect damages, loss of profit, loss of interest, failed savings, consequential and pecuniary damage, damage from claims by third parties, and for the loss of data and programs and their recovery.

17.2 If, in whatever case, a penalty has been agreed, such penalty is subject to the judge’s right of mitigation. Damages exceeding the agreed penalty, if any, are excluded.

17.3 Any liability by eologix-Ping is excluded, if the damages result from any improper or inappropriate handling and / or improper or inappropriate use of the contractual products, non-compliance with operating and installation instructions, incorrect assembly by third parties, commissioning by third parties, unsuitable maintenance and / or servicing by the Customer or his agents.

17.4 It is stated that the Customer waives, except for the legal remedies mentioned in point 16. (Representation) and point 17. (Damages), any other legal remedies (such as in particular, but not only, error laesio enormis, loss of the business basis).

18.1 All disputes arising from this contract – including any questions regarding its existence – shall be exclusively decided by the competent court where eologix-Ping has its headquarters.

18.2 The contract is subject to the laws of the Republic of Austria, excluding its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.

19.1 Should provisions of these Terms and Conditions be or become wholly or partially ineffective or unenforceable, this does not affect the legal effectiveness of all other provisions. The contracting parties will replace the ineffective or unenforceable provision with an effective and feasible provision that comes as close as possible to the ineffective or unenforceable provision according to the content and purpose.

19.2 Changes amendments to this contract must always be made in writing. This also applies to changes to this written form requirement.

19.3 Claims of whatever nature must not be offset against claims of eologix-Ping.

19.4 With regard to the processing of the Customer’s personal data reference is made to the Privacy Policy