AGB

1. general

• 1.1. OFI Ltd. provides technical and scientific services in the form of expert opinions, tests, findings, Certification, analyses, investigations, Inspection, remediation planning, measurements/laboratory services, Consulting, special training and develops services with related products in the field of new technologies as well as services for Research and development.
• 1.2. OFI GmbH shall conclude contracts only subject to these “General Terms and Conditions” (GTC). The GTC of the business partner are contradicted. Deviating, contradictory general terms and conditions of a business partner shall not be binding on OFI GmbH even if reference is made to them in the letter of acceptance from the business partner and OFI GmbH does not expressly object to them again upon receipt of the letter of acceptance.
• 1.3. Verbal agreements or ancillary agreements that deviate from these GTC shall only become effective if they have been acknowledged by OFI GmbH by written confirmation.
• 1.4. The GTC agreed upon for an initial order shall – until revoked or amended by OFI GmbH – also be deemed to have been agreed upon for all future and subsequent orders and contract conclusions. The validity of the customer’s terms and conditions of purchase and other terms and conditions is hereby excluded for the entire business relationship.
• 1.5. Insofar as the contracts are concluded with consumers within the meaning of the KSchG, indispensable statutory provisions shall take precedence over these GTC.

2. subject matter of the contract and execution of the order

• 2.1. The subject matter of an order shall be the services offered by OFI GmbH. Offers made by OFI GmbH are always subject to change and non-binding. A mutually binding contract shall only come into existence upon written acceptance, written order confirmation or commencement of performance by OFI GmbH (receipt of written order confirmation by OFI GmbH by the client).
• 2.2. Unless otherwise agreed, the contractual services shall be provided in compliance with the regulations and the state of the art applicable at the time of the conclusion of the contract. OFI GmbH assumes no liability for the correctness or suitability of the laws, guidelines, standards and regulations on which the orders are based. OFI GmbH shall be entitled to determine the method or modalities of the examination or test itself at its own discretion, unless otherwise agreed in writing or unless mandatory regulations require a specific procedure.
• 2.3. OFI GmbH shall also be entitled to engage subcontractors for testing, Inspectionand Certificationin order to process orders.
• 2.4. The scope of services provided by OFI GmbH shall be specified in writing when the order is placed. Should any necessary changes or minor overruns of the agreed order volume occur during the contractual execution of the order, OFI GmbH shall be entitled to make such changes or overruns without prior notification and written order, provided that the agreed net fee is not exceeded by 15%. If required modifications exceed 15% of the order amount, a written agreement on this shall be made before additional services are provided. If the last agreed fee increases by more than 50% due to necessary modifications and changes to the scope of the order, the client is entitled to withdraw from the contract within three days of notification of the new fee scope. However, the Client shall pay compensation for the scope of services already rendered in the amount accrued therefor.
• 2.5. The Customer shall make all reasonable efforts to provide and submit the required samples, documents or permits in a timely manner. If the client fails to meet these obligations despite mutually agreed deadlines and dates, OFI GmbH may withdraw from the contract. In this case, OFI GmbH shall be entitled to claim damages for non-performance.

3. deadlines, delay, impossibility

• 3.1. The processing deadlines announced by OFI GmbH shall not be binding unless their binding nature has been expressly agreed in writing. Delays in meeting non-binding deadlines and dates do not entitle the client to assert claims, regardless of the legal title.
• 3.2. The term of binding deadlines shall only commence upon full compliance in all contractual points and conditions of the subject matter of the performance and they shall end upon the provision or delivery of the final product by OFI GmbH. They shall lose their binding force if the Client is in default with its obligations under these GTC – for whatever reason.
• 3.3. OFI GmbH shall not be liable for delays in performance due to force majeure or due to circumstances beyond OFI GmbH’s control that make it significantly more difficult or impossible to provide the service – including strikes, lockouts, official orders, natural disasters, even if these occur at suppliers or their subcontractors – even if binding processing periods and deadlines have been agreed. OFI GmbH shall be entitled to postpone the performance of the service in any case for the duration of the delay that has occurred or to withdraw from the contract in whole or in part on account of the part of the order that has not yet been fulfilled. In the event of the above delays in performance or withdrawal from the contract by OFI GmbH, the client may not assert any claims arising therefrom. This shall also apply if the events occur at a time when OFI GmbH is already in default. In the event of withdrawal, OFI GmbH shall be entitled to invoice the client for partial services rendered up to that point at the prices agreed for them.
• 3.4. By providing its services, OFI GmbH shall not assume any obligations incumbent on the client to comply with statutory or official regulations.

4. on-site services, supplies and aids

• 4.1. If services have to be provided outside OFI GmbH’s premises, the client shall ensure unhindered access (to all relevant objects). In the case of on-site services, the Customer shall take all necessary precautions to protect and safeguard the rights of third parties.
• 4.2. The cost of purchasing auxiliary equipment that is not part of the standard equipment, but is necessary for the execution of the contract, shall be borne by the client.
• 4.3. The client shall inform OFI GmbH comprehensively and in good time of any hazards at the place of use and any necessary protective measures.
• 4.4. The provision (connection and delivery) of water, electricity, lighting to the required extent and working scaffolds as well as safety equipment required for the professional execution of the work subject of the order must comply with the statutory regulations. The costs for this shall be borne by the customer, who shall also make provisions for their on-site provision in due time.

5. warranty

• 5.1. OFI GmbH’s warranty shall only cover the services ordered in accordance with item 2.
• 5.2. OFI GmbH’s warranty obligation shall initially be limited to improvement within a reasonable period of time. If the improvement fails, i.e. if it is impossible, unreasonable for the client or OFI GmbH, the client shall be entitled to demand a reduction of the fee. Conversion due to insignificant, unrecoverable defects is excluded. In this case, only an appropriate price reduction will be made.
• 5.3. The client shall inspect the work or services of OFI GmbH immediately after handover and shall notify OFI GmbH in writing of any defects found or ascertainable, failing which any warranty shall be excluded, without delay, but in any event within 7 (seven) calendar days of handover of the service (of the expert report, test report or similar).
• 5.4. Hidden defects must be reported in writing immediately after their discovery, but within the warranty period. Notices of defects do not entitle to partial or total retention of partial fee amounts.

5.5 The client’s warranty claims shall be limited to improvement or replacement, at OFI GmbH’s discretion.

• 5.6. The client’s warranty claims shall expire one year after handover of the work by OFI GmbH. The warranty period shall not be extended or interrupted by improvements or attempts at improvement, even if these are made outside the agreed warranty period.
• 5.7. Claims for damages and claims based on and arising out of claims of error, justified by any defective workmanship on the part of OFI GmbH, shall be excluded.

6. liability

• 6.1 OFI GmbH shall be liable for damages – on whatever legal basis – only if these are personal injuries, or if OFI GmbH has caused such damages intentionally or by gross negligence, or if OFI GmbH has breached a material contractual obligation by gross negligence. In the event of a breach of material contractual obligations, OFI GmbH shall always be liable only for the foreseeable damage typical of the contract at the time the contract was concluded.
• 6.2. OFI GmbH vouches for the application of scientific diligence as well as compliance with the state of the art, but not for the actual achievement or success of a certain result/success of the services pursuant to item 1.1 of these GTC.
• 6.3. Insofar as OFI GmbH is in breach of material contractual obligations pursuant to the foregoing Section 6.1. is liable for direct damage caused by gross negligence, its liability to pay compensation shall, however, be limited to EUR 75,000.00 per claim.
• 6.4. “Material contractual obligations” are those obligations that protect essential legal positions of the client, which the contract grants him according to its content and purpose.
• 6.5. Liability for damages caused by the violation of insignificant contractual obligations due to slight negligence is excluded. Furthermore, essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer may rely.
• 6.6. Claims for warranty and damages for which OFI GmbH shall be liable shall only exist if the client has notified OFI GmbH in writing without delay of any recognizable damage and has provided specific details thereof. Claims for damages by the client shall be excluded if they are not asserted in court within a period of three months after rejection by OFI GmbH or its financial loss insurance.

AGB OFI Technologie & Innovation GmbH, version 01.03.2019, page 4 (7)

• 6.7 Any claims for damages by the client against OFI GmbH (except in the case of intent on the part of the governing bodies/executive employees) shall become statute-barred within one year of the client becoming aware of its claim, unless the GTC elsewhere or the law stipulate a shorter limitation period.
• 6.8 OFI GmbH shall not be liable under any circumstances for consequential harm caused by a defect, in particular not for loss of profit, business interruption damage and loss of production, loss of information or data, other indirect damage or financial loss. Any legal liability that may nevertheless exist shall in any case be subject to all the restrictions set forth in Section 6 “Liability”. Compensation for data or software destruction is excluded. The Client shall always take precautions for its own data backup and data protection.

7. remuneration and payment terms

• 7.1. Unless a fixed price or another basis of assessment has been expressly agreed, remuneration shall be based on the time and effort expended by OFI GmbH and on OFI GmbH’s prices valid at the time the service is rendered. The statutory sales tax at the applicable rate shall be added; it shall be shown separately on the invoice. Any additional costs and expenses (including travel expenses, interpreting costs, transport and freight expenses, customs duties) shall be borne by the Client and shall be added to the fee.
• 7.2. OFI GmbH shall be entitled to invoice advances on costs, in particular in the case of new or foreign clients. Partial invoices may be issued for services already rendered. The issuing of a partial invoice does not mean the complete settlement of the order. Payments are due according to the agreed payment schedule or the agreed payment term.
• 7.3. If no payment plan has been agreed upon, the payment due pursuant to 7.1. and / or the fee invoiced by final invoice after acceptance of the work is due after the due date stated in the invoice. Payments shall be made without deduction to the account of OFI GmbH (IBAN and BIC), quoting the invoice number.
• 7.4. If the work that OFI GmbH must perform for the agreed services requires a period of more than 2 (two) months and if no payment plan has been drawn up, OFI GmbH shall be entitled after the expiry of this period to issue invoices on account to the client on a time and material basis.
• 7.5. Complaints about OFI GmbH’s invoices must be justified in writing within a preclusive period of 14 days after receipt of the invoice.
• 7.6. Duplicate invoices or subsequent changes to invoices for which the client is responsible or which are requested by the client shall constitute services of OFI GmbH subject to a charge. This does not affect the due date of the invoice.
• 7.7. If OFI GmbH is unable to perform its services because the client – despite being requested to do so – has not supplied documents or materials to be provided by it within a reasonable period of time, OFI GmbH shall be entitled to withdraw from the contract and to issue a final invoice.
• 7.8. OFI GmbH shall be entitled to demand immediate payment of all fee claims – including deferred payment claims – if the payment schedule has not been adhered to by the client. OFI GmbH shall also be entitled to perform outstanding services only against advance payment or to withdraw from the contract – granting a reasonable grace period – and to claim damages. The above provisions shall also apply if OFI GmbH becomes aware of circumstances that are likely to reduce the solvency or creditworthiness of the client.
• 7.9. Services to foreign clients are generally provided only against prior payment in full, unless otherwise agreed (including the provision of reasonable cost advances). In the event of such an agreement, OFI GmbH shall be entitled to provide security in the form of a bank guarantee in accordance with the

conditions of OFI GmbH. The payment and the bank guarantee shall be made in Euro.

• 7.10. If an agreed payment schedule is exceeded, the Client shall be deemed to be in default even without a further reminder. OFI GmbH shall be entitled to charge interest on arrears to entrepreneurs at a rate of 9.2% above the base interest rate plus compound interest; OFI GmbH shall also be entitled to charge reminder costs in the amount of EUR 40 gross per reminder. If the client is a consumer within the meaning of § 1 KSchG, the interest on arrears shall be 4% per year.
• 7.11. Furthermore, the client undertakes to reimburse OFI GmbH for the collection and recovery costs and expenses actually incurred as a result of its default in payment and which are necessary for the appropriate prosecution of the matter. Without prejudice to the obligation to reimburse costs under procedural law, this shall include in particular the out-of-court costs, the costs of reminders, the costs of a collection agency (in accordance with the remuneration for collection services set out in the Ordinance of the Federal Ministry of Economic Affairs of Federal Law Gazette 141/96, as amended, and valorized in accordance with § 4 (2) of this Ordinance) as well as the costs of intervening lawyers, insofar as these were expedient and necessary for the prosecution of the case.
• 7.12. The client shall not be entitled to set off any claims – of whatever kind – unless such claims have been legally established by a court or acknowledged in writing by OFI GmbH.
• 7.13. Several joint principals shall be liable jointly and severally.

8. secrecy and copyright

• 8.1. OFI GmbH shall be entitled to make copies of written documents which it has been given for inspection and which are relevant to the execution of the order and to keep them on file.
• 8.2. As far as in the course of the execution of the order expert opinions, test results, calculations and the like are provided. which are subject to copyright protection, OFI GmbH shall grant the client a right of use thereto which may not be transferred to third parties, insofar as this is necessary for the contractually agreed purpose. Further rights are not transferred, in particular the client is not entitled to use expert opinions, test results, calculations and the like. to change or edit, this also not in extracts. Publication or reproduction for advertising purposes – even in part – is prohibited in any case and requires the prior written consent of OFI GmbH in each individual case. In case of passing on, utilization and/or publication of the service result, the client is responsible for compliance with the legal provisions. Any infringements of industrial property rights of which the client becomes aware, including infringements by third parties, shall be reported to OFI GmbH without delay. The client shall indemnify and hold OFI GmbH harmless from and against any claims that may be raised by third parties.
• 8.3. Employees and contractors of OFI GmbH shall not use, pass on or exploit business and trade secrets of the client which come to their knowledge in the course of their work outside the execution of the order.
• 8.4. The obligation to maintain confidentiality shall remain in force even after termination of the contract and cooperation.

9. data protection OFI GmbH shall also collect, store, process and use personal data of the client exclusively for the purpose of processing the order. The data processing and use is carried out exclusively in accordance with the Basic Data Protection Regulation (EU), the Data Protection Act (DSG) and the associated regulations. Further details can be found in the privacy policy of OFI GmbH (www.ofi.at).

10. transport risk and storage of test material

• 10.1. The risk and costs of freight and transport of test material and material samples to and from OFI GmbH shall be borne by the client, who shall organize the transport. The transport must be coordinated in advance with OFI GmbH. Without exception, test material is only accepted during OFI GmbH opening hours. The client shall bear all costs, expenses, fees (including customs duties), labor costs and personnel expenses associated with the freight and transport of test materials to and from OFI GmbH.
• 10.2. The client shall be obligated, upon request by OFI GmbH, to immediately remove any test material that is not required or to immediately accept any test material that has been returned.
• 10.3. If test material or material samples cannot be handed over to the client or another office responsible for this, a reasonable storage fee may be charged for their safekeeping after completion of the tests. Test material that has not been destroyed shall be stored by OFI GmbH for 4 weeks after completion of the test and shall become the property of OFI GmbH without reservation, unless otherwise agreed, or unless the client has submitted a follow-up request or organized return transport by that time.
• 10.4. Tests can lead to the destruction or damage of the test material. OFI GmbH accepts no liability for damage to test material occurring during examinations or tests or for damage occurring during storage.
• 10.5. The client shall be liable for all costs and damages arising from the delivery or provision of an unsuitable test sample (including defective, incorrectly packaged test sample). Furthermore, for the costs/expenses of the return transport or disposal of the test sample as well as for damage and consequential damage to the facilities, equipment and installations used by OFI GmbH.

11. retention of title

• 11.1. The client receives rights to the results only upon full payment of the agreed fee. In the event of default in payment by the client, OFI GmbH shall be entitled to prohibit the use of the results and to withhold all reports and documents issued.
• 11.2. In the event that rights to the contractual results are resold, the client shall assign all rights arising from the resale to OFI GmbH with effect in rem until the agreed remuneration has been paid in full.
• 11.3. The client shall not be entitled to pledge OFI GmbH’s claims to ownership and use of the work or to transfer ownership by way of security.

12. statute of limitations

• 12.1. Claims of the client based on contractual basis as well as on tortious basis shall become statute-barred after the expiry of 12 months from the date of knowledge of the damage.
• 12.2. The limitation period for claims based on defects shall commence at the time of the agreed handover or – if no agreement has been made with regard to the time of handover – the actual handover of the result or the report. If no qualified defects are reported, results are considered accepted no later than 1 month after handover

13. termination or dissolution for cause

• 13.1. If the solvency or creditworthiness of the client should cease permanently (including for more than two months) after conclusion of the contract, OFI GmbH shall be entitled to withdraw from the contract or to amend the terms of the contract appropriately.
• 13.2. Both contracting parties are entitled to terminate / dissolve the contract with immediate effect by means of a registered letter in the event of good cause. Good cause shall be deemed to exist in particular if the opening of insolvency proceedings against the assets of the other contracting party is rejected for lack of assets to cover costs, or if the other contracting party breaches material contractual obligations, in particular payment obligations (e.g. default in payment of more than 14 days).

14. Loyalty and non-solicitation The contracting parties undertake to be loyal to each other. The client shall refrain from any enticement and employment (whether self-employed or employed), including via third parties, of employees of OFI GmbH as well as of employees of the shareholder of OFI GmbH or of companies and organizations affiliated with OFI GmbH who have participated in the processing of the order, for the duration of the contract and until one year after the end of the contract. In the event of infringement, the client undertakes to pay OFI GmbH a contractual penalty in the amount of one gross annual salary or remuneration last received by the employee concerned.
15. Severability clause Ineffective provisions of a contract do not affect the effectiveness of the remaining provisions. In the event that a provision of a contract is invalid, the contracting parties agree to replace it with a valid provision that comes as close as possible to the meaning and purpose of the invalid provision and its economic content. The GTC apply to consumers (in the sense of the KSchG), only insofar as they are not subject to mandatory rules of the Consumer Protection Act BGBI. No. 140/1979, as amended.
16. Choice of Law, Place of Jurisdiction and Miscellaneous

• 16.1. Subsidiary agreements, amendments and additions to these GTC must be made in writing.
• 16.2. The place of performance for services rendered by OFI GmbH shall be the registered office of OFI GmbH. The place of performance for payments by the client is Vienna.
• 16.3. This contract and the entire legal relationship between the contracting parties shall be governed by Austrian law, excluding its conflict of law provisions. The application of the UN Convention on Contracts for the International Sale of Goods is excluded in any case.
• 16.4. In the event of disputes arising out of or in connection with a contract, it is agreed (provided that the client has its registered office in the EU) that the court with subject-matter jurisdiction for Vienna shall have exclusive jurisdiction – although OFI GmbH shall also be entitled to bring actions before other courts for which the contracting party has a statutory place of jurisdiction. In the case of clients whose registered office is outside the EU, it is agreed that legal action against OFI GmbH may only be brought at the court having subject-matter jurisdiction for Vienna. For actions against the client, the non-exclusive jurisdiction of the court having subject-matter jurisdiction for Vienna is agreed.