AGB
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions (GTC) shall apply exclusively to all deliveries and services provided by MOONS GmbH (hereinafter referred to as “MOONS”) to its customers, as well as to all rights and obligations arising therefrom, in their respective valid version.
1.2 Any terms and conditions of the customer that conflict with or deviate from these GTC shall only apply if expressly acknowledged by us in writing. The GTC of MOONS shall therefore also apply if we perform deliveries and services without reservation while being aware of conflicting or deviating terms and conditions of the customer.
1.3 These GTC shall also apply to all future transactions between the contracting parties, even if they are not expressly referred to again.
2. OFFERS & CONCLUSION OF CONTRACT
2.1 Offers prepared by MOONS GmbH are non-binding for the customer unless a contract is subsequently concluded.
2.2 The content and concept of any offer prepared by MOONS remain the intellectual property of MOONS, which alone holds all rights of use. If no contract is concluded with MOONS, the customer shall return all project documents and materials. Even if a contract is concluded, the customer may neither reproduce the offer nor make it or any other project documents accessible to third parties without the express written consent of MOONS. Conversely, MOONS shall also not disclose the content or concept of the offer to third parties.
2.3 A contractual relationship shall be deemed concluded when MOONS issues a written order confirmation to the customer after receipt of an order or purchase order, or when delivery has taken place.
2.4 The content and scope of the order shall be governed exclusively by the written offer and, where applicable, the written order confirmation and any written agreements referring thereto between the parties. Information provided in the online shop, brochures, catalogs, and other sales materials shall only be binding for MOONS if expressly referenced in the order confirmation. MOONS does not owe any additional characteristics beyond this. Representations in the online shop, test programs, product and project descriptions, presentations, and similar materials do not constitute guarantees of characteristics. Any guarantees of characteristics require explicit written confirmation.
2.5 Amendments or supplements to the contract shall only be valid if MOONS has given its express written consent. If such changes or circumstances unknown to MOONS at the time the order was placed result in additional costs, these shall be invoiced to the customer separately.
3. PERFORMANCE OF THE CONTRACT
3.1 The customer shall provide MOONS GmbH with all data and other information relevant for the performance of its services in full, make them available at the customer’s own expense, and obtain any necessary approvals from third parties. Should any changes arise in this respect during the performance of the contract, the customer is obliged to notify MOONS without delay. MOONS is not obliged to verify the completeness or accuracy of data, information, or other services provided by the customer and shall not be liable for damages resulting from incorrect or incomplete information provided by the customer.
3.2 All communications from the customer to MOONS must be made in writing.
3.3 The customer shall notify MOONS immediately in writing of any changes to their name or address. If no such notification is made, written correspondence shall be deemed received by the customer if sent to the last address provided by the customer. Requests for changes relating to invoices shall not postpone their due date.
3.4 MOONS is entitled, after prior notification to the customer, to engage third parties in its own name and at its own expense
to perform the contract or individual contractual services, provided that the customer’s interests are not adversely affected. MOONS shall be liable for the conduct of such third parties as for its own conduct.
4. REMUNERATION, INVOICING
4.1 Unless otherwise agreed, the agreed prices shall be net prices in euros ex works Graz, excluding packaging, loading, disposal, and insurance. Any duties or charges levied in connection with the delivery shall be borne by the customer. If delivery with shipment is agreed, the delivery costs and any transport insurance requested by the customer shall be invoiced separately.
4.2 Compliance with the agreed prices presupposes that the positions underlying the agreement remain unchanged and can be performed without impediments for which MOONS GmbH is responsible. Subsequent, unforeseeable extensions or changes resulting in additional effort shall be remunerated by the customer in addition. If, more than two months after conclusion of the contract, duties or other third-party costs included in the agreed price change (e.g., costs of MOONS’ suppliers, wage costs, taxes, etc.), MOONS shall be entitled to adjust the price accordingly.
4.3 Agreed remuneration—i.e., including agreed deposits or advance payments as well as the remaining purchase price—shall be due for payment immediately upon receipt of the invoice. The customer shall bear the costs of payment transactions.
4.4 Any agreed cash discount shall always relate to the net invoice amount and presupposes the full settlement of all due liabilities of the customer at the time the discount is granted. Unless otherwise agreed, discount periods commence on the invoice date.
4.5 In the event of late payment, including with respect to agreed partial payments, MOONS is entitled to charge the customer all costs necessary for appropriate legal enforcement as well as reminder fees of EUR 39.00 from the second reminder email onward. All outstanding claims (including deferred or not yet due claims) shall become immediately due and payable. MOONS is furthermore entitled to make further deliveries and services under an ongoing contract contingent upon advance payment by the customer or the provision of bank guarantees.
4.6 In addition, in the event of late payment, MOONS is entitled to withdraw from the contract with respect to orders not yet delivered and to claim a cancellation fee—not subject to judicial mitigation—equal to the damage incurred, but at least 30% of the gross invoice value, as liquidated damages. The cancellation fee shall also be payable if the customer unjustifiably withdraws from the contract.
4.7 Objections to invoiced claims must be raised by the customer within 30 days of the invoice date; otherwise, the claim shall be deemed acknowledged.
4.8 The customer is not entitled to set off claims against MOONS’ claims unless MOONS becomes insolvent or the counterclaim is acknowledged or legally established.
4.9 The customer is not entitled to withhold or reduce payments on the basis of claims asserted against MOONS.
4.10 The customer shall not be entitled to plead insecurity or the defense of non-performance pursuant to Section 1052 of the Austrian Civil Code (ABGB).
5. RETENTION OF TITLE, ASSIGNMENT OF RIGHTS AND OBLIGATIONS
5.1 Until full payment has been made by the customer, ownership of the contractual goods and services shall remain with MOONS GmbH. The customer is obliged to take all legal measures necessary to safeguard and protect MOONS’ ownership; in particular, pledging, transfer by way of security, or any other form of disposal is prohibited.
5.2 The assignment of rights and obligations under the contract by the customer to third parties, as well as the transfer of the entire contract to a third party, shall require the prior express written consent of MOONS. This shall also apply to the granting of any other rights, such as licenses, and to any other factual or legal disposition of the contract in whole or in part. The customer shall notify MOONS immediately of any pledge or other impairment of the goods subject to retention of title by third parties.
5.3 If MOONS has consented to the further use of the delivered goods or services by third parties, the respective rights and obligations shall be transferred to such third party. Notwithstanding the foregoing, the customer shall remain liable to MOONS for all obligations arising prior to the transfer. Furthermore, in the event of a breach of contract by the third party, the customer shall indemnify and hold MOONS harmless and hereby already assigns to MOONS all claims arising from the transfer, including all securities, against the customer’s buyer as security for MOONS’ payment claims.
5.4 MOONS authorizes the customer, subject to revocation, to collect the assigned receivables. MOONS shall not exercise its own right of collection as long as the customer complies with its payment obligations. At MOONS’ request, the customer shall name the debtors of the assigned receivables and notify them of the assignment. MOONS is also entitled to notify the debtors of the assignment itself.
5.5 With regard to receivables arising from the resale or processing of a contractual item, any part thereof, or a processed item, an absolute prohibition of assignment is hereby agreed.
5.6 If the customer is in default of one or more payments in whole or in part, or if insolvency proceedings are applied for against the customer’s assets, MOONS shall be entitled to revoke the authorization to resell and to withdraw from the contract without having to grant the customer a grace period for performance.
6. DELIVERY, SHIPMENT AND TRANSFER OF RISK
6.1 Delivery dates that are not expressly agreed as binding shall be non-binding. The customer shall be obliged to accept delivery even in the event of early delivery.
6.2 MOONS GmbH shall only be in default if the customer issues a reminder to MOONS granting a reasonable grace period (at least four weeks), such period expires without success, and the further statutory requirements for default are met.
6.3 If the customer is in default with acceptance of the goods or services or refuses acceptance, the customer shall be obliged to reimburse MOONS for the expenses incurred.
6.4 The place of performance for deliveries by MOONS shall be the registered office of MOONS. The place of performance for services provided by MOONS shall be determined by the content of the respective contract.
6.5 In cases of force majeure, the contractual obligations of both parties shall be suspended for the duration of the impediment. Events of force majeure shall also include labor disputes, transport delays, machine breakdowns, product-related failures, official measures, and other circumstances beyond MOONS’ control, regardless of whether they occur at MOONS or at a supplier. If delivery or performance becomes impossible due to such circumstances, the parties shall no longer be bound by the contract.
6.6 Goods notified as ready for shipment shall be accepted by the customer without delay. Otherwise, MOONS shall be entitled to store them at the customer’s cost and risk or—subject to agreement with the customer—dispatch them again at the customer’s cost and risk. In the absence of a special agreement, MOONS shall choose the means and route of transport.
6.7 The risk shall pass to the customer upon handover to the carrier or upon commencement of storage.
6.8 If shipment or delivery is delayed at the customer’s request, for reasons attributable to the customer, or due to force majeure, the risk shall pass to the customer from the date the goods are ready for shipment for the duration of the delay.
6.9 Delivered items shall be accepted by the customer even if they have defects; partial deliveries are permissible.
6.10 If contractual items are to be exported, the customer shall be responsible for compliance with the applicable statutory import and export regulations and shall, in particular, obtain the relevant export permits at its own expense.
6.11 Any resale of the delivered products or services, as well as their use, in the states of Russia and Belarus is expressly prohibited pursuant to Article 12g of Regulation (EU) No. 833/2014 and Article 8g of Regulation (EU) No. 765/2006.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Any existing know-how and any know-how, ideas, inventions, and patents contributed to the development of the respective contractual performance or developed in the course of performing the contract shall remain the exclusive intellectual property of MOONS GmbH.
7.2 All records, documents, working papers, and other materials relating to the project that are transmitted to the other contracting party—regardless of the form—shall remain the exclusive property of the transmitting party. They shall be treated as confidential by the receiving party, used exclusively for work during the term of the contract, and returned immediately upon request of the other party. The confidentiality obligation shall end five years after termination of the respective business relationship. If MOONS engages third parties to perform contractual services, MOONS shall impose the same confidentiality obligations on such third parties.
7.3 If a service provided by MOONS is based on information, documents, or plans supplied by the customer or by third parties associated with the customer, the customer shall ensure that all copyrights necessary for the use of the work are duly granted.
7.4 Upon fulfillment of its financial obligations under the contract, the customer shall receive, for the term of the contract, a non-exclusive, non-transferable license to use all ideas, know-how, and inventions of MOONS—whether patented or not—that are relevant to the performance of the contract, solely for the purpose of fulfilling the contractual purpose and for no other purposes.
7.5 Any other form of use—particularly publication, disclosure, or making available to unauthorized third parties, or sublicensing for consideration or free of charge—is prohibited. Compliance with this provision constitutes a material contractual obligation. In the event of a breach, the customer undertakes to pay a contractual penalty—not subject to judicial mitigation—in the amount of ten times the order value.
7.6 The customer shall not remove, process, alter, obscure, or render illegible any ownership notices, trademarks, network markings, or similar identifiers affixed to or accompanying the delivered contractual items.
7.7 MOONS warrants that it is not aware of any circumstances—particularly third-party intellectual property rights—that would hinder or render unlawful the development and manufacture of the contractual items.
7.8 If the customer is claimed against for infringement of third-party intellectual property rights in the course of ordinary use of the contractual item, the customer shall notify MOONS in writing immediately (within two working days). The customer shall refrain from making any statements, acknowledgments, or settlement proposals to the claimant. MOONS shall defend the claim or modify the contractual item accordingly. If the customer’s contractual use of the product is permanently prohibited due to infringement of existing third-party rights, MOONS shall, subject to economic feasibility, either (i) modify the contractual item to avoid infringement, or (ii) acquire the necessary rights in the infringed intellectual property for the customer.
7.9 Apart from the foregoing provisions, MOONS shall not assume any liability for agreements or settlements concluded by the customer without MOONS’ express written consent, nor for proceedings that also concern products other than those sold and manufactured by MOONS.
7.10 The customer shall indemnify and hold MOONS harmless with respect to infringements of third-party intellectual property rights arising from: (i) contractual items created exclusively on the basis of drawings, plans, or other specifications provided by the customer; (ii) components, parts, or similar items supplied to MOONS by the customer; and (iii) claims resulting from the installation, use, development, or modification of the contractual item by the customer or by a third party engaged by the customer.
8. DATA PROTECTION
8.1 The customer agrees that the personal data provided may be stored and processed by MOONS GmbH. This consent may be revoked by the customer at any time in writing.
9. WARRANTY
9.1 MOONS GmbH warrants that the respective contractual item is in operable condition on the date of delivery and possesses the properties expressly agreed in the contract or otherwise customarily expected.
9.2 The customer is aware of the essential functional features of the contractual item. The customer has informed itself of all necessary circumstances, of the possible risks in general and in relation to the specific project in particular, as well as of any applicable legal regulations when using the contractual item. Any uncertainties were clarified prior to conclusion of the contract either with MOONS employees or qualified third parties. The customer therefore bears the risk of whether the contractual item meets its wishes and needs.
9.3 The customer shall inspect the contractual item for defects immediately upon receipt and shall notify MOONS in writing, in detail, of any defects within 14 working days. Hidden defects discovered later shall be reported without delay. Failure to comply with the inspection and notification obligations shall result in forfeiture of the customer’s warranty claims, claims for damages due to defects, and claims based on error regarding the absence of defects.
9.4 In the event of complaints, the customer shall immediately grant MOONS the opportunity to inspect the goods complained of. Upon request, the complained-of goods shall be sent to MOONS at MOONS’ expense. In the event of unjustified complaints, the customer shall reimburse MOONS, upon request, for the costs associated with the inspection of the goods (transport, inspection effort).
9.5 Customary or minor technical or optical deviations in quality, color, size, equipment, or design that cannot be avoided do not constitute defects and therefore do not give rise to warranty or damage claims.
9.6 Insofar as a defect attributable to MOONS exists, MOONS shall remedy the defect at its discretion by repair or replacement. Rescission (cancellation) and price reduction are excluded.
9.7 The limitation period for warranty claims shall be twelve months from delivery.
9.8 The burden of proof that the defect existed at the time of delivery rests with the customer (including within the first six months after delivery). The reversal of the burden of proof pursuant to Section 924 sentence 2 of the Austrian Civil Code (ABGB) is therefore excluded.
9.9 Any warranty claims of the customer exceeding these provisions are excluded, in particular claims for compensation for damages not occurring to the contractual item itself. This shall not apply where liability is mandatory in cases of intent, gross negligence, or absence of expressly warranted characteristics.
9.10 No warranty shall be assumed in any case for defects resulting from:
– improper or unsuitable commissioning, use, or handling;
– non-compliance with installation requirements and operating conditions;
– normal wear and tear or overuse;
– use of unsuitable operating materials or processing by the customer using products of other origin;
– infringement of third-party intellectual property rights arising from MOONS manufacturing and delivering in accordance with drawings and specifications provided by the customer;
– transport damage.
9.11 The warranty shall lapse immediately if the customer itself or a third party not expressly authorized performs modifications, repairs, or adaptations to the contractual item without MOONS’ written consent. Invoices for such work shall not be recognized.