1. Scope

1.1. These General Terms and Conditions (hereinafter “GTC”) apply to all contracts entered into by Frauscher Bootshafen und Bootshandel GmbH & Co KG, with its registered office in Gmunden and business address at Traunsteinstraße 14, A-4810 Gmunden, Austria, registered in the Austrian Commercial Register under registration number FN 26264 z, with the competent court being the Regional Court of Wels (hereinafter “Frauscher KG”), concludes with its customers. These General Terms and Conditions apply irrespective of the manner in which the contract is concluded; they therefore also apply where a contract is concluded using exclusively one or more means of distance communication, such as telephone, letter, fax or email. If the applicability of the General Terms and Conditions has been agreed in a contract, they shall apply to all subsequent contracts and, in general, to the entire business relationship between Frauscher KG and the customer, even if, in individual cases, the applicability of the General Terms and Conditions is not expressly agreed upon at the time a contract is concluded. The General Terms and Conditions shall continue to apply even after the termination of all contracts until they have been fully settled. The version of the General Terms and Conditions valid at the time the contract is concluded shall be decisive.

1.2. Any deviating or supplementary agreements negotiated in detail by both parties shall take precedence over the provisions of these General Terms and Conditions, provided they have been confirmed in writing by Frauscher KG.

1.3. Customers of Frauscher KG may be either consumers or business customers. Consumers are defined as such under the Austrian Consumer Protection Act (KSchG) and are therefore natural or legal persons who are not business operators. Business operators are natural or legal persons or partnerships with legal capacity for whom the present

contract forms part of the operation of their respective business.

1.4. The applicability of the customer’s General Terms and Conditions, in particular their terms and conditions of purchase, is expressly excluded; this exclusion is agreed upon with the applicability of these General Terms and Conditions. Any references to the applicability of the Customer’s General Terms and Conditions, in particular those contained in its business documents, shall be deemed not to exist. In the event of any dispute as to whether these General Terms and Conditions or the Customer’s

General Terms and Conditions apply, it is agreed that the applicability of the Customer’s General Terms and Conditions is excluded.

1.5. Frauscher KG is entitled to amend these General Terms and Conditions at any time; the amended version shall apply to all contracts concluded thereafter from the date of its publication on the Frauscher KG website.

2. Offer – Conclusion of Contract

2.1. All offers made by Frauscher KG are subject to change and non-binding; they may be subsequently amended, supplemented or withdrawn by Frauscher KG at any time prior to the conclusion of the contract.

2.2. The customer’s order shall be deemed a binding offer to conclude a contract of sale for the goods ordered.

2.3. The contract of sale is concluded when Frauscher KG either expressly accepts the customer’s order or effectively fulfils it by delivering the goods ordered, in each case within 30 days of receipt by Frauscher KG (dispatch of the acceptance or the goods). Once this period has expired, the customer is no longer bound by their offer and the contract of sale shall be deemed not to have been concluded.

2.4. Frauscher KG is entitled to refuse to accept the order – for example, following a credit check on the customer.

2.5. Contracts concluded with business customers are subject to the proviso that, in the event of incorrect or improper supply to Frauscher KG, performance may not be provided at all or only in part. In the event of non-availability or only partial availability of the service, the business customer shall be informed without delay. The consideration shall be refunded without delay.

2.6. Statements made by employees of Frauscher KG who cannot provide written proof of the relevant authority are not binding on Frauscher KG.

3. Retention of title

3.1. All goods delivered by Frauscher KG shall remain the property of Frauscher KG until full payment has been made of all claims arising from the business relationship with the customer.

3.2. The customer is obliged to treat the goods with due care whilst the retention of title remains in force. Where maintenance and inspection work is required, the customer must carry this out

at their own expense on a regular basis.

3.3. Prior to acquiring ownership, the customer is only entitled to resell, pledge or otherwise transfer goods subject to retention of title to third parties with the prior written consent of Frauscher

KG. If a third party asserts rights to the goods in the course of enforcement or insolvency proceedings, or if any other third-party claims are made, the customer must notify Frauscher KG of this immediately in writing and inform the third party that the goods are the property of Frauscher KG.

3.4. The customer shall indemnify Frauscher KG against all losses and costs arising from a breach of these obligations and from any necessary measures taken to prevent third-party claims on the goods.

3.5. Frauscher KG shall be entitled, in the event of the customer’s breach of contract, in particular in the event of default in payment, to withdraw from the contract and to demand the return of the goods.

3.6. In the event of the resale of the goods by a customer who is a trader, the customer hereby assigns to Frauscher KG all claims amounting to the invoice sum which accrue to them against a third party as a result of the resale, and undertakes to make a corresponding note in their books or on their invoices. Frauscher KG hereby accepts this assignment.

4. Right of withdrawal

4.1. In accordance with Section 5e of the Austrian Consumer Protection Act (KSchG), a customer who is a consumer is, in principle, entitled to withdraw from contracts concluded exclusively by means of distance communication within seven working days, calculated from the date of receipt of the goods by the customer or, in the case of

service contracts. Saturdays do not count as working days. No reason needs to be given for the withdrawal; timely dispatch is sufficient to meet the deadline.

4.2. However, there is no

right of withdrawal for contracts relating to goods manufactured to the customer’s specifications, or to goods which, by their nature, are not suitable for return (§ 5f(3) KSchG).

4.3. In the event of a valid withdrawal, the customer must return the goods received without delay and pay reasonable compensation for their use, including compensation for any associated reduction in the value of the goods. The customer is not entitled to a right of retention. The customer shall bear the costs of returning the goods.

5. Prices

5.1. Unless otherwise agreed in writing, the prices set out in the brochures and price lists of Frauscher KG shall apply; the version valid at the time the contract is concluded shall be decisive.

Prices are valid until further notice. All prices are subject to change.

5.2. The customer shall not incur any additional costs when placing an order using means of distance communication.

5.3. Any duties associated with import or export (such as customs duties), charges and costs associated with import or export shall be borne by the customer.

5.4. The costs incurred in connection with any delivery of the goods to the delivery address to be specified by the customer are not included in the prices quoted; these costs shall be borne by the customer in addition.

5.5. Frauscher KG is entitled, even after the conclusion of the contract, to amend prices at any time to a reasonable extent, taking due account of all circumstances relevant to the pricing (in particular changes in market conditions or in material and labour costs).

6. Due Date, Payment and Default

6.1. Upon the purchase of other goods or the procurement of other services from Frauscher KG, the customer shall pay the invoice amount, without any deduction and free of charges, into the account specified on the invoice within two weeks of receipt of the invoice, unless a different payment term is expressly agreed in writing in individual cases. Upon expiry of this

period, the customer shall be in default of payment.

6.2. Frauscher KG is entitled to invoice each individual partial delivery separately.

6.3. In the event of late payment, Frauscher KG shall be entitled to interest on arrears at a rate of 8% (eight per cent) above the base rate p.a., as well as compound interest at the same rate. The right to compensation for damages exceeding the interest on arrears remains unaffected.

6.4. Incoming payments shall first be applied against duties, fees, collection costs and interest on arrears, and then against the outstanding principal. Where there are both enforceable and non-enforceable claims, incoming payments shall first be applied against non-enforceable claims.

6.5. The customer shall pay or reimburse all expenses associated with the recovery of the claim, such as reminder fees and the costs of judicial and/or extrajudicial legal representation. Frauscher KG

is under no obligation to issue reminders.

6.6. The customer is not entitled to set off claims against those of Frauscher KG or to withhold due payments.

7. Collection, Delivery and Transfer of Risk

7.1. Unless delivery is expressly agreed in writing in individual cases, the goods must be collected by the customer from the Frauscher KG harbour shop at A-4810 Gmunden, Traunsteinstraße 14, at their own expense and risk.

7.2. In the event of a delivery (to be expressly agreed in writing), this shall be carried out using standard methods of dispatch, at Frauscher KG’s discretion, to the delivery address specified by the customer. Frauscher KG is entitled to make partial deliveries.

7.3. Where the customer collects the goods in person, the risk of loss or damage shall pass to the customer upon handover of the goods at the Frauscher KG shipyard.

7.4. In the event of delivery of the goods (which must be expressly agreed in writing), the risk and chance of loss or damage shall pass to the customer at the time the goods are handed over to the person or organisation designated to carry out the dispatch.

7.5. The handover shall be deemed to have taken place even if the customer is in default of acceptance. The customer shall be in default of acceptance if they fail to accept the proper performance offered to them.

8. Warranty

8.1. In the event of any warranty claims by the customer, Frauscher KG is entitled to refuse the chosen remedy if this is impossible or, compared with another remedy, involves a disproportionately high level of effort for Frauscher KG. In the case of customers who are business customers, Frauscher KG shall initially provide a warranty for any defects in the goods, at its own discretion, by repair or replacement.

8.2. Customers who are business customers must inspect the delivered goods for defects within a reasonable period and notify Frauscher KG of any defects in writing within one week of taking delivery of the goods; otherwise, the assertion of warranty claims, claims for damages and the right to rescind the contract on the grounds of mistake shall be excluded. Customers who are traders bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notice of defects.

8.3. The warranty period for customers who are consumers is two years from the date of taking delivery of the goods; for second-hand goods, it is one year from the date of taking delivery of the goods. However, in the event that the goods are (temporarily) made available to third parties in return for payment, the warranty period shall also be one year

from the date of acceptance of the goods, even for customers who are consumers. The warranty period for customers who are business customers is generally one year from the date of acceptance of the goods.

8.4. Any warranty claims by the customer must be brought before the courts within the warranty period, unless they are expressly acknowledged in writing by Frauscher KG.

8.5. For customers who are business customers, the assertion of warranty rights in connection with batteries installed in boats and yachts is excluded.

8.6. Frauscher KG does not provide any guarantees to its customers in the legal sense.

9. Limitations of Liability

9.1. Outside the scope of the Product Liability Act, Frauscher KG shall only be liable for damage caused by gross negligence or wilful misconduct. Liability for slight negligence, compensation for consequential damage and financial loss, lost savings, loss of interest, loss of profit and

damages arising from third-party claims against the customer is excluded.

9.2. The above limitations of liability do not apply in the event of bodily injury, damage to health or loss of life attributable to Frauscher KG. The limitation of liability for slight negligence does not apply in relation to consumers.

9.3. Frauscher KG accepts no liability for technical faults in the operation of its website and is liable only for its own content on the website. Where Frauscher KG provides access to other websites via links, Frauscher KG is not responsible for the third-party content contained therein.

9.4. The limitations of liability set out in this Section 9 also apply to any claims against employees, staff, shareholders, directors or agents of Frauscher KG.

9.5. Claims for damages against Frauscher KG shall become time-barred within six months of becoming aware of the damage and the party responsible for it.

10. Data Protection and Marketing Activities

10.1. In the event of a contract being concluded, Frauscher KG shall collect and process the personal data provided to it by the customer in its system and use this data for the duration of the contract’s performance. Personal data comprises all information on the basis of which a person can be identified directly or indirectly, e.g. name, residential address, email address, date of birth, occupation, bank account details, etc.

10.2. For the purposes of advertising, market research and tailoring its offering to customer needs, Frauscher KG creates and uses anonymised user profiles. The customer has the right to object to this, which may be exercised in writing at any time. Upon request, Frauscher KG shall provide the customer, free of charge, with information regarding the personal data stored in connection with the customer.

10.3. The customer may at any time request the rectification, erasure or restriction of the personal data stored by Frauscher KG.

10.4. The customer agrees to be informed about current offers, goods and services provided by Frauscher KG by telephone, by electronic data transmission (in particular by email), by fax, in writing or in person.

11. Final Provisions

11.1. The place of payment and performance for all services is A-4810

Gmunden, Austria.

11.2. Austrian law shall apply to the entire business relationship as well as to all contracts and mutual claims between Frauscher KG and the customer. The applicability of the

UN Convention on Contracts for the International Sale of Goods and the Austrian conflict-of-laws rules is excluded.

11.3. The court having subject-matter jurisdiction over proceedings between the parties to the dispute and territorial jurisdiction over Gmunden shall have jurisdiction over all disputes between Frauscher KG and the customer. Frauscher KG reserves the right, however, to bring legal proceedings against the customer at the customer’s general place of jurisdiction. In the case of customers who are consumers, the aforementioned place of jurisdiction shall only be deemed to have been agreed if the customer has their domicile, habitual residence or place of employment within that judicial district, or if the customer resides abroad.

11.4. Should any provision of these General Terms and Conditions be or become wholly or partially invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision which, in its economic substance, comes as close as possible to the invalid or unenforceable provision; the same shall apply mutatis mutandis to any omissions in these General Terms and Conditions.