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| GENERAL TERMS AND CONDITIONS (GTCs) |
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for the Sale and Delivery of Software Products
as well as for Non Exclusive Licences for the Use of Software Products |
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mediareif Möstl & Reif Kommunikations-
u. Informationstechnologien OEG
Breitenseerstrasse 110/20/11;
A-1140 Vienna;
AUSTRIA
Commercial Register no.: FN 215682 f;
VAT registration no.: ATU 56100203; |
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For the sale and delivery of products from the ComfortSQL product family, the conditions of sale and delivery specified in points 1 to 12 shall apply.
For the sale and delivery of organisation and programming services and non exclusive licences for the use of software products, the additional provisions specified in points 13 to 23 shall apply. The languages accepted for contracts, complaints, and orders are German and English. |
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| 1. CONTRACTUAL RELATIONSHIP |
| Information contained in our price lists, in advertisements, on our internet sites, and in sample consignments and assortments for selection shall always be subject to change. We explicitly reserve the right to change the information contained therein at any time. An order placed by the customer shall only be considered as an offer for the conclusion of a contract. Orders via our internet site shall be considered as placed with us at the point in time when we receive the electronic order message. |
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| 2. RIGHT OF RESCISSION |
| Purchasers who, according to the consumer protection law, are consumers may rescind from a distance selling contract (or a distance selling contractual acceptance) within fourteen working days after receipt of the ordered article. It shall be sufficient that the statement of rescission is sent off within the above mentioned period. There shall be no right to rescind from contracts concerning, amongst others, software, if the software product delivered has already been installed by the consumer using the generated product key delivered to the consumer. In case of a rescission the purchase price shall be completely refunded after return delivery of the articles received by the purchaser. Purchasers ordering as entrepreneurs, traders, or businesspeople shall have no right of rescission. |
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| 3. PRICES |
| Unless otherwise agreed in writing, only the prices indicated in our internet shop shall be valid. Orders which we accept by immediate delivery without a preceding confirmation of the order shall be carried out according to the list prices valid on the day of the order. |
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| 4. DELIVERY |
| a) Unless otherwise agreed, all deliveries shall be ex works. The articles shall be delivered to the delivery address indicated by the purchaser. Orders may also be placed by companies which are part of the same group as our company. Our position as contracting party shall not be affected thereby. |
| b) We shall endeavour to keep the indicated delivery dates, if possible. In general, even confirmed delivery dates shall be without engagement. |
| c) Deliveries will normally be carried out after receipt of your order. |
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| 5. TERMS OF PAYMENT |
| Unless otherwise agreed, our invoices shall be due for payment without discounts immediately after their receipt. If cash on delivery was agreed upon, the article shall be handed over to the purchaser only after complete payment of the invoice amount. Payments shall be transferred to the account specified on our invoices. Payments will be considered settled after having reached our account. All costs associated with payment shall be borne by the purchaser. In case of delay in payment, bank default interests as well as pre-litigation dunning costs shall be compensated by the purchaser. The purchaser shall be explicitly prohibited to transfer claims against us to third parties. |
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| 6. RESERVATION OF OWNERSHIP |
| Our deliveries shall always be carried out with the explicit reservation of our ownership of the delivered article until complete settlement of our receivables. Until our invoices have been completely paid, the purchaser shall be prohibited to pledge the article, to assign the article by way of security or to grant other rights thereto to third parties. The purchaser shall immediately notify us in writing of execution measures or other attachments of third parties prejudicing our legal position with regard to the article the ownership of which we reserve. The purchaser shall immediately object to such measures by referring to our reservation of ownership. |
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| 7. COPYRIGHT, PATENT LAW, SOFTWARE LICENCES |
| The purchaser shall acknowledge that the books and software products sold by us are protected by copyright laws and partly by patent laws. The purchaser shall be prohibited to reproduce, distribute, or otherwise use these articles for purposes other than personal use. Software products may only be used in compliance with the licences issued by the producer. Software may only be reproduced, processed, and decompiled in compliance with the provisions according to §§ 40d and 40e UrhG (Austrian Copyright Act). The limits established by the producer for the use of software according to regulations shall be observed in any case. |
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| 8. WARRANTY AND LIABILITY |
| a) Deficient articles shall be sent back to us. It shall then be our decision whether we will improve the article in question or provide the purchaser with a replacement article which is free of defects. The provisions, use restrictions, and instructions provided by the producer of the respective article shall apply. The usability of ordered articles for certain purposes of the purchaser shall not be part of the contract. |
| b) Beyond the above defined warranty limits, we exclude all liability on our part, including liability for damage as long as it does not arise from intent or negligence. In this sense, especially compensation for any consequential damages, other indirect damages and loss or missed profit due to defective or delayed delivery or failure to deliver shall be excluded. |
| c) Liability for personal injury as well as liability according to the Produkthaftungsgesetz (Product Liability Act) shall not be limited by the foregoing provision. |
| d) We shall not be held liable for the content of the products sold by us nor for the admissibility of marketing them in the country of the place of delivery indicated by the purchaser. |
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| 9. JURISDICTION, APPLICABLE LAW, MISCELLANEOUS |
| a) Any dispute arising from or in connection with business relations, except for consumer business, shall be subject to the exclusive jurisdiction of courts of Vienna. We shall be authorised to instigate proceedings against the purchaser at our own discretion also at the purchaser's place of jurisdiction. |
| b) Austrian law shall be applicable as long as mandatory legal provisions according to the purchaser's law of nationality (lex patriae) do not oppose it. The application of the UN Convention on Contracts for the International Sale of Goods shall be excluded. |
| c) The invalidity of individual provisions shall not affect any of the remaining provisions of the present GTCs for sale and delivery. If we do not make use of individual or all rights hereby granted to us, it shall not be inferred that we waive these rights. |
| d) The place of performance for both parts shall be Vienna. |
| e) The purchaser shall acknowledge that the order data are automatically processed and stored. The purchaser explicitly agrees that its address data is entered into our customer file and, until revoked, consents to receiving of customer information. |
| f) The purchaser's data shall be used for order registration, invoicing, and accounting. |
| g) We shall not pass on the purchaser's data to a third party with the exception of cases where it is necessary for executing the order. Our partners shall also be bound to a strict data protection and privacy policy. |
| h) We recognise the Internet Ombudsmann (internet ombudsman) as an institution for extrajudicial dispute settlement, but without waiving due legal recourse. |
| Internet Ombudsmann, Margaretenstraße 70/2/10, 1050 Vienna, Austria; Tel.: +43-1-5952112-95; Fax: +43-1-5952112-99; e-mail: beratung@ombudsmann.at; http://www.ombudsmann.at |
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| 10. DATA PROTECTION |
| a) In general: You may visit our site without providing personal data. We shall only store non-personal access data, such as the name of your internet service provider; the site from where you are visiting our site; or the name of the requested file. These data shall only be evaluated with view to improving our offer and do not allow for any conclusions with view to your person. |
| b) Collection, processing, and use of personal data: Customer data shall be collected, stored, and used exclusively for the execution of the order according to the relevant data protection provisions. For deliveries to Germany, these provisions are contained in the Bundesdatenschutzgesetz (BDSG) (German Federal Data Protection Act) and the Teledienstedatenschutzgesetz (TDDSG) (German Teleservices Data Protection Act). We shall only collect personal data, if you voluntarily provide us therewith in the course of placing an order, opening a customer account, or registrating for our newsletter. Without your explicit consent, we shall only use the data provided by you for executing your order. If you have not explicitly consented to a further use of your data, your data shall be blocked for other uses and deleted after the fulfilment of the contract and the complete payment of the invoice amount, and after the periods prescribed by tax law and commercial law have expired. |
| c) Passing on customer data: In order to execute your order, we shall only pass on your personal data to the delivery service responsible for the delivery. You shall have the right to free inquiries as well as the right to correct, block, and delete the data saved at any time. To this end, please send an e-mail to our sales department or send us a letter or fax. We shall not pass on personal data, including your address and e-mail address, to a third party without your explicit consent which shall be revocable at any time. Our service partners, who require the transfer of data for executing the order (e.g. the delivery company responsible for the delivery or the bank responsible for executing the payment), shall be exempt from this provision. In these cases, the extent of the data which are passed on shall be reduced to the necessary minimum. We are implementing technical and organisational security measures in order to protect the personal data managed by us against incidental or intentional manipulation, loss, destruction, and unauthorized access. |
| d) Customer account: If you register as a customer, we will save your name and address in a customer data base. |
| e) Cookies: In order to enable you to place orders in online shops, a so called session cookie is set when you retrieve certain sites. A session cookie is a small text file which will be automatically deleted from your computer after the end of the browser session. |
| f) Person in charge of data protection: If you have questions concerning the collection, processing, and use of your personal data, or if you want to inquire about, correct, block, or delete data or revoke a consent, please contact: Mediareif Möstl & Reif Kommunikations- u. Informationstechnologien OEG, Breitenseerstraße 110/20, 1140 Vienna, Austria, reif@mediareif.at. |
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| 11. INFORMATION CONCERNING REVOCATION AND RETURN |
| According to § 312d BGB (Austrian Civil Code), the customer shall have the right to revocation and return in the case of a distance selling contract. According to § 312d BGB, this right to revocation shall not apply in the case of the delivery of articles produced according to customer specifications. In the following cases there shall be no right to revocation and return:
- articles which are distinctly adapted to personal needs;
- articles which, due to their nature, are not suited to be returned;
- software, in case it has already been installed by the consumer using the generated product key delivered to the consumer.
According to § 312d BGB, there shall be no right to revocation either, if the seller has started implementing the service with the explicit consent of the consumer before the expiry of the revocation period, or if the consumer has itself caused the seller to start implementing the service before the expiry of the period. |
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GENERAL TERMS AND CONDITIONS (GTCs)
for the Sale and Delivery of Organisation and Programming Services as well as for Non Exclusive Licences for the Use of Software Products |
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| 12. SCOPE AND VALIDITY OF CONTRACTS |
| All orders and agreements shall only be legally binding if they are placed in writing and are duly signed by the seller. They shall only be binding to the extent specified in the confirmation of the order. The applicability of the purchasing conditions of the purchaser shall herewith be excluded for the present legal transaction and the overall business relations. Offers shall in principle be subject to change. |
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| 13. SERVICE AND INSPECTION |
| a) The following may be subject of an order:
- developing organising concepts
- global and detail analyses
- developing individual programmes
- purchasing exclusive licences for the use of software products
- purchasing non-exclusive licences for the use of software products
- commissioning support (adjustment support)
- maintenance of programmes
- developing programme carriers
- other services |
| b) The development of individual organising concepts and programmes shall be carried out based on the type and scope of binding information, documents, and support which shall all be provided in their entirety by the purchaser. This shall also include text data suitable for practical application as well as sufficient test opportunities provided by the purchaser in time, during normal working hours, and at its expense. If the system made available for tests is already in live operation and used by the purchaser, the purchaser shall be responsible for the backup of live data. |
| c) The development of individual programmes shall be based on a written performance specification which is drawn up and made available by the seller based on the documents and information placed at the seller's disposal, or which is drawn up in the framework of a joint workshop. Said performance specification shall be confirmed by the purchaser. The purchaser shall examine whether said performance specification is correct and complete and add its note of confirmation. If changes are desired later on, this may entail new agreements with view to deadline and price. |
| d) Individually developed software or programme adaptations shall be subjected to an acceptance inspection by the purchaser no later than two weeks after delivery. The acceptance inspection of the programme shall be confirmed by the purchaser in a protocol. (Inspection of correctness and completeness based on the performance specification which was accepted by the purchaser using the test data made available.) If said two-week-period expires without that an acceptance inspection was carried out by the purchaser, the software shall be considered accepted. If the software is used by the purchaser in live operation, the software shall in any case be considered accepted. Defects, which shall be defined as deviations from the performance specification agreed upon in writing, shall be sufficiently documented by the purchaser and reported to the seller, who shall strive to eliminate the defects as soon as possible. If there were significant defects of which the seller was notified in writing, i.e. if live operation may not be started or continued, a new acceptance inspection shall be carried out after the elimination of the defects. |
| ee) If it becomes apparent in the course of work that fulfilling the order according to the performance specification is factually or legally impossible, the seller shall be obliged to immediately notify the purchaser. If the purchaser does not change the performance specification accordingly or does not create the preconditions allowing the fulfilment of the order, the seller may refuse to execute the order. If the order cannot be fulfilled due to a failure on the part of the purchaser or due to a subsequent change of the performance specification by the purchaser, the seller shall have the right to withdraw from the order. The costs incurred until that point in time for the seller's work as well as expenses and possible disassembly costs shall be compensated by the purchaser. |
| f) Programme carriers, documentation, and performance specifications shall be shipped at the purchaser's expense and risk. If the purchaser desires additional trainings and explanations, these shall be separately invoiced. Insurance contracts shall only be concluded at the purchaser's request. |
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| 14. PRICES, TAXES, FEES |
| a) All prices listed are quoted in Euro and do not include turnover tax. They shall only be valid for the present order. The prices quoted are ex business domicile or branch office of the seller. |
| b) The purchaser shall be charged separately with transportation expenses, daily allowances, and overnight expenses according to the valid rates. Transit times shall be considered as working time. |
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| 15. DELIVERY DATE |
| a) The seller shall endeavour to keep the agreed dates of performance (completion) as exactly as possible. |
| b) The intended dates of performance can only be met, if the purchaser places all necessary work and documents, especially the confirmed performance specification, in their entirety at the seller's disposal at the established dates and if the purchaser fulfils its obligation to cooperate to the extent required. The seller shall not be held responsible for delays in delivery and cost increases that result from incorrect, incomplete, or subsequently changed data and information or documentation provided by the purchaser. Such delays shall not result in the seller’s being in default of delivery. Additional costs which result therefrom shall be borne by the purchaser. In the case of orders which comprise several units or programmes, the seller shall have the right to carry out partial deliveries and issue partial invoices. |
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| 16. PAYMENT |
| a) The seller's invoices shall be paid inclusive of turnover tax without discounts within seven days after receipt of the invoices. For partial invoices the terms of payment agreed upon for the overall order shall apply. Unless otherwise agreed, the purchaser shall pay 30 % of the amount specified in the order confirmation as advance payment immediately after receiving the order confirmation, 40 % at the occasion of the installation on site, and the remaining receivables without discounts after fourteen days of live operation. All payments shall be made to the indicated bank account. |
| b) In the case of orders which comprise several units (e.g. several programmes and/or trainings, implementations in several steps), the seller shall have the right to issue an invoice after the delivery of each unit or service. |
| c) Complying with the agreed dates of payment constitutes an essential prerequisite for the delivery and the fulfilment of the contract on the part of the seller. If the agreed payments are not made, the seller shall have the right to stop all current work and to rescind from the contract. All costs arising therefrom as well as from missed profit shall be borne by the purchaser. In the case of delay in payment, default interests according to the common bank rates shall be charged. If, in the case of partial payments, two subsequent instalments are not paid, the seller shall be entitled to claim the immediate payment of the whole sum and make payable the acceptances which were handed over. |
| d) The purchaser shall not be entitled to withhold payments due to incomplete total deliveries, warranty or liability claims, or complaints. |
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| 17. COPYRIGHT AND USE |
| a) The seller or its licencers shall be entitled to all copyrights of the agreed services (programmes, documentation etc.). The purchaser shall just be entitled to use the software, after having made the agreed payments, only for personal purposes, only for the hardware specified in the contract, and only in compliance with the acquired number of licences for the simultaneous use of the software on several workstations. With the present contract, only a non-exclusive licence shall be acquired. The distribution by the purchaser shall be excluded in compliance with copyright law. The purchaser shall not, by its cooperation in the development of the software, acquire any rights going beyond the use established by the present contract. Every infringement of the seller's copyrights shall result in damage claims, whereby in such cases full amends shall be made. |
| b) If the software does not include an explicit prohibition of the licencer or third parties, the purchaser shall be allowed to make copies for archiving and backup purposes if all notes with view to copyright and ownership are included unchanged in the copies,. |
| c) If the disclosure of interfaces is necessary in order to provide interoperability of the present software, the purchaser shall ask the seller for said disclosure which will be carried out against payment. If the seller does not comply with this request and a decompilation is carried out in compliance with copyright law, the results shall exclusively be used in order to provide interoperability. Abuse shall entail damage claims. |
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| 18. RIGHT OF RESCISSION |
| a) If the agreed delivery time is exceeded solely due to the seller's fault or unlawful conduct, the purchaser shall be entitled to withdraw the order concerned by registered letter, if essential parts of the agreed service are not delivered within a reasonable grace period and there is no failure on the purchaser's part. |
| b) Force majeure, industrial disputes, natural disasters, and transportation embargos as well as other circumstances beyond the seller's reasonable control shall release the seller from the delivery obligation and shall entitle the seller to fix a new delivery date. |
| c) Cancellations on behalf of the purchaser shall only be possible after having obtained the written consent of the seller. If the seller agrees to a cancellation, it shall have the right to charge, in addition to the already delivered services, a cancellation fee amounting to 30 % of the order value of the overall project which has not yet been settled. |
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| 19. WARRANTY, MAINTENANCE AND CHANGES |
| a) Defect claims shall only be valid, if they concern reproducible defects and if they are filed in writing within four weeks of the delivery of the agreed service or, in the case of individual software, within four weeks of the acceptance inspection according to 14d). If a defect claim is justified, the defects shall be eliminated within a reasonable period of time, whereby the purchaser shall enable the seller to carry out all measures necessary for inspecting and eliminating the defect. |
| b) Corrections and additions which, due to organisational shortcomings and programme defects for which the seller is responsible, become necessary before the agreed service is delivered shall be carried out free of charge by the seller. |
| c) Costs of support, fault diagnosis, and the elimination of faults and malfunctions shall be borne by the purchaser, and other corrections, changes, and additions shall be carried out by the seller against payment. This shall also hold true for the elimination of defects, if programme changes, additions, or other interventions were carried out by the purchaser itself or a third party. |
| d) Moreover, the seller refuses any liability in case of faults, malfunctions, or defects which are due to improper operation; changes of components of the operating system, interfaces, and parameters; the use of unsuitable organisation resources and data carriers, if special organisation resources and data carriers are prescribed; abnormal operating conditions (especially deviations from the installation and storage conditions) as well as transport damage. |
| e) The seller refuses any liability for programmes which are subsequently changed by programmers of the purchaser or third parties. |
| f) If changes of or additions to existing programmes are subject of the contract, the warranty provisions shall only apply to said changes or additions. The warranty provisions concerning the original programme shall not be revived thereby. |
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| 20. LIABILITY |
| The seller shall be held liable for damage in the framework of the relevant legal provisions, if intent or gross negligence can be proved. Liability for slight negligence shall be excluded. |
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| 21. DATA PROTECTION, NONDISCLOSURE |
| The seller shall oblige its staff to comply with the provisions according to §20 Datenschutzgesetz (Data Protection Act). |
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| 22. MISCELLANEOUS |
| If individual provisions of this contract are or become invalid, this shall not affect any of the remaining provisions of this contract. The contracting parties shall cooperate in finding provisions which come as close as possible to the invalid provisions. |
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| 23. CONCLUDING PROVISION |
| Unless otherwise agreed, the legal provisions applicable between businesspeople shall exclusively be provisions according to Austrian law. This shall also be the case, if the order is executed abroad. In case of disputes, the local jurisdiction of the court which is competent at the seller's business domicile shall be agreed upon. |
