General Terms and Conditions of COPA-DATA USA Corp.
1. SCOPE OF APPLICATION
1.1. These General Terms and Conditions (in the following „GTC“) shall apply to any business relations between Ing. Punzenberger COPA-DATA GmbH as contractor (in the following „the Contractor“), and the customer (in the following „the Customer). The version valid at the time of conclusion of the Contract shall prevail.
1.2. The GTC shall apply to any deliveries and services, hardware deliveries and software deliveries, however for the latter they shall only apply if no separate software agreement is made.
1.3. Modifications of, respectively supplements to these GTC shall only apply if they have been agreed explicitly and in writing between the Contractor and the Customer. 1.4. Any terms and conditions deviating from, conflicting with or supplementing these GTC, even if they are known to both parties, shall not become subject matter of the Contract, unless their validity has been approved explicitly and in writing by the Contractor.
2. CONCLUSION OF CONTRACT
2.1. The offers made by the Contractor shall be subject to confirmation and not binding.
2.2. The Contract shall not come into force before a written order confirmation has been given, respectively the execution of the order has been started by the Contractor.
2.3. In the event of non-fulfilment of the Contract for reasons the Customer is accountable for, the Contractor shall have the right to charge 15% of the net value of the order. The application of the court’s right to reduce fines shall be excluded. Irrespective thereof, the Contractor reserves the right to claim the actual damage, i.e. the damage exceeding the contractual penalty.
3. DELIVERY AND RISK ASSUMPTION
3.1. Any deliveries, respectively any dispatch of services and goods of the Contractor shall be made ex Salzburg (seat of the Contractor’s company) and at the Customer’s expense and risk. The risk shall pass to the Customer from the moment the subject of delivery is ready for dispatch or collection or is handed over to the forwarding agent, to the carrier, respectively to the person or institution entrusted with the dispatch.
3.2. A transport insurance shall only be taken out at the Customer’s explicit request in writing and at the Customer’s expense.
3.3. Unless complete delivery has been agreed upon, the Contractor shall have the right to make partial deliveries.
3.4. Delivery deadlines have to be agreed explicitly and in writing. An agreed delivery deadline shall apply subject to circumstances that are unforeseeable and cannot be influenced by the will of the party, such as any acts of God, war, acts of enemies, interference by authorities, disturbance of traffic, shortage of energy, labour disputes or non-fulfilment by third suppliers of their obligations to deliver to the Contractor. The aforementioned cases of Force Majeure shall give the Contractor the right to extend the delivery period at least by the time of disruption caused by the above cases, or the right to terminate the Contract.
3.5. If sending of goods that are ready for dispatch is not possible without the Contractor being at fault, or if sending of the goods is not desired by the Customer, or if the goods are not taken over by the Customer, this shall constitute default in acceptance on the part of the Customer. In said case, the Contractor shall have the right to store the goods at the Customer’s cost, whereby delivery shall be deemed as performed. The agreed terms of payment shall not change thereby.
3.6. In the event of delivery delay caused by the Contractor, the Customer shall not be entitled to claim damages if said delay was due only to slight negligence on the Contractor’s part. If the agreed service cannot be performed, for example due to the fact that the Contractor’s suppliers have stopped producing or delivering, or because the service has become economically unaffordable for the Contractor, the Contractor shall be released from the contractual obligations without being liable for damages.
4.1. The invoices made out by the Contractor shall become due according to the terms set forth in the Offer. The payment shall be considered to have been made as from the day on which the Contractor can dispose of the invoiced amount without any loss. Agreed discounts, rebates and/or bonuses shall only apply in the event of timely payment by the Customer. In case of insolvency (extra-judicial composition, bankruptcy proceedings) said discounts, rebates and/or bonuses shall become void.
4.2. The Contractor shall have the right to submit partial invoices. For them the stipulated terms of payment shall apply analogously.
4.3. In the event of delayed payment, the Contractor shall have the right to charge default interest at the amount of eight percentage points p.a. above the base rate valid at the time. In addition to that, the Customer is obligated to pay the Contractor the appropriate and necessary costs (dunning- and collection fees) of a collection agency, respectively a lawyer’s office entrusted with the collection of the accounts receivable. The Contractor explicitly reserves the right to claim damages going beyond the ones mentioned above.
4.4. Bills and cheques shall be accepted only on account of payment and upon special agreement.
Any charges in connection with acceptance, discounting, etc. shall be borne by the Customer.
4.5. In the event that the Customer has become fully or partially delinquent with payment of a due invoice, or if bills and cheques made out by the Customer are not paid upon presentation, the Contractor shall have the right to accelerate without delay all its accounts receivable from other contractual relationships, respectively other orders. In the event of default on part of the Customer and after granting a respite of 10 days, the Contractor shall moreover be entitled to withdraw from any current contracts, even if they have been partially fulfilled, and the Customer shall not have the right to derive any title therefrom.
4.6. If payment by instalments has been agreed and one single instalment has not been paid on time or to the full amount, the deadlines for payment of the remaining instalments shall become void.
4.7. The Customer shall not be entitled to offset own claims of whatever nature against claims of the Contractor. Moreover, the Customer shall not have the right to withhold payments because of incomplete delivery, guarantee- or warranty claims or complaints in respect of defects.
5. RESERVATION OF TITLE, COPYRIGHT AND RIGHT UF USE
5.1. For any deliveries and services by the Contractor, reservation of title shall apply until full payment has been made for all accounts receivable arising from the current business relations.
5.2. Through delivery and payment of the software programs, no ownership of the program, but only the right of use is acquired. The programs remain the property of the author, respectively of the Contractor. The program may only be used on a computer system complying with the conditions of use. No reproductions (copies) of the programs must be made, with the exception of reproductions (copies) that serve the purpose of data security. The person acquiring the right of use, respectively the Customer, undertakes not to pass on the programs to third parties, nor to make the programs available to them in any other form. Exclusive licenses for the programs must not be transferred to others without the Contractor’s consent. The same provisions relating to reproductions (copies) and transmittal shall apply to program handbooks and other documents.
6. WARRANTY, RESTRICTION OF LIABILITY AND RELEASE FROM LIABILITY
6.1. Upon receipt of goods, the Customer is obligated to examine them for any defects without delay and to notify the Contractor by registered letter of any defects immediately – i.e. within 7 days of delivery. Complaints in respect of hidden defects have to be lodged with the Contractor by registered mail not later than 7 days after discovery. Failing to do that shall result in loss of all warranty rights. Oral complaints shall be ineffective.
6.2. For complaints about damage to goods in transit, the Customer shall require a written confirmation from the carrier immediately upon receipt of the goods, respectively the damage report shall be taken down in writing. The Contractor shall be notified without delay of said complaints and at the same time the confirmation (damage report) shall be presented. Failing to do that shall result in exemption from any liability.
6.3. If defects are not reported in due course or in the agreed manner, or if arbitrary interference to the goods is made, a potential liability of the Contractor will be excluded. The Customer shall not be entitled to assert any warranty claims or other claims resulting from a purported defect.
6.4. The Customer is obligated to make the disapproved goods available to the Contractor at his cost; failing to do that shall result in loss of any warranty claims. Any costs in connection with transport out and back for the purpose of removal of defects shall be borne by the Customer. If it becomes apparent that no defect exists, respectively that the complaint in respect of a defect was unjustified, the Customer shall also bear any other costs that may have accrued. The Contractor shall also have the right to charge the Customer a reasonable compensation for the examination of the goods.
6.5. The warranty period for all contractual deliveries and services shall be 1 year from delivery of goods, respectively performance of services.
6.6. Instead of recognizing the Customer’s claim for rescission of contract or reduction of payment, the Contractor shall have the right to make a substitute delivery.
6.7. Defects of partial deliveries shall not give the Customer the right to cancel the entire order or other orders.
6.8. On account of services and deliveries subject to warranty, the original warranty period for that part of the delivery that is not affected shall not be extended.
6.9. Warranty can only be claimed on the condition that the Customer has fully met all contractual obligations, including payment of supplementary fees.
6.10. Outside the scope of application of the Product Liability Act, the Contractor’s liability shall be restricted to intent and/or gross negligence. Liability for slight negligence, compensation for consequential damage, economic and financial loss, savings not realized, interest loss and damage from claims of third parties against the Contractor shall be excluded.
6.11. In the case of software programs, the Contractor gives no guarantee as to the saleability and usability for certain purposes. The Contractor assumes no liability for replacements in case of permanent or consequential damage in connection with the application of a software program. The Customer himself shall be liable for data security. It is pointed out expressly to the Customer that, according to the current state of technical development, defects in software programs cannot be ruled out completely. The Contractor ensures neither certain qualities of the software program nor its fitness for the Customer’s purposes or requirements. The Contractor reserves the right to alter the software for reasons of continuous further development. Moreover, software that has been modified by the Customer shall be excluded from warranty.
7. TERMINATION OF CONTRACT
7.1. The Contractor shall be entitled to refuse delivery, respectively performance of services until the payment to be made by the Customer has been caused or ensured, if such payment is put in danger due to an adverse financial situation of the Customer. If payment is not made, respectively guaranteed within a reasonable period of time, the Contractor shall have the right to terminate the Contract. Termination of contract can also be declared on account of the fact that part of a delivery or service has not yet been paid; the Customer cannot derive any rights or claims whatsoever therefrom.
7.2. In the event that the Customer terminates the Contract for reasons lying in his scope of responsibility or without giving any reasons, the Contractor can either insist on adherence to the Contract or demand 15% cancellation fee, irrespective of the assertion of a claim for damages. The agreed cancellation fee shall not be subject to the court’s right to reduce fines.
8. DATA PROTECTION
8.1. The Customer gives his express consent that the data (name, address, e-mail, credit card details, data for account transfers) disclosed to the Contractor can be ascertained, stored and processed automation-assisted for the purposes of contract fulfilment and service to the Customer, as well as for the Contractor’s own advertising activities. The Customer is entitled to revoke his consent in writing at any time.
8.2. Subject to the any time possible, written revocation by the Customer, the Contractor shall be entitled to mention his business relation to the Customer with name and company logo on its own advertising media, in particular on its Internet website.
9. CONCLUDING PROVISIONS
9.1. Place of performance shall be Salzburg (seat of the Contractor’s company). For any disputes arising out of or in connection with the contracts and these GTC, the Austrian court locally and factually competent for the seat of the Contractor’s company shall have jurisdiction. The submission to said jurisdiction shall not limit the Contractor’s right to assert his claims against the Customer in any other place or before any other forum, which can be made competent according to statutory provisions – in particular before the court at the Customer’s company seat, respectively residence.
9.2. These GTC shall be governed by Austrian law, excluding the standards of transfer of action. The use of UN sales law shall be barred.
9.3. If any provision of the Contract or of these GTC should be, respectively become invalid or unenforceable, all remaining provisions shall not be affected thereby. It is agreed that such a wholly or partially invalid and/or unenforceable provision shall be replaced by a provision which most closely approximates its economic purpose.