General Terms and Conditions Umdasch Digital Retail GmbH, Industriezeile 35 / Top 5, A-4020 Linz OA-DR-001-ENG-01
1) Scope 1.1. The following General Terms and Conditions (hereinafter referred to as “GTC”) are anintegral part of all business transactions of Umdasch Digital Retail GmbH (hereinafter referred to as “Umdasch Digital Retail ”) in the course of sale of trading goods distributed by Umdasch Digital Retail in the form of purchase, rental or leasing, as well as delivery of IT facilities/services, such as programming services, implementation, customisation, IT consulting, maintenance or training. Where applicable, the customer’s General Terms and Conditions shall not apply, even if they remain unchallenged by Umdasch Digital Retail or do not contradict the GTC of Umdasch Digital Retail . Amendments to these General Terms and Conditions shall only be effective with the written approval of Umdasch Digital Retail . Differing arrangements on individual points of the existing conditions shall only be effective for these and require prior, explicit and written confirmation by Umdasch Digital Retail in order to be valid. 1.2. All legal relationships between the customer and Umdasch Digital Retail are based on these conditions and any other existing agreements. These conditions are deemed accepted upon receipt of the trade goods or IT facilities/services at the latest. Should further orders be placed by the customer with Umdasch Digital Retail , the conditions of this contract shall apply, insofar as no differing agreements are made or something else arises from the circumstances. 1.3. The instructions for use of Umdasch Digital Retail products form an integral part of the GTC. 1.4. These conditions also apply in their current state to all future business relationships, even if they are not expressly agreed once more. 1.5. Umdasch Digital Retail is entitled to alter all existing conditions, if this is necessary due to developments that were not foreseeable upon conclusion of the contract, which do not lie within Umdasch Digital Retail’s sphere of influence and were also not initiated by Umdasch Digital Retail, in order to restore the existing balance between the contracting parties upon conclusion of contract and significant regulatory contents of the contract (e.g. nature and scope of the contractually owed service, termination) are not affected. Amendments to these GTC are also possible if difficulties arise in the performance of the contract which are caused by omissions in these conditions, e.g. with the result that the jurisdiction of a clause is deemed invalid. Changes to the conditions shall be communicated to the customer in writing 4 weeks before their effective date. The customer has a special termination right in this case. If the customer does not terminate within four weeks of receipt of the notification of amendment, the amendments shall be deemed agreed, insofar as the customer was made aware of this separately in the course of the notification of amendment. 1.6. Should the interpretation of a contract (including these GTC) result in unclear or ambiguous content, the interpretation most favourable to Umdasch Digital Retail shall apply in accordance with § 915 ABGB (Austrian Civil Code). Offer and conclusion of contract 2) 2.1. Offers from Umdasch Digital Retail are non-binding and without obligation. Orders and awards of contracts by the customer shall be binding only when the customer receives a written order confirmation from Umdasch Digital Retail , whose content alone determines the contractual relationship and the scope of supply or service. 2.2. Catalogue details, designs, illustrations, dimensions, weights or other performance specifications are only binding if these are expressly agreed upon. Where reasonable for the customer, technical and creative differences from particulars in brochures, catalogues and written documents, as well as model, construction and material amendments in the course of technical improvements and further development remain reserved, without this resulting in the right to claim against Umdasch Digital Retail . Umdasch Digital Retail can make construction and/or specification amendments to products, insofar as the overall performance is not affected by this. Umdasch Digital Retail is however not obliged to make similar amendments to products already delivered. 2.3. Umdasch Digital Retail reserves the property and copyright rights to patterns, cost estimates, designs and similar information of a tangible or intangible nature - also in electronic form; they may not be made available to third parties. Umdasch Digital Retail is obliged only to make information and documents designated as confidential by the customer available to third parties with their agreement. 3) Delivery and performance conditions, force majeure, transfer of risk, acceptance, default of acceptance 3.1. The delivery and performance deadlines or periods stipulated in the contracts are only binding if they have been designated as binding in writing by Umdasch Digital Retail . 3.2 Every delivery and performance deadline shall be agreed according to the expected capability of Umdasch Digital Retail and is considered subject to self-delivery in good time and unforeseen circumstances or hindrances, irrespective of whether these arise at Umdasch Digital Retail or at the manufacturer/supplier, especially force majeure. Force majeure applies to all circumstances independent of the will and influence of the contracting parties, such as natural disasters, government actions, decisions on the part of authorities, denial of official approval, seizure, blockades, embargoes, war and other military conflicts, mobilisation, civil unrest, sabotage, terrorist attacks, industrial action, lockout and other labour disturbances and labour disputes of any kind, shortage of raw materials, delayed material deliveries beyond one’s control or other such circumstances, which are serious, cannot be foreseen and are not the fault of Umdasch Digital Retail and occur after the conclusion of this contract. Events of this kind correspondingly prolong the delivery and performance deadline even if they arise during a delay that is already taking place. In this case, the grace period set by the customer shall also be extended for the duration of the unforeseen event. Umdasch Digital Retail retains the right to rescind the contract if the delivery and performance delay lasts for more than six weeks due to an event specified above, for which Umdasch Digital Retail is not responsible. In this case, Umdasch Digital Retail shall immediately inform the customer and reimburse any compensation already yielded. 3.3. Should Umdasch Digital Retail fall behind in a delivery by more than eight weeks, the
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customer may rescind the contract after a reasonable grace period, set out in writing. 3.4. Should the delivery or performance of services be delayed due to circumstances caused by the customer, they shall bear the costs incurred by Umdasch Digital Retail . 3.5. Umdasch Digital Retail is entitled to reasonable partial delivery and partial performance. 3.6. Umdasch Digital Retail is entitled to fulfil the order in whole or in part using subcontractors, according to its discretion. 3.7. The risk shall pass to the customer once the contractual object has left the plant and even if partial delivery occurs or Umdasch Digital Retail has accepted other services, e.g. shipping costs or delivery and installation. For shipping in conjunction with provision of services, risk passes to the customer as soon as Umdasch Digital Retail has transferred the shipment to the carrier. Insofar as acceptance has taken place, this is deemed transfer of risk. This must be effective immediately on the acceptance date, or alternatively after notification from Umdasch Digital Retail of readiness for acceptance. The customer may not refuse acceptance in the case of a minor defect. 3.8. Should shipping or acceptance be delayed or remain incomplete due to circumstances not attributed to Umdasch Digital Retail , risk passes to the customer from the day of notification of shipment or readiness for acceptance. Umdasch Digital Retail undertakes to take out insurance at the customer’s expense, when desired. If the customer does not accept delivery of hardware for any reason or Umdasch Digital Retail is not able to deliver hardware in good time because the customer has not made the necessary instructions, documents, licenses or approvals available, this shall result in the transfer of risk to the customer. Furthermore, Umdasch Digital Retail is entitled to a.) store the hardware until actual delivery and charge the customer for all related costs and expenses, including storage and insurance, and b.) to sell the hardware at the best achievable price, based on at least two written offers obtained in advance, if Umdasch Digital Retail has first notified the customer in writing of the intended sale, the customer has in this communication been given a period of three weeks from the date of dispatch in the communication to cancel all actions owed and the customer has not complied with this time limit. The reasonable storage, insurance and selling expenses of Umdasch Digital Retail must first be deducted from the sales proceeds obtained. Any amount then remaining must also be imputed to the purchase price that continues to be owed by the customer. Potential profit surplus is conceded to Umdasch Digital Retail . 3.9. Unless agreed otherwise, Umdasch Digital Retail is neither obliged to transfer a user manual or other documentation (e.g. for the supply of software or hardware), nor to hold training sessions. 3.10. The availability of services rendered by Umdasch Digital Retail is the result of the contractual agreement, order confirmation or a concluded service contract and, where applicable, related agreements. 4) Intellectual property rights 4.1. Umdasch Digital Retail is entitled to all rights derived from patent, brand, design protection, semiconductor protection and/or copyright from the agreed services or otherwise from the creation of the services made available to the customer, unless agreed otherwise. 4.2. The customer shall receive only the non-exclusive and non-transferable right to use these services after payment of the agreed fee in full, in compliance with the contractual specifications, at the agreed installation site, for the contractually agreed purpose and to the extent of the number of licenses purchased. 4.3. Only a permit to use the product shall be acquired via the contract at hand - with the exception of point 4.17. If the customer is involved in the manufacture or the userspecific adaptation of the software, the customer shall not acquire any rights in addition to the use set out in the contract at hand. Umdasch Digital Retail shall give rights of use to the customer in respect of software and databases only to the extent that this is necessary for the practical fulfilment of the contractual relationship. If the object of the contract is the creation or use of databases, the customer shall acquire no rights to the programming service beyond use in line with database use. 4.4. All other rights are reserved by Umdasch Digital Retail or their licensors; without their prior written agreement, the customer is therefore not entitled to duplicate, change, make software, databases, graphic designs or other property available to third parties, or to use them other than at the agreed installation site, for the contractually agreed purpose and to the extent of the purchased number of licenses, unless agreed otherwise or obliged by the nature of the mandate. 4.5. A transfer of source codes from Umdasch Digital Retail to the customer is - unless agreed otherwise - owed neither for standard nor bespoke software. 4.6. The manufacture of copies for archive and data protection purposes shall be permitted to the customer under the condition that no express ban by the licensor or third parties is contained in the software and that all copyright and property endorsements in these copies are also transferred unchanged. 4.7. Should the disclosure of interfaces be necessary for the creation of interoperability in the software, Umdasch Digital Retail shall only do so after separate instruction, but without being obliged to adopt such a mandate. Decompilation by the customer is only authorised if Umdasch Digital Retail rejects such a mandate. In this case, the results may be used exclusively for the creation of interoperability. In the case of unauthorised decompilation, Umdasch Digital Retail has a claim to reasonable remuneration and/or compensation. 4.8. Proprietary notices, trademarks, network identifications or similar on services from Umdasch Digital Retail or third parties may not be removed, edited, altered or made illegible by the customer. 4.9. Offers, execution documents such as plans or sketches, patterns, catalogues, illustrations and other technical documents and similar of Umdasch Digital Retail remain the intellectual property of Umdasch Digital Retail and are subject to relevant intellectual property rights conditions, in particular with regard to reproduction, imitation, competition and data protection.
Version: January 2017
General Terms and Conditions Umdasch Digital Retail GmbH, Industriezeile 35 / Top 5, A-4020 Linz OA-DR-001-ENG-01
4.10. At the end of the contractual relationship, any handbooks and documentation provided in electronic form shall be deleted by the customer. These documents can - insofar as their provision was agreed - also be provided in the original language. However, Umdasch Digital Retail is not obliged to translate these into German. 4.11. Having paid the agreed fee in full, the customer will receive the non-exclusive and non-transferable right to use programmes, databases, websites or other copyright protected works and - if agreed - associated documentation in compliance with the contractual specifications, for the contractually agreed purposes. For hardware supplied, this right is restricted exclusively to the use of this hardware; for independent software, exclusively to the hardware defined in the contract according to type, quantity and place of installation. 4.12. All other rights to services are reserved by Umdasch Digital Retail or their licensors, so that the customer - without the prior written agreement of Umdasch Digital Retail - regardless of § 40d UrhG (Copyright Law) in the current version, is therefore in particular not entitled to duplicate, change, reverse engineer or back-translate the software, to extract parts, make it available to third parties, use it on other contract hardware, analyse, decompile or disassemble it. The use of the services on non-contractually agreed hardware may take place only on the basis of a separate, written agreement in return for payment. 4.13. The customer must observe the respective software licence conditions and the software’s conditions of use from the respective rights holders in their use of software subject to licence, provided by Umdasch Digital Retail . These conditions will be communicated to the customer by Umdasch Digital Retail upon request in the original language; Umdasch Digital Retail is under no duty to translate these into German. 4.14. Umdasch Digital Retail makes no guarantee for software retrieved by the customer that is qualified as “public domain” or “shareware”; all claims by the customer in this regard are excluded. 4.15. The customer is obliged to ensure indefinitely that the services, including duplications permitted by Umdasch Digital Retail - whether edited, enhanced or amended versions - are not disclosed to third parties without the prior written agreement of Umdasch Digital Retail . 4.16. Unless agreed otherwise, Umdasch Digital Retail remains the licence holder for the provided software and the customer acquires the possibility to use the software or some functionality of it in accordance with the contract and for a limited time. 4.17. The customer shall acquire the unlimited rights of use in terms of time, place and content to services prepared for them by Umdasch Digital Retail , both customised and against payment of a separate fee, with payment in full of the agreed fee, apart from exploitation rights in respect of third parties, unless agreed otherwise. In this case, Umdasch Digital Retail reserves the right to use the services for unlimited internal use and to utilise them with respect to third parties. The customer undertakes to transfer all work at the request of Umdasch Digital Retail by granting all intellectual property usage rights both known and becoming known in the future, without this restricting contractual use by the customer. 4.18. Any breach of these rights of Umdasch Digital Retail shall in any event entail injunctive relief and claims for damages, whereby full amends shall be made in such instance. 5) Breach of contract, insolvency Umdasch Digital Retail can immediately discontinue and/or terminate the rendering of any contractual service, in particular the delivery of hardware and software or the delivery of services based on the service contract, via written notification to the customer without notice - also in part where reasonable - for good cause, if a) the customer is guilty of breaching important contractual obligations and this breach cannot be remedied or is not remedied by the customer within a reasonable grace period of a maximum of 14 days from receipt of a request from Umdasch Digital Retail in this regard, b) insolvency proceedings are initiated over the customer’s assets or the customer has itself applied for the initiation of such proceedings, or c) a sum payable under a contract concluded between Umdasch Digital Retail and the customer is not paid within 14 days of the due date at the latest. 6) Rates and terms of payment 6.1. All prices, including service fees, are shown net. Statutory sales tax must be added to these prices. Unless agreed otherwise, the rates for hardware are those given in the last price list published on the day of delivery or accepted delivery. After conclusion of the contract, a deposit in the amount of 1/3 (one third) of the net order value plus sales tax can be required as a condition of hardware delivery. Payment of the outstanding balance after the deduction of deposits paid is due 30 days after delivery of the contractual object and receipt of the corresponding invoice. 6.2. Net prices for deliveries of goods are quoted exclusive of all costs or charges relating to packaging, labelling, loading, unloading, transport, freight and insurance, unless expressly stated otherwise. 6.3. If services are agreed outside of the offer of hardware and software products and service contracts, such as installation, system integration or other hardware and software services, such as hardware maintenance, these shall be invoiced separately. Unless agreed otherwise, travel costs and expenses shall be invoiced according to the actual costs incurred. 6.4. The customer has the right to withhold payments or offset counterclaims only to the extent that their counterclaims are undisputed or legally determined. 6.5. Partial performance may be invoiced immediately after rendering of the service. 7) Customer duties and obligations 7.1. Up until the agreed delivery or performance deadline, the customer shall create the spatial, technical and other installation and connection conditions which put Umdasch Digital Retail in a position to fulfil the written contract. The installation and connection conditions to be created by the customer include in particular, but not exclusively, fully functional data security before Umdasch Digital Retail begins to fulfil the contract, as well as after every process that alters the database during the fulfilment of the contract by Umdasch Digital Retail , the preparation of existing configurations on the agreed operations, such as the creation of a corresponding operating status for the agreed operations, provisions to avoid system crashes or measures to avoid resulting conse-
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quences. Without explicit provisions, Umdasch Digital Retail is not obliged to connect ordered products to customer devices and/or programmes and establish their functionality. Should corresponding services nevertheless be utilised, these shall be deemed additional services. 7.2. Immediately upon arrival, the customer shall inspect the external condition of the delivery and service, query any transport damage with the transport person, secure evidence of this, and immediately inform Umdasch Digital Retail by phone and in writing. 7.3. Ordered or delivered goods can be subject to (re-)export restrictions, particularly in the USA or the UK. In this regard, the customer should note the export restrictions advised by the respective manufacturer. The customer must oblige their buyer to also note the aforementioned provisions. The customer shall provide Umdasch Digital Retail with all information and statements required by Umdasch Digital Retail to fulfil its obligations in accordance with national or international import or export regulations. 7.4. Umdasch Digital Retail and its agents are exempt from all claims by third parties against the customer, which are based on the illegal use of software and associated services by the customer, or occur with their approval, or result in data protection, copyright or other legal disputes which are linked to the customer’s illegal use of the software. 7.5. Copyright notices, serial numbers and other programme identifying features may not be removed or amended in any circumstances. The same applies to the suppression of corresponding identifying features on the display screen. 8) Retention of title, assignment in advance 8.1. Umdasch Digital Retail reserves the right to ownership of hardware until all outstanding invoices of the customer are settled at the time at which the invoice for the hardware is due (retention of title). Retention of title extends to the recognised balance, insofar as Umdasch Digital Retail books claims against the client in the current account. 8.2. If the customer breaches the terms of the contract, in particular default of payment, Umdasch Digital Retail is entitled to withdraw the hardware after a reasonable grace period; the customer is obliged to return the same. The same shall also apply in the event of the initiation of insolvency proceedings over the customer’s assets prior to transfer of ownership. The withdrawal of hardware always means withdrawal from the contract. In case of seizures or other third party interventions, the customer must immediately inform Umdasch Digital Retail in writing, so that Umdasch Digital Retail can file an action in accordance with the applicable insolvency regulations. If the third party is not in a position to refund Umdasch Digital Retail the judicial and out-of-court costs of a claim in accordance with the insolvency regulations, the customer shall be liable for the resulting loss. 8.3. The customer is entitled to sell the hardware on in the ordinary course of business, however they shall then transfer to Umdasch Digital Retail all outstanding debts in the amount of final invoice sums (including sales tax), which accrue to them from the resale to their buyer or a third party, irrespective of whether the hardware is sold on without or after processing. The customer is also authorised to collect this outstanding debt after its transfer. Umdasch Digital Retail’s entitlement to collect the outstanding debt itself shall remain unaffected; however, Umdasch Digital Retail is obliged not to collect the outstanding debt for as long as the customer duly meets their payment obligations and is not in default of payment. In the case of default of payment, Umdasch Digital Retail can demand that the customer report to Umdasch Digital Retail the outstanding debts transferred and their debtor, furnish all the particulars required for collection, deliver corresponding documents and inform the debtor (third party) of the transfer. 8.4. The processing or restructuring of hardware for the customer shall always be undertaken by Umdasch Digital Retail . Should hardware be processed with other items not belonging to Umdasch Digital Retail , Umdasch Digital Retail shall acquire joint ownership of the new item in the ratio of the value of the hardware to the items processed at the time of the processing. Moreover, the same shall apply to the item resulting from the processing as for reserved goods. 8.5. Should hardware be inextricably linked or combined with other items not belonging to Umdasch Digital Retail , Umdasch Digital Retail shall acquire joint ownership of the new item in the ratio of the value of the hardware to the other linked or combined items at the time of linking or combination. Should the linking or combination occur in such a way that the customer’s item is viewed as the main component, it shall be deemed agreed that the customer shall transfer proportional joint ownership to Umdasch Digital Retail . The customer shall ensure sole or joint ownership by Umdasch Digital Retail . 8.6. The customer shall also assign to Umdasch Digital Retail any receivables accruing to the customer from a third party through combining the hardware with a site. 8.7. Umdasch Digital Retail undertakes, at the customer’s request, to release the securities allocated to it if their value exceeds the claims to be secured by more than 20% and these are not yet settled. Umdasch Digital Retail is responsible for selecting the securities to be released. 8.8. Umdasch Digital Retail is authorised to insure hardware at the customer’s expense for the period from transfer of risk to transfer of ownership against theft, breakage, fire, water and other damage, insofar as the customer has not taken out verifiable insurance themselves. 9) Guarantee and manufacturer warranty 9.1. Umdasch Digital Retail warrants that the goods shall be free from defects at the time of handover. Rights or claims from guarantees shall be excluded if the customer does not fulfil their duty to inspect and give notice of defects in accordance with point 9.3, a defect results from parts supplied by the customer, an alleged defect is traced to improper handling or excessive stress by the customer, natural wear is evident, operating or maintenance instructions are not followed by the customer, changes are made to the product, parts are replaced, consumables are used that do not correspond to the original specifications, additional devices are not approved by Umdasch Digital Retail are attached or repairs are carried out by persons who are not authorised by Umdasch Digital Retail . Furthermore, Umdasch Digital Retail shall not be responsible for faults and failures caused by force majeure. 9.2. Possible rights or claims from guarantees shall be made by the customer in relation to moveable goods within 12 months - in relation to electronic devices within 6 months.
Version: January 2017
General Terms and Conditions Umdasch Digital Retail GmbH, Industriezeile 35 / Top 5, A-4020 Linz OA-DR-001-ENG-01
The presumption of defectiveness in accordance with § 924 clause 2 ABGB (Austrian Civil Code) is likewise a potential right of recourse for the customer in accordance with § 933b ABGB. 9.3. After receipt of the goods or service, the customer must examine these straight away and immediately report any defects to Umdasch Digital Retail , at the latest within 8 days of discovery, by means of a written letter stating the nature and extent of the defect, failing which the goods or service supplied are deemed to be accepted and therefore in particular any claims under guarantee or claims for compensation or contest of error by the customer shall be ruled out. 9.4. The sale of used products as well as of software created by Umdasch Digital Retail shall occur in conjunction with any guarantee. 9.5. If the delivery item is installed by Umdasch Digital Retail , the customer is obliged to check any products provided by themselves prior to installation for any defects; if a defect is found, the customer shall notify Umdasch Digital Retail of this in writing immediately or in any event in good time, so that the installation is not started, failing which the customer shall lose any rights of guarantee relating to such a defect. 9.6. If Umdasch Digital Retail is obliged to render service under a guarantee, Umdasch Digital Retail is free to undertake improvements or replacements according at their discretion; for software they can also provide a new update at their discretion. Improvements or subsequent deliveries by Umdasch Digital Retail shall not result in an extension of the guarantee period; for improved or subsequently delivered moveable goods, the guarantee period shall therefore also end 12 months after the original delivery at the latest. Exchanged parts shall become Umdasch Digital Retail’s property without compensation. 9.7. Services provided by Umdasch Digital Retail due to unjustified complaints shall be deemed a new order and shall be separately invoiced to the customer. 9.8. In the case of the delivery of hardware and/or software for which Umdasch Digital Retail is not the manufacturer (hereinafter referred to as “third party manufacturer”), Umdasch Digital Retail shall be assigned the guarantee and warranty claims granted to the customer by the third party manufacturer, provided that the customer has paid in full all claims of Umdasch Digital Retail arising from the underlying contract (in particular an increased invoice amount, interest, expenses or other costs in accordance with the contract). Umdasch Digital Retail is not responsible for the fulfilmentof the assigned guarantee and/or warranty claims. 10) Liability 10.1. The reimbursement of losses or expenses is excluded, irrespective of fault. 10.2. In the case of losses and expenses for which Umdasch Digital Retail is at fault, the following applies: a) Liability is excluded for losses and expenses (hereinafter: losses) caused by minor negligence in respect of an immaterial contractual obligation by simple vicarious agents and for losses that can be excluded when performing data backups on working days, b) in the event of the minor negligence of their legal representative or their executives and minor negligence in respect of a material contractual obligation by simple vicarious agents of Umdasch Digital Retail , they shall bear liability only up to the amount of the typically foreseeable loss and c) the exclusion of liability does not apply to the physical injury or impairment of health of Umdasch Digital Retail representatives, loss of life or to claims in accordance with the Product Liability Law and within the scope of quality guarantees provided by Umdasch Digital Retail . 10.3. The contracting parties shall further mutually waive all claims for compensation for all future losses, insofar as these are covered by their own fire or fire business interruption insurance. This waiver shall not apply insofar as the customer is allowed a claim for compensation in accordance with point 10.1 or insofar as the insurer is not liable as a result of such a waiver. 10.4. Insofar as Umdasch Digital Retail’s liability is excluded, this shall also apply to any personal liability of its employees, workers, representatives, staff and agents. 10.5. Umdasch Digital Retail neither accepts liability nor does it guarantee that the software it supplies meets the customer’s requirements, works in conjunction with other programmes of the customer or that all software errors can be remedied. Umdasch Digital Retail shall proceed in accordance with the current state of the art when installing firewall systems, but shall neither guarantee their absolute security nor accept liability for them. Similarly, Umdasch Digital Retail does not accept liability for any impediments caused by the installed firewall system being bypassed or taken out of operation. 10.6. If Umdasch Digital Retail is taken to court or is threatened to be taken to court by third parties due to improper use of services by the customer, the customer shall immediately inform Umdasch Digital Retail . Umdasch Digital Retail shall grant the customer the option of defending the claim or of full legal assistance. The customer is obliged to compensate Umdasch Digital Retail for any losses, if these are sustained due to breach of the rights of third parties by the customer - particularly claims in respect of patent, brand, design protection, semi-conductor contactors, copyright and other associated claims (e.g. in accordance with the UWG (Fair Trade Law)) or claims brought on the basis of personal rights or other industrial property rights. Part of the loss to be compensated also includes payments for an out-of-court settlement of disputes, which Umdasch Digital Retail can agree with the approval of the customer. The customer may deny this approval only for good reason and not unreasonably. 11) Limitation period Any claims brought by the customer on the basis of breaches of contract shall lapse within twelve months of the beginning of the statutory limitation period. This does not apply to damage to the body and health and loss of life caused by Umdasch Digital Retail , to intentional or malicious conduct by Umdasch Digital Retail , or to claims in accordance with the Product Liability Law and within the scope of quality guarantees provided by Umdasch Digital Retail . In the cases indicated in the above clause, the statutory limitation remains. 12) Other provisions 12.1. Rights and obligations of the parties under the concluded contract are only transferable with the written approval of the respective contracting party, with the exception of payment claims of Umdasch Digital Retail . 12.2. Amendments to these conditions can only be agreed in writing. This also applies to an amendment of the above clause requiring the written form. Any termination and any rescission, for whatever reason, shall require the written form. The requirement for the
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written form can also be met by way of communication by fax or email. All risks, including possible shortcomings in delivery or proof resulting from the use of these means of communication, shall be borne by the relevant contracting party that expressly wishes to use or has used this form of communication. 12.3. The exclusive jurisdiction for all disputes resulting from this contract is the materially competent court in Linz, Austria. Umdasch Digital Retail is, however, authorised to bring claims against the customer before another jurisdiction in Austria. 12.4. This contract is subject to Austrian law under exclusion of the UN convention on the internal sale of goods (CISG) and the conflict-of-law rules of private international law. 12.5. Should one or several provisions of this contract including these conditions be or become ineffective or should the text of this contract contain omissions, the contracting parties shall supplement or replace the ineffective or incomplete provision with an appropriate rule that corresponds to the commercial purpose of the intended rule. The validity of the other provisions shall remain unaffected. 13) Consumer protection law In principle, Umdasch Digital Retail concludes contracts exclusively with enterprises. Should the customer exceptionally be a consumer in the sense of the Consumer Protection Law, the customer is obliged to inform Umdasch Digital Retail in the event of any other liability However, should a consumer business exceptionally be involved, these general terms of sale and delivery shall apply only insofar as they do not infringe the mandatory provisions of the first principal part of the Consumer Protection Law. 14) Supplementary terms for rental 14.1. During the whole term of lease, the hardware and software (hereinafter referred to as “rental property”) shall remain wholly the property of Umdasch Digital Retail . Transfer of the rental property to people, businesses or sites other than those named in the rental contract is prohibited. The lessee shall be responsible for compliance with all provisions relating to security at the site of the rental property. The lessee must ensure that the provisions with regard to the rental property and other provisions applicable during the rental, such as house rules, fire safety regulations etc., are not contradictory. The rental property shall be insured for the duration of the rental period. However, if the lessee has caused the damage, then they are obliged to reimburse the insurance excess paid by the lessor. In case of defects or claims, the lessor shall be immediately informed in writing. 14.2. The lessee undertakes to operate safely, in accordance with the instructions for use. In the case of temporary failure of the rental property or other disruption, the lessee is not entitled to make a claim for damages, retention or any other claims (with the exception of mandatory interest abatement claims). The above rules apply correspondingly for every other impairment to the stipulated use. Insofar as such impairments however are in part ascribed to rental property, which is maintained, serviced or repaired by the lessee, all claims by the lessee against the lessor are deemed excluded.
Version: January 2017