General Terms and Conditions of SELMO Technology GmbH
Version 2.00 Status 27.01.2021
- These General Terms and Conditions apply to the conclusion of contracts and legal relations between SELMO Technology GmbH – hereinafter also referred to as SELMO – and third parties; unless the contracting parties agree otherwise in writing. The respective current version can be downloaded from selmo.at/terms-of-service/. Any terms and conditions of the customer or other third parties that are contrary to or deviate from these Terms and Conditions shall only apply to the extent that SELMO has expressly agreed to them in writing. These Terms and Conditions of Business shall also apply if SELMO, being aware of the Customer’s or third party’s terms and conditions which are contrary to or deviate from these Terms and Conditions of Business, performs the respective business transaction owed without reservation. Such action shall not be deemed to be tacit consent by SELMO to the validity of the third party’s conflicting or deviating terms and conditions.2 These terms and conditions of business shall also apply to all future business with the customer or third parties.
- 2 Conclusion of contract, right of revocation, termination
- Offers made by SELMO are non-binding, also concerning the time of delivery and performance – unless the binding nature of the offer is expressly stated in writing in the offer, or unless the binding nature of a price quotation or other information on the electronic order page or other SELMO web pages which serve to download executable codes against payment (hereinafter referred to as “order pages” for both) is expressly stated.
- A contractual relationship is only established when a written or electronic order confirmation is sent and the content is reproduced there. Furthermore, SELMO’s offers are subject to confirmation. SELMO reserves the right to make technical and other changes to a reasonable extent.
- Customers who are consumers are entitled to a right of revocation – insofar as the contract based on these terms and conditions was concluded using exclusively means of distance communication. The customer will be informed separately about the conditions, scope, and deadlines of the right of revocation during the ordering process. The right of revocation does not apply to the delivery of goods that are manufactured according to customer specifications or tailored to personal needs or which are not suitable for return due to their nature, for the delivery of audio or video recordings or software, if the delivered data carriers have been unsealed by the customer. The customer (consumer) is obliged to return the goods when exercising the right of withdrawal if the goods can be sent by parcel. In this case, he shall bear the costs of the return shipment for an order value of up to € 40,–, unless the delivered software does not correspond to the ordered software.
- If SELMO is not able to provide the services taken over in time for reasons for which neither of the parties is responsible (e.g. force majeure, strike, and other obstacles to performance for which SELMO is not responsible and which could not be foreseen by SELMO and which cannot be overcome by economically reasonable expenditure), and if this is not possible even within a reasonable period of grace, both parties are entitled to terminate the contract without notice. In such cases, the Customer retains the claim to the partial services rendered up to the time the termination becomes effective, and SELMO retains the claim to its pro-rata claim for remuneration. All declarations in this context must be made in writing to be effective.
- The termination of the exchange of services for other reasons must always be threatened, stating the reason and setting a deadline for removal (usually at least two weeks), and can only be declared within two weeks of the deadline expiring. The party which is mainly responsible for the disruption cannot demand the reversal of the transaction. All declarations in this context must be made in writing to be effective.
- 3 Subject matter of the contract, the scope of use of the software
Insofar as the delivery of SELMO software products (software) is the subject matter of the contract, the scope of software use and the associated rights and obligations shall be governed by the right of use granted in the license certificate as well as by the provisions of any separate license agreement and/or in particular by the license terms of SELMO Technology GmbH (EULAs) for the software.
- 4 Prices, default, set-off
1 Unless otherwise stated in the order confirmation or in the information on the order page which is designated as binding, SELMO’s prices apply to delivery ex-company. If the Customer is a consumer, the value-added tax will be added to the Customer and shown accordingly. Shipping costs will be invoiced and shown separately. Prices for software refer exclusively to the corresponding software product – i.e.: in particular, prices do not include installation costs, training, accessories, or other additional services; unless otherwise agreed upon in writing between the parties.
- The purchase price is due at the latest upon receipt of the delivery and is to be paid without deduction immediately, but at the latest after 14 days. If the Customer does not settle the outstanding debt within this period, i.e. is in default of payment, SELMO is entitled to charge default interest at a rate of 5% above the respective base rate of the European Central Bank. A customer who is not a consumer has to pay default interest of 8% above the respective base rate of the European Central Bank. If SELMO can prove higher damages caused by default, SELMO is entitled to assert such damages. The customer is entitled to prove to SELMO that SELMO has not incurred any damage or that the damage incurred by SELMO as a result of the delay in payment is considerably lower. The Customer is also in default of payment if he does not pay the invoice within 30 days after the due date and receipt of the invoice by the Customer at the latest.
- If the Customer is in default with the payment of the purchase price or an application is made for the opening of insolvency proceedings against the Customer’s assets, SELMO is entitled to withhold all services and to exercise its rights arising from the reservation of title in accordance with § 6.
- The customer is only entitled to offset rights if his counterclaims have been legally established or acknowledged by SELMO, or if they have not been contested in writing by SELMO following a request for a statement. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
- 5 Delivery, insurance, transfer by download, a default of acceptance
- Compliance with agreed delivery times or obligations is dependent on the timely and proper fulfilment of the customer’s obligations.
- If the parties subsequently agree on additional services that affect agreed delivery periods, the periods shall be extended by a reasonable period. Reminders and time limits set by the customer must be in writing to be effective. A grace period of less than two weeks is only appropriate in the case of special urgency not caused by the customer.
- SELMO may render partial services, provided that the delivered parts can be used by the Customer in isolation in a reasonable way.
- If the customer so wishes, SELMO will ensure the delivery through transport insurance; the costs incurred will be borne by the customer
- In the case of transmission of the software via the Internet, i.e. in particular by e-mail or Internet download, the risk of loss and/or modification of the data shall pass to the customer upon complete receipt of the data.
- If the customer is in default of acceptance or violates other duties to cooperate, SELMO is entitled to claim the damages incurred by SELMO, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of the contract is also transferred to the customer at the moment the customer is in default of acceptance.
- The customer can make use of training, consulting, or workshops by agreement and against the payment of the fee determined by SELMO. The customer actively participates in the determination of dates. A claim for performance on a certain date is only valid after SELMO has confirmed the date in writing. If, within six months after ordering training courses, consultations or workshops, no date is set for reasons for which the customer is responsible (in particular cancellation of dates [see paragraph 8 below] without a follow-up date or similar having been agreed in due time), SELMO is entitled to invoice the full amount that would have been incurred if the training had been carried out.
- In the event of cancellation or postponement of a confirmed training, or workshop date by the customer, the customer shall bear the cancellation costs or travel expenses including travel, transfer, and accommodation, if any. In the event of cancellation or postponement later than 14 days before the start of the event, the full fee must be paid. The same applies if the customer does not appear on the day of the event.
- SELMO reserves title to the object of the contract until all payments under the contract have been received. SELMO will release this security on request and at its discretion, provided that its value exceeds the claims SELMO is entitled to against the customer – irrespective of the legal basis – by more than 20% on a sustained basis. In the event of the customer’s behaviour contrary to the contract, in particular, in case of default of payment, SELMO is entitled to take back the object of the contract and to retain parts of the object of the contract that have not yet been delivered. SELMO’s taking back of the object of the contract does not constitute a withdrawal from the contract unless SELMO has expressly declared this in writing. SELMO’s seizure of the object of the contract always constitutes a withdrawal from the contract. After taking back the object of the contract, SELMO is entitled to exploit it. The proceeds of the realisation shall be set off against the customer’s liabilities – less the actual realisation costs.
- The customer is only entitled to resell the software, which is still SELMO’s property, in the ordinary course of business after SELMO’s written consent. However, he hereby assigns to SELMO all claims to the amount of the outstanding invoice amount (including value-added tax), which accrue to him from the resale against his customers or third parties, irrespective of whether the contractual item has been resold without or after processing. The customer remains entitled to collect this claim even after the assignment. SELMO’s authority to collect the claim itself remains unaffected. SELMO undertakes, however, not to collect the claim as long as the Customer meets its payment obligations from the collected proceeds, does not default in payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, SELMO may demand that the Customer informs SELMO of the assigned claims and their debtors, provides all information required for the collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment.
- The customer is obliged to point out SELMO’s ownership in case of seizure or other interventions by third parties and to inform SELMO immediately so that SELMO can take action against such seizures or other interventions. If the third party is not able to reimburse SELMO for the judicial and extrajudicial costs of a successful possible lawsuit, the customer is liable for the loss incurred by SELMO.
- If the object of the contract is inseparably mixed with other objects not belonging to SELMO, SELMO acquires co-ownership of the new object in proportion to the value of the object of the contract to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the Customer’s item is to be regarded as the main item, it is agreed that the Customer transfers proportional co-ownership to SELMO. The Customer shall keep the sole ownership or co-ownership thus created for SELMO.
- 7 Obligation to examine and give notice of defects
1 The customer is obliged to examine the delivered goods, especially software, for obvious defects that are easily noticed by an average user. Obvious defects, in particular the absence of data carriers or manuals (if the existence of such has been agreed) as well as considerable, easily visible damage to data carriers, must be reported to SELMO in writing within two weeks after delivery. Merchants shall immediately give written notice of such defects.
- Customers who are not consumers must notify SELMO in writing of non-obvious defects within two weeks of the defect being detected.
- The defects, in particular the symptoms that have occurred, must be described precisely
- A breach of the duty to examine and give notice of defects shall result in the goods or software being deemed to be approved given the defect.
- The software has the agreed quality, is suitable for the contractually stipulated, otherwise the usual use and has the quality usual for software of this type Not every error that is inherent in the software constitutes a material defect that leads to defect rights. Functional impairment of the software resulting from hardware defects, environmental conditions, incorrect operation, or similar is not a defect. An insignificant reduction in quality is not taken into account. SELMO warrants that the Customer’s use of the software following the contract does not infringe on any third-party rights.
2 For customers who are consumers, the statutory provisions shall apply in the event of defects in the purchased item.
- In all other cases, the following applies in case of defects:
(a) SELMO can first of all carry out the subsequent performance. SELMO may choose to remedy the defect by eliminating it, i.e. also by showing possibilities to avoid the effects of the defect, or by supplying a program that does not have the defect. An equivalent new program version or the equivalent previous program version that did not contain the defect is to be taken over by the Customer if this is reasonable for him. In case of defects of title, SELMO warrants that it will provide the Customer with a legally unobjectionable possibility of using the software or equivalent software, at its option.
(b) The customer shall support SELMO in the analysis of faults and the elimination of defects by specifically describing any problems that may occur, by informing SELMO in detail and by granting SELMO the time and opportunity required for the elimination of defects. SELMO may remedy the defect on-site or at its business premises, at its discretion. SELMO can also provide services through remote maintenance. The Customer shall provide the necessary technical prerequisites at his own expense and grant SELMO access to his EDP system, after prior notice.
(c) SELMO may demand additional costs resulting from the fact that the software has been modified, used outside the specified environment, or incorrectly operated. It may demand reimbursement of expenses if no defect is found or an error is reported insufficiently/incorrectly. The burden of proof lies with the customer.
(d) If SELMO finally refuses subsequent performance or if subsequent performance finally fails or is unreasonable for the customer, the customer may withdraw from the contract in writing or reduce the remuneration appropriately and demand compensation for damages or reimbursement of expenses in accordance with § 9.
(e) Unless otherwise regulated above, any further liability of SELMO within the scope of liability for defects is excluded. In particular, liability for defects shall not apply if and to the extent that the software is improperly handled by the Customer or used in a defective or incompatible hardware or software environment. The same shall apply if the Customer makes unauthorised changes to the software.
(f) The period of limitation for claims due to defects is one year from the statutory start of the limitation period.
The following limitations of liability apply to claims for damages by the customer due to liability for defects or other reasons:
- SELMO is liable for intent and gross negligence under the statutory provisions. The same applies to injury to life, body or health, as well as to claims arising from guarantees or the Product Liability Act (ProdHaftG).
- Apart from that, SELMO is only liable for the culpable violation of contractual obligations, the fulfilment of which makes the proper execution of the contract possible in the first place, and on the observance of which the customer may regularly rely (cardinal obligation) upon. This includes in particular the obligation to provide defect-free services. In this case, SELMO’s liability is limited to the damage typical for the contract and foreseeable at the time of the conclusion of the contract.
- 3 Otherwise, SELMO’s liability is excluded.
- Insofar as SELMO’s liability for damages is excluded or limited, this shall also apply concerning the personal liability for damages of its employees, workers, staff, representatives, and vicarious agents.
- SELMO remains open to the objection of contributory negligence. The customer is particularly advised that, within the scope of his duty of care, he must check before using the software for the first time whether the installation of the software could lead to particular interference with software already installed, and must further ensure that his data is backed up before the first installation and during operation, and must take all reasonable additional security measures in the event of a suspected software error.
- The limitation period for claims of the customer who is not a consumer is one year from the statutory start of the limitation period.
- 10 Property rights of third parties
The customer shall immediately inform SELMO in writing if third parties assert industrial property rights (e.g. copyrights or patent rights) against him. The customer authorises SELMO to conduct the dispute with the third party alone. If SELMO makes use of this authorisation, the customer may not acknowledge the third party’s claims on his initiative without SELMO’s consent. SELMO will defend against the third party’s claims at its own expense and indemnify the customer from all costs associated with the defence against these claims, provided that these are not based on the customer’s behaviour contrary to duty (e.g. use of the programmes contrary to the contract).
The customer expressly agrees to the collection, processing, and use of personal data necessary for the execution of the contract and the fulfilment of SELMO’s contractual and non-contractual obligations. The customer has the right to revoke this consent at any time with effect in the future. SELMO points out that to fulfil its contractual and non-contractual obligations, SELMO makes use of third parties to whom the collected data may be transferred to fulfil these obligations. Examples of such third parties are resellers/authorised dealers, suppliers, credit card companies, and marketing service providers. Furthermore, the customer also agrees to the use of personal data for exclusively internal company purposes, such as statistical evaluations and the like, as well as for marketing, sales promotion, and customer loyalty purposes.
The basis of the data processing is the agreement on commissioned processing attached as an annexe to these terms and conditions, which is expressly agreed between the parties by accepting these terms and conditions.
- 12 Applicable law, place of performance, place of jurisdiction, miscellaneous
- This agreement is subject to the law of the Republic of Austria except for the UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 in its currently valid version) and international law.
- The place of performance is Graz. If the licensee is not a consumer, the place of jurisdiction for all disputes arising from this contract including its appendices is Graz. The same applies if the customer does not have a general place of jurisdiction in Austria or if his place of residence or habitual abode is unknown at the time the action is filed.
- The rights and obligations arising from an agreement concluded between the parties based on these terms and conditions cannot be transferred to third parties without the prior written consent of SELMO.
- Changes and supplementary agreements must be in writing. This also applies to the amendment of this written form clause.
- If one or individual provisions of this agreement are or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. If an invalid provision affects a current contractual relationship, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the intended economic success and the purpose of the contract.
- 6. contractual language is German. The German version of these General Terms and Conditions is available at any time. Other language versions are only for information and translation purposes. For the interpretation of individual provisions and/or in the event of contradictions between the language versions, the German language version shall always remain authoritative and binding.