I BASIS AND SCOPE
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply as the basis for the contract concluded with the customer (the “Contract”) as well as all other contracts for the sale and delivery of products (hereinafter referred to as “Products”) and/or the provision of works and services (hereinafter referred to as “Services”) including software provided as a service (hereinafter referred to as “Software”) by Zumtobel Lighting GmbH, A-6850 Dornbirn (hereinafter referred to as the “Company”) to its customers (hereinafter referred to as “Customers”; the Company and the Customer together also referred to as “Contracting Parties”; Products, Services and Software together also referred to as “SERVICES”). These GTC shall therefore also apply to future SERVICES without a separate agreement, unless expressly agreed otherwise.
1.2 These GTC of the Company apply exclusively. Deviating, conflicting or supplementary general terms and conditions, terms and conditions of purchase or other standardised contract forms of the Customer (hereinafter referred to as “Customer GTC”) shall only be effective if expressly agreed in writing between the Company and the Customer. An implied agreement of Customer GTC is excluded. The manner of performance of the Contract and trade customs shall not constitute grounds for a change of these GTC.
1.3 The Company may amend its GTC at any time by publishing an updated version on the Company’s website. Thus, in the absence of any agreement to the contrary, the GTC valid at the time of conclusion of the Contract and made available or updated on the Company’s website (https://www.zumtobel.com
) shall apply to new Contracts.
1.4 These GTC apply exclusively to Customers who are entrepreneurs as defined by Section 1 para. 2 KSchG [Consumer Protection Act]. If a Customer is a consumer as defined by Section 1 para. 1 no. 2 KSchG, it will receive an individual offer upon request.
2.1 Unless expressly designated as binding, offers made by the Company are subject to change without notice and are non-binding – they constitute an invitation to the Customer to make an offer to the Company.
2.2 Unless otherwise agreed in writing, binding offers shall be valid for a period of three months from the date of dispatch.
2.3 All catalogues, specifications, price lists or similar documents prepared by the Company are exclusively for information purposes and shall not be deemed to constitute an offer. The Company is of the opinion that these documents are complete and correct at the time of going to press. However, the Company does not warrant that these documents are free of errors. The Company accepts no responsibility for damage resulting from measurement errors, descriptions, recommendations for use based on such documents or the like.
III CONCLUSION OF THE CONTRACT
3.1 The order of a SERVICE by the Customer shall be deemed to be an offer to purchase in accordance with these GTC. The Contract shall only be concluded upon written confirmation of the order by the Company. The order confirmation does not require a signature and can also be transmitted electronically. Mere confirmation of receipt of the offer by the Customer shall not be deemed to be an acceptance of the offer.
3.2 Deviations from an offer made by the Company or other “instructions” from the Customer, e.g. delivery requests, deadlines, discounts etc. shall be treated as non-binding suggestions from the Customer. They shall only become part of the Contract if they are expressly accepted by the Company in writing as part of the order confirmation.
3.3 To the extent that the Customer includes in its order, or if these become part of the Contract, certain specifications, configurations and other requirements for Products and Services and their functionality, compatibility and interoperability with other Products or Services (not authorised by the Company) and their suitability for a specific use, the Customer shall be solely responsible for the correctness, accuracy and completeness of this information and the information on which it is based. The Customer warrants that the information provided to the Company as part of an agreement is complete, accurate and true and acknowledges that the Company may not be able to perform obligations in full or exercise rights under an agreement if it does not provide the Company with complete, accurate and true information or instructions. Any duty of the Company to warn within the meaning of Section 1168a ABGB [Austrian Civil Code] is expressly excluded.
3.4 If, after conclusion of the Contract, events occur which no longer enable the Company to fulfil the Contract at the agreed conditions in a way that covers its costs, or which make it impossible for the Company to fulfil the Contract at all, the Company shall be free to withdraw from the Contract.
IV ONLINE ORDERS
4.1 For orders placed by the Customer via the Company’s internet portal https://portal.zumtobelgroup.com (hereinafter referred to as “Portal”), the following provisions shall also apply:
4.2 After successful registration by the Customer and approval by the Company, the Customer shall receive a welcome e-mail with the option to set a personal password for the e-mail address specified. The Customer undertakes to keep personal login details such as user name and password confidential. The Customer is obliged to notify the Company immediately of any significant changes to the access rights of authorised persons. The Customer is responsible for the consequences of any disregard of this provision by it or its bodies, employees, auxiliary persons and authorised representatives.
4.3 Any person who legitimises himself/herself in the Portal using the Customer’s login details shall be deemed to be authorised vis-à-vis the Company to perform all legal transactions possible in the Portal on behalf of the Customer, irrespective of whether this person is actually the Customer or an authorised user of the Customer. The Customer accepts all legal transactions made on the Company’s Portal with its login details as binding to the Customer. The Customer reserves the right to prove that an external third party has legitimised itself on the Portal for the Customer without authorisation without any fault on the part of the Customer; in this case, the Customer shall not be liable for the processes and legal transactions by the external third party performed without authorisation.
4.4 The processing of Contracts concluded on the Portal and all related information is performed partly automated by e-mail. The Customer is therefore responsible for making sure that its stored e-mail address is correct and that the receipt of e-mails is ensured.
4.5 The presentation of merchandise on the Company’s Portal is non-binding and is not a binding offer to conclude a Contract. Orders placed on the Portal constitute a binding offer to purchase by the Customer to the Company.
4.6 The order confirmation sent automatically by the Company after receipt of the purchase offer only serves to inform the Customer about the receipt of the order and does not lead to conclusion of the Contract. Acceptance of the Customer’s purchase offer shall be executed by a separate confirmation from the Company in text form (e.g. e-mail) informing about execution of the order (order confirmation) or delivery of the merchandise (shipping confirmation).
4.7 After conclusion of the Contract, changes to the order by the Customer are only possible with the written consent of the Company and subject to indemnification.
4.8 If, after conclusion of the Contract, events occur which no longer enable the performance of the Contract at the agreed conditions in a way that covers its costs, or make the performance impossible for the seller at all, the seller shall be free to withdraw from the Contract.
4.9 The Company does not guarantee the faultless functioning of its Portal and expressly excludes liability for damages arising from the use of its Portal. Any responsibility and liability for access disruptions, such as insufficient or deficient availability of the Portal or faulty transmission of information and explanations when using the Portal, is also excluded.
4.10 The Customer acknowledges that by using the Portal from abroad it may violate rules of foreign law, e.g. by using the encryption procedures used on the Portal. The Company disclaims all liability and responsibility in this regard.
V PRICES AND TERMS OF PAYMENT
5.1 The prices stated for the respective SERVICES in the respectively transmitted offer or order confirmation or the respectively agreed price list shall apply. All prices are in euros and exclusive of value-added tax.
5.2 The Company reserves the right, upon notifying the Customer, to adjust prices for SERVICES not yet delivered or supplied, as the case may be, to reflect changes in attributable and verifiable direct costs, including changes in currency exchange rates and changes in raw material prices, other manufacturing costs, distribution costs and labour costs, if such changes exceed five percent (5%) of the original direct costs and if such changes take effect between the date of the Contract and the date of delivery of the Products and/or performance of the Services.
5.3 Terms of payment
5.3.1 Unless expressly agreed otherwise, the Customer shall in principle make an advance payment of the total purchase price or remuneration.
5.3.2 If the final result of the credit check justifies it, the Company may, notwithstanding 5.3.1, (i) require the Customer to pay according to fixed payment dates; (ii) require a partial payment; (iii) invoice separately for individual phases, time periods or milestones of an order processing.
5.3.3 Payment of the invoice amount shall be made within 14 days (receipt of payment) of the transmission of a legally compliant invoice to an account to be separately notified by the Company. The date on which the account is credited shall be decisive for compliance with the payment deadline. The Customer agrees to receive electronic invoices. Electronic invoices are sent to the Customer in PDF format by e-mail.
5.4 In the event of partial deliveries or partial services, the Company shall be entitled to issue partial invoices.
5.5 Upon expiry of the payment deadline pursuant to 5.3.3, the Customer shall automatically be in default. In the event of default, interest shall be payable at a rate of 10% above the base rate. The right of the Company to claim further damages for delay remains unaffected.
5.6 The Company shall have the right to suspend performance of its obligations under this Contract until all charges due have been paid in full, without prejudice to any claim for damages or other claims of the Company.
6.1.1 The Company sells to the Customer, in accordance with the offer underlying these GTC, Products in the quantity specified therein.
6.1.2 All prices are CPT (Carriage Paid To) in accordance with INCOTERMS 2020, whereby only ground level unloading is owed.
6.1.3 Unless expressly agreed otherwise, any delivery periods and delivery dates notified shall be non-binding and shall always be understood as the expected time of provision and handover of the Products to the Customer.
6.1.4 If a delivery period has been agreed, it shall commence at the latest of the following dates:
(a) Date of written confirmation of order by the Company;
(b) Date of fulfilment of all technical, commercial and other prerequisites incumbent on the Customer which are necessary for performance of the SERVICE;
(c) Date on which the Company receives an advance payment, deposit or security to be made by the Customer prior to performance.
6.1.5 Products not accepted by the agreed date shall be stored at the risk and expense of the Customer, for which the Customer shall owe a reasonable storage fee for each calendar day commenced. At the same time, the Company is entitled either to insist on performance of the Contract or to withdraw from the Contract after setting a reasonable grace period.
6.1.6 Insignificant defects do not entitle the Customer to refuse or suspend acceptance of SERVICES. The Company shall remedy such defects within a reasonable period of time. “Insignificant defects” are non-conformities or anomalies that do not impede the operation and intended use of SERVICES in accordance with their specifications.
6.1.7 The place of performance for the delivery of Products is always the Company’s works or warehouse from which the dispatch of the Products takes place. This shall also apply if the delivery is made as part of an assembly or if the transport is carried out or organised by the Company.
6.2 Sample deliveries
6.2.1 At the request of the Customer, the Company may provide Products from the delivery programme as samples for inspection purposes, free of charge for a maximum period of four weeks, whereby a delivery shall only be deemed to be a sample delivery if it is expressly designated as such in the delivery note and/or in the invoice of the Company. Lamps, electronic wear parts and custom-made products cannot be obtained as samples.
6.2.2 In the case of delivery of Products as samples, invoicing shall be carried out at the agreed standard conditions. A credit note will be issued for the invoice after the Products have been returned in due time in original packaging.
6.2.3 If the Products are not returned to the Company within the time limit, they shall be deemed to have been purchased on the basis of these GTC. The same applies if returned Products have been partially or completely exchanged, modified or damaged or bear traces of mounting.
6.3 Small quantity surcharges
For all orders below a net goods value of EUR 1,000.00 (excluding taxes, duties and costs), a small quantity surcharge of EUR 50.00 per delivery will be charged. Backorder deliveries or partial deliveries due to the fault of the Company shall be excluded from this provision.
6.4 Retention of title
The Company retains title to all Products delivered by it until full payment of the charges plus any interest and costs, and is furthermore entitled to publicise this retention of title until receipt of full payment and to notify and register it with the competent domestic and foreign authorities.
6.4.1 The Customer hereby assigns to the Company, as security for the Company’s purchase price claim, its claim arising from a resale of Products subject to retention of title – even if these are processed, transformed or mixed – and undertakes to make a note to that effect in its books or on its invoices. Upon request, the Customer shall inform the Company of the assigned claim and its debtor, provide all information and documents required for collection of the claim and notify the third-party debtor of the assignment.
6.4.2 In the event of seizure or other claim to the Products subject to retention of title, the Customer shall be obliged to draw attention to the Company’s right of ownership and to notify the Company without delay.
7.1 The Company shall provide Services in accordance with the offer underlying these GTC to the extent agreed therein and at the prices agreed therein or in the price list. Services will be provided during normal working hours (Monday to Thursday between 07:30 a.m. and 4:30 p.m., and Friday between 07:30 a.m. and 12:00 noon), unless otherwise agreed between the Parties.
7.2 Where the Company provides Services at the Customer’s premises, the Company shall comply with all security, safety and health standards and any other regulations or instructions specified by the Company or the end customer or as required by applicable local legislation.
7.3 The place of performance for Services under this Clause 7 shall be where the relevant SERVICE is performed; in case of doubt, the Company’s works.
8.2.1 If the Company provides the Software to the Customer as a service and unless otherwise agreed in the individual case, the Company shall grant the Customer a non-exclusive, non-transferable, non-sublicensable right to use the Software within the scope of its functionalities and according to the purpose of use approved by the Company, limited to the territory of the state in which the Customer has its registered office, for the duration of the Contract and subject to the timely payment of licence fees.
8.2.2 If the Company sells the Customer Products in which Software is embedded, and unless otherwise agreed in individual cases, the Company shall grant the Customer a worldwide, non-exclusive, transferable and sublicensable right to use this embedded Software within the scope of its functionalities and in connection with the Product on which it was pre-installed upon delivery, subject to the timely payment of any licence fees and the purchase price for the Products.
8.3 The Customer is prohibited from: (i) Reverse engineering, disassembling or decompiling the Software or any part thereof unless such restriction is expressly limited by applicable mandatory law; (ii) Removing, altering or defacing any copyright or other proprietary or intellectual property notices from the Software; (iii) Developing or manufacturing software development kits or related products using the Software or marketing or distributing such products in any manner; (iv) Sub-licensing or distributing the Software or making it available as separate components without the Products of the Company; (v) Appointing sub-distributors except as expressly permitted in this agreement; (vi) Otherwise distributing, sub-licensing or otherwise transferring the Software to third parties except as expressly permitted in these GTC or in a written agreement between the Company and the Customer; (vii) Bringing an action or otherwise asserting a claim against the Company, its licensors or other customers in any court or administrative authority alleging that the Software or documentation or any part thereof or the use, implementations or other derivative works of the Software or documentation infringe any intellectual property rights of the partner, the Customer or any third party; (viii) Copying, exporting, re-exporting, sub-licensing, renting, loaning, leasing, disclosing, selling, marketing, re-licensing, otherwise transferring the Software (or any part thereof) to a third party or using or permitting use of the Software (or any part thereof) if not otherwise expressly agreed.
8.4 All documentation provided by the Company in connection with the Products, Software and Services, such as user manuals or instructions, catalogues, specifications, data, drawings, plans, designs or other documents or information received from or created by the Company in any form, including in electronic or printed form (“documentation”), shall remain the property of the Company. No documentation is sold to the Customer, but only a licence to use it is granted for the duration of the Contract. Unless otherwise agreed, the intellectual property in the documentation shall belong to the Company or to a person designated by the Company. The Customer may only use, publish, copy or disclose the documentation in accordance with these GTC.
8.5 Licence fees
The use of the Software is subject to licence fees in accordance with the offer underlying these GTC or the agreed price list.
8.6 Proprietary rights of third parties
8.6.1 If a third party asserts claims against the Customer on the grounds that the use of the Software or components thereof, information, instructions or data provided to and used by the Customer under the contractual relationship existing with the Company infringes the third party’s intellectual property rights and associated proprietary rights, the Company shall indemnify the Customer if the Customer complies with the following provisions:
(a) Immediate written notification of the Company in writing, but not later than 14 days after the Customer has been notified of the claim, or earlier if required by applicable law;
(b) Transfer to the Company, to the extent permitted by law, of sole control of the legal defence and all settlement discussions at the request of the Company at any time, and
(c) Providing the Company with the information and reasonable assistance necessary and useful for the legal defence or settlement negotiations and granting the Company the relevant power of attorney.
8.6.2 If the Company has reason to believe, or if it is determined, that the Software or any component thereof may have infringed the proprietary rights, copyrights or other intellectual property rights of a third party, the Company shall have the option of either modifying the Software or the affected components thereof so that its use is no longer infringing (whilst substantially preserving its usability and functionality) or procuring a licence for its continued use. If none of these options is economically justifiable, the Company shall be entitled to terminate the right of use for the Software component concerned, to demand the return of the same and to reimburse the Customer for any fees paid and expenses incurred in this respect.
8.6.3 The Company shall not indemnify the Customer if the latter modifies the Software or components thereof or uses it outside the scope of use determined in this Contract, provided that the claim for infringement could have been avoided by using an unmodified version of the Software.
8.6.4 This Clause 8.6 conclusively regulates the remedies of the Parties for claims and damages in respect of indemnification for infringement of intellectual property rights and related proprietary rights (defects of title).
IX COMMON PROVISIONS FOR PRODUCTS, SOFTWARE AND SERVICES
9.1 The Customer may use the Products, Software and Services only for their intended purposes and in accordance with all instructions contained in the manuals, guidelines, warranty terms and any other general terms and conditions applicable to such Products, Software and Services, or given by members of the personnel employed or subcontracted by the Company to perform a Contract.
9.2 The Company may make changes to the design, materials, fit and finish of the Products or change working methods, communication systems, Software or other elements of the Services and their documentation, provided that such changes do not substantially affect the functionality of the Product or the Services. Unless otherwise agreed, the Company does not guarantee the availability, accuracy, completeness, reliability, timeliness or performance or result of Products, Software and Services. The Customer may only use the Products, Software and Services for the contractually agreed applications and purposes.
9.3 The Customer shall not perform (or permit to be performed) any work on any Products or Software supplied and/or used by the Company as part of the Services, beyond normal use in accordance with the specifications without prior consent of the Company. In the event of unauthorised acts, the Company may suspend the Services until the equipment or Software is restored to its original compliant state and may charge the Customer for any modification. Pending confirmation, any warranty and guarantee obligations of the Company in respect of these Services are suspended. All modifications to equipment or Software owned by the Company (or the licensors) are the exclusive property of the Company (or the licensors), even if such modifications are made by or for the Customer.
9.4 The Customer expressly acknowledges that certain features and functions of Products, Software and Services depend on the availability and proper provision of the Company’s designated external services such as power supply, data storage, network connectivity and communications. The Company has no control over this service and thus accepts no responsibility or liability in this respect.
9.5 The Customer shall be responsible for all information, orders, instructions, materials and activities provided or performed by the Customer or third parties commissioned by the Customer (other than the Company’s subcontractors) in connection with the supply of Products, Software and Services by the Company. The Company shall have the right to rely on the accuracy and completeness of all information provided by the Customer even in cases where the Company provides data collection, design or audit services. Upon the Company’s request, the Customer shall promptly provide any other information, services or support services that the Customer controls and that are relevant to the Company’s performance under the Contract.
9.6 Any cancellation, delay or other change by the Customer of any order accepted by the Company shall be subject to the prior approval of the Company, and such approval shall be without prejudice to any rights or remedies available to the Company in compliance with the Contract or compliant to law. If the Company, at the request of the Customer, agrees to a change in the order or a change in the Contract, including a (partial) cancellation, delay or suspension, addition, omission, modification, substitution or change in design, quality, standard, quantity, place of manufacture or performance (including sequence, quantities or timing) of Products or Services (each designated as “change”), or agrees to a change due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) inaccurate or incomplete information provided by the Customer or (iv) failure of the Customer to comply with its obligations under the Contract, the Customer shall reimburse the Company for all costs and expenses incurred as a result of such changes promptly after the first request.
X OBLIGATIONS OF THE CUSTOMER TO COOPERATE
10.1 The Customer shall provide the Company, at its own expense, with all necessary and appropriate information in good time and to the extent required for performance of the Contract, and shall immediately fulfil all other necessary cooperation and provision services from its area of responsibility.
10.2 The Customer’s obligations to cooperate shall in any case include:
10.2.1 Provision of access to the place of the intended delivery and/or SERVICE, in particular for carrying out planning, installation and implementation work;
10.2.2 Provision of low-value work equipment (e.g. office workstations, writing materials, etc.) for on-site work;
10.2.3 In the case of requests for a fault intervention, the transmission of a detailed fault description containing as many details as possible as well as a description of the circumstances at the time the fault occurred;
10.2.4 Provision of a server infrastructure with the specifications stated by the Company (if agreed);
10.2.5 Provision of access to the server infrastructure via the Internet for performance of maintenance and support services;
10.2.6 Provision of physical access to the server infrastructure on site, in particular for the performance of maintenance and support services.
10.3 The Customer shall provide the Company in a timely manner with all the information and other cooperation required for performance of the Contract free of charge. If certain safety precautions are to be taken or certain safety regulations are to be complied with in the performance of the Contract, the Customer is obliged to inform the Company in writing without delay. Should appropriate training of the Company’s personnel be required, this shall be at the expense of the Customer. Where appropriate or necessary, the Customer shall cooperate in the planning, installation and implementation work and in the maintenance and support services if requested by the Company. In particular, the Customer shall provide the personnel qualified for this purpose in good time and free of charge. If, in the opinion of the Company, the Customer does not sufficiently fulfil these obligations to cooperate and thus jeopardises the Company’s fulfilment of its obligations, the Company shall warn the Customer accordingly. If the Company is unable to properly fulfil its obligations due to the delayed or insufficient cooperation of the Customer, the Company shall not be liable for the resulting consequences and damages, but the Customer shall be solely responsible for these and, if applicable, liable to pay costs or pay for damages to the Company.
10.4 The Customer shall notify the Company immediately in writing or by e-mail if circumstances arise and become apparent which may lead to non-compliance with agreed deadlines or dates.
10.5 Official permits and third-party permits required for the execution of installations shall be obtained by the Customer. The Company bears no responsibility in this respect.
10.6 If performance under the Contract is conditional upon the approval, confirmation or acceptance by the Customer of any proposal, design, work result, plan or act to be undertaken by the Company, the Customer shall declare such approval, confirmation or acceptance to the deadline specified in the Contract or, if no deadline is specified, within seven (7) days of receipt of a request to do so from the Company. If the Customer does not respond within this period, its approval, confirmation or acceptance shall be deemed declared.
11.1 If the Company is in default with the delivery of the Products or the provision of Software or with the provision of Services, this shall initially not affect the continued existence of the underlying agreement. In the event of default, the Customer may grant the Company a reasonable – at least 4-week – grace period for performance of the Contract. If the Company allows the period of grace granted in this way to elapse without fulfilling the obligation reminded therein, the Customer shall be entitled to terminate the Contract to the extent reminded or – insofar as a partial delivery or partial performance is concerned – only to terminate the partial delivery or partial performance.
11.2 If SERVICES cannot be performed within an agreed period or on an agreed date due to circumstances that (i) are beyond the Company’s control, such as in particular force majeure, difficulties due to lack of raw materials, operational restrictions and operational shutdowns as well as unforeseen production disruptions, floods, storms, official orders and/or inspections and other circumstances, or (ii) are within the Customer’s sphere of influence (e.g. lack of material, no access to the installation site, lack of official permits etc.), the Company shall be released from its obligation to perform for the duration of the existence of the circumstances or their effects and shall not be in default with respect to these SERVICES. Furthermore, the Company may charge all additional costs (e.g. storage costs, frustrated internal costs, frustrated costs for subcontractors etc.) which arise due to such a delay and which the Company can at least plausibly present, in addition to the agreed price. If the Company uses its own personnel for this purpose, the hourly rates usually charged by the Company and plausibly presented shall be applied.
12.1 The Company warrants, subject to the terms and conditions set out in these GTC, that the supplies and SERVICES will be delivered or performed in accordance with this Contract and will be substantially free from material defects and defects of title. The burden of proof for the existence of a material defect or defect of title shall in any case lie with the Customer. In any case, it must be possible to reproduce it. A presumption of defectiveness is excluded.
12.2 Unless expressly agreed otherwise, the warranty period for Products, Software and Services is 24 months from delivery. It shall commence at the time of the transfer of use and risk. A replaced or repaired part is warranted until expiry of the original warranty period.
12.3 Unless expressly agreed otherwise, the Company provides no warranty or accepts no other liability for the suitability of the SERVICES for a particular purpose or for the functionality and safety of any system into which the Customer integrates the Products or Software or has them integrated (where applicable by the Company) or for which the SERVICES are intended. In this context, the Parties agree, subject to any express agreement to the contrary, that the Company makes no representation, warranty, guarantee or other undertaking as to the functionality of any system for the purpose of performing, controlling, safeguarding or otherwise supporting any particular operation or other particular purpose, and any liability for this purpose is expressly excluded.
12.4 A warranty on the part of the Company is excluded in any case in the following cases:
(a) In the event of improper use of the Products or the Software, unauthorised modification or repair, by the Customer, in particular in contradiction to this Contract and its appendices, to instructions for use, warnings, cleaning instructions, maintenance instructions or other information of which the Customer is aware or should have been aware;
(b) Overvoltage, undervoltage, power failure, lightning, water damage, floods, fire, explosions, earthquakes, tornadoes, attacks, acts of war or similar phenomena;
(c) Discharging of the batteries of the Products;
(d) Use of harsh chemicals, cleaning solutions or strong detergents (only a little water and little soap or a dry cloth must be used to clean the surface of components);
(e) Varnishing, painting or other changes to the surfaces of the Products;
(f) Defects due to normal wear and tear;
(g) Changes to the installation and/or configuration and/or server infrastructure and/or components or Software without consultation with the Company;
(h) Failure to perform maintenance if the causes for this lie within the sphere of the Customer;
(i) Presence of intentional or unintentional jammers or other sources of interference that interfere with signal transmissions (especially Bluetooth);
(j) Displacement, theft or destruction of one or more Products or Software;
(k) Incidents or accidents related to installation of the Products if the Customer performs the installation;
(l) Signal interruption to one or more Products or the server infrastructure or other components of the system (power failure, shutdown of one or more such elements);
(m) Non-availability outside the planned coverage area;
(n) Radio frequency configuration (frequency range, power, transmission characteristics) or position of a component that does not correspond to the recommended position;
(o) Poor LAN connection between locators and edge device;
(p) Violation of obligations to cooperate.
12.5 The Customer is obliged to inspect the Products and give notice of defects within 14 days. After unused expiry of this period, the assertion of any warranty claims and claims for damages due to recognisable defects shall be excluded. In any case, the Customer shall notify the Company in writing of all deficiencies in performance.
12.6 In the event of material defects, the Company shall initially have the option in all cases of improvement (rectification or addition of what is missing) or replacement; with regard to the components, the Company shall, at its own discretion, provide the Customer with new, defect-free components or shall repair the defective components; temporary rectification of defects shall also be deemed to have taken place if the Company demonstrates to the Customer reasonable options of preventing the effects of the defect.
12.7 Even in the case of defects of title, the Company shall in any case first have the option of providing a warranty by means of improvement; at its discretion, it shall provide the Customer with a legally flawless opportunity to use the Products to the agreed extent or to use replaced or modified equivalent Products.
12.8 Within the scope of the warranty, the Customer shall accept new or modified Products if the contractual scope of functions remains unchanged and the acceptance does not lead to significant disadvantages to be proven by the Customer.
12.9 If two attempts at improvement fail, the Customer shall be entitled to set a reasonable grace period for the rectification of defects. In doing so, it shall expressly point out in writing that it reserves the right to demand a price reduction in the event of renewed failure or – insofar as the defect is not minor – to rescind the contract. If the further improvement also fails, the Customer may reduce the remuneration or withdraw from the Contract, the latter, however, only if there is no minor defect, whereby the Customer must prove the contrary.
12.10 Clause 14 of this Contract applies to liability for damage caused by defects and consequential damage caused by defects.
12.11 If the Company provides SERVICES, e.g. in troubleshooting or fault rectification, without there being a defect or if it turns out that the defect was caused by the Customer, the Company may demand an appropriate fee for these SERVICES.
12.12 No warranty beyond the warranty obligations in this Clause 0 is assumed.
13.1 Unless expressly agreed otherwise, the Company assumes no guarantee for the Products, for the Software or for the provision of SERVICES.
13.2 Insofar as the Company has assumed a guarantee for the Products, this guarantee shall not apply or shall expire immediately in the following cases:
13.2.1 For wear parts, such as all standard lamps, batteries and hard disks, as well as for computers and servers that contain such wear parts;
13.2.2 Electronic components, products and luminaires that the Company sells as merchandise, such as touch panels, printers and computers under third-party labels, as well as luminaires from other manufacturers;
13.2.3 In all cases specified in Clause 12.4 .
XIV DAMAGES AND OTHER LIABILITY
14.1 The Company shall be liable for damages due to a breach of Contract – except in the case of personal injury – only in the event of gross negligence. Likewise, the Company shall not be liable in the cases of Clause 12.4.
14.2 Except in the case of intentional or flagrantly gross negligent damage, the Company shall not be liable for consequential damage (caused by defects) or indirect damage, direct damage, loss of profit, loss of revenue or loss of interest, or damage resulting from the loss of data or the unlawful use of data.
14.3 The Company’s total liability arising out of and in connection with the Contract shall be limited to the order value in cases of slight and gross negligence, but not in cases of flagrantly gross negligence or wilful misconduct. The order value within the meaning of this Clause 14.3 corresponds to the amount of the total remuneration agreed and paid by the Customer for the respective Products or SERVICES or Software, but not more than the respective remuneration for the last 12 calendar months preceding the event of damage.
14.4 The period of limitation for damage claims and other compensation claims is 1 year.
14.5 The Parties expressly waive the right to contest this Contract on the grounds of error as well as on the grounds of frustration of contract.
14.6 Any liability under the Product Liability Act (PHG) remains unaffected.
XV FORCE MAJEURE
15.1 If a Party is prevented from performing its obligations by a force majeure event (the “affected Party”), provided that it has complied with Clause 15.3, it shall not be in breach of the Contract and shall not be liable for any failure or delay in performing the affected obligations. The deadline for performance of the affected obligations shall be extended for the duration of the force majeure event and, if the force majeure event continues to have an effect thereafter, for as long as and to the extent that it has an effect.
15.2 The affected Party shall:
15.2.1 as soon as possible after commencement of the force majeure event, inform the other Party of the force majeure event, the date of its commencement, if foreseeable, its probable or possible duration and the effect of the force majeure event on its ability to perform its obligations.
15.2.2 make all reasonable efforts to mitigate the effects of the force majeure event on the performance of its obligations.
15.3 “Force majeure event” means any unusual and unforeseeable circumstance beyond the sphere of influence of a Party, including, but not limited to, the following circumstances (provided in each case that such circumstance is in fact unusual and unforeseeable and beyond the sphere of influence of the Party): (i) storms, floods, droughts, earthquakes or other natural disasters; (ii) epidemics or pandemics; (iii) sabotage, terrorist attacks, civil war, civil commotion, rebellion or insurrection, war, threat of war or preparation for war, armed conflict, imposition of sanctions, embargo, severance of diplomatic relations, interference with the production chain or supply chain by civil or military authorities (whether these are legal or de facto); (iv) nuclear, chemical or biological contamination; (v) building collapse, fire, explosion; (vi) cyberattacks; (vii) interruption or failure of utilities; (viii) strikes and lawful lockouts; (ix) inability to obtain or procure supplies, labour or means of transportation from a third party if such inability is caused by an event beyond the control of the third party which, if it had happened to the Party, would constitute a force majeure event under this clause. If a force majeure event occurs, the affected Party shall notify the other Party as soon as possible, but no later than 3 days after the event, and provide appropriate evidence.
15.4 Apart from and in addition to the foregoing provisions, the currently ongoing COVID-19 (coronavirus SARS-CoV-2) epidemic/pandemic and/or its consequences shall continue to be considered a force majeure event to the extent that it delays or prevents the performance of an obligation of a Party and such delay or prevention could not have been foreseen at the time of concluding the Contract.
XVI DATA PROTECTION
16.1 The Parties undertake to comply with the statutory and Union legislation data protection provisions and to ensure compliance with these provisions, in particular by their employees.
16.2 The Customer is the “data owner” within the framework of the Contract as well as in the sense of data protection legislation. Whether and to what extent third parties enter or access personal data in the system remains solely at the discretion of the Customer and the Customer shall assume sole responsibility for any resulting violations of data protection legislation.
17.1 The Parties shall treat as confidential and keep secret from third parties all information and documents, in particular trade secrets and business secrets, which come to their knowledge in connection with the performance of this Contract and which are not generally known. Trade secrets also include technical know-how, operating methods and safety and security measures (hereinafter collectively referred to as “information”).
17.2 This duty of confidentiality shall not apply if and to the extent that the Party subject to the duty of confidentiality proves that (i) the relevant information was in the public domain, i.e. published or generally accessible, at the time it was obtained, or (ii) became in the public domain after it was obtained through no fault of the Parties, or (iii) was already known to the Party at the time it was obtained, or (iv) was made in the public domain by third parties after it was obtained in a lawful manner, i.e. without breaching any duty of confidentiality.
17.3 Furthermore, the duty of confidentiality does not apply to information that must be disclosed due to enforceable official or court orders or legal obligations. However, the Parties shall immediately agree on such measures among themselves.
17.4 The Customer is prohibited from reverse engineering, disassembling or decompiling Products or other items provided by the Company unless the respective item has been made available to the public by the Company or the Company gave its prior consent.
XVIII FINAL PROVISIONS
18.1 The failure of the Company to exercise any right under these terms and conditions or under any Contract shall not constitute a waiver of any future right to exercise such a right.
18.2 The Customer shall not be entitled to set off any claims against the Company – irrespective of their legal basis – against the Company’s claims under this Contract, unless such claims are undisputed or have been finally determined by a court of law.
18.3 Amendments and supplements to this Contract must be made in writing (including e-mail, fax) and shall be made in accordance with the procedures provided for in this Contract. This also applies to the waiver of this written form requirement.
18.4 If any provision of these terms and conditions or any Contract is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of these terms and conditions or the Contract. In such a case, the Contracting Parties shall endeavour to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the purpose of the provision to be replaced. This shall also apply mutatis mutandis to the filling of any gaps in these terms and conditions or the Contract.
18.5 To the extent that any provision of these GTC conflicts with any provision of the offer or any appendix to the offer, the conflicting provision of any offer or appendix to the offer shall prevail over these GTC. To the extent that any provision of the offer conflicts with any provision of an appendix to the offer, the conflicting provision of the appendix to the offer shall prevail over the provision of the offer.
18.6 The Company shall be entitled to use subcontractors and other third parties or to be represented by third parties for the purpose of performing its obligations under these terms and conditions or under the Contract without the consent of the Customer.
18.7 A Customer who resells Products or includes Products and/or Services in offers to its own customers shall ensure that all of its customers and/or end users of Products or Services comply with all relevant obligations of the Customer under the Contract and these GTC, and that the terms and conditions agreed by the Customer with its customers or end users are consistent with the Contract and these GTC. In the event of a breach of this provision, the Customer shall indemnify and hold harmless the Company, the affiliates and their authorised officers, agents, employees and successors in title for all losses, liabilities, costs (including legal costs) and expenses.
18.8 These GTC and all offers and contracts between the Company and the Customer shall be governed exclusively by Austrian law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
18.9 For all disputes or claims arising out of or in connection with this Contract, including disputes regarding its validity, breach, dissolution or nullity as well as its preliminary and subsequent effects, the exclusive jurisdiction of the Regional Court of Feldkirch is agreed.
18.10 The possible invalidity of individual provisions shall not affect the validity of the remaining General Terms and Conditions. The invalid or missing provisions shall be replaced by the respective statutory provisions.