Общие условия заключения торговых сделок

Conclusion of Contract 

1. These terms and conditions apply to all deliveries and services.
2. A contractual relationship can only be formed by accepting a written order (a fax fulfils the written form requirement). Any offers by SES are subject to change.
3. Contract terms or other business terms and conditions of the buyer/customer are invalid, unless SES explicitly recognises them in writing.
4. These terms and conditions generally apply, unless written changes, additions, or special agreements are made in writing in a contract and both sides explicitly recognise them in writing.

Delivery/Installation

1. Delivery and/or installation dates are considered kept even if SES or a supplier commissioned by SES has begun delivery/installation of only part of a service.
2. SES’ delivery/installation dates are non-binding. If a delivery/installation date that has been confirmed in writing is exceeded by more than six weeks and SES is at fault and the appropriate extension of time set by the buyer/customer in writing is not maintained and SES is again at fault, the buyer/customer is entitled to withdraw from the contract. In this case, partial payments will be returned to the buyer/customer, unless other claims exist against the buyer/customer, especially claims from earlier orders. SES has the right to offset the payments made with claims against the buyer/customer from any title.
3. Claims of the buyer/customer that go beyond withdrawal, such as claims to indemnity, are prohibited by mutual agreement. If the buyer/customer received the item, withdrawal is no longer permitted. If a delivery or service is partially completed, the right to withdraw exists only in regard to the remaining deliveries or services. Claims to indemnity exist only in cases of intent or gross negligence on the part of SCHMIDHUBER EDV Software Ges.m.b.H. (SES).
4. SES has the right to carry out partial deliveries/installations or partial services. In the absence of a special agreement, SES has the right to invoice individual partial deliveries, partial installations, or partial services plus the compulsory VAT.
5. The term “force majeure” includes events that fall outside SES’ sphere of influence and can prevent or impede proper fulfilment of SES’ obligations. This particularly includes war, military mobilisation, war-like events, disturbances, strikes, manufacturing disturbances, natural disasters, fire in SES’ sphere or that of its subcontractors, trade-union actions, etc.. If such events last longer than six weeks or the end of such an impediment is not foreseeable after more than six weeks, both contracting parties are entitled to fully or partially withdraw from the contract. In case of withdrawal, each contracting party must cede to the other those things it has received in the meantime; already completed services like installations, training, etc., remain unaffected by this withdrawal are will be invoiced. Claims to indemnity on the part of the buyer/customer are prohibited in all cases.
6. Herby you declare consent that Schmidhuber EDV Software Gesellschaft m.b.H. is allowed to collect and use technical and associated information (including technical information about your computer, your system software and programs as well as peripheral equipment), if they are relevant to Schmidhuber EDV Software Gesellschaft m.b.H. These informations are collected regularly to simplify the provision of software update, product support and other services. Schmidhuber EDV Software Gesellschaft m.b.H. is allowed to use this information for product improvements or to make available services and technologies providing the use without drawing conclusions to you.
7. The buyer/customer agrees to check the correctness and completeness of the delivery/installation by means of the attached delivery note upon receipt of the respective delivery/installation (own or outside software); if the delivery/installation is of outside software, they will also use the description on the outside of the product. The software licensing conditions of the manufacturer and the delivery conditions of SES are automatically recognised when sealed discs or CD packaging (outside software) is opened. Subsequent return or exchange is not permitted.
8. The place of fulfilment is Vienna.
9. National export or transit regulations, even if of foreign origin, must be strictly observed.

Receipt and Acceptance

1. Upon SES’ request, the buyer/customer must immediately accept the delivery/service and confirm it in writing.
2.  The acceptance is considered complete even if the buyer/customer explicitly (in written form) or tacitly waives it. A tacit waiver will be assumed if the buyer/customer has not carried out the acceptance within 2 weeks after the completed delivery/service and notification (verbal or written) of the significant of this lack of communication (fax suffices to observe the written form requirement; the date of the postmark applies for post replies).
3. If the buyer/customer does not accept the delivery/services and SES is not at fault, SES has the right to withdraw from the contract or claim compensation for non-fulfilment after setting a 14-day extension of time. In the latter case, SES has the right to request 10 percent of the agreed price of the delivery or service without proof of damages, reimbursement of the actually incurred damages, or fulfilment.

Prices and Payment Conditions

1. As a rule, the price stated in the offer apply, or the prices given in the valid price list subject to printing error(s) and mistake(s). SES has the right to change the prices at any time; if a price increases by more than 20%, the buyer/customer has the right to withdraw from the contract. Claims of the buyer/customer from this withdrawal, such as indemnity claims, are expressly prohibited. All prices given in the offers or price lists are net prices excluding compulsory VAT, in Euros (EUR), and not taking into account the shipping point. All shipping costs (with the exception of normal postal shipping) and the compulsory VAT will be paid by the buyer/customer. All auxiliary costs will be listed separately on SES’ invoices and recognised in this form by the buyer/customer.
2. Regardless of contradictory conditions or statements by the buyer/customer, payments will be directed to the oldest outstanding invoice. Unless agreed otherwise, SES does not accept bills of exchange and cheques by way of payment.
3. Services to be billed by expense according to agreement will be invoiced immediately after written confirmation (as per 3.1).
4. All payments must be made within 14 days after the invoice is issued in the absence of a special agreement.
5. In case of late payment, SES will charge a late interest rate corresponding to the bank interest rate + 5.00 percent, at minimum of 11.00 percent p.a. If the bank interest to be paid by SES is higher than the previously stated interest rate, SES has the right to subsequently bill the buyer/customer for the bank interest to be paid by SES. The charge of late interest is in addition to compulsory VAT and compound interest amounting to 14 percent.
6. The buyer/customer is no case entitled to a set-off against existing or alleged counterclaims or to withhold payments due, for any reason whatsoever, especially due to alleged legal counterclaims.
7. Set-off with counterclaims of the buyer/customer is only permitted by special agreement and to the extent that such claims are due, not disputed by SES, or legally binding.
8. Concessions regarding accommodations for payment, such as bills of exchange or cheques to be accepted as payment, will become due regardless of maturity if a significant deterioration of the buyer/customer’s financial situation becomes known. Regardless of contradictory conditions or agreements, SES has the right to complete outstanding deliveries or services in exchange for advance payment or security only, if a deterioration of the buyer/customer’s financial situation is considered possible. If advance payment or securities are not rendered even after an appropriate extension period, SES has the right to withdraw from the contract. In this case, the valid legal regulations will be applied as if the buyer/customer were in default. If payment in instalments is negotiated with the buyer/customer, a deadline is considered missed if the buyer/customer is more than 7 days late.
9. The maintenance fees will be connected to the index of consumer prices from the „Austrian Statstic Central Authority“ - revision 1986.
   In the case that this index should not be announced a homogenous or similar index has to be drawn up as composition base.
   Basis for the protection value is the announced index of the month of the conclusion of this contract.
   Fluctuations in the index up to 5 %either up or down remain unconsidered.

Warranty

1. Own software: SES provides a warranty for SES standard software for defects in legally and contractually promised technical functions, where the relevant liability/warranty is limited to rectification of defects or replacement. SES only provides a warranty for SES individual/supplementary software to the extent that SES has promised to do so in written form (defined in specification sheet confirmed by SES). Unless expressly agreed otherwise in writing, the warranty for the ordered and delivered/installed software only includes those defects that already existed at the time of delivery/service; defects that appear later (e.g. through incorrect storage of data carrier media, supplementary installation of other outside software, operating system modifications or hardware modifications, etc.) are excluded from SES’ liability. In the absence of special agreements, the warranty is valid for a period of 1 year after delivery. If a defect is discovered, a complaint must be lodged immediately and in written form or the buyer/customer’s claims will be void. SES is only liable - within the given limitations - for technical specifications and functions that SES has explicitly accorded in a contract, but not for information in brochures, periodicals, etc.
2. Outside software: for outside software, SES only provides a warranty to the extent agreed upon with the manufacturer, in addition to the conditions stated above. In the absence of contradictory agreements, the warranty period is 6 months after delivery. The warranty conditions for own software apply analogously for outside software; SES only provides warranty for the applicability and functionality of outside software to the extent defined in a specification sheet confirmed by SES, explicitly granted by SES in writing based on written statements of the buyer/customer, or as can be expected by the buyer/customer based on general industry efficiency. Warranty claims by the buyer/customer are limited to rectification of defects or replacement; if a rectification does not have the desired success, SES has the right to grant a reduction of price or withdraw from the contract, as it chooses. In cases of third party delivery, SES has the right to cede its warranty claims against the manufacturer to the buyer/customer, freeing SES of fault.
3. The contracting parties are aware that errors in state-of-the-art programmes cannot be excluded with absolute certainty even if the greatest possible care is used. If errors appear in programmes during the warranty period, SES will rectify them within an appropriate period and provide the buyer/customer with measures to circumvent or temporarily bypass the error(s). Errors only exist if the programmes demonstrate reproducible deviations from the specifications during contractual use.
4. Independent modifications to the product(s) by the buyer/customer or third parties without explicit written approval by SES terminate any warranty obligations on the party of SES and its suppliers.

Other Terms of Liability

1. SES does not assume any liability for warranty claims beyond those in Point 4. In particular, SES is not liable for damages to the buyer/customer’s financial situation or for consequential damages of any kind. This exemption from liability is not valid in cases of deliberate damage, conspicuously gross carelessness, or gross negligence on the part of SES.
2. In the absence of special agreements, SES does not assume any liability of any kind for violation of industrial property rights by third parties (e.g. patents, copyrights, ...) An alleged violation of industrial property rights by third parties must be reported immediately and in detail in written form.
3. The buyer/customer is liable for adhering exactly to use limitations or instructions of the manufacturer regarding delivered outside software and the SES software use licence and indemnifies and holds SES harmless. Such instructions of the manufacturer or from SES may extend to limitations of the use of the delivered product(s). In all cases in which the limitation of SES’ liability is not permitted due to compulsory legal regulations, SES is only liable for compensation for the amount of damages that was not foreseeable at the time of conclusion of contract, taking into account all circumstances that were known to or should have been known to SES, up to a maximum of the fee received from the buyer/customer.
4. Indemnity claims against SES expire within 12 months.

Retention of Title

1. SES retains the title to the delivered/installed products until all claims associated with this business transaction are met. The buyer/customer may only make use of products under retention of title in the normal course of business. Pledging or security transfer of title is prohibited. If third parties assert rights to products under retention of title, the buyer/customer must immediately inform SES.
2. SES is entitled, but not obligated, to withdraw from a concluded contract if insolvency proceedings are opened for the buyer/customer’s assets or if payments have stopped.

Severability Clause

If one of the clauses of these conditions is or becomes invalid due to legal standard, it will be replaced by a clause that comes as close as possible to the business purpose of the invalid clause. If individual or multiple clauses of the contract become invalid, this does not affect the validity of the rest of the contract.

Assignment of Claims

The buyer/customer may not assign claims from the contract to third parties without the written authorisation of SES.

Place of Fulfilment, Applicable Law, Court of Jurisdiction

The place of fulfilment and only court of jurisdiction for all claims associated with the business relationship is VIENNA. Only Austrian law will apply to the contractual relationship

 As of: 01/01/2015