General Terms and Conditions of SINNUP GmbH
General terms and conditions
1.1. For all legal relations between the company SINNUP GmbH, Schildorf 16, 4720 Kallham and their contractual partners, insofar as these are entrepreneurs, these General Terms and Conditions shall apply exclusively. These shall also apply to all future business relations, even if no express reference is made to them.
1.2. Subsidiary agreements, reservations, amendments or supplements to these General Terms and Conditions of Business must be made in writing in order to be valid; this also applies to any deviation from the written form requirement.
1.3. Any terms and conditions of the contractual partner that are contrary to or deviate from these terms and conditions shall only become effective, even if we are aware of them, if they are expressly acknowledged by us in writing.
1.4. Should individual provisions of these General Terms and Conditions – for whatever reason – be invalid or not become part of the contract, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.
2. conclusion of contract
2.1. Our offers are subject to change.
2.2. A contract is only concluded by written (e-mail, fax, mail) order confirmation on our part. Orders and agreements shall only be legally binding if they are signed by the Contractor in writing and in accordance with the company’s instructions and confirmed by the Contractor in writing and shall only be binding to the extent specified in the order confirmation. Offers of the contractor are always subject to change.
3. performance and testing
3.1. The subject of an order may be:
- Development of organizational concepts
- Global and detailed analyses
- Creation of individual programs
- Delivery of library (standard) programs
- Acquisition of usage rights for software products
- Acquisition of permits for the use of works
- Participation in commissioning (changeover support)
- Telephone consultation
- Program maintenance
- Creation of program carriers
- Other services
3.2. The elaboration of individual organizational concepts and programs is carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practical test data as well as test facilities to a sufficient extent, which the client provides in a timely manner, during normal working hours and at his own expense. If the customer is already working in live operation on the system provided for testing, the responsibility for backing up the live data lies with the customer.
3.3. The basis for the creation of individual programs is the written performance specification, which the Contractor shall prepare against cost calculation on the basis of the documents and information provided to it or which the Customer shall make available. This performance specification is to be checked by the client for correctness and completeness and to be provided with his approval note. Change requests occurring later can lead to separate appointment and price agreements.
3.4. Individually created software or program adaptations require program acceptance by the customer for the respective program package at the latest four weeks after delivery. This is confirmed in a protocol by the client. (Check for correctness and completeness on the basis of the performance specification accepted by the Contractor by means of the test data provided under point 3.2). If the Customer allows the period of four weeks to elapse without accepting the program, the delivered software shall be deemed to have been accepted on the end date of the said period. If the Customer uses the software in live operation, the software shall be deemed accepted in any case.
Any defects that occur, i.e. deviations from the service description agreed in writing, shall be reported by the Customer to the Contractor with sufficient documentation, who shall endeavor to remedy the defects as quickly as possible. If there are significant defects reported in writing, which means that live operation cannot be started or continued, a new acceptance is required after the defects have been rectified.
The Customer shall not be entitled to refuse acceptance of software due to immaterial defects.
3.5. When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.
3.6. Should it become apparent in the course of the work that the execution of the order in accordance with the specification of services is actually or legally impossible, the Contractor shall be obliged to notify the Client thereof immediately. If the Client does not change the service description or does not create the prerequisite that execution becomes possible, the Contractor may refuse execution. If the impossibility of performance is the result of a failure on the part of the Client or a subsequent change in the specification of services by the Client, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred for the Contractor’s activities up to that point, as well as any dismantling costs, shall be reimbursed by the Client.
3.7. Any shipment of program carriers, documentation and service descriptions shall be at the expense and risk of the Customer. Additional training and explanations requested by the client will be invoiced separately. Insurance is only provided at the request of the client.
3.8. We expressly point out that a “barrier-free design (of websites) within the meaning of the Federal Act on the Equalization of Persons with Disabilities (Federal Act on the Equalization of Persons with Disabilities – BGStG)” is not included in the offer, unless this was requested separately/individually by the client. If the barrier-free design has not been agreed upon, it shall be incumbent upon the Client to review the performance for its permissibility with regard to the Federal Disability Equality Act. Likewise, the Client shall review the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Contractor shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the Customer, if such content was provided by the Customer.
4. scope of services, stipulated characteristics, order processing and customer’s duty to cooperate
4.1. If we send templates (in particular samples, patterns, models, illustrations, preliminary designs, sketches, final artwork, brush prints, blueprints, mobile pages, demos and color prints), these must be checked by the customer. If the customer does not object within three days, the templates are considered approved.
4.2. A faithful representation of the final performance as a template is not possible for technical reasons. Templates shall therefore only be deemed to be warranties in accordance with this point regarding the design, quality, properties, suitability for a specific use, etc. of the performance owed by the Dealer, the Dealer shall therefore not make any warranties with regard to or, respectively. in particular does not warrant the exact placement and size of inscriptions on products; an exact color match between templates and finished services, in particular a color difference of up to ΔE 3.0, ΔE 4.5 if the templates were only approved in electronic form, shall not be deemed a defect; the technical properties, insofar as a use to be expected on average according to the nature of the service is not significantly impaired by deviations; a specific material or material quality, insofar as the end product is approximately comparable to the template. If the final performance therefore deviates from the template with regard to one or more of these properties, this deviation shall be deemed agreed and shall not constitute a defect.
4.3. In the case of deliveries, deviations of up to +/-10% of the number of pieces shall be deemed agreed without excess or short deliveries constituting a defect or a breach of contract. However, the purchase price depends on the actual number of units delivered.
4.4. The customer shall be obligated to cooperate to the extent necessary, in particular to provide all documents, templates and samples required for the performance of the service. We shall be informed without delay of all circumstances of significance for the performance of the order, even if these circumstances only become known during the performance of the order. Any expenses incurred due to incorrect, incomplete or subsequently changed information (additional costs, delays, …) shall be reimbursed by the customer.
4.5. In particular, the customer is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any existing copyrights, trademark rights or other rights of third parties. We shall not be liable for any infringement of such rights. If claims are made against us due to such an infringement of rights, it is agreed that the customer shall fully indemnify and hold us harmless.
4.6. On the other hand, we shall not be obliged to check the documents, data and information provided by the customer for completeness, correctness and whether they are suitable for the intended purpose, infringe the rights of third parties or violate statutory provisions (e.g. Unfair Competition Act, Product Safety Act, Trademark Protection Act, etc.), either on their own or in connection with services ordered by the customer.
4.7. In the absence of any agreement to the contrary, we shall not be obliged to store data or other documents (screens, films, etc.) created or generated in the course of an order/project beyond the time of handover of our service or to otherwise keep them available for the customer.
4.8. Our services are divisible in case of doubt.
SINNUP shall be entitled to an appropriate fee for participation in presentations which, in the absence of any agreement to the contrary, shall at least cover all personnel and material expenses for the presentation as well as the costs of all outside services and cash expenses.
If SINNUP does not receive an order after the presentation, all services, in particular the presentation documents and their contents, remain the property of SINNUP. The customer is not entitled to continue using them – in any form whatsoever. Instead, the documents must be returned to SINNUP without delay. The transfer of presentation and offer documents to third parties as well as their publication, duplication, distribution or other utilization is not permitted without the express consent of SINNUP.
Likewise, the customer is prohibited from further use of the ideas and concepts introduced in the course of the presentation, regardless of whether the ideas and concepts obtain copyright protection. With the payment of the presentation fee, the customer does not acquire any exploitation and usage rights to the presented services.
If the ideas and concepts contributed in the course of a presentation are not utilized for the solution of communication tasks, SINNUP is entitled to use the ideas and concepts presented elsewhere.
6. prices / cost estimates
6.1. Prices are based on costs at the time of the initial price quotation. Should costs increase at the time of delivery or performance, we shall be entitled to adjust the prices accordingly. In case of doubt, the prices offered are unit prices. The statutory sales tax as well as taxes and fees (e.g. ARA, ERA, …) are charged additionally.
6.2. Our cost estimates are generally non-binding, unless binding force is expressly promised.
6.3. All services not expressly covered by the agreed fee shall be invoiced separately. Expenses/cash outlays (e.g. for travel, accommodation, model or sample production, …) are to be reimbursed separately. Unless otherwise agreed, the creation of templates is also not included in the price and will be charged at € 110.00 per working hour (excluding material costs).
6.4 For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload will be charged at the rates in effect on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the Contractor is not responsible, shall be charged according to actual occurrence.
6.5 The costs for travel, daily and overnight allowances shall be invoiced separately to the Client according to the rates applicable at the time. Travel times are considered working time.
6.6. The remuneration shall also be due in full if the contract is not fulfilled for reasons that are not within our sphere of influence.
6.7. Insofar as we are subject to the obligations of a contractor, the crediting provisions of § 1168 para. 1 2nd half sentence ABGB as well as the risk transfer rule of § 1168a 1st sentence ABGB.
6.8. If fees, taxes, customs duties or other charges are levied in connection with the delivery, these shall be borne by the customer unless otherwise agreed, as shall transport and delivery costs.
7. deadlines / delay
7.1. Agreements on deadlines and dates must be recorded or confirmed in writing. Deadlines generally apply to the shipment (see item 8.4.) of services, not to their delivery to the customer.
7.2. Unless otherwise agreed, shipment by us or by third parties in Germany or abroad whom we use to fulfill the contract shall be effected within 6 months from the date of order confirmation, however, insofar as a printing release or approval by the customer is required, from the date of such release or approval.
7.3. The customer may only assert any claims due to delayed delivery after setting a grace period of at least 14 days in writing, which begins at the earliest with the receipt of a reminder letter to us.
7.4. After fruitless expiry of the grace period, the customer may withdraw from the contract. An obligation to pay damages under the title of default exists only in the case of intent or gross negligence on our part. Interest on arrears shall not be payable by us.
7.5. Impediments to production and delivery for which we are not responsible (also with regard to third parties in Germany or abroad whom we use to fulfill the contract), such as force majeure, strikes, operational or delivery disruptions, shortening and loss of working hours, transport difficulties as well as official interventions, shall result in a reasonable extension of the shipping deadlines and dates. The same shall apply if the customer is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information) or if other circumstances within the customer’s sphere of influence prevent compliance with deadlines. In this case, the agreed date shall be postponed at least to the extent of the delay, without prejudice to any right of rescission on our part pursuant to Section 12.
8. delivery / transport / collection
8.1. If the customer does not collect services himself during our business hours, deliveries shall be made ex works Kallham or to a third party in Germany or abroad whose services we use to perform our services, in any case at the risk and – unless otherwise agreed – at the expense of the customer (sale by delivery to a place other than the place of performance). The risk shall also pass to the customer if we provide further services (e.g. assembly).
8.2. If shipment at our expense has been agreed, we shall bear only those costs of transport which are incurred in accordance with § 33 of the AÖSp up to the point in time at which the carrier makes the goods available for acceptance in or on the means of transport (e.g. truck, swap body, …) in front of the recipient or, if possible, on the recipient’s premises. The removal of goods into yards, onto ramps, into rooms, shelves and the like shall in any case be at the expense of the customer.
8.3. As a rule, shipment shall be effected either by mail, forwarding agency, railroad or courier service, which the parties agree upon as customary modes of shipment. If the customer does not make any special specifications regarding the transport company or the type of shipment, the transport by one of these methods of shipment shall be deemed to have been approved by the customer.
8.4. Unless expressly agreed otherwise, all deadlines and dates shall apply exclusively until the shipment of services ex works (i.e. handover to the carrier) and we shall not provide our services as fixed transactions.
8.5. In any case, there is no obligation to ship the goods as cheaply as possible.
8.6. The targeted performance dates can only be met if the Customer has completed all the necessary work and documents by the dates specified by the Contractor, in particular the performance specifications accepted by the Customer as per item 3.3. and fulfills its obligation to cooperate to the extent required.
The Contractor shall not be responsible for delays in delivery and increases in costs caused by incorrect, incomplete or subsequently changed data and information or documents provided and such delays shall not result in default on the part of the Contractor. Any resulting additional costs shall be borne by the customer.
8.7. In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries or to issue partial invoices.
8.8. Unless the customer has already expressly requested in the order or otherwise in writing within 3 days of order confirmation that transport insurance be taken out for his account, the goods shall be shipped uninsured at the customer’s risk.
8.9. If the service is ready for shipment, but the shipment is delayed for reasons beyond our control, the risk shall pass to the customer from the time the service is made available for shipment and we shall be entitled to charge the customer 1% of the invoice amount for each commenced week of delay or the costs exceeding this (interest, storage costs, …). If self-collection has been agreed, this shall also apply if the customer does not collect the service within three days of receipt of a request for collection or notification of readiness for collection.
9. terms of payment
9.1. Our invoices are due net cash without any deductions from the date of invoice and are payable within ten calendar days of receipt of the invoice, unless otherwise agreed.
9.2. Invoicing is based on the actual number of units delivered. However, the remuneration shall also be due in full (namely in the amount of the agreed – at most average – number of items) if the fulfillment of the contract fails to occur in full or in part for reasons that are not within our sphere of influence.
9.3 In the case of orders comprising several units (e.g. programs and/or training, realizations in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or service.
9.4. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or fulfillment of the contract by the Contractor. Non-compliance with the agreed payments entitles the Contractor to stop the current work and to withdraw from the contract. All related costs as well as loss of profit shall be borne by the client.
9.5. Payments can only be made with debt-discharging effect to our account specified in the invoice. Incoming payments are applied first to costs, then to interest, and finally to principal.
9.6. Bills of exchange and checks shall only be accepted on the basis of express agreement, without obligation to present and protest them and only on account of payment.
9.7. In the event of even mere objective default in payment, the customer shall pay default interest in the amount of 8% above the respective base interest rate of the European Central Bank, but at least 1% per month. Any discounts, rebates or other benefits granted shall be deemed not to have been granted in the event of default in payment or in the event that insolvency proceedings are opened against the customer. In the event of a mere objective default, the customer undertakes to bear all costs and expenses associated with the collection of the claim, such as, in particular, collection expenses or other costs necessary for an appropriate legal prosecution.
9.8. The customer is not entitled to set off his own claims against our claims if these have not been acknowledged by us in writing or established by a court of law. A right of retention of the customer is excluded.
9.9. If insolvency proceedings are instituted against the customer, if bankruptcy proceedings are not instituted against the customer’s assets due to a lack of assets to cover costs, if execution proceedings are instituted against the customer, if there is a deterioration in the customer’s financial circumstances, if credit information about the customer is not completely unobjectionable or if the customer is in default of payment, we shall be entitled to declare all services and partial services rendered, including those under other contracts concluded with the customer, immediately due and payable. Furthermore, in each of these cases we shall be entitled to make further deliveries already confirmed by him dependent on advance payment or security, even if such payment or security has not been agreed.
10. copyright, use, industrial property rights
10.1. After payment of the agreed remuneration, the Contractor shall grant the Customer a non-exclusive, non-transferable, non-sublicensable right for an unlimited period of time to use the software for the hardware specified in the contract and, to the extent of the purchased number of licenses for simultaneous use on several workstations, to use all work results created on the basis of the Contractor’s contract for its own internal use. All other rights remain with the contractor.
The Customer’s participation in the production of the Software shall not result in the acquisition of any rights beyond the use stipulated in the present Agreement. Any infringement of the Contractor’s copyrights shall result in claims for damages, in which case full satisfaction shall be paid.
10.2. The Customer is permitted to make copies for archiving and data backup purposes on condition that the Software does not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.
10.3. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this shall be ordered by the Customer from the Contractor against reimbursement of costs. If the Contractor does not comply with this requirement and decompilation takes place in accordance with the Copyright Act, the results are to be used exclusively to establish interoperability. Misuse will result in damages.
10.4. If software is made available to the Customer whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).
10.5. Unless otherwise agreed in writing, we grant the customer a non-exclusive right of use (permission to use the work) for the duration of the contractual relationship to all services, work results and creations in connection with the respective order, in particular to works within the meaning of the Copyright Act, such as in particular to all texts, graphics, images, layouts, ideas, concepts, plans, sketches, advertising material, films, drafts, designs, trademarks, etc. The customer shall be entitled to use the work in accordance with the terms of the contract. The factual and spatial scope of this right of use depends in each case on the purpose of the individual order or the individual measure.
10.6. Changes to services, work results and creations, especially to works within the meaning of the Copyright Act, are only permitted with our consent or that of the author.
10.7. The acquisition of any rights of use and exploitation by the customer shall only take place after full payment of all invoices due. Until this time, the customer is only entitled to use at any time on revocation. In the event of default in payment, we shall be entitled to demand the discontinuation of any use of services rendered.
10.8. The customer grants us the right to use and process all data collected and/or transmitted in the course of the business relationship, such as in particular for the creation of benchmarks. Reference is made to item 3.5.
10.9. Subject to the written revocation of the customer, which is possible at any time, we are entitled to refer to the existing business relationship with the customer on our own advertising media and in particular on our Internet website with the name and company logo.
11. retention of title
11.1. We retain title to all physical items delivered until payment in full.
11.2. After prior notice, we are entitled to withdraw from the contract and to collect the goods subject to retention of title if the customer is in default with the fulfillment of his obligations, even if only objectively, or if circumstances arise that endanger our claims.
11.3. In the event of resale of the reserved goods, it is agreed that the customer’s purchase price claim against third parties shall be assigned to us at the same time as security for our contractual claims against the customer.
12. withdrawal from the contract / cancellation
12.1. In particular, we are entitled to declare withdrawal from the contract if (i) the Customer breaches a contractual obligation that is not merely immaterial and does not remedy such breach despite a reminder and the setting of a reasonable grace period, whereby the repeated breach of even merely immaterial contractual obligations shall be deemed a material breach of contract, (ii) the service cannot be provided for reasons for which we are not responsible, (iii) the financial circumstances of the customer deteriorate significantly, (iv) insolvency proceedings are opened against the customer or are not opened due to a lack of assets to cover costs; or (v) an event of force majeure occurs which prevents us from providing the service.
12.2. The customer is entitled to declare withdrawal from the contract if we grossly violate an essential obligation. However, insofar as the contractual condition can be restored on our part or an action can be made good, the customer shall grant a period of at least 14 days for this purpose. This period begins at the earliest with the receipt of a reminder letter in which the customer names the breach of contract and expressly threatens to withdraw from the contract.
12.3. In the event of unjustified withdrawal from the contract or cancellation of services, the customer shall reimburse us for all expenses already incurred and the resulting costs of at least 9% of the agreed fee, but at least € 50.00. However, we shall also be entitled, at our discretion, to pay the agreed remuneration instead in accordance with the terms of the contract. § 1168 para. 1 1st half sentence ABGB to require.
13. templates and samples / confidentiality / contractual penalty
13.1. If we do not receive an order after the creation of templates/samples or if the customer or we withdraw from the contract, all our services, in particular the templates/samples and their contents, shall remain our property; the customer shall not be entitled to use them further – in whatever form; the templates/samples must rather be returned immediately. The transfer of templates/samples to third parties as well as their publication, duplication, distribution or other utilization is not permitted without our express consent.
13.2. Likewise, the customer is prohibited from further use of the ideas and concepts introduced in templates, regardless of whether the ideas and concepts obtain copyright protection.
13.3. If the customer violates the obligations according to this point 12, he is obliged to pay a contractual penalty of € 3,000.00 regardless of fault. Such a breach of contract shall be deemed to have been proven if we present performances, works or other creations of third parties or of the customer in which these ideas, concepts or templates have been used, or credibly demonstrate their existence; in such a case, the customer must prove that it has not breached the contract. We reserve the right to assert claims for damages exceeding the contractual penalty.
14. labeling / advertising / exclusivity
14.1. We are entitled to refer to our company and, if applicable, to the originator on all advertising materials and in all advertising measures without the customer being entitled to any claim to remuneration for this.
14.2. We are entitled to use pictures, sketches, descriptions, models, inscriptions and other details of the services provided to the customer for advertising purposes; for example, to include illustrations in its advertising documents, offers or Internet presence.
14.3. Unless expressly agreed otherwise, customers shall only receive a non-exclusive right of use to intellectual property rights associated with our services and shall therefore in particular not have any claim to exclusive purchase of our services.
15 Warranty / duty to inspect / rescission
15.1. Irrespective of the information provided to us by the customer pursuant to Section 4.4, we do not warrant any particular quality, usability or usability of our services.
15.2. The Contractor warrants that the Software will perform the functions described in the related documentation, provided that the Software is used on the operating system described in the Agreement.
15.2.1 The prerequisite for fault elimination is that
- the Customer sufficiently describes the error in an error message and this can be determined for the Contractor;
- the Customer provides the Contractor with all documents required for the elimination of the defect;
- the Customer or a third party attributable to it has not interfered with the software;
- the software is operated under the intended operating conditions according to the documentation.
15.2.2 In case of warranty, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary for the investigation and remedying of the defects.
The presumption of defectiveness acc. § 924 ABGB shall be deemed excluded.
15.3. Corrections and additions that prove necessary until the handover of the agreed service due to organizational and programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.
15.4. Costs for assistance, misdiagnosis as well as elimination of errors and malfunctions for which the Customer is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the client himself or by third parties.
15.5. Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage resulting from improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
15.6. For programs that are subsequently changed by the client’s own programmers or third parties, any warranty by the contractor is void.
15.7. If the subject of the order is the modification or supplementation of already existing programs, the warranty refers to the modification or supplementation. This does not revive the warranty for the original program.
15.8. Point 4.2 shall apply to the conditioned or usually assumed properties of the services, in particular on the basis of templates within the meaning of point 4.1.
15.9. The warranty for lack of suitability of services of the dealer for a particular use is expressly excluded.
15.10. The customer is obligated to check the performance of the dealer immediately and thoroughly and to report any defects in writing immediately, at the latest, however, within 3 working days from the handover, with a precise description of the defects and including suitable proof of the defectiveness, in the event of the loss of any claims arising from a defect (warranty, contestation of error, damages,…).
15.11. The rescission of contracts due to shortening by more than half is expressly excluded.
15.12. The reversal of the burden of proof according to § 924 ABGB at our expense is excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect must be proven by the customer.
15.13. The warranty period shall be 6 months and shall commence from the date of acceptance of the service by the customer (collection by the customer or acceptance from the carrier) or from the date of default of acceptance by the customer. The warranty period ends prematurely if the customer or third parties make changes to the services or use, store or otherwise handle them improperly.
15.14. The customer is not entitled to withhold payments due to insignificant defects or to withhold payments attributable to one part of the goods because another part of the goods has significant defects.
15.15. Any warranty claims shall be suspended as long as the customer is in default of payment; this suspension shall not, however, prevent the commencement, running and expiry of the warranty period.
15.16. In the event of justified and timely complaints, the customer shall only be entitled to the right to improvement or replacement of the service at our discretion.
15.17. In case of justified notice of defects, the notified defects shall be remedied within a reasonable period of time, which shall be at least 14 days. An improvement takes place at our choice either in our factory or at the customer’s site. If the defect is remedied by improvement in our factory or by replacement, the defective services shall be properly packaged and shipped at the customer’s risk but at our expense.
15.18. Improvement or replacement shall neither extend nor renew the warranty period.
15.19. We shall be entitled to refuse to improve or replace the performance if this is impossible or involves a disproportionately high effort for us. In this case, the customer may claim a price reduction.
15.20. The customer is obligated to support us in the determination and elimination of defects and to enable all necessary measures (such as access, inspection of documents, etc.). If the customer does not comply with his duty to cooperate in the rectification of defects, the assertion of any claims resulting from a defective performance shall be excluded.
15.21. If, in the course of checking the notified defects, it turns out that these are not present or are not covered by our warranty obligation, we are entitled to return the services to the customer at the latter’s risk and expense and to charge the customer for the costs incurred as a result of the unjustified complaint.
16.1. We shall perform the duties assigned to us in compliance with generally accepted legal principles and shall notify the customer in good time of any risks that are apparent to us. However, we do not have any knowledge regarding a particular type of use of our services by the customer, which is why we are under no obligation to examine or inform the customer regarding the suitability or safety of its services for certain types of use.
16.2. Any liability for claims made against the customer on the basis of SINNUP’s articles, the use of a trademark or any other service provided by us is expressly excluded if we have fulfilled our obligation to inform the customer or if we could not and should not have recognized such risks.
16.3. In general, we are only liable for damages within the scope of the statutory provisions if we can be proven to have acted intentionally or with blatant gross negligence. Liability for slight and plain gross negligence is excluded. The existence of blatant gross negligence or intent must be proven by the injured party; the reversal of the burden of proof pursuant to § 1298 ABGB is expressly waived.
16.4. Compensation for consequential harm caused by a defect, mere financial loss as well as loss of profit and damage to third parties is excluded in any case; damages are to be calculated exclusively on an objective-abstract basis.
16.5. Claims for compensation for damages must be asserted in court within six months of knowledge of the damage and the damaging party, at the latest, however, within one year of acceptance. If the customer is in default of acceptance, the period shall commence with the conditional handover; if no such handover has been agreed, the period shall commence from the time at which we are ready to perform for the first time. Any liability for damages asserted or first arising after the expiry of this period is excluded.
16.6. Claims for damages shall be limited to the amount of the remuneration agreed for the specific service, excluding taxes, and, if insurance coverage is provided by a liability insurance policy, to the corresponding coverage amount.
16.7. If claims are asserted against us by third parties due to the use of our services by the customer (e.g. passing on), the customer shall indemnify and hold us harmless.
16.8. If data backup has been expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from clause 8.2, but shall be limited to a maximum of EUR 10 % of the order amount per case of damage, but not more than EUR 15,000.00 for the recovery of data. Any further warranty claims and claims for damages of the Customer other than those specified in this contract – irrespective of the legal grounds – shall be excluded.
The customer agrees to the transmission of data and information by email until revoked in writing. We transmit data to the customer in standardized formats (Word, pdf).
The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, including through third parties, of employees who have worked on the realization of the orders, of the other contracting party for the duration of the contract and 12 months after the termination of the contract. The contracting party in violation thereof shall be obligated to pay liquidated damages in the amount of one year’s salary of the employee.
19. data protection, secrecy
The Contractor shall oblige its employees to comply with the provisions pursuant to §15 of the Data Protection Act.
20 Applicable law
The legal relationship between us and our customers shall be governed exclusively by Austrian law, excluding the conflict of law rules. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
21 Place of performance and jurisdiction
21.1. The place of performance is our registered office.
21.2. The place of jurisdiction for all disputes arising directly between us and our customers is agreed to be the court with local and subject-matter jurisdiction for Kallham.